Rad v Fresh Food Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Rad v Fresh Food Management Services Pty Ltd [2023] NSWPIC 371
APPLICANT:	Kamal Rad
RESPONDENT:	Fresh Food Management Services Pty Limited
Member:	Christopher Wood
DATE OF DECISION:	26 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant alleging psychological injury arising out of a course of bullying and harassment by a fellow employee; whether applicant suffered from a genuine psychological injury or whether his symptoms were merely a grievance arising out of a reasonable promotion process conducted by the respondent; section 4 and 11A; Held – the applicant had established that his symptoms were a psychological injury arising out of his employment; the respondent failed to make out a defence pursuant to section 11A; award will be for payments of compensation for the applicant together with section 60 expenses; Austin Thazin-Aye v Workcover Authority (NSW), Stuart v NSW Police Service, and AH Beard Pty Limited v Iljasov applied.
determinations made:	The Commission determines: 1. The applicant is totally incapacitated by reason of a psychological injury arising out of his employment with the respondent with a deemed date of injury recorded as 22 December 2022. 2. There is an award for the applicant of weekly benefits as follows: (a) compensation at the rate of $2,275.25 from 22 December 2022 to 23 March 2023 pursuant to s 36 of the Workers Compensation Act 1987, and (b) weekly compensation at the rate of $1,916 per week to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant’s medical, hospital and related expenses, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Kamal Rad (the applicant) is a 67-year-old man who has been employed by Fresh Food Management Services Pty Limited (the respondent) for in excess of 38 years. He contends that over the past five years of his employment he has been the victim of bullying and harassment by a fellow employee, Mr Naranjan Mahendran, who had also been a friend.
There is broad agreement between applicant and respondent that there had been ongoing conflict in the respondent’s workplace involving not only the applicant and Mr Mahendran but extended to other members of the respondent’s staff.
In late 2022 following an interview process Mr Mahendran was promoted to a position where, as a supervisor, he held power over the applicant, causing the latter to become concerned to the point where he ceased working as a result of alleged anxiety and distress.
By reason of the applicant’s age, his claim at its highest is limited to a closed period of 12 month’s duration from 23 December 2022 to 22 December 2023, pursuant to agreed pre-injury average weekly earnings of $2,395 plus s 60 expenses of the Workers Compensation Act 1987 (the 1987 Act).
The respondent contends that the applicant has not and does not suffer from a psychological injury by reason of his employment or to which his employment was a substantial contributing factor; s 4 and s 9A of the 1987 Act.
Further, the respondent contends that if the applicant was injured as alleged, it is by reason of circumstances contemplated by s11A(3) of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute for the purposes of the Application to Resolve a Dispute (ARD):
(a)    whether the applicant has suffered a psychological injury which was caused by or was substantially contributed to by his employment with the respondent;
(b)    whether any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to a matter falling within s 11A of the 1987 Act (promotion of Mr Mahendran), and
(c)    whether the applicant is totally or partially incapacitated for work as a consequence of his psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The ARD was listed for telephone conference before me on 16 May 2023. Mr Schembri appeared with the applicant and Mr Lichaa attended on behalf of the respondent.
There was some exploration of the prospects for settlement however, I was informed the conditions that the respondent would require the applicant to enter into (on settlement), meant that the matter could not be resolved.
The ARD was listed for conciliation/arbitration on 22 June 2023 and orders for production were also issued.
At the conciliation/arbitration proceedings, Mr Tanner of counsel, instructed by
Mr Schembri, appeared for the applicant and Mr Gaitanis, instructed by Mr Lichaa, appeared for the respondent with a representative of its insurer. The respondent itself was not Mr Mahendran present.
Some time was allowed for the parties to confer but again they were not able to resolve their differences.
Having used my best endeavours to try and achieve a resolution of the matter and being satisfied the parties are seized of and understand the issues in the proceedings the ARD proceeded to Arbitration.
There was agreement as to the admissibility of all late served material which is referred to below.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and were considered in making this decision:
(a)    the ARD and attachments;
(b)    the Reply and attachments, and
(c)    late documents comprised of pay slips, a medical report of Dr Popa and clinical notes of Dr Popa filed between 14 June 2023 and 21 June 2023.
No objection was taken in relation to the admissibility of the late served material.

Oral evidence

No application was made to lead oral evidence or cross examine the applicant or any of the several lay witnesses for each party who have provided statements.

FINDINGS AND REASONS
Applicant’s evidence
Statement of the applicant

The applicant was employed by the respondent for the past 38 years and for 36 of those years he has been a team leader or facilitator working on a production line, supervising the extraction of coffee from coffee beans.
He says that over the past five years of his employment he has had conflict, he describes as bullying and harassment, at the hands of Mr Mahendran. He says Mr Mahendran would constantly yell and shout at him and dispute directions he had been given by the applicant.
The applicant says that in 2021, Mr Mahendran made a complaint against him which was investigated and in the absence of conclusive evidence, the allegations were dropped. The applicant says that the allegations were unfounded.
The applicant’s statement details an incident in October 2022 where Mr Mahendran allegedly became verbally aggressive toward him, using “foul language and swearing”. The applicant says he complained to management about it but Mr Mahendran denied the allegation.
The applicant says that Mr Mahendran constantly questioned and subverted his authority as team leader, causing him to become upset, confused and anxious. The applicant says he attempted to resolve his differences with Mr Mahendran unsuccessfully.
At the end of 2022, a co-worker reported to the applicant that Mr Mahendran had allegedly said words to the effect of “when I get promoted the first person I will go after is Kamal” (the applicant). The applicant said at that time he felt threatened, upset and uneasy.
The applicant recites other events when he felt bullied and harassed by Mr Mahendran and he appears to have been ruminating on what he would encounter on one day to the next.[1]
[1] Paragraph 13 ARD, page 2.
The applicant is taking sleeping tablets to help him deal with interrupted sleep and had one session with a psychologist on 28 December 2022.
At the time of his statement dated 5 April 2023, the applicant records that he did not believe he had the capacity to work alongside Mr Mahendran.

Behnaz Rad

The applicant’s wife has provided a statement.[2]
[2] ARD page 4.
She says that in 2018 she became aware that the applicant was having issues with
Mr Mahendran in the form of swearing and verbal assaults on a number of occasions.
She says she used to worry about her husband when he went into work on the night shift and that he would ring her to reassure her when Mr Mahendran called in sick so she would have a good night’s rest. She said that prior to the issues to Mr Mahendran, the applicant was completely “normal at home”; cool, calm and collected. The issues between the applicant and Mr Mahendran caused the applicant to become stressed, he would lose his temper and became upset and short fused.
There were instances where she observed the applicant to lose focus, which was not normal behaviour. He became withdrawn and he was the type of man which would want to stay out of trouble at all costs. She says this is why she believes the applicant never mentioned anything to his general practitioner (GP) about the issues with which he was dealing.

Kapila Mendis

Mr Mendis is a colleague of the applicant and also works as a team facilitator.
His statement records him observing Mr Mahendran shouting at the applicant and using foul language. He thought Mr Mahendran was “way out of line” and his attitude was nothing but bullying and harassment.[3]
[3] Paragraph 4 ARD, page 6.
Mendis is a union delegate for the United Workers Union and gave the applicant advice that he ought make a complaint to management. Mr Mendis says that as far as he is aware the applicant did report the matter to management but conversations between the production manager, Mr Mark Bautista, the applicant and Mr Mahendran proved unfruitful.

Donald McKinnon

Mr McKinnon’s statement was filed after the telephone conference but no objection was taken to it forming part of the applicant’s case.[4]
[4] Page 1 of late served material, 11 May 2023.
Mr McKinnon worked with the respondent from 1986 until 2010 and on returning to employment with the respondent in 2019 worked alongside both the applicant and
Mr Mahendran. He observed Mr Mahendran being aggressive towards the applicant and he also found himself in the middle of such aggression. He noted that it would always happen on night shift “when there was no management on site”.
Mr McKinnon says that the applicant was always polite in return to Mahendra. He corroborates the applicant’s version of events in relation to an incident in August 2022 concerning a water treatment alarm.[5] He said he observed Mr Mahendran verbally attack the applicant, accusing him of sleeping on the job after McKinnon had explained that the applicant was attending to a water treatment alarm. Mr Mahendran used what can only be described as florid if not obscene abuse in the direction of the applicant, which was in turn directed towards McKinnon. He said this upset him a great deal and on his return home from his shift, he became very depressed and reported the matter to Carmen Stanley, the respondent’s HR officer.
[5] Paragraph 6 of applicant’s statement.
Mr McKinnon outlines a change in the supervisory structure at the respondent’s premises with the applicant and Mr Mahendran applying for the position as an afternoon shift supervisor. He confirms the conversation with Mr Mahendran in which Mr Mahendran stated that if he was successful in obtaining a promotion the first person he would go after was the applicant.
Mr McKinnon says that there were allegations made against the applicant and other team facilitators by Mr Mahendran to the effect that he too was bullied and harassed. He personally felt the allegations were unfounded.
Mr McKinnon concludes his statement by saying that he has also been the recipient of aggression from Mr Mahendran, causing him to become depressed at work to the point where he was holding back tears after witnessing the events he relates. He was concerned about backlash and believes that is why the applicant also took so long to report the bullying and harassment as well.

Applicant’s medical evidence
Dr Florin Popa

Dr Popa’s clinical notes from 2016 to the present are in evidence. The bulk of these are on the Commission’s file however, some late served material pursuant to an order for production along with a report of Dr Popa to the applicant’s solicitors were made available to me during the course of the conciliation/arbitration. The doctor’s report to the applicant’s solicitors dated 8 June 2023 has since been uploaded to the Commission’s file.
Dr Popa confirms that the applicant had been a patient of his practice from 13 September 2016 and he has seen the applicant on several occasions since 22 December 2022 in relation to what he calls “the issue in question”. The relevant dates are between
22 December 2022 and 9 May 2023 (at the time he prepared his report to the applicant’s solicitors).
In other words, there is little utility in reviewing the clinical notes in any detail because it is common ground the applicant did not make any complaints in relation to his psychological health until the date recorded by Dr Popa (and was subsequently being seen by a psychologist).
Dr Popa has recorded that the applicant had been working with the person who became his supervisor (presumably Mr Mahendran) for 11 of his 38 years with the respondent. He has taken a history consistent with the applicant’s statement that he had been subject to bullying and negative comments over a five year period. He notes that in December 2022, the relevant person was promoted to the role of supervisor and the doctor has recorded that the words that Mr Mahendran “will fix Kamal”. Dr Popa records that from this point on workplace relations became very tense.
Dr Popa says that at the various consultations from 22 December 2022 he found the applicant to have significant symptoms of anxiety and depression, manifesting themselves in difficulties falling asleep, anxious feelings and maintaining difficulty in concentration performing his usual occupational tasks. He recites depressive symptoms involving lack of enjoyment in normally pleasurable situations and activities, low mood, social life, isolation and lack of drive. Dr Popa said that the workplace required managerial intervention to minimise the impact on the applicant’s symptoms and his ability to work.
Dr Popa notes there is no previous history of any psychological or psychiatric conditions and he was not aware of any other significant stressors outside the workplace. At the time he wrote the report, the applicant’s condition was said to be in “acute phase” and he had been in it for less than six months. Dr Popa’s views were guarded at that stage.

Dr Avdal Khan

Dr Khan has provided two medico-legal reports at the request of the applicant’s solicitors dated 11 March and 11 April 2023 respectively.[6]
[6] ARD page 32 and following.
Dr Khan records a history consistent with that of the applicant and the lay witnesses and
Dr Popa, noting that it was only in the past five years of the applicant’s employment with the respondent that difficulties arose in the course of his employment. The doctor records a friendship between Mr Mahendran and the applicant which apparently deteriorated after “a leading hand was reprimanded by management for watching television when they were on the night shift”. There were allegations that Mr Mahendran had said the applicant had “dobbed on the leading hand”. Thereafter the applicant noted a change in how
Mr Mahendran behaved towards him. He records the applicant reporting instances of abuse and intervention by HR.
A deterioration in the applicant’s mental state is recorded with many of the matters recorded by Dr Popa repeated.
Dr Khan diagnoses disorder with anxiety in accordance with DSM-5.
At the time of his report he says the applicant had capacity to engage in a gradual return to work at four hours per day, two days per week. He describes the applicant at that stage as being motivated to return to his pre-injury employment but under a different manager. He addresses the respondent’s s 78 notice and says the following:
“I do not agree with the insurer’s opinion that Mr Rad’s psychiatric/psychological injury was caused by reasonable action taken by his employer regarding the promotion of Mr Mahendran. It is evident that Mr Rad was bullied and harassed by Mr Mahendran over a period of approximately 5 years. He has been able to manage the situations as he was in a more senior position than Mr Mahendran. He raised his concerns with senior management who eventually directed him to HR. Mr Rad said that despite raising his concerns about the behaviour of Mr Mahendran towards him he continued to feel unsupported, ignored and dismissed by senior management and HR with no reprimand to Mr Mahendran… It was Mr Rad’s fear that with Mr Mahendran being more senior to him would lead to be bullied and harassed more with no ability to control the situation which caused his psychiatric/psychological injury…”[7]
[7] ARD page 37.
Dr Khan says that the applicant’s employment with the respondent is the main contributing factor to the development of the disease (psychological) process.
Dr Khan’s second report is dated 11 April 2023 and responds to the opinions expressed by the respondent’s medico-legal doctor, Dr Ahmad (see below). He notes Dr Ahmad obtained a similar history regarding causation but disputes his conclusion that the applicant does not suffer from any psychiatric illness. He disagrees with Dr Ahmad’s conclusions:
“I do not agree with Dr Ahmad’s opinion. At the time of assessing Mr Rad on 11 April 2023 and reviewing his contemporaneous medical records, it was evident that he endured work related stressors over an extended period of time. These experiences caused Mr Rad to experience gradual deterioration in his mental state which was consistent with the following DSM-5 diagnostic criteria for adjustment disorder with anxiety…”[8]
[8] ARD page 39.
Dr Khan maintains his earlier assessment.

Respondent’s evidence
Lay evidence

The respondent has filed an investigation report from Farrell’s Factual and Investigation Services dated 30 January 2023 to which several lay witness statements are appended.[9]

Applicant’s statement
[9] Reply page 8.

In addition to the statements relied upon by the applicant, the respondent has submitted a statement of the applicant dated 13 January 2023. The statement affirms the five year conflict with Mr Mahendran.[10] It addresses the allegations concerning Mr Mahendran allegedly reporting the applicant in relation to a complaint against another team leader. The statement notes that the applicant was finding the ongoing situation very stressful and he had sought management intervention. Despite a remedial session conducted by
[10] Paragraph 9 of the Reply, page 17.
[11] Paragraph 12 of the Reply, page 17.
Mr Raymond Alvarez, issues remained unresolved. It says that he did not believe the respondent’s management were looking at the situation objectively.[11]
The statement details Mr Mahendran being selected over the applicant for a role as a supervisor in late 2022. The applicant says that Mr Mahendran became his supervisor “which I found unacceptable”. He confirmed that as a result of this decision he “chose to launch a work cover claim fearing for the future”.
The statement concludes by him detailing when Mr Mahendran raised a discrimination complaint against him and two other members of the applicant’s team.

Ms Carmen Stanley

Ms Stanley has been employed with the respondent as a human resources manager since 1 May 2006. She says that she has been very aware of the difficulties associated with the applicant and Mr Mahendran over the past two years.
Stanley records various workplace incidents and has a suspicion that other staff were colluding to derail investigations of complaints of racial abuse directed at Mr Mahendran by the applicant and other members of his team. She confirms that the applicant raised a complaint against Mr Mahendran in August 2022 and the matter was resolved as a “minor disciplinary matter”. She says the applicant appeared quite relaxed about the matter and was satisfied with the outcome.

Stanley confirms that a supervisory role was advertised and the applicant and
Mr Mahendran, along with others, applied. She was concerned to make sure such a process that was rigorous and transparent because she thought it might create issues within the team; each applicant had been interviewed by herself and the production manager, Mr Alvarez. The decision to appoint Mr Mahendran was unanimous.
She confirms that the applicant did attempt to return from leave in February 2023 but this was refused because he had already been paid his leave entitlements. There is reference to a third person being present for the interview, a Claudia Falcone. There is no statement from Ms Falcone who is acknowledged as having assisted Ms Stanley “clarify facts as required”.

Mr Raymond Alvarez

Mr Alvarez is the respondent’s production manager and is referred in some of the statements outlined above.
He refers to the incident involving a television being brought into the factory on a night shift to allow staff to watch the cricket. He says that a very insular group which included the applicant thought management had been informed about the matter by Mr Mahendran. From that time the incident created many ongoing issues between the applicant and
Mr Mahendran.
Mr Alvarez also notes the applicant and Mr Mahendran had been close personal friends and says that he held multiple meetings with both of them in an attempt to resolve their impasse. Concerns were that the dispute was affecting the entire team and ongoing production. He says he held at least eight such meetings at which the parties constantly raised complaints against each other, which were referred to HR.
He confirms the fact of Mr Mahendran being promoted over the applicant.

Other material

The investigation report to which the respondent’s lay witness statements are appended also includes some material in relation to the respondent’s workplace health and safety regulations, respectful workplace behaviour standards etc. This material is generic in nature and unremarkable. The respondent’s counsel does not draw attention to any of it in making his submissions. It does little to advance the matters in dispute beyond perhaps showing the respondent’s aspirations to good transparent objective process in disciplinary matters.

Respondent’s medical evidence
Professor Thigagajan Sitharthan

Prof Sitharthan is a psychologist who saw the applicant on 13 January 2023. His one page report to the applicant’s treating GP, Dr Popa, forms part of the Reply.[12]
[12] Page 4 of the Reply.
The report confirms the fact of his consultation with the applicant and taken of a brief history which included the applicant reporting that HR had sided with another staff member over his complaints. The report records that the applicant had told Prof Sitharthan that he was willing to go back to work. His expectations being that he be treated with respect and professional.
There was apparently some discussion about the applicant pursuing “a legal pathway”. Prof Sitharthan suggested there were drawbacks with that approach and suggested that he focus on a supportive return to work plan.

Dr Iftikhar Ahmad

Dr Ahmad saw the applicant at the request of the respondent’s insurer. He has taken a detailed history consistent with that of the applicant and other lay witnesses. His report details the conflict in the workplace and attempts at mediation by the respondent.
Dr Ahmad records that the applicant told him that:
“He was so stressed at one point he mentioned to Rahmon that he may take retirement but repeated a few times that ‘I love my job… I wanted to continue work’…”
The history also includes the applicant telling him about his fears arising out the promotion of Mr Mahendran and also records that the applicant:
“Took leave on December 5, 2022 until 5 February 2023 dur to his psychological condition, his leave had been extended by his GP until February 23, 2023”[13]
[13] Page 122 of the Reply.
Dr Ahmad records the applicant as report that he was:
“Stressed, anxious and scared for his life. His sleep was disturbed and was tired & exhausted”[14]
[14] Page 122 of the Reply.
The report is unremarkable in terms of the other matters records. I note that Dr Ahmad records the applicant say that he “didn’t mind going to work but I am concerned to” regarding the behaviour of “co-worker especially Pez since he has been promoted as a supervisor”.
Dr Ahmad was not able to diagnose a major mental health condition as per the DSM-5 criteria.
He says the applicant did record symptoms which could have fulfilled the criteria for an adjustment disorder but not at the time he saw him.
Dr Ahmad said that in his opinion the applicant had capacity to start work in his pre-injury role or any other role with his pre-injury employer as soon as possible provided there was ongoing support from HR and management. He said that if this could be achieved following detailed discussions with HR as per his contract to work in a different section if possible and not to work under the alleged perpetrator. He suggested mediation with management through HR to resolve the conflicts.

SUBMISSIONS
Applicant’s submissions

Mr Tanner noted that injury being in dispute required him to demonstrate real events in the workplace that gave rise to the applicant’s psychological condition. He pointed to the numerous lay witnesses who corroborated the applicant’s reference to certain stressful events but also his allegations that the relationship between him and Mr Mahendran was stressful.
The applicant points to Mr McKinnon’s statement as well as Stanley’s saying she was well aware of the difficulties between the two men albeit Mr Tanner says Stanley is mistaken on the cause of the falling out being an external friendship rather, he says it flowed from the television incident (a workplace incident).
Mr Tanner noted Stanley saying that the relationship between the two men was always troublesome and reference to an August 2022 complaint by the applicant against
Mr Mahendran. Mr Tanner submitted that although described as a minor disciplinary matter, it was precisely that and whatever the source of the complaint was, it was upheld.
He points to Mr Alvarez’s reference to the difficulties between the two men and the multiple meetings.[15] Mr Tanner noted Mr Alvarez’s concerns about the impact on the rest of the team and referred to Mr McKinnon’s statement that he too was becoming depressed as a result of the workplace atmosphere particularly between the applicant and Mr Mahendran.
[15] Paragraphs 22 and 23 of Statement.
Mr Tanner says there is ample proof of years of conflict in the workplace and the impact upon the applicant is evidenced by the statement of his wife who corroborates the impact of the tension in the workplace. She observed changes in the applicant’s mood and behaviours around that time.
Overlayed on this was Mr Mahendran’s promotion which, as noted by Mr McKinnon, gave him power over the applicant.
The applicant says there is multitude of factors and real life events which as a matter of common sense would be regarded as causative of a psychological reaction.
The applicant then points to Dr Khan’s report with his diagnosis of adjustment disorder with anxiety.[16] The applicant relies on that part of Dr Khan’s report which I have extracted in the summary of the evidence above, the relevance of the promotion and the fears it generated in the applicant following the behaviour to which he had been subjected to over a five year period. It says the respondent’s position is misconceived in the context of years of conflict between the two parties. The applicant contends there is no rational basis to see the promotion as distinguishable from the history of bullying and harassment and tension between the two men. The applicant says that the respondent’s entire s 11A case is lacking any medical evidence. The applicant says that if the respondent wishes to rely on the opinion of Dr Ahmad to support its argument of s 11A having currency, then Dr Ahmad should have had an opportunity to consider all of the evidence and taken into account the five year history of conflict between the two men measured against the impact of the promotion.
[16] ARD page 36.
Mr Tanner drew attention to the fact that in response to a specific question by the respondent’s solicitors concerning if he accepted the applicant had a psychological injury, whether it was wholly or predominantly caused by disciplinary proceedings, Dr Ahmad answers ‘not applicable’. So in other words, the question is not answered by the respondent. The applicant says there is no satisfactory explanation by Dr Ahmad as to why the applicant does not satisfy the criteria of DSM-5.
The applicant says the unreliability of Dr Ahmad’s views is further evidenced by his statement that the applicant was almost free of psychological injury at the time of his report, which poses the question that if he is almost free of psychological injury, then the only conclusion is that he still had psychological symptoms for which the only explanation could be his employment.
Finally on the question of Dr Ahmad’s reliability, Mr Tanner notes that Dr Ahmad records that there was no evidence of exaggeration, inconsistency, unreliability or malingering; this accordingly confirms the veracity of the symptoms of which the applicant complains.

Work capacity

The applicant says that the opinions of Drs Khan and Popa ought to prevail over Dr Ahmad. The applicant draws attention to the certificates of capacity appearing in the Reply.[17] The applicant references the work cover certificate for 23 February 2023 to 23 March 2023 from Dr Popa which coincides with Dr Khan’s opinion.
[17] Page 131 of the Reply.
Any return to work was to be managed in a gradual way, initially two hours per day four days per week, was conditional upon psychological on management supervision. There is simply no evidence that management wished to engage in a return to work program and therefore the applicant argues that he should be regarded as having no capacity to return to work as it was conditional upon management supervision.
The applicant references Dr Popa in January 2023 with his recording of factors affecting the applicant’s recovery and the respondent’s[18] failure to address managerial issues as being consistent with the difficulties of there being a gradual return to work. Preconditions recommended were not being satisfied. Mr Tanner also drew attention to a report from
Dr Popa to the respondent’s insurer dated 29 January 2023.[19] It records the applicant as having an acute adjustment disorder with management consisting of:
“*      removal from the environment likely to have caused the psychological hard [sic], on temporary basis
*       managerial intervention: mediation, modification of the work environment to accommodate patient’s reasonable expectations
*       supportive work environment and psychological support outside work, by appropriately qualified professionals.”
[18] Page 131 of the Reply.
[19] Page 298 of the Reply.
Mr Tanner submitted whilst the applicant to his credit was willing and capable of returning to work on a gradual basis, he expected to be valued and respected in the process. No steps were taken by the respondent’s management and in such circumstances where there has been no intervention or support for the applicant it cannot be said to have any capacity to return to work no matter how limited. He would therefore qualify for an award at the maximum rates referred to at the opening of the conciliation/arbitration (see above) or at its highest if the Commission were to be persuaded the applicant had some work capacity in the circumstances at a nominal statutory rate only. Section 60 expenses would flow as a matter of consequence on a finding of incapacity attributable to a workplace injury.

Respondent’s submissions in reply

The respondent conceded the long history of difficulties between the two men in the workplace; there was animus both ways.
In addressing the background to the claim, Mr Gaitanis was at pains to review evidence that he says pointed to the clear temporal connection in the evidence characterising the applicant’s claim as a “grievance” rather than a psychological injury to which s 4 of the
[20] Page 4 of the Reply.
1987 Act might apply. Mr Gaitanis gave emphasis to the events in December 2022 and January 2023 with a focus upon what the applicant has said in his statements as well as the history given by the treating psychologist, Dr Sitharthan, to Dr Popa dated 13 January 2023.[20]
The respondent highlights Dr Sitharthan’s comments, which I have also identified above, concerning the history he obtained:
“He provided a brief history of his observations with a particular staff member. Mr Rad mentioned that his HR has sided with the other staff member of his complaints have not been adequately addressed [sic].”
Mr Gaitanis went on to refer to the following paragraph in the report:
“Mr Rad mentioned that he was willing to go back to work and to the same job. His expectations are to be treated with respect and professionally.”
Mr Gaitanis argued that this, combined with the applicant’s own statement to the respondent’s investigator[21] where he said in commenting on Mr Mahendran’s behaviour:
“Mahendran was selected over me despite my more superior qualifications and previous experience in that role. He thus became my supervisor which I found quite unacceptable.”[22]
[21] As opposed to that in the ARD.
[22] Paragraph 13 of Statement, page 17 of the Reply.
The respondent says that this is compelling temporal evidence of the applicant’s motivations in bringing a claim which can only be characterised as a grievance not a psychological injury with the applicant having been willing to go back to work at that time.
The respondent points to the absence of complaint of anxiety or other condition in
Dr Popa’s notes until after Mr Mahendran’s promotion as a further example of the temporal connect for which it argues, i.e. the applicant’s condition clearly being a grievance rather than a psychological injury.
The respondent says that Dr Ahmad’s opinion is the one which ought be favoured because he provides the only thorough and reasonable assessment of the evidence. The respondent says Dr Ahmad’s reference to psychological symptoms does not mean that the applicant can be regarded as having a psychological injury and if anything, the doctor was only engaging in “loose language”.
To the extent that the applicant argues Dr Ahmad does not directly address s 11A considerations the respondent says that when the doctor’s report is read in its proper context with him having been satisfied the applicant had no diagnosable psychological condition that clearly he was of the opinion that the only relevant causative factor in the applicant’s presentation was the promotion of Mr Mahendran over him.

Capacity

As to capacity the respondent says whilst that it does not concede an obligation to make any payments of compensation to the applicant, there is evidence available to the Commission which it would allow the Commission to find that there was a reduced working capacity specified by the doctors to be two hours per day, four days per week or 20% work capacity producing a reduced weekly award should there be a finding in favour of the applicant on injury

Applicant’s reply

In reply Mr Tanner emphasised that because conflict or interaction in the workplace is not one-sided does not mean that it is any less destructive. All he needed to do was to establish real events which were the foundation of a medical diagnosis. Whether the events were capable of being characterised of bullying or harassment was irrelevant.
He went on to say that the doctors had made it clear that the applicant could return to work on a facilitated basis. Dr Sitharthan’s opinion when properly read did not lead to the conclusion for which the respondent contended rather, reference to HR siding with
Mr Mahendran over the applicant referred to his complaints over various events having not been adequately addressed. This should be correctly interpreted as his history of complaints over the years rather than the promotion of Mr Mahendran (to which s 11A might be applied). In any event the applicant says the respondent had not discharged its onus.

REASONS FOR DECISION

Neither party asserts that the workplace dynamics or the real events referred to by Mr Tanner did not occur; they were appropriately conceded by the respondent. We are dealing with their impact upon the applicant and indeed as Mr Tanner observed, they may even be the basis for Mr Mahendran himself to make a claim for compensation.
The respondent’s case relies heavily on the temporal connection it says exists between statements made by the applicant and medical records in December 2022 and January 2023 to characterise the applicant’s condition as nothing more than a grievance as opposed to a psychological injury.
A grievance of itself would not constitute a personal injury, there has to be a psychological effect and not mere emotional impulse.[23]
[23] Austin Thazin-Aye v Workcover Authority (NSW) (1995) 12 NSWCCR340.
The applicant needs to prove either:
“(i) That the nervous system was so effected that a psychological effect was induced not a mere emotional impulse, or
(ii) The aggravation, acceleration, exacerbation or deterioration of a pre existing condition”[24]
[24] Stuart v NSW Police Service [1998] NSWCC57 Nelson CCJ.
The evidence and concessions made by each party demonstrates there were longstanding problems and conflict between workers in the respondent’s workplace; a lot of but not all of it involved the applicant and Mr Mahendran. Meetings were frequently held but it is clear there were unresolved, longstanding grievances and conflict between the men. These were real life events which impacted upon the applicant. Gradually his wife had noted a deterioration in his day to day presentation.
The applicant’s wife says that she used to be worried about her husband and would sleep better when he called her on the occasions when Mr Mahendran had called in sick for the night shift so she could get a good night’s sleep.
The applicant’s co workers were impact by the conflict and observed changes in his demeanour.
The applicant was a longstanding employee who says that he would push himself to put up with Mr Mahendran’s behaviour. He says he is not the sort of person who would talk about his distress and that was why he did not report his symptoms to his GP earlier.[25]
[25] Paragraph 11 of Statement, page 2 of ARD.
He made complaints but matters were never resolved. This is confirmed by the respondent’s own witnesses who were concerned that the conflict continued to spill into the workplace.
The applicant used to dread going into work. He said he felt uneasy knowing that he had to work with Mr Mahendran and feared that he would continue to treat him poorly.
Mr Mahendran was promoted over the applicant in what otherwise seems to have been a reasonable process however, the impact of that promotion had a special context after years of poor interaction between the men. Mr Mahendran had told other workers that if he was successful in obtaining a supervisory role he would “get” the applicant. The impact of this ought not be underestimated in the context of what has played out since. He said he feared for his position. On balance there is no reason to disbelieve this. It was essentially an event in a long line of real events in the workplace which impacted on the applicant’s psychological health.
While some caution is called for when assessing a failure to report symptoms, whether physical or psychological in nature prior to a claim being made, I am satisfied the applicant is a witness of credit and his version of events which is, importantly, corroborated by his wife and co-workers including in some aspects the respondent’s own witnesses, points to the promotion of Mr Mahendran being a relevant continuum of stressful events as opposed to a significant factor which might inform s 11A.

When Mr Mahendran was promoted he was in the very position from which he, as far as the applicant was concerned, could “get” the applicant. The applicant was genuinely in fear for his future in such a situation. This is entirely plausible and consistent with a long line of real events which were impacting on the applicant. It was essentially the straw that broke the camel’s back.
There is no reason to disbelieve the cumulative impact of the recorded events on the applicant and his explanation for and willingness to press on without medical intervention prior to December 2022.
All doctors have taken a consistent history and the weight of evidence from Drs Popa and Khan pointing to a psychological injury in the form of adjustment disorder with anxiety (meeting DSM – 5 criteria) as opposed to Dr Ahmad’s opinion, favours the applicant. He has given a consistent history which is corroborated by several lay witnesses including those of the respondent. To interpret Dr Ahmad’s reference to psychological symptoms as “loose language” as Mr Gaitanos urges is certainly one possibility but it also points to the applicant presenting in a distressed state. It is also instructive that Dr Ahmad agrees with the applicant’s doctors in saying any return to work was provisional on support from management and HR.
While the respondent has sought to draw conclusions from Dr Sitharthan’s report to Dr Popa to ground its grievance versus psychological injury hypothesis I agree with Mr Tanner’s submissions on point; the reference to the respondent’s HR siding Mr Mahendran in relation to the applicant’s complaints is more likely than not to refer to the history of complaints (in the context of the applicant relating a history on consultation) rather than the promotion of
Mr Mahendran causing the applicant to have a (mere) grievance.
Applying common sense and experience on balance, the applicant has suffered a psychological injury arising out of real events over five years in the respondent’s workplace.

Section 11A

This pleading in the Reply received little attention by either party in submissions.
It trite to observe the respondent carries the onus in relation to this aspect. The respondent’s short submissions on point addressed the applicant’s proposition in submissions that the Commission did not need to concern itself with the defence in the absence of medical evidence from the respondent dealing directly with s 11A. I was asked to infer what
Dr Ahmad’s views might well have been on the question if I were to find that the applicant had a psychological injury arising out of his employment however, in the absence of direct comment and noting some of the concessions made by Dr Ahmad (paragraph 109 above) I am not satisfied there is sufficient evidence to allow me to find that the respondent has discharged its onus. This is despite, as I have already commented, the interview process of itself was probably conducted in a reasonable way.

Work capacity

In assessing the existence of total incapacity I am to have regard to the realities of the reasonably accessible labour market. The fact that a medical practitioner may have expressed an opinion as to some limited capacity for the applicant to return to work, is not of itself determinative. As pointed out by applicant’s counsel, the opinions of the doctors in the early part of 2023 were qualified by there needing to be a facilitated return to work.
Dr Ahmad accepted this as a necessary factor pointing to the need to for management and HR to engage in the process.
The respondent’s HR manager, Ms Stanley, addressing the applicant’s commendable desire to return to work and says at the time of her statement in January 2023:
“He did try to return early from his leave as he is to return early February but this was refused as he had already been paying [sic] his full leave entitlements.”
In other words at the time the doctors were clearing the applicant to do at least some limited work, two hours per day, four days per week, the respondent did not engage on point. It would seem by Ms Stanley’s own statement this was a matter of management convenience having paid the applicant “his full leave entitlements”. It was not prepared to have the applicant back in the workplace at that time.
During the course of the conciliation/arbitration I expressed reservations that the Commission’s resources may be being used when the issues before it were really of an industrial relations/Fair Work Act character. Mr Gaitanos in advancing the respondent’s grievance hypothesis essentially agreed suggesting the ARD should be in another forum. Although I make no finding but consistent with concerns I expressed to the parties, it might be said it suited the respondent to have the applicant off work.
In such circumstances, Mr Tanner posed the question, one might then reasonably ask ‘well what sort of work could the applicant have otherwise attempted on the open labour market’.
The applicant is a 68 year old man who has worked for the one employer for the greater part of four decades and for 36 of those years in one role. While the current labour market is strong it is well known older workers struggle to gain employment.
The respondent is a large and having regard to its processes evidenced by the material served in its Reply, a well resourced, sophisticated employer. The respondent not entertaining a graduated return to work, providing the applicant with such jobs of which he might have been capable, is a matter which is relevant to determining total incapacity. While not determinative of work capacity it is persuasive.[26] The respondent cannot have it both ways - if the dispute was just a grievance or involving long standing workplace cultural or industrial relations issue then it ought to have responded in kind particularly in the context of its own managers’ concerns over the impact of conflict in the workplace. On the other hand if it is a workers compensation issue then its failure to engage in the process that the medical practitioners including Dr Ahmad proposed ie; a graduated managed return to work, is telling.
[26] AH Beard Pty Limited v Iljasov [2006] NSW PCCPD226.
The respondent’s failure to entertain a graduated or facilitated return to work programme for the applicant means that for all practical purposes he was and remains totally incapacitated for employment by reason of psychological injury received in the course of his employment with the respondent.
There will be an award of payments of compensation calculated by reference to the agreed rate of $2,395 from 23 December 2022 to date and continuing pursuant to ss 36 and 37 of the 1987 Act. The respondent is also to make payments of compensation pursuant to s 60 of the 1987 Act.

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Rad v Fresh Food Management Services Pty Ltd [2023] NSWPIC 371

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[2023] NSWPIC 371

26 July 2023