Pulido v Dimeo Indigenous Cleaning Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pulido v Dimeo Indigenous Cleaning Pty Ltd [2024] NSWPIC 701
APPLICANT:	Roger Molina Pulido
RESPONDENT:	Dimeo Indigenous Cleaning Pty td
MEMBER:	Jill Toohey
DATE OF DECISION:	16 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly payments and treatment expenses; accepted psychological injury; whether the applicant's injury wholly or predominantly the result of reasonable action with respect to performance appraisal and/or discipline; applicant claimed failure by management to deal with his accepted claim for physical injury; claimed bullying; pressured to sign Return to Work Plan; whether the respondent’s doctor had evaluated the range of factors claimed by the applicant; Held – the doctor had not performed that evaluative exercise but relied on a temporal connection only; the respondent had not discharged its onus of establishing the defence under section 11A; respondent to pay weekly payments and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered psychological injury arising out of or in the course of his employment with the respondent with deemed date 17 May 2024. 2. The applicant’s injury was not wholly or predominantly the result of reasonable action by the respondent with respect to performance appraisal/discipline. 3. The respondent to pay the applicant weekly payments based on pre-injury average weekly earnings of $914.66 as follows: (a) $676.36 per week pursuant to s 36 of the Workers Compensation Act 1987 (1987 Act), and (b) $539.15 per week subject to indexation pursuant to s 37 of the 1987 Act. 4. The respondent to pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act. 5. Parties have liberty to apply with respect to the calculation of weekly payments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Roger Molina Pulido, claims compensation for a psychological injury arising out of or in the course of his employment as a cleaner with Dimeo Indigenous Cleaning Pty Ltd (the respondent) with deemed date 17 May 2024. Mr Pulido claims weekly payments from 20 May 2024 and continuing, and reasonably necessary treatment expenses.
The respondent does not dispute that Mr Pulido suffered a psychological injury to which his employment was a substantial contributing factor but relies on the defence in s 11A of the Workers Compensation Act 1987 (1987 Act). The respondent says Mr Pulido’s injury was wholly or predominantly caused by reasonable action with respect to performance appraisal and discipline.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a)    whether Mr Pulido’s psychological injury was wholly or predominantly caused by the respondent’s action with respect to performance appraisal and discipline;
(b)    if so, whether such action was reasonable;
(c)    whether Mr Pulido is entitled to weekly payments, and
(d)    whether he is entitled to medical expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Parties attended a conciliation conference and arbitration hearing by MS Teams on 9 October 2024. Mr Pulido was represented by Mr Tanner of counsel, instructed by Mr Dinh. The respondent was represented by Mr Combe of counsel, instructed by Ms Davis.
Despite lengthy discussions, the parties were unable to resolve the dispute. By the time the matter was ready to proceed to hearing, there was insufficient time for both to make oral submissions and I directed them to file and serve written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence.

Mr Pulido’s evidence

The following is a summary of Mr Pulido’s statement of evidence dated 7 August 2024.[1]
[1] ARD page 1.
He commenced full-time work with the respondent on 4 August 2023 as a commercial cleaner. He usually reported to the site manager, Andrea Acosta Ruiz. When she went on leave, he came under the supervision of Marcela Vanegas Duran.
As a result of the “heavy, physical and repetitive nature and conditions” of his employment, Mr Pulido sustained various physical injuries. He raised these verbally with his supervisor and says they were insufficiently recorded, resulting in a workers compensation claim being lodged with the incorrect date. Liability was provisionally accepted for medical expenses only.
Mr Pulido’s physical injuries are not part of his present claim but he maintains they form the background to his psychological injury because of the way his employer dealt with them.
Mr Pulido says that, due to the management of his physical injury claim, his supervisor and Return to Work coordinator, Stephen Stevens, required him to attend meetings without notice, they made “inappropriate inquiries”, they bullied him into signing documents which he did not fully understand, and they raised work performance issues and complaints about his work.
The respondent engaged investigators who interviewed Mr Pulido and others at his workplace. He says that, during the interview, he was “constantly interrupted and asked irrelevant questions” by the investigator. The interview was suspended halfway through as he was “being confronted with flashbacks of the bullying at work” and he was shaking. He was not in a good mental state to continue and his support person suggested a second interview be scheduled when he was in a better state. The investigator’s record of interview confirms that he decided to end the interview when Mr Pulido became too distressed to continue.
Mr Pulido takes issue with a statement by the investigator in his factual report that he was “exhibiting symptoms of a vulnerable person”. He says the investigator “inappropriately medically diagnosed” him, and his statement demonstrates his “skewed and negative attitude”.
Mr Pulido says his attempts to get his psychological claim determined were “not without difficulties” including delays on the respondent’s part. He says a letter notifying him about an independent medical examiner ignored his interpreting requirements and meant he did not have a fair opportunity to make an informed selection of the examiner.
Mr Pulido states that, on 10 May 2024, he was called to a meeting with Ms Acosta and Harold Yesed regarding “alleged complaints of co-workers and office staff” who said he was taking clean cutlery from their areas. He was told he needed to do it differently. He was surprised at the complaints and “calmly stated the allegations were untrue” at which Ms Acosta raised her voice. He felt threatened and says her demeanour was “unprofessional and unnecessary”. The meeting was called without prior notice or agenda, he was unable to prepare himself and he did not have the benefit of legal advice or a support person. He was “being found guilty without a fair trial” and was denied the opportunity to respond to the complaints against him.
Mr Pulido says Ms Acosta “constantly harassed” him into signing a Return to Work plan the contents of which were not fully explained to him, and he was denied access to an interpreter so that he could understand exactly what she wanted him to sign.
On 17 May 2024, a “Toolbox meeting” was arranged to address the respondent’s code of conduct and internal bullying and harassment policies. Mr Pulido disputes observations by Mr Stevens that he was not cooperative at this meeting.
Mr Pulido resumed his normal duties after the meeting. Around 11.45am he was called to a meeting with Mr Stevens, Ms Acosta and Ms Vanegas. He had no prior notice or agenda and was unable to prepare himself. At the start of the meeting, Ms Vanegas, who speaks Spanish but is not a (National Accreditation Authority for Translators and Interpreters) NAATI accredited, interpreted the main points of the meeting which he understood and agreed to. He signed the confirmation of the meeting.
Mr Pulido states that he was “ambushed” at this meeting by Mr Stevens who brought up the topic of his unsigned Return to Work plan. He felt “threatened and intimidated” because Mr Stevens raised his voice, repeatedly asking why he had not signed it. Mr Pulido said he did not feel comfortable signing anything without medical clearance and his doctor had not yet had the opportunity to review the plan. At the same meeting, Mr Stevens started asking “inappropriate questions” about his address in Surry Hills and questioned why his doctor was based in Parramatta. He felt he was being “ridiculed and investigated”. Mr Stevens proceeded to ask him about his wife’s workers compensation claim which, Mr Pulido says, has nothing to do with his own injuries. This was “the final straw that broke the camel’s back”.
Mr Pulido describes his attendance on doctors following this meeting. On 20 May 2024, while he was on sick leave, he received an email asking him to attend a “Performance Review/Disciplinary Meeting”. He refers to a statement of Ms Acosta confirming that she was aware he would be off work on that day to see his doctor.
Mr Pulido states that the predominant cause of his psychological injury was a series of events:
“...being yelled at, intimidated/threatened, ambushed into meetings (without prior notice), being interrogated in an inappropriate manner regarding [his] choice of doctors and [his] wife's claim, the constant pressure by the insured … to sign a return to work plan that was not developed in consultation with [him or his doctor].”
Further, as interpreted to him, the meeting on 17 May 2024 caused him to understand the insurer required him to perform more tasks, despite his physical restrictions.

The factual investigation

M & A Investigations reported to the insurer on 17 July 2024.[2]
[2] ARD page 125.
The Summary of the report refers to Mr Pulido's claim of physical injuries as a result of his repetitive cleaning duties, and his claim that, when he raised these with his direct supervisor, there was insufficient recording of his injuries and insufficient assistance provided to him. The Summary refers to his further claim that the actions of the Return to Work Coordinator and his supervisors in managing his physical claim had been inappropriate and had resulted in him sustaining a psychological injury.
The report notes Mr Pulido’’s claim that he had been required to attend meetings without notice, that he had no ability to have a support person or interpreter, that inappropriate inquiries had been made of him and pressure placed on him to sign documents which he did not fully understand.
According to the report, Mr Pulido was subject to formal work performance and work conduct management processes at his previous workplace which led to his being transferred to the central business district site where the injury is alleged to have occurred. Further work performance issues had been noted in his current workplace to do with his ability to follow reasonable direction and the manner of his interaction with his direct supervisor. He had also been the subject of complaints from his co-workers for work practices that were not in accordance with worksite policy and which resulted in them having additional workloads.
In addition to Mr Pulido, the investigator took statements from Mr Stevens, Ms Acosta, Ms Vanegas and Attiya Sukmar, a co-worker who had raised complaints about Mr Pulido's conduct.
The interviewer notes that, after a total of five hours interviewing Mr Pulido with an interpreter present, he (the interviewer) brought the interview to an end. He made a number of comments about Mr Pulido's demeanour and what appeared to the interviewer to be his unwillingness to answer questions directly. The interviewer noted that his support person said he was nervous and shaking and ask for the remainder of the interview to be rescheduled.

Mr Stevens’s statement

In his statement,[3] Mr Stevens said it was “interesting to note” that medical certificates were issued by Dr Eric Lim and Dr Morgan Mo, both from Workers Doctors in Parramatta, whereas Mr Pulido lives in Surry Hills. He noted that Dr Mo was “representing” Mr Pulido’s wife in her workers compensation claim. He noted that Mr Pulido had “somehow managed to transfer” from his previous site, where he was “requiring additional management in regard to the standard of cleaning”, to the CBD site. Mr Stevens states that Ms Vanegas had reported that Mr Pulido was “non-cooperative and demonstrated an abrasive manner towards management” but not to the extent that full formal performance intervention was required. Mr Stevens noted complaints by co-workers about the way Mr Pulido did his own work that led to them having extra work.
[3] ARD page 149.
Mr Stevens states that, based on these interactions and complaints, it was considered that “Formal Performance Review protocols” had to be undertaken. Mr Stevens makes a number of observations about the medical certificates provided by Mr Pulido, and Mr Pulido’s failure to sign and return a Return to Work Plan.
Mr Stevens describes the “Toolbox meeting” for all staff on 17 May 2024. As Mr Pulido indicated that he needed an interpreter to fully understand what was said, Mr Stevens and Mr Pulido met after that meeting with Ms Vanegas, who spoke fluent Spanish, to go over the discussion with him. They discussed the Return to Work plan which Mr Pulido declined to sign until his doctor had seen it, and Mr Stevens questioned him about his choice of doctor in Parramatta. Mr Stevens observed in his statement that it was “very interesting” that as, Mr Pulido got up to leave, he thanked everyone at the meeting using perfect English despite his earlier request for an interpreter.
Later that day, it was decided that Mr Pulido’s conduct during the Toolbox meeting and complaints by his co-workers warranted resuming the formal work performance review process which had been put on hold temporarily when his Certificate of capacity was received. On 20 May 2024, a request to attend a “Performance Review/Disciplinary meeting” was sent to Mr Pulido by email. Shortly after, Mr Pulido sent a text message to say he was at his doctor and he later provided a further Certificate of capacity for a new Workcover claim for psychological injury of adjustment disorder with date of injury 6 May 2024.
Mr Stevens concludes by saying that Mr Pulido had a sick day on Monday 6 May 2024 for which he provided an ordinary medical certificate. He worked his normal hours on Tuesday Wednesday and Thursday. He came to work on Friday 10 May 2024 and performed his normal role up until he was brought into a discussion with Ms Acosta about complaints from co-workers. He became aggressive during that meeting to the point that she stopped the discussion, following which the employer “commenced Formal Performance Review protocol”. Later that day Mr Pulido submitted a Certificate of capacity to the insurer, and the employer postponed the performance review so as to focus on the reported workplace injury. On 20 May 2024, Formal Performance Management was resumed and a letter was sent to Mr Pulido at 10.43am requesting he attend a meeting due to concerns about his underperformance and conduct. Later that day, he supplied a Certificate of capacity for a new claim for adjustment disorder.
Mr Stevens makes a number of observations that can fairly be described as gratuitous, including about Mr Pulido's visa status and its likely effect on his future employment, his address and his wife’s claim.

Letter to Mr Pulido, 20 May 2024

On 20 May 2024, Cameron George, Compliance Manager with the respondent, wrote to Mr Pulido under the heading “Re: Status of Your Ongoing Employment. Request to Attend a Performance Review/Disciplinary meeting.”[4] The letter requested Mr Pulido's attendance at a meeting at its head office “to discuss concerns about your underperformance and conduct”. It advised that Ms Vanegas and Mr Stevens would be participating.
[4] Reply page 1.
The letter described the employer’s concerns about Mr Pulido’s underperformance and conduct as including but not limited to:
“•      As you are aware, Dimeo received a complaint from your co-workers. The complaint involved you taking clean cutlery out of other cleaner’s kitchens and replacing it with dirty cutlery. This affected the co-workers and therefore, the operations at your normal place of work.
·        You are also aware that when you were approached about the complaint from the co-workers, at that time you presented as angry to your Supervisor/Manager. Your interaction caused your Manager distress and made her ‘upset’. Your Manager thought she could not reasonably continue to discuss the teams concerns and it was therefore reported to Dimeo Compliance.
·        Your attitude is considered unacceptable along with your respect to Supervisors and Managers responsibility to the client and your working team [sic].
·        The two female cleaners who were impacted by your actions and observed or inappropriate interaction with your Supervisor/Manager [sic]”.
The letter stated that, “separately”, the employer considered Mr Pulido had not been reasonably cooperative in relation to his return to work obligations regarding his reported workplace injury, that he had been advised of these obligations and they may need to be further discussed in the meeting if his compliance did not improve prior to the meeting.
The letter advised that the employer considered Mr Pulido’s actions to be ”Underperformance and Unacceptable Behaviour (Misconduct)” and the employer believed he had deliberately acted in a manner inconsistent with continuing his employment. It advised that the employer would contact him shortly to confirm receipt of the letter, to “determine [his] intentions” and the earliest possible time to undertake the meeting and where, and whether he required a support person to attend. It stated:
“This process has caused an immediate review of the ongoing status of your employment. This protocol, if not resolved to Dimeo satisfaction, could also lead to the termination of your employment.”.

Carl Nielsen’s report

Psychologist, Carl Nielsen, provided a report to Mr Pulido’s general practitioner dated 20 May 2024.[5] He took a history from Mr Pulido that is broadly consistent with his statement.
[5] ARD page 59.
Mr Nielsen said that, due to work related stressors, Mr Pulido noted “a deterioration in his mental state characterised by anxious and depressive cognitions, sleep disturbance, fatigue, poor concentration, low mood and low motivation. As a result he had been rendered unable to return to work.”

Dr Sudhakar’s report

Psychiatrist, Dr Sanu Sudhakar, saw Mr Pulido by telehealth on 29 July 2024 and reported to the insurer on 12 August 2024.[6] He was provided with Certificates of capacity, Nr Nielsen’s report, and the M & A Investigations report.
[6] Reply page 3.
Dr Sudhakar took a history from Mr Pulido that he had been experiencing “interpersonal challenges” with his supervisor since January 2024 which he attributed to racial prejudice. Mr Pulido said there was underlying tension even before this situation arose. When he told his supervisor about his back injury in early May 2024, there was a “noticeable change” in her attitude towards him and he began to feel harassed. He had differences in opinion with his supervisor about new tasks which she had misinterpreted as unwillingness to work. He said he was pressured to sign a document that would limit him to seeing only Workcover accredited providers for an injury rather than a provider of his choice. When he asked for more time to consider the document, his supervisor raised his voice and appeared “visibly frustrated”. All this caused him to feel considerable anxiety about going to work. His role was changed to cleaning toilets to accommodate his physical injuries but he did not find this supportive and it was more work than he had previously.

Dr Sudhakar reported that, based on the clinical assessment, Mr Pulido exhibited symptoms consistent with Adjustment Disorder. He said the level of distress “appears to exceed what is typically expected given the nature of the stressor, significantly impacting [his] social and occupational functioning.” He said the “primary precipitating factor for these symptoms appears to be the perceived threat of disciplinary actions and impending performance management.”
Dr Sudhakar noted that the medical certificate issued by Mr Pulido’s general practitioner specified the date of injury as 6 May 2024, citing bullying from the manager subsequent to this submission of the Certificate of capacity for physical injury dated 3 May 2024. Mr Pulido said his employer did not make suitable changes to his role to support his physical injury and perceive this as bullying. Dr Sudhakar said “Notably, the timing of the work performance review aligns with [his] decision to cease work as of 20/05/2024.”
In response to specific questions, Dr Sudhakar repeated the comments he had already made. He said Mr Pulido’s psychological state was a result of a “confluence of factors” including:
“…the passing of his mother in March 2024, challenges related to visa renewal , interpersonal conflicts with colleagues and management, potential job loss, his wife’s workers compensation claim and the performance management review. These factors collectively contribute to his current psychological condition.”
He said “the performance management review is likely to be the main contributing factor to his psychological conditions, and hence, employment is the main contributing factor.”
Dr Sudhakar said Mr Pulido had no capacity for work.

SUBMISSIONS
The respondent’s submissions

Mr Combe submits that the conduct of the respondent with respect to performance appraisal and discipline was reasonable and that such conduct was the whole or predominant cause of Mr Pulido’s psychological injury.
Mr Combe submits there is no dispute that, on 10 May 2024, Mr Pulido was required to attend a meeting with representatives of the respondent to discuss complaints about his handling of cutlery. Mr Combe submits that, given Mr Pulido’s employment as a cleaner, the respondent’s conduct was entirely appropriate given the complaints made against him. He was aggressive during that meeting.
Mr Combe further submits that Mr Pulido’s conduct at the Toolbox meeting on 17 May 2024 was poor and warranted a reviewed by the compliance manager. In particular, Mr Pulido refused to sign the Return to Work plan that day which is the pleaded date of injury. His poor conduct at the Toolbox meeting led to the issue of the letter dated 20 May 2024, which letter is plainly disciplinary in nature.
Mr Combe submits that this letter was reasonable given the complaints against Mr Pulido and his refusal to sign the Return to Work plan. The respondent’s conduct in convening the meeting on 10 May 2024 and the Toolbox meeting on 17 May 2024, and the letter on 20 May 2024 were reasonable actions with respect to performance appraisal or discipline in response to Mr Pulido’s conduct.
Mr Combe submits that the respondent's conduct was the whole or predominant cause of Mr Pulido injury and that this issue is addressed by review of the evidence including medico-legal opinions. Mr Pulido did not complain of psychological injury until 20 May 2024 when he was issued with the letter. The first certification of psychological injury was on that date.
Mr Combe refers to Dr Sudhakar’s opinion. He submits that, although not using the language of s 11A, Dr Sudhakar has plainly attributed Mr Pulido’s psychological injury to the respondent’s conduct as is plain from his observation that “Notably, the timing of the work performance review aligns with [Mr Pulido’s] decision to cease work as of 20/5/24.”
Mr Combe submits that it is trite law that the nexus between reasonable conduct and psychological injury can be assisted by medical opinion but is ultimately a matter for the Commission.

The applicant’s submissions

Mr Tanner submits that there is no dispute that Mr Pulido sustained a psychological injury in the course of his employment or that his employment was the main contributing factor to his injury. He has been diagnosed by his own psychologist and the respondent’s independent examiner, Dr Sudhakar, with an adjustment disorder.
Mr Tanner submits that the respondent bears the onus of a proof with respect to whether Mr Pulido’s injury was wholly or predominantly caused by the respondent’s action with respect to performance appraisal and discipline, and whether such action was reasonable.
With respect to Dr Sudhakar’s report, Mr Tanner submits that a reliable forensic opinion by an expert qualified to address the relative contribution of discipline or performance appraisal respect in causing the psychological injury, and assessment of whether such factors constitute the whole or predominant cause of the injury, requires the following process of inquiry, assessment and conclusion:
(a)    evaluation and identification of all causes with the subject injury;
(b)    assessment of whether those factors included discipline and or performance appraisal;
(c)    evaluation of the relative contribution of each;
(d)    assessment of whether discipline and/or performance appraisal outweighed other factors and, if so, why, and
(e)    an ultimate conclusion of whether or not discipline and/or performance appraisal met the threshold of whole or predominant cause of the subject injury.
Mr Tanner submits that Dr Sudhakar identified six factors contributing to the “confluence of factors” and said they “collectively contribute to [Mr Pulido’s] current psychological condition.” In Mr Tanner’s submission, three of these factors are not work related and, considering that the respondent has not disputed that employment was the main contributing factor to his injury, can be disregarded.
Mr Tanner submits that Dr Sudhakar has not assessed the relative contribution of the work-related factors in order to establish that the performance review was the predominant cause of Mr Pulido’s injury. Such opinion would have to involve a cogent explanation, revealing objective reasoning with reference to the evidence, as to why the performance review was the predominant factor and why other work-related factors should be regarded as of lesser relevance. Moreover, the insurer did not ask Dr Sudhakar whether performance appraisal was the whole or predominant cause of the injury. Rather, it asked him to “identify which factor is the main contributing factor, and whether ‘employment’ is the main contributing factor”. In other words, Mr Tanner submits, the inquiry was directed to s 4(b)(i) of the 1987 Act.
Mr Tanner submits that the extent of the evidence relied on by the respondent is Dr Sudhakar’s “bald assertion” in response to a question relevant to s 4(b)(i) and is “a classic example of what the case law refers to as the bare ipse dixit of a forensic examiner.” It fails to reveal the evidence upon which it is based and fails to include any reasoning as to why performance management review was the predominant cause of the injury and why interpersonal conflicts with colleagues and management contributed to a lesser extent.
Mr Tanner submits that Dr Sudhakar’s opinion does not provide the necessary forensic support for the respondent’s defence.
With respect to the meeting on 10 May 2024, Mr Tanner submits that, noting that Mr Pulido was subjected to allegations of misconduct, his treatment was unreasonable in that he was not provided with prior notice and agenda, and was unable to prepare himself or secure a support person. The manner in which the allegations were made caused him to feel that he had been found guilty without fair trial.
Mr Tanner refers to statements by Ms Acosta, Ms Vanegas and co-workers which bear out the continuing tensions with Mr Pulido. He submits these were not examined by Dr Sudhakar and he failed to consider their impact other than noting that they were a factor causing Mr Pulido’s condition.
Mr Tanner submits that, following the Toolbox meeting on 17 May 2024, Mr Pulido was called to a meeting with Mr Stevens, Ms Acosta and Ms Vanegas without prior notice or agenda or the opportunity to prepare himself and have a support person present. He says he was ambushed by Mr Stevens bringing up the topic of his unsigned Return to Work plan Park and that Mr Stevens raised his voice at him about this. Mr Pulido explains in his statement his reasons he did not want to sign the plan without his doctor having an opportunity to review it. He refers to “inappropriate questions” put to him about his choice of doctor and his wife's compensation claim. He describes that as “the final straw that broke the camel’s back”.
Mr Tanner submits that Mr Stevens’ conduct in interrogating Mr Pulido about the Return to Work plan and his choice of doctor “is plainly evidence of bullying in relation to his physical injury”. Mr Tanner refers to Dr Hanif’s note on 20 May 2024 that Mr Pulido had “noticed some bullying at workplace since lodging the claim”. Mr Tanner submits that Dr Sudhakar failed to consider in any detail the manner in which Mr Pulido was interrogated by Mr Stevens and the impact of this encounter on him, and he could not therefore provide any reasoned explanation for not treating that encounter as playing a material role in causing the psychological injury.
Mr Tanner submits that the letter of 20 May 2024 occurred after the psychological injury had occurred, having been caused by the incidents on 10 May 2024 and 17 May 2024. In other words, the injury had already occurred when the respondent purported to engage in action with regard to discipline or performance appraisal.
Mr Tanner submits that the respondent has failed to discharge its onus under s 11A and Mr Pulido is entitled to weekly compensation pursuant to ss 36 and 37 of the 1987 Act with effect from 18 May 2024 to date and continuing.
Mr Tanner submits that Mr Pulido’s PIAWE is agreed at $914.66. He has been certified as having capacity for four hours a day, two days a week. His earning capacity, as certified by his treating doctors, would be $192.56. Following deduction in respect of his certified capacity he claims compensation at the rate of $676.36 per week pursuant to s 36 and $539.15per week, subject to indexation, pursuant to s 37.

Respondent’s submissions in reply

In reply, Mr Combe submits that Dr Sudhakar did not use the language of s 11A in his report but this does not negate the objective fact that Mr Pulido’s incapacity did not commence until 20 May 2024, after the Toolbox meeting on 17 May 2024 and after the letter dated 20 May 2024 had issued.
Importantly, in Mr Combe’s submission, Mr Pulido has alleged in his submissions that the events of 10 May 2024 to 17 May 2024 positive of his injury. Mr Combe submits that these events are the reasonable actions the respondent relies on. There are no other events in his employment during this time that Mr Pulido complains of as causative.
Mr Combe submits that reasonableness is to be assessed on the whole of the circumstances of the case. Mr Pulido was subject to disciplinary action on 10 May 2024 because of the way he handled cutlery. The alleged tensions at that meeting were because of the way he conducted himself. The Toolbox meeting was called as a result of his failure to sign the Return to Work plan which he was obliged to do. Mr Combe submits this is not bullying. The psychological injury complained of crystallised with the letter on 20 May 2024.

FINDINGS AND REASONS

Section 11A of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the 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 transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof of establishing its defence under s 11A of the 1987 Act: Pirie v Franklins Limited[7] and Department of Education and Training v Sinclair.[8] In this case, the respondent must establish on the balance of probabilities that Mr Pulido’s psychological injury was wholly or predominantly caused by action with respect to performance appraisal and/or discipline and, further, that such action was reasonable.
[7] Pirie v Franklins Limited [2001] NSWCC 167.
[8] Department of Education and Training v Sinclair [2005] NSWCA 465.
The terms “wholly” and “predominantly” in s 11A of the 1987 Act are separate concepts and a finding of one or the other needs to be considered: Smith v Roads and Traffic Authority.[9]
[9] Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
The phrase “predominantly caused” has been held to mean “mainly or principally caused” Ponnan v George Weston Foods Ltd.[10]
[10] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
There is no dispute that Mr Pulido sustained physical injuries in the course of his employment with the respondent as result of his cleaning duties. The date of injury appears to be 3 May 2024 (according to Mr Pulido incorrectly stated as 6 May 2024.) It appears from the investigation report[11] that he first sought medical treatment for dermatitis on 8 March 2024. The dates are not significant in themselves but they indicate that the physical injury pre-dated his psychological injury by some months which lends support to Mr Pulido’s claim that the way in which his claim for physical injury was handled was a factor in the development of his psychological injury.
[11] ARD page 129.
Dr Sudhakar took a history from Mr Pulido that he was experiencing “interpersonal challenges” with his supervisor from January 2024 which he attributed to racial prejudice. He said there had been underlying tension even before this situation arose and that, when he told his supervisor about his back injury in early May, there was a noticeable change in her attitude towards him and he began to feel harassed. His work responsibilities and routines were immediately altered and were, according to Mr Pulido, unsuitable because of his physical injuries. Dr Sudhakar noted that Mr Pulido reported that he was pressured to sign the Return to Work plan, that he experienced arrestment about this which caused him to feel “considerable anxiety about going to work.” His role was changed to cleaning toilets instead of pushing bins and cleaning dishes. He told Dr Sudhakar that he was bullied by his manager.
Dr Sudhakar noted a number of factors which he said “collectively contribute” to Mr Pulido’s current psychological condition. Dr Sudhakar described his adjustment disorder as “a result of a confluence of factors” including the death of his mother in March 2024, his visa status and its effect on his work hours, interpersonal conflicts with colleagues and management, potential job loss, his wife’s workers compensation claim and the performance management review. It is relevant that he described the performance management review as a factor separate from interpersonal conflicts with colleagues and management.
Dr Sudhakar was asked to identify “which factor is the main contributing factor, and whether ‘employment’ is the main contributing factor”. He was asked to explain his opinion. In response, he said “the performance management review is likely to be the main contributing factor to his psychological conditions, and hence, employment is the main contributing factor.”
Mr Tanner submitted, in effect, that Dr Sudhakar was asked the wrong question and gave an irrelevant response. I do not agree that Dr Sudhakar’s reference to “the main contributing factor” of itself undermines his opinion. He was responding to a question put by the respondent’s solicitors. He is not expected to pick up fine differences in expression, particularly when “predominantly” has been held to mean “principally” or “mainly”. It is reasonable to read his reference to “main contributing factor” as equivalent in meaning to “predominant cause”.
In my view, the real problem with Dr Sudhakar’s opinion is that identified by Mr Tanner in that Dr Sudhakar does not appear to have carried out the evaluative exercise required in assessing whether the respondent’s action with respect to performance appraisal and /or discipline was the predominant cause of the injury.
Dr Sudhakar diagnosed Mr Pulido with an adjustment disorder and says he exhibited symptoms consistent with that diagnosis on 20 May 2024, the same day he ceased working. It is not clear if Dr Sudhakar is saying that was the first time he exhibited those symptoms.
Dr Sudhakar said the “primary precipitating factor for these symptoms appears to be the perceived threat of disciplinary actions and impending performance management.” He went on to describe the range of factors reported by Mr Pulido. He noted Mr Pulido’s claim that his employer did not make suitable changes to his role to support his physical injury and that he perceived this as bullying.
In making the statement that “notably” the timing of the work performance review aligned with Mr Pulido’s decision to cease work as of 20 May 2024, Dr Sudhakar appears to rely solely on a temporal connection. A temporal connection is not enough when a range of factors is posited. I agree with Mr Tanner that Dr Sudhakar did not carry out the evaluation of the various factors that he had identified, most of which pre-dated 20 May 2024, and nor did he explain his reasons for his conclusion other than by reference to “timing” having “aligned”.
For these reasons, I am not satisfied that the respondent has discharged its onus of establishing that the whole or predominant cause of Mr Pulido’s psychological injury was reasonable action with respect to performance appraisal/discipline.
I find that Mr Pulido is entitled to weekly payments from 18 May 2024 to date and continuing pursuant to ss 36 and 37 of the 1987 Act.
No challenge has been made by the respondent to Mr Tanner’s submission that Mr Pulido’s pre-injury average weekly earnings is agreed at $914.66. He has been certified as having capacity for four hours a day, two days a week. His earning capacity, as certified by his treating doctors, would be $192.56. Following deduction in respect of his certified capacity I accept that he is entitled to compensation at the rate of $676.36 per week pursuant to s 36 and $539.15 per week, subject to indexation, pursuant to s 37. Further that he is entitled to reasonably necessary treatment expenses pursuant to s 60.
Parties have liberty to apply with respect to the calculation of weekly payments.

[2024] NSWPIC 701

16 December 2024