Rees v BOC Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rees v BOC Ltd [2024] NSWPIC 415
APPLICANT:	Jason Rees
RESPONDENT:	BOC Limited
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	1 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant was employed by the respondent in their gas and bottling factory; allegation made that he was bullied and harassed over the course of his lengthy employment; he also sustained physical injuries in the course of his employment; claim for whole person impairment for a primary psychological injury; factual allegations disputed by the respondent; Attorney General v K applied; applicant’s perception was based upon real events in the workplace; respondent provided no medical support for any alternative argument on causation; Held – finding in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury whilst employed by the respondent. 2. The matter is remitted to the President to be referred to a Medical Assessor for whole person impairment of the applicant’s injury. The date of injury is 20 March 2018. 3. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute and attached documents; (b) Reply to the Application to Resolve a Dispute; (c) Application to Admit Late Documents dated 12 April 2024; (d) Application to Admit Late Documents dated 7 May 2024, and (e) Application to Admit Late Documents dated 14 June 2024.

STATEMENT OF REASONS

BACKGROUND

Mr Jason Rees (the applicant) was employed by BOC Limited (the respondent) at their gas and bottling factory in Wetherill Park Sydney. He claims that he was subject to bullying and harassment throughout the period of his employment which started in 2003 and ceased in 2018.
It should be observed that Mr Rees also sustained physical injuries whilst employed with the respondent to his back and right shoulder. These injuries are not the subject of the present dispute.
By way of demand dated 13 October 2022[1] the applicant seeks lump sum compensation for his primary psychological injury based upon the assessment of Dr Canaris dated
[1] Application page 18.
11 February 2022 (20% whole person impairment).
The respondent issued a s78 Notice on 12 April 2023 denying liability.[2] The dispute notice outlined the denial on the basis on a factual basis saying that the psychological injury was not the result of bullying and harassment and also that any psychological injury should be described as a secondary psychological injury.
[2] Application page 20.

ISSUES FOR DETERMINATION

It was not in dispute that the applicant suffered a psychological injury whilst employed with the respondent.
The parties agrees that the issue in dispute was whether the applicant’s psychological illness was caused as alleged, that is by bullying and harassment in the workplace.

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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply to the Application;
(c)    Application to Admit Late Documents dated 12 April 2024;
(d)    Application to Admit Late Documents dated 7 May 2024, and
(e)    Application to Admit Late Documents dated 14 June 2024.
I will now turn to the evidence filed in this dispute. I have focused my attention on the evidence that was relied upon in both parties submissions.

The applicant’s evidence

The applicant has prepared two statements, the first dated 12 March 2024.[3]
[3] Application page 1.
The applicant was employed by the respondent company in 2003 at their Gas Factory and Bottling Facility in Wetherill Park Sydney.
He states he initially worked various jobs involved in the production of packaging of various gas products and also in logistics and maintenance where the work was often very physical and repetitive. He says that the equipment was regularly faulty and he was required to lift and move above the legal limits.
The applicant says that he suffered physical injuries to the lower part of his back, right shoulder and wrist which were subject to separate workers compensation claims.
The applicant ceased work with the respondent in July 2018 as a result of being “pushed to work outside the restrictions a company doctor recommended”. He says he was covering the yard on his own and after four hours on the forklift and he couldn’t feel his legs and felt furious.
After leaving the company, the applicant says that he was contacted by management in 2023 and has alleged that they attempted to have him sign a termination deed which he declined to sign.
The applicant in his statement describes what he says is significant bullying and harassment from 2013 onwards however it really commenced in 2003.
The applicant refers to his treatment by team leader Ray Everett. The applicant alleges that he was deprived of overtime and was given menial jobs by Mr Everett. In turn, the applicant alleges that Mr Everett was rorting the overtime system and after a complaint was made by the applicant, he felt that he was targeted by Mr Everett in response to that complaint.
The applicant, at paragraphs 25 onwards in his statement, outlines the discrete issues he says he experienced with Mr Everett from 2003 to 2016. It initially appears to commence in the second week of employment when the applicant was understood to undermine Mr Everett’s authority when he offered help with unloading a semi-trailer.
The applicant makes various allegations against Mr Everett including Mr Everett approaching him in the changing room and telling him not to get too excited about a potential new work opportunity as he was “going to get rid of him”.
There was also a further incident regarding refilling forklifts on a Saturday and he said to the applicant that he “wouldn’t be there much longer”.
In effect the applicant says that Mr Everett “had it in for me” and this had been confirmed to the applicant by other co-workers who mentioned it to him. The applicant says he was constantly given the grunt work and a loaded-up workload.
If the applicant made a mistake in his work he would be pulled into the office, told to sit down and given a written procedure, was told to read it out whilst Mr Everett stood over him. He felt this was belittling. The applicant observed that other co-workers who made the same mistake were not required to perform this belittling procedure.
The applicant says that over the years there were hundreds of minor baiting incidents, hundreds of times of discrimination when it came to overtime and more serious issues where there would be confrontation which would be escalated to management.
The applicant says he tried to avoid Mr Everett but sometimes could not. The applicant ultimately made a complaint to the union questioning the allocation of overtime. The applicant says that upon provision of the roster to the union it clearly showed that Mr Everett was manipulating overtime and using the allocation of overtime to discriminate against some employees.
Following the complaint, the authority to roster overtime was then handed to Mr Rob Handley who made a transparent roster that had rules and conditions, and everyone had access to it.
The applicant says that after this complaint it appeared that Mr Everett targeted him, and his conduct escalated towards the applicant. He appeared to nit-pick everything he would do in what is assumed to be a desire to have the applicant retaliate. Complaints were directed towards the applicant in relation to how he loaded pallets, how his uniform was ironed or not ironed, his meal break times, bathroom break times, leave taken and punctuality.
The applicant says that the situation escalated and at one point as he returned from a meal break Mr Everett drove his forklift straight towards him, turning at the last second and then leaned over starting to abuse the applicant verbally for taking five minutes longer on his break even though the applicant wasn’t working in Mr Everett’s area or under him at that time.
The applicant says that he had enough and told him in an explicit way to leave him alone.
After the altercation Mr Everett went to Rob Handley’s office. The applicant then also attended the same office however saw Mr Everett in there talking and so went back to work.
Rob Handley eventually came down to the yard to talk to the applicant and they chatted for approximately 45 minutes to an hour. The applicant says that he explained to Mr Handley what had been going on and in effect he did not want to cause any difficulty but just wanted to do his job and be left alone.
The outcome from this altercation, as the applicant understood it, was that Mr Everett was no longer allowed to speak directly to the applicant. The applicant felt that even though he did not communicate with him verbally he felt him watching him and saw him write down things in his folder.
The applicant had 12 months off work and then says that upon returning to work he felt that Mr Everett was still attempting to intimidate him.
The applicant then had a meeting with the operational manager, Nathan Johns and spoke about a wide range of matters. In that meeting the applicant says that he spoke about his serious issues of depression and anxiety and his feelings that Mr Everett still “had it in for me”.
The applicant’s statement then goes on outlining the issues he alleges he experienced with Nathan Johns which was in the latter part of his employment from approximately 2015 to 2018. The applicant says that his relationship with Mr Johns was initially quite good, and it seemed that he was supportive with his taking time off for treatment. The applicant says however on return to work he was made to take a drug test quite frequently, whilst it was supposedly random, he had a selection rate of 100%. To illustrate this the applicant says that even on his days off his name was called out. Names were meant to be selected randomly from the computer however it seemed to the applicant that this was not occurring (he was always tested).
It was alleged the applicant was often stalling in providing urine samples. The drug/alcoholic testing bus would turn up 15 to 30 minutes after the applicant commenced his employment, but it was his routine that he would go to the bathroom before he started work. This caused an issue that he was not able to provide a sample instantly on request and it was alleged that he was stalling and simply delaying the test by other staff members.
The applicant says that he never provided a positive reading and was threatened that if he could not provide a urine sample it would be treated as a positive result.
The applicant stated that he told Mr Johns about going to a treatment facility in Thailand for treatment of his depression and anxiety issues, they are providing a holistic way to manage the applicant’s back pain.
After discussing the matter with Mr Johns, the applicant felt that he understood his condition however requested that the doctor at the facility in Thailand email him on arrival and confirm that he had been admitted and so they could stay in contact.
The applicant says he was forwarded a warning whilst he was in treatment in Thailand, the warning also being sent in a hard copy to the applicant’s parents address who he had not appraised about his treatment.
Upon return to work the applicant was confronted by Glen Scarborough who queried how the applicant could have so much time off work. The applicant explained it was leave without pay. Mr Scarborough indicated that he had been led to believe from Mr Johns that the applicant was “playing the mental health card”.
The applicant experienced work problems in that he had safety concerns when performing the cylinder tagging job as well as the dry ice production job. He had concern for the caster wheels on the dry ice boxes, a concern that other employees also experienced.
The applicant complained to Martin Tomlinson, Nathan Johns boss and was ultimately told “don’t fuck around get the wheels fixed and have a hundred in safety stock”.
There was no change to the wheels.
Ultimately the applicant had a back injury when moving a box when the wheels jammed. He felt angry and upset as he had requested the wheels to be fixed as it was a genuine safety issue and now, he was hurt.
The applicant was able to perform light duties for a few months and then was made to fill CO2 cylinders which is the most physically demanding role in the building.
Over the eight months of performing this role, on two occasions the applicant complained to Nathan about pains he was experiencing in his right shoulder, elbow and wrist. He was told to not worry as it was only a temporary situation with a new filling system was coming in from Queensland.
A short time later there was a safety meeting where the group was addressed by the New South Wales manager wanting to understand any issues on site and explain the voluntary redundancies that were coming up. The group were told they could speak freely and honestly.
In relation to safety, the applicant says he gave a brutally honest response to safety and the managers attitude towards safety on the site at the meeting.
In the days after the meeting Nathan Johns approached the applicant and told him that he would be number 1 on the list of people getting voluntary redundancies.
The applicant felt that he could not apply for redundancy as he could not leave because he could not drive forklifts or trucks anymore because of his injured back.
The applicant understood he was then added to a list of people who were being made redundant if they couldn’t get enough volunteers, effectively trying to force his redundancy by changing his core area from test shop/PL to works loading.
At that time the applicant says he was starting to get bad migraines that wouldn’t stop, and he eventually had some scans done.
After return to work the applicant refused to fill CO2 and went back to tagging cylinders.
Nathan Johns understood that the applicant had refused to fill CO2 and was told that the applicant didn’t get to choose what he did around here.
Once again, the applicant felt that safety wasn’t being advanced, he had complained about symptomatology he was experiencing and was upset that he was being forced to perform a duty which was going to aggravate his problems.
After the applicant experienced problems with his shoulder and was on restricted duties he felt the pressure to do work outside of the restrictions was getting more and more as time went on. Staffing levels were low, so the applicant was back on the forklift helping in the yard which caused issues with his back.
The applicant says that in July 2018 he was left in the yard on a forklift for four hours which aggravated his back. He was barely able to get off the forklift and walk and had lost feelings in his leg. He felt in a rage as he was constantly told that safety was “number 1”, and it was only ever “number 1” after someone got hurt.
After leaving work that day the applicant attended upon his general practitioner and told her what happened and how he felt anger towards Mr Johns and Mr Everitt.
The applicant raises further issues relating to safety including the supply of cheap and dangerous blades for label scraping, seating positions, inadequate seats in forklifts, and other issues that he felt were not addressed properly by his employer.
The applicant ultimately had surgery to his shoulder and spoke to his general practitioner about his psychological condition. He was then referred to a psychologist or psychiatrist. He was also admitted three times at Hills Clinic with depression and during his admission was diagnosed with autism.
The applicant has prepared a second statement dated 13 June 2024.[4]
[4] Application to Admit Late Documents dated 14 June 2024 page 1.
The statement appears to have been prepared in response to witness statements from the respondent’s employees.
The 61 page statement appears to have been prepared by the applicant and takes issue with his treatment particularly in relation to ‘Karolina’ who appears to be assisting the applicant in returning to work and also with Mr Everitt and later Mr Johns. The applicant expresses his frustration with the compensation process together with his employment environment with the respondent. The applicant takes issue with the evidence from the respondent’s lay witnesses including the fact that he was put on CO2 filling while on light duties restrictions and left there for almost a year.
I should observe that counsel for both parties did not take me to any of the evidence directly contained in that second statement and I don’t propose to outline the evidence given that it is some 61 pages.

Raymond Everitt

Raymond Everitt has prepared two statements a statement dated 2 May 2023 and then
[5] A signed statement was later provided by the respondent’s solicitor, this statement being unsigned.
30 April 2024 (which is annexed to the respondent’s late documents page 13).[5]
Mr Everitt was a team leader at the respondent’s premises. He cannot recall when the applicant joined the team but observed that he was a non-performer and not a great attender at work.
Mr Everitt’s evidence rejects the majority of the applicant’s evidence and provides an alternative description of a safe, fair and somewhat collaborative workplace.
Mr Everitt felt surprised that there was an allegation that he has been bullied and harassed by him. He says that the applicant’s work performance was questionable however management did not take any action on his performance, and he was left alone, as he wanted to be.
He does agree that the applicant was moved around a lot, because he was a poor performer, and he was just not happy in any section.
So far as safety was concerned, he describes the respondent as a very WHS conscious company. Indeed, they had a forklift mechanic who came in every second week to check the forklifts. He does not say of they checked the seats on the forklift.
In relation to voluntary redundancies, he says that voluntary redundancies were given to people who wanted to take it and had to be applied for. He concedes that it has been hearsay for years that old staff were being pushed out. He concluded that the unions like to say this to twist the minds of their employees. I have never seen this from management, and it is just completely untrue.
Mr Everitt also says that nobody was ever forced to work beyond what was recommended by the medical practitioners. He says he has always abided by these medical recommendations and would never have made the applicant drive a forklift when he was not permitted to do so.
In relation to driving the forklift in circumstances beyond the applicant’s physical tolerance, Mr Everitt candidly accepts that he personally never made the applicant drive a forklift, but if he did it would have been of his own accord,
Mr Everitt also disavows any allegation of rorting overtime system. He says overtime was done by management on a rotating system and overtime was worked using a list and going down the list one person at a time. Mr Everitt does however concede that when he had enough of the complaints, he relinquished involvement in relation to it. He says that this was his decision to do this not management. The concession in relation to ‘complaints’ does illustrate some discord among the staff in relation to the roster as there was complaints in relation to it.

Mr Everitt disavows yelling at people or forcing people to do what they don’t want to do. He rejects any assertion of confrontations with the applicant. Mr Everitt however does not specifically address the applicant’s allegation in relation to the forklift incident where the applicant said forklift was driven in an aggressive and dangerous manner. The general tenure of his evidence however seems to reject any confrontation at all.

Nathan Johns

Nathan Johns has prepared statements dated 1 May 2023[6] and 29 April 2024.[7] Mr Johns was the zone production manager of New South Wales between 2014 and 2019 where he was responsible for running the BOC operations site at Wetherill Park. In 2016 he had 75 people reporting to him of which 65 were blue collar employees and 10 white collar employees.
[6] Respondent’s Application to Admit Late Documents, page 43.
[7] Respondents Application to Admit Late Documents, page 34
In his first statement, Mr Johns said that he had minimal contact with the applicant as whilst he was the most senior manager on site, the applicant had two managers above him before Mr Johns.
Mr Johns disagrees that the applicant was given fewer desirable jobs. He said that many things were done to try and help the applicant and there was a patience and concern for him. He rejects any notion that the applicant was expected to do more than for which he was medically certified.
Mr Johns states that the redundancies that were offered in 2017/2018 were voluntary redundancies, for which the applicant did not apply.
In his second statement Mr Johns rejects many of the applicants’ allegations. He rejects trying to get the applicant a job transfer to Gladstone and that the applicant was targeted in relation to drug testing (it was a random selection).
Mr Johns does not directly dispute that the applicant made comments about Mr Everitt, though concedes it was possible as the applicant had issues with a number of people. He also concedes that correspondence was sent to his house (presumably where his parents reside) as this was the nominated address for mail.
Mr Johns flatly rejects any suggestion that he discussed the applicant’s mental health with Ray Scarborough.
He also concedes that he recalls the applicant filling CO2 Cylinders (which is consistent with applicants’ evidence), but this would not have been to intentionally aggravate the applicant’s injury. He comments that the role requires physical exertion on the part of the operator.
Mr Johns however also states that he cannot recall all the conversations he had with the applicant, which is understandable given the role that he was in. His interaction with the applicant was ‘minimal’ and he would only get involved when things were escalated to him.

Sok Duch

Sok Duch has prepared a statement dated 8 May 2023.[8] Mr Duch worked with the applicant and observed him to be a hard worker. They did a number of shifts together and got on well. He says that the applicant never said anything to him about Nathan Johns. Mr Duch does not agree with any comment that the respondent was trying to push out old staff.
[8] Respondent’s Application to Admit Late Documents, page 51.
Mr Duch also comments that the respondent was very focused on safety and there were toolbox meetings every month.
While the applicant would have spoken to him about his interactions with Ray Everitt, he did not directly allege any bullying or harassment.

Owen Mehaffy

Owen Mehaffy has provided a statement dated 30 April 2024[9]. He provides context to the contact made with the applicant in 2023 regarding any intention to return to work.
[9] Respondent’s Application to Admit Late Documents, page 22.
He states that the applicant had been off work since 2014, which is clearly incorrect but has little effect to his evidence. He says that a discussion was had with the applicant wherein he agreed that he was unable to return to work mainly because of his psychological injuries.
In that discussion it was indicated to the applicant that because he was not going to return to work, he was not required to undergo psychological testing. He was also offered pay in lieu as part of separation agreement. He would also need to sign a standard waiver that he would have no further action against the respondent. Mr Mehaffy comments that this would not affect his workers compensation rights but does not indicate that this was explained to the applicant and is totally silent so far as the applicant’s common law rights against the respondent.

Medical Evidence

I will now move on to the medical evidence.

Dr Christopher Canaris

The applicant’s solicitors requested a report from Dr Canaris, who has produced a report dated 11 February 2022.[10]
[10] Application page 24.
Dr Canaris understood that the applicant had physical injuries which included a shoulder injury in 2018 and lower back injuries in 2013 and 2017.
The applicant gave a history of difficulties since 2013 and felt that he had been discriminated against, felt belittled, felt deprived of overtime and was given all the poor jobs.
The applicant related how he ultimately finished work, that is when he was left on a forklift for four hours and when he got off, he couldn’t feel his legs. The applicant described himself as being feeling furious and feeling like taking a baseball bat to Mr Johns.
The applicant reported that he had been admitted to The Hills Clinic for severe depression at which time he was also diagnosed with dyslexia and attention deficit hyperactivity disorder (ADHD).
Dr Canaris conducted a mental health examination and opined that the applicant’s presentation was consistent with a diagnosis of a persistent depressive disorder (dysthymia) and autism spectrum disorder. The autism spectrum disorder was longstanding and pre-existing however the depressive disorder appeared to Dr Canaris to be predominantly attributable to the bullying and harassment reported by the applicant.
Dr Canaris has prepared a second report dated 11 February 2022. In that report he assesses the applicant as having a 22% whole person impairment arising from his workplace problems. The doctor had also made a one tenth deduction in relation to his assessment based on the autism spectrum disorder.[11]
[11] Application page 533.

Dr Chambers

Dr Chambers was requested to provide his opinion by the respondent insurer. He has prepared a report dated 3 March 2023.[12]
[12] Application page 35.
Dr Chambers took a history of both physical pain and bullying and harassment in the workplace over a long period (starting in 2007).
Dr Chambers diagnosed the applicant as having a major depressive disorder and that there were features suggestive of an autism spectrum disorder however, he was unable to confirm that secondary diagnosis.
It was Dr Chambers opinion that the major depressive disorder had developed in the context of both being allegedly bullied and harassed at work and also the physical injuries he suffered in the course of his employment. Dr Chambers was unable to assess or quantify the contribution of each of these factors to the applicant’s condition.
After assessing the applicant’s psychiatric condition, Dr Chambers assessed the applicant as having a whole person impairment of 19%. He thought the psychiatric condition had arisen from both primary and secondary factors however it was not possible to quantify each of those factors.
It should be observed that Dr Chambers made no adverse commentary regarding the applicant’s credit, nor did he question the history provided by the applicant.

Ms Webster

Ms Webster is a treating psychologist. She has prepared a report dated 9 May 2019 which went to the respondent company.[13] Ms Webster diagnosed the applicant as presenting with a major depressive disorder. The applicant reported a low mood in the context of the injury to his shoulder and the perceived bullying and harassment he had received. Ms Webster opined that the applicant was not fit to return to work at that stage.
[13] Application page 562.

The Hills Clinic

The treating notes from the Hills Clinic have been annexed to the Application. Looking at the notes there are numerous contemporaneous entries in relation to bullying and harassment. There are also many entries relating to pain, which is conceded by the applicant. I will now focus on entries relating to the issues in dispute- that is contemporaneous complaint about bullying and harassment.
In the admission mental assessment form (at page 134 of the application) there is history of a work-related injury and the applicant feeling angry/frustrated with his boss manager. It appears this is in relation to the October 2019 admission.
In the medical discharge summary dated 21 October 2019,[14] there is a history of the applicant being admitted managing his suicidal thoughts in context of his indecisiveness of further actions around WorkCover. A history was provided of workplace harassment/bullying as well as episodes of work-related physical injuries.
[14] Application page 159.
On 29 June 2020 in the nursing admission assessment[15] there was a history of a 40-year-old male presenting with severe anxiety and of bullying and harassment at work with a work injury between 2013 and 2017.
[15] Application page 99.
In a clinical risk assessment conducted by Dr Chapagain on 3 July 2020 there was a history of there being a work-related stressor.[16] Likewise in a clinical risk assessment (at page 107 of the Application) there is history of bullying at work with a work injury.
[16] Application page 105.

Mt Druitt Medical and Dental Centre

The clinical records from the applicants treating general practitioner have been provided.[17] On 22 January 2013 the applicant described an injury in August 2012 when driving a forklift where the forklift jarred, and he felt numb in the legs.
[17] Application page 184.
On 1 September 2016 the applicant was intending to go to Thailand for rehabilitation and confessed that he had been taking recreational drugs for a long period of time.
On 4 October 2016 the applicant presented with suffering from anxiety and depression due to chronic back and shoulder pain. He recently came back from Thailand and was very disappointed with the rehab unit in Thailand and the treatment there.
On 6 March 2017 the applicant reported a work-related back injury. The patient felt he had re-aggravated his previous back injury at the same workplace as he was pushing a 300kg dry ice box at work.
On 13 March 2017 the applicant presented with back pain. He was on light duties. He described having recurrent back injury due to his job.
On 3 April 2017 the applicant presented with back pain and insomnia.
On 4 May 2017 the applicant once again presented with a history of back pain improving and was attending for physiotherapy.
On 27 June 2017 the applicant presented and said that his back pain was resolving however there was still chronic back pain.
On 25 March 2018 the applicant attended with chronic pain in the neck. On 12 January 2018 the applicant presented with severe back pain.
On 4 April 2018 the applicant presented with chronic neck pain with right shoulder rotator cuff pathology related to a work-related injury on light duties. The applicant was under a lot of stress.
On 18 May 2018 the applicant attended feeling unwell, looking depressed and feeling that nothing was going right for him. He had a work-related right shoulder injury and was not happy in the workplace together with back pain.
On 13 August 2018 the applicant presented with a severe right shoulder pain.
On 10 September 2018 the applicant explained that he was experiencing anxiety and depression and was not motivated due to depression and pain. The applicant wasn’t keen to take medication for depression and/or pain.
On 25 October 2018 the applicant described insomnia due to the pain in his right shoulder and stress. The applicant was in to see the right shoulder surgery shortly thereafter.
On 19 February 2019 the applicant attended on his general practitioner and once again the right shoulder was resolving but the applicant did not want to see his manager and supervisor who bullied him at work. The patient felt that if he went back to work, he would punch them.
On 5 March 2019 the applicant attended upon his general practitioner and said that he had ongoing stress and depression relating to his work injury.
On 20 March 2019 the applicant attended upon his general practitioner. The right shoulder was improving however depression was getting worse. The applicant expressed that he does not want to see his supervisor.
On 24 March 2019 the applicant attended upon his general practitioner and felt angry and reported that he had experienced 3 injuries related to work. He had two lower back injuries and a right shoulder injury which was healing. He is angry because he felt that his work was negligent about his injury, and he was angry with his supervisor.
On 8 May 2019 the applicant attended on his general practitioner and said that he still had an anger issue but was getting better but did not want to see the supervisor who had bullied him.
On 23 May 2019 the applicant attended on his general practitioner and said that his right shoulder rotator cuff injury was getting better but he was still distressed and upset due to bullying by his supervisor.
On 6 June 2019 the applicant attended and said that the injury to the right shoulder was resolving but was unable to go to work due to ongoing anger and issues with the supervisor.
On 20 June 2019 the applicant came for review and once again gave a history in relation to bullying and harassment and back pain. The applicant was feeling anxious and depressed and not ready to work.
On 18 July 2019 the applicant provided a history that he was getting better with his right shoulder pain injury but was still angry with the supervisor and manager and felt like punching them. The applicant also says he was in chronic back pain.
On 25 July 2019 the applicant attended a WorkCover review and expressed anger with two workers who were involved with his case.
On 30 August 2019 the applicant attended and said that he wanted to go back to work once a week, his right shoulder pain was improving, and he was less stressed.
On 16 September 2019 the applicant presented as being very frustrated for not getting a job at the current workplace. He was depressed with suicidal tendency. He was upset with everyone.
On 18 November 2019 the applicant presented with anxiety.
On 25 November 2019 the applicant attended once again and provided a history of physical injuries together with “bullying and harassment” in the workplace.
On 13 December 2019 the applicant attended for WorkCover review however was in constant back pain with a right shoulder injury and had a bullying and harassment injury from work. The applicant expressed that he was angry with the people involved regarding the bullying.
On 29 January 2020 the applicant came for WorkCover review and requested to have his records transferred to a solicitor. There was a history of two back injuries and a right shoulder injury, and the patient had workplace bullying and issues with two people at work.
On 14 February 2020 the applicant had ongoing suicidal ideas, had an MRI of the back which was essentially normal.
On 15 March 2020 the applicant had ongoing back pain and explained that he didn’t want to live in Sydney.
On 17 April 2020 the applicant attended with a depressive mood with suicidal tendencies. There was a long discussion about the stress situation and the applicant needed hospital admission. The applicant says that he has recurrent right shoulder pain, and it was radiating to the right forearm and the thumb. He had ongoing back pain and he got upset when the applicant was told that he couldn’t have surgery done in relation to the back.
What can be concluded from these notes is that the applicant has regularly reported conflict at work and also experiencing pain.

Matthew Hicks

Matthew Hicks is a physiotherapist who saw the applicant in March 2017 after referral from his general practitioner. Mr Hicks has written a report to Dr Fernando dated 17 March 2017.[18] In that report Mr Hicks reports an injurious event which occurred when the applicant was pulling a large container of dry ice which was suspended on a trolley and/or wheels. The applicant reported twisting to the left and pushing the container causing immediate lower back pain. Mr Hicks understood that the applicant’s current role with the respondent required him to push and pull heavy containers of dry ice however he was currently completing light duties at work which did not involve any lifting.
[18] Page 457.

SUBMISSIONS AND FINDINGS

The respondent’s case is essentially that whilst it is accepted that the applicant has a psychological illness, it is not the product of bullying and harassment. Rather, it is alleged that any such illness has been caused by other factors, either the physical injuries (for which the applicant cannot be compensated due to s 65A of the Workers Compensation Act 1987 (1987 Act)) or matters outside the workplace. Quite clearly there is a primary factual issue, and it is on that basis that the respondent disputes the applicant’s entitlement.
It is not in dispute that that both Dr Chambers and Dr Canaris appeared to be in agreement in relation to diagnosis and causation. The respondent says however that one must be careful about the assumptions that have been relied upon to form such an opinion.
In relation to the evidence that has been provided by the respondent lay witnesses, it was pointed out by counsel who appeared for the applicant that looking at the evidence as a whole, it appears that there was conflict in the workplace and that is how the relationship should be described.
The applicant singles out the conduct of a couple of employees, in particular Mr Johns and Mr Everitt in his statement.
The applicant does not move away that there is a concurrent stressor, and that is pain caused by the accepted physical injuries.
The applicant refers to the treating notes of Dr Fernandra (GP), which I have already outlined which provide evidence that the applicant is frustrated, angry and depressed and quite clearly, he relates a significant part of this to the interactions with the respondent’s employees.
The applicant points to matters such as he was given duties that he felt were outside the scope of his abilities and medical limitations. The applicant says that he was made to sort cylinders, which is in effect a grunt job which the applicant perceived in a negative way.
The respondent argued that the applicant has provided limited medical support for its case on the basis that Dr Canaris was not provided the Mt Druitt Medical Centre material. It says on this basis considerably less weight should be given to the opinion of Dr Canaris. I pause to observe that whilst Dr Canaris does not appear to have the documents, Dr Chambers does and still arrives at the same conclusion. I therefore give little weight to this submission.
The respondent pointed out that the factual allegations made by the applicant have not been made out. Firstly, there is the accusation that Mr Everitt was rorting the overtime system that caused the applicant to have a target on his back. The underlying proposition has been firmly rejected by Mr Everitt.
In relation to this issue, I think the evidence from Mr Everitt has to be read in full. He concedes that there were a lot of complaints about how the overtime was being allocated to such an extent that he ‘relinquished control of it’. I infer that this means that there were a significant number of staff that were unhappy about the allocation of overtime and I therefore accept that the applicant formed part of that unhappy group and had concerns about the allocation of overtime.
There is also a suggestion by the applicant that Mr Johns was trying to arrange for the applicant to be transferred to Gladstone, that is firmly denied by Mr Johns.
In relation to Mr Johns saying to the applicant that he did not believe he would come back after his period of leave he denies ever saying that to the applicant. However, his statement when you look at it, does appear to have a suspicion that he would not return.

In relation to drug testing, the applicant felt that he was targeted, that was firmly denied by the respondent’s witnesses and not just by Mr Johns. There is agreement between all witnesses that drug testing took place, this was a real event. There is also no reason for me not to accept that the applicant felt targeted.
The suggestion that Mr Everitt was out to get the applicant is rejected by Mr Everitt and there was no evidence from any other witness saying that he was targeted by Mr Everitt. I observe that Mr Everitt is very candid in his assessment, describing the applicant as someone “who was a non-performer, so it didn't make a difference whether he was at work or not” and was also a “poor performer”. He also states that he did not respect people who came in to work to bludge. In infer that this meant that his did not respect the applicant. I can understand that the applicant would feel concerned about the relationship.
I also observe that Mr Everitt does not specifically deny that he drove the forklift at the applicant so that the applicant was frightened, though the tenure of his evidence is against this proposition. He does not even address any circumstance that the applicant could have perceived that he was in danger in this regard. I therefore accept, on balance, that there was a circumstance, a real event, where the applicant felt in danger when Mr Everitt was driving the forklift.
I also observe that the applicant says he complained to Mr Handley about the relationship with Mr Everitt and no evidence has been produced to say to the contrary from Mr Handley. I therefore accept that the applicant complained as he states.
Putting these matters together is quite clear, there whilst not openly conceded by Mr Everett, that the relationship between Mr Everett and the applicant was not one that was cordial or friendly. It supports the applicant’s description of a workplace of being in some conflict.
In relation to safety allegations, such as the caster wheels on the dry ice boxes, Mr Johns says that simply did not happen. The applicant however says that he injured himself whilst moving a box. It seems to me that there is no reason for me not to accept that applicant injured himself and as such I accept that he felt that there were safety issues with the boxes was real to the applicant.
Further the applicant said he raised the issue with team leader Dave Waters, who has provided no evidence to the contrary. The respondent does not address the other safety concerns the applicant raises such as the blades for label scraping and inadequate seating on forklifts. There is no reason for me not to accept that the applicant perceived safety issues regarding these other issues.
Mr Everett also states that there was a time when they were being manages by John Evans who was very tight on operation costs, which the company is now feeling the brunt off, which grounds the applicant concerns regarding cutting costs and safety somewhat. Mr Everitt does not identify what time this was. This provides an example of safety issues being a real issue at the respondent’s premises but does not provide me with enough detail to ascertain when this was.
Exceeding physical limitations on what duties the applicant was required to do on light duties is firmly rejected by the respondent. This, however, is somewhat conceded by Mr Everitt in relation to driving the forklift in circumstances beyond the applicant’s physical tolerance, Mr Everitt candidly accepts that he personally never made the applicant drive a forklift, but if he did it would have been of his own accord. This certainly seems to make it possible that this would occur if the applicant decided to exceed his own medical capacity.
This is also not inconsistent with evidence from Mr Johns to the effect that he recalls the applicant filling CO2 Cylinders (which is consistent with applicants’ evidence), but this would not have been to intentionally aggravate the applicant’s injury. He comments that the role requires physical exertion on the part of the operator. Once again this is a real event in the workplace and the applicant perceives it in a certain way.
I observe that in relation to this issue, the applicant hasn't provided discrete detail in relation to what periods he alleges he was required to work outside his restricted duties and what specific tasks that he performed. I therefore cannot make any findings in respect of this allegation discreetly however, given the applicants evidence, I can accept that he felt he was given arduous tasks in circumstances where he had a physical injury. This is also confounded with the applicants’ duties in the last day of employment where he spent some FOUR hours on a forklift causing him extreme pain. No evidence has been adduced by the respondent to contradict that this did indeed occur.
In relation to the redundancy, and the allegation that he was at the top of Mr Johns list for redundancy, is firmly rejected by Mr Johns. There is some evidence from Mr Everitt that it has been hearsay for years that old staff were being pushed out. He concluded that the unions like to say this to twist the minds of their employees. There is no reason for me not to accept that the applicant felt that he was being ‘pushed out’.
Whilst minds may differ, this however does not mitigate against the fact that the applicant felt that he was being targeted in circumstances where redundancy offers were real. Mr. Jones also does not address the evidence of Mr Everett to the extent that there was a perception in the workplace that old staff were being pushed out. I accept that Mr Everitt has described the perception in the workplace accurately.
It is also firmly denied that the applicant was in effect being tricked into signing a deed to waive workplace rights. The fact remains however that the applicant was involved in a discussion where he was asked to sign a waiver in 2023. There is no evidence at all that the applicant understood that this did not affect his workers compensation rights (only that
Mr Mehaffy understood this). There is also no evidence at all that the waiver did not compromise the applicants common law rights. I therefore understand why the applicant perceived that he was being tricked in signing a deed to waive workplace rights.
Mr Johns also denies that he breached the applicant’s privacy in disclosing matters that were discussed on a confidential basis. I accept that this is true, however the uncontradicted fact remains that the applicant was confronted by a fellow worker, and it was alleged that he was “playing the mental health card”. I understand, based upon that comment, why the applicant perceived that his confidence had been betrayed.
After considering all the evidence what is quite clear is that the treating notes provide a consistent history that the applicant felt or perceived bullying and harassment in the workplace, this concurrently was experienced with pain. I accept that the applicant experienced low mood in the context of his injury together with that perceived hostile treatment. This is clear from the contemporaneous evidence from the General Practitioner, Ms Webster and Mr Hicks who are consistent with the applicant’s perception of being targeted and an unsafe work environment.
In Attorney Generals’ Department v K [19] Deputy President Roche considered the issue of establishing psychological injury in circumstances of a worker’s perception of real events at work. Crucially it was established that.
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]).
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]).
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]).
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan).
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[19] [2010] NSWCCPD 76.
In this case I make a finding that the applicant perceived that he was bullied and harassed in the workplace. He felt conflict at work. The treating notes which I have outlined all support such a finding. His perception is based upon real events not external ones. The applicant felt a hostile environment and a psychological injury was sustained.
It maybe that the respondents’ witnesses view their conduct as differently to the applicant and I accept that as reasonable. The situation remains however, that after a close analysis of the applicants’ complaints, be they flawed or not, they are on a background of real events in the workplace, for instance, redundancies were being offered and drug testing did take place. It does not matter that he may have had a ‘flawed perception of events’.
So far as there is a conflict between these findings and the assumptions relied upon by the experts, I am reminded of Paric v John Holland Constructions Pty Ltd, in which the High Court said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.”
The applicant also quite correctly points out that if the applicant is completely wrong about all the conflict that he perceived in the workplace, where does this perception come from. There is no medical evidence suggesting the applicant was delusional or psychotic and there is no alternative history suggested.
What is abundantly clear in this case is that both retained experts agree in relation to diagnosis and causation. Both experts do not raise any issues in relation to the applicant being a malingerer or providing a suspicious history in relation to his perception of workplace events.
I also agree with the applicant submissions that if the respondent wished to advance an issue in relation to a medical causation, then there is no evidence before me that provides such evidence in relation to medical causation. That is if the respondent’s position was that that the psychological injury was not the result of bullying and harassment and also that any psychological injury should be described as a secondary psychological injury, then medical evidence should support such an argument.
In those circumstances, the applicant has discharged the burden of proof in relation to the question of injury.
Accordingly, there should be a remittal to the President to be referred to a Medical Assessor in relation to whole person impairment of a primary psychological injury.

[2024] NSWPIC 415

1 August 2024