Riman v IBM Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Riman v IBM Australia Limited [2023] NSWPIC 329
APPLICANT:	Maggie Riman
RESPONDENT:	IBM Australia Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	7 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for death benefit by legal personal representative of estate; applicant’s claim deceased’s underlying psychological condition was aggravated by her employment causing injury, and ultimately death by self-harm; Held – the applicant must establish her employment was the main contributing factor to the aggravation of the deceased’s underlying condition, of which there can be but one; where there are competing work and non-work factors in play, it is important to weigh up the relevant contributions of both; AV v AW followed; the evidence establishes the causes of the deceased’s aggravation were multi-factorial; the contemporaneous material reveals the predominant issues in the lead up to and at the time of the deceased’s decompensation were non-work related and the applicant’s claim must therefore fail; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

These proceedings are brought by the legal representative of the estate of the late Rita Riman (the deceased), her sister Maggie Riman (the applicant) against the deceased’s former employer IBM Australia Ltd (the respondent).
The applicant seeks payment of the death benefit agreed to relevantly total $838,750, said to be payable as a result of a psychological injury by way of an aggravation of a pre-existing condition sustained by the deceased with a deemed date of injury of 20 April 2015. The deceased died by suicide on 14 June 2021.
Liability in respect of the claim is disputed. The respondent denies the applicant suffered a psychological injury in the course of her employment, and also alleges the applicant’s death was caused by an intentional self-inflicted injury (s 14(3) of the Workers Compensation Act1987 (the 1987 Act)). Additionally, the respondent alleges the applicant failed to make a claim in respect of the deceased’s death within the required time and is therefore precluded from claiming compensation pursuant to s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the deceased suffered a psychological injury in the course of her employment with the respondent by way of aggravation of her pre-exiting psychological condition;
(b) if so, whether the deceased’s death was caused by an intentional self-inflicted injury, and
(c) whether the applicant is precluded from claiming compensation by virtue of the operation of s 261 of the 1998 Act.

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.
The parties attended a hearing on 12 April 2023. The matter was then adjourned for a further hearing in person, all day on 22 June 2023. On that occasion, the applicant was represented by Mr Hanrahan of counsel instructed by Mr Keen. The respondent was represented by Mr Beran of counsel and instructed by Ms Turnbull.

EVIDENCE

Documentary evidence

There was a litany of documents in evidence before the Personal Injury Commission (Commission) and considered in making this determination. They were:
(a)    Application in Respect of Death of Worker (the Application) and attached documents;
(b)    Reply served under Application to Admit Late Documents (AALD) dated 15 February 2022;
(c)    respondent’s AALD dated 22 February 2023;
(d)    respondent’s AALD dated 15 March 2023;
(e)    applicant’s AALD dated 5 April 2023;
(f)    respondent’s AALD dated 5 April 2023;
(g)    respondent’s AALD dated 17 May 2023;
(h)    applicant’s AALD dated 22 May 2023;
(i)    respondent’s AALD dated 24 May 2023, and
(j)    respondent’s AALD dated 9 June 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work-related psychological injury

The applicant alleges the deceased suffered an injury by way of aggravation of a pre-existing psychological condition as a result of work-related factors, with a deemed date of injury of 20 April 2015. The applicant alleges the deceased suffered psychological trauma due to working long hours and being on call, together with interpersonal problems in the workplace.
There is no issue the deceased last worked on 20 April 2015, or that she committed suicide on 14 June 2021.
At the hearing, Mr Hanrahan presented the applicant’s case as an injury by way of aggravation of a pre-existing psychological condition. It is trite law to say that in such a case, the applicant must establish the deceased’s employment was the main contributing factor to any such aggravation. Relevantly, it is the cause of the aggravation which must be examined, not that of the underlying condition.
In Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71, Roche DP noted:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626).”
In determining whether an injury by way of aggravation has been suffered, it is important to consider the cause of the aggravation to the condition, not the underlying cause of the pre-existing condition.
The distinction between “main contributing factor” and “substantial contributing factor” is important in the context of this matter. Snell DP dealt with the nature of the test for “main contributing factor ”in AV v AW [2020] NSWWCCPD 9 (AV). At [66], the Deputy President said:
“66. I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act.[97] There may be more than one ‘substantial contributing factor’. ‘Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.’[98] (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments’ …
70.    In Awder Pty Limited t/as Peninsular Nursing Home v Kernick, I expressed the view that whether ‘substantial contributing factor’, for the purposes of s 9A of the 1987 Act, was satisfied was ‘a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.’ That view was applied by Keating P in Hogno v Fairfax Regional Printers Pty Limited and by Roche DP in Villar v Tubemakers of Australia Pty Ltd. The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.
71.    In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
‘That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’ (emphasis added)
72.    I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as ’one of causation’. This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited. Their Honours referred to the “causative element” of the test in s 9A. It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.
73. In Bradley, a case involving s 4(b)(ii) in its current form, King SC ADP referred to the question posed by an Arbitrator, ‘whether or not ... the [worker’s] work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease’. The Acting Deputy President described this question as the correct one.”
As the Deputy President noted in AV at [76], where a relevant aggravation involves both employment and non-employment factors, “the evaluative process involves a consideration of the causative role of both”. It is necessary to consider firstly whether there were competing causal factors (employment and non-employment related) of the aggravation, and in considering those relevant contributing factors, whether employment represented the main one. This is such a case.
The deceased last worked on 20 April 2015. She made a claim for weekly compensation and signed a claim form on 1 April 2020. She described her injury as having been brought about by “undue stress” and “intimidation”. That claim was denied by Dispute Notice dated
8 June 2021. The dispute notice denied liability on the basis the deceased’s employment was not the main contributing factor to the aggravation of the applicant’s psychological condition.
The deceased made a statement in support of her claim for weekly benefits dated 23 September 2020. In that statement, she set out her evidence regarding the circumstances at work from paragraphs 10 to 44 inclusive. For the purposes of these reasons, I do not propose to repeat the contents of those paragraphs in full. In summary, the applicant alleges she suffered a breakdown in the course of her employment owing to working long shifts of up to 16 hours per day. She stated there was a lack of staff and she would often be doing three people’s roles while training people at the same time.
The deceased also stated before she suffered her alleged injury, she entered a new role working Monday to Friday, and upon undertaking this role she was “always first there and last to leave”. She stated that notwithstanding her role had changed, people from her previous team had continued to contact her for assistance and she was therefore overwhelmed. She said she was on call a lot, barely had time to drive home, set her laptop up and have her on-call phone ready to continue with her duties.
Additionally, the deceased stated one of the senior staffers with whom she worked, Mr Horsley, was “the primary cause of the troubles that I faced in the new role”. She described Mr Horsley as trying to push her out of or move the team around so she would not be part of the team. The deceased stated Mr Horsley would walk in of a morning and simply grunt at her. In her statement from paragraph 30 onwards, the deceased set out other aspects of her relationship with Mr Horsley which she said caused her psychological injury.
At this point it should be noted there is no statement in evidence by Mr Horsley, however, Mr Hanrahan appropriately did not ask for any inference to be drawn as to that lack of evidence. The factual investigation report placed into evidence makes it clear the respondent made efforts to contact and obtain a statement from Mr Horsley, however, was unable to do so. I decline to make any inference surrounding the lack of statement evidence by Mr Horsley.
The deceased admits in her statement she was not able to recall exactly what happened on her last day of work on 20 April 2015, however, she had what has been described as a breakdown. According to the deceased, she did not resign, but was off work on sick leave until she obtained a separation certificate in 2017. She describes being essentially “catatonic” for most of the time up until 2017. The deceased also received income protection insurance benefits during this period.
For its part, the respondent has tendered lay evidence including statements from occupational health and safety nurse/ disability case manager Mr Armstrong. His relevant evidence is as follows:
“15. No information was available as to what occurred on the claimant’s last day of work, 20 April 2015. There is no recorded or acknowledged event in the workplace involving the claimant, on this date.
16.    Initially, the matter was being managed as a non-work-related injury and a diagnosis was provided of PTSD, OCD and depression/anxiety. The claimant had spoken about coping with trauma from her past and not coping with life from approximately June.
17.    At this time, she also reported that her partner and father were unwell and her ex-partner had committed suicide.
18.    After the claimant ceased work, she was hospitalized through a PTSD program – I believe that this was sometime in 2016. This was evidenced from medical certificates and reports being provided by the claimant’s treating doctors.
19.    There was no mention at any time throughout the case management period of Rita Riman’s health issues being work related. One of the emails to the claimant outlined what she needed to do if her condition was work related and we had no response to this.
20.    The claimant continued to be on sick leave and we continued to liaise with her throughout her period of leave.
21.    She was sometimes difficult to engage with. We also engaged with her treating doctors, trying to get an indication of her RTW prognosis. Throughout this time, she was totally unfit for work.”
The respondent also placed in evidence a statement from Ms McCarthy, who was the deceased’s former direct supervisor until Ms McCarthy left the respondent’s employ in March 2015. In that statement, Ms McCarthy stated she was not aware of any interpersonal conflict between the deceased and Mr Horsley, and no one in the team had reported any issues to her. Ms McCarthy noted the deceased and Mr Horsley were not in the same team, but rather separate teams within the same business unit. She described Mr Horsley as being undisruptive in the work environment.
Mr Hanrahan submitted the deceased had suffered a work-related burnout which aggravated her underlying condition. The fact of the applicant’s pre-existing condition is not in dispute. He submitted that notwithstanding the deceased’s prior issues, the main reason she ceased work were because of what was going on in the office. In particular, Mr Hanrahan drew attention to the report of Dr Heiner, treating psychiatrist, dated 24 March 2016 in which the treater notes the deceased had been unable to return to work as her symptoms had not improved. Whilst I accept that submission on its face, the report of Dr Heiner referred to by Mr Hanrahan does not provide an opinion on causation.
Mr Hanrahan submitted that although the deceased plainly had a complex history of underlying psychological issues, the aggravation caused in the workplace remained as the main contributing factor to the aggravation of the condition which led to her suicide and death.
For the respondent, Mr Beran noted the applicant’s independent medical examiner (IME)
Dr Suman indicated in their report the deceased’s employment was actually the cause of her psychological condition, rather than any aggravation to it. Dr Suman provided the following summary:
“As per a detailed review, including a discussion with Ms Maggie Riman, I was not able to elicit a history indicative of Ms Rita Riman suffering from a diagnosable mental illness before 2014. I was not able to elicit any evidence indicative of any specific personality traits or deficits contributing to her presentation or any functional decline before 2014.”
With respect to Dr Suman, that history is plainly incorrect. The deceased in fact suffered from a complex and lengthy history of pre-existing mental health issues. Mr Beran submitted the history provided by the applicant in her statement as to the deceased’s psychological well-being before leaving work is indicative of her not knowing the full extent of what the deceased was going through in the workplace, or what other stressors were affecting the deceased at the time of her alleged injury. The applicant says in her statement the deceased had treatment for psychological trauma caused at work after she left the respondent’s workplace. That evidence is incorrect. The applicant commenced treatment with Dr Mullin in or about February 2015, and the stated reasons for undergoing that treatment did not mention work-related trauma or stressors.
While I have no issue accepting the applicant has provided her statement in good faith and no doubt had the best interests of the deceased at heart, the contemporaneous clinical records reveal the background and clinical picture surrounding the deceased’s psychological condition were far more complicated than was known to the applicant at the time she swore her statement.
Among the documentation placed into evidence are clinical records from several treating practitioners, clinics and hospitals, including inpatient records from Healthscope, attached to the respondent’s AALD dated 5 April 2023. Those records include a referral document at page 89, dated 22 June 2016. On that occasion, the applicant was being admitted to a specialised inpatient programme. When setting out the reason for referral, the hospital records noted:
“Rita has had a significant history of childhood abuse including sexual, verbal, emotional and physical (uncle and both parents). Has had admissions in the past in New South Wales. Has been self-harming most of her adult life but recently that increased.”
At page 102 of the Healthscope documents is a psychiatrist admission form dated
2 July 2016. It noted the deceased’s work history as a security analyst until April 2015 and that she stopped working “due to a major bout of depression”. That document also contained a history of the deceased having suffered from suicidal thoughts since her late teens and also recounted the history of abuse by her parents and uncle.
A further document dated 2 August 2016 found at page 410 revealed a past psychiatric history of “complex trauma disorder on background of multiple developmental adversities and trauma in childhood/teen then of alcohol use”.
The applicant also completed a childhood traumatic event scale which set out a list of issues which she has had together with a recent traumatic events scale. That document revealed the applicant disclosing a lengthy history of sexual abuse, childhood violence and physical and verbal abuse.
In terms of recent trauma within the last three years (noting the document was completed in or about 2016), the deceased noted the death of a close friend or family member as being extremely traumatic, together with suffering a major upheaval between her and her spouse, which was also majorly traumatic together with three members of her family being in hospital for various issues including cancer treatment and her partner having been sick for several years. There was no mention of any work-related stressor.

The respondent’s AALD dated 15 March 2023 attaches clinical records from various hospitals and clinics. They include a report from treating psychiatrist Dr Heiner to the applicant’s general practitioner (GP) Dr Trompf. In that report, Dr Heiner took the following history:
“Ms Riman is a 37-year-old woman, who has had a stable relationship for 11 years. She is living in stable rented accommodation, and has been employed in the computer industry.
At the end of 2014, Ms Riman developed increasing depressive and anxiety symptoms. There were a number of life events, including her mother being hospitalised, her sister being hospitalised, her partner’s epilepsy deteriorating and her father’s diagnosis of cancer all contributing. Under these combined life events, she decompensated with markedly increased depression and anxiety.
In early 2015, she attended a mindfulness workshop run by a local psychology group, and became aware of her ‘chronic longstanding anxiety’. These problems have been present for many years and she dealt with them in a constructive manner however, before recognition of her symptoms had not occurred. This further led to deterioration in her functional level.
Since then, she has been in continuous outpatient therapy, has attended the Hills Clinic anxiety and depression programme and was referred to South Coast Private for assessment of their PTSD programme.”
Mr Beran submitted, and I accept, there was no mention of any work-related issue in that history. This, however, does not rule out deceased finding things in the workplace difficult. Nevertheless, even accepting there were workplace stressors affecting the deceased up to and including April 2015, Dr Heiner’s report is instructive, as it records non-work-elated matters which were also affecting her at that time. In the context of a matter where there are competing contributing factors, such contemporaneous records are helpful.
In a further report dated 11 April 2016, Dr Heiner recorded the following history:
“Ms Riman reports a long history of trauma, dating back to her early childhood. She recalls being neglected and mistreated by her family, bullied at school, being socially isolated and abused physically, sexually and emotionally in her early life. Despite these difficulties, she in fact acquired effective computer programming skills, and managed to have some very successful jobs.
She worked for Qantas, and later IBM in high-level, security roles. She also had a stable social life, living in a de facto relationship for over 10 years.
Her psychiatric difficulties have been present for many years, in that she has a history of being dependent, finding it difficult to stand up for herself and to express her own wants and desires. Alcohol consumption was excessive, and had become her major method of coping with the daily pressures she experienced. Early in 2015, perhaps as a result of increasing pressures at the workplace, she began to decompensate and as a result developed a significant depressive state. This resulted in her being unable to continue to work, and seeking treatment.”
In all of the reports and treating records from Dr Heiner, the statement that “perhaps” the deceased decompensated as a result of increasing work pressures is as high as he puts any causative relationship between the deceased’s employment and any aggravation of her underlying condition.
In a further report dated 31 August 2017 at page 44 of the Reply, Dr Heiner noted:
“Until some years ago, she had a regular job as a computer programmer for a number of major corporations. Unfortunately, when one looks at her social and psychological functioning, she was severely impaired. No social contact, other than her one partner/regular and heavy use of alcohol in order to cope/chronic depression with marked anxiety and dissociative phenomena/frequent episodes of self-harm and frequent and regular consultations with psychologists and psychiatrists were all part of the cost of her maintaining that regular employment. Unfortunately, all of these have now fallen apart and she’s currently living with her sister, requiring ongoing support emotionally, socially and practically from her sister and others to survive…
Diagnosis
1.Borderline personality with significant emotional vulnerability.
2.Dependent personality with panic and fear.
3.Chronic depression.
On the information I have, I am amazed that Ms Riman was able to maintain her job as long as she was. The advantage appears to have been that it was a solitary job, with very little contact with others. She would spend the day looking at the computer screen and not communicating with anyone but as indicated above, there was significant psychopathology and dysfunction in other areas of her life.
In view of the above, I believe that the DSP is the most appropriate treatment. She has not been well for many years, and given the long-term psychological impairment, it is not going to improve to a level of independence in the next five to 10 years.” (my emphasis)
Among the documents produced and entered into evidence are the medical records of Dr Amanda Mullin, treating psychologist. Relevantly, the records date from February 2015, before the deceased’s decompensation some two months later.
Dr Mullins’ records reveal a long history of treatment. They date from 12 February 2015 when the deceased first attended upon group sessions for “mindfulness for anxiety”. They contain many entries of group and individual therapy, including on 13 March 2015 the deceased disclosing to Dr Mullins a family history of mental health issues including alcoholism, anxiety and depression together with relationship difficulties with her family including running away from home at age 17, early independence, living in fear, nil security and poor relationship with her parents. At that time, the deceased was “unable to articulate any specific worries, more a general sense of dread and rumination”.
The deceased again attended Dr Mullin on 2 April 2015. At that visit, the session focused on issues of sharing and trust, together with anxiety related to early childhood memories.
On 17 April 2015, the deceased again attended Dr Mullin. The entry for that date reads as follows:
“Rita brought a candle gift. She reported sig distress and conflict about coming to therapy (wanting to avoid) vs wanting to get better. Dis screener completed. Nil SI reported.
Explored this, normalised. She had driven over to her grandma's house last week on own and reported feeling anger. Rita found it difficult to express herself verbally, and became increasingly frustrated. She reported her neck pulsing and appeared highly anxious. Used controlled breathing and safe place visualisation to manage anxiety.
Rita wanted to proceed with EMDR, suggested we choose a less traumatic memory to avoid overarousal and use the session to practice ‘being in therapy’ and build her comfort levels rather than do ‘big work’. This appeared to help calm her. She was engaged in the EMDR and tracked well however seemed to ‘get lost’ and would stop tracking. It was unclear what was going on for Rita as she struggles to name her emotions without using an emotions chart, and she is reluctant to speak (which may be related to fear of getting it wrong) however she reported the session as helpful and wanted to rebook.
Discussed what to expect following session, and advised to call if necessary.”
As noted, the deceased last worked on 20 April 20215. She attended Dr Mullin three days later. At that visit, Dr Mullin noted:
“Rita highly agitated and anxious. Difficulty speaking, often overwhelmed by physical sensations.
Noted that pulsing in throat had gone, also noted ‘music’ in head had gone.
Explored with her the ‘safe place’ visualisation and other times when had felt safe. (Neighbour, grandmother and previous relationship). Contrasted this with current life and discussed how this might related to experiences in early childhood and adolescence - her role as a protector (staying up at night to guard the door, positioning self between door and sister), and when it was safe to let go of this role.
Containment strategies. Nil SI”
On 27 April 2015, 29 April 2015 and 30 April 2015, the applicant again attended. The notes of the sessions record:
“27 Apr – Rita was visibly more relaxed. She noted she had avoided thinking about the session in between, other than to look up neighbour (son is on FB). Discussed pros/cons of making contact.
Session focus - reviewed last session, ideas of safety and non safety... Rita noted she felt like going to sleep and never waking up...SI denied, ...explained as Rita noted that she felt ‘pressure, responsibility’ which overwhelmed her.
Explored analogy of having Amanda, her sister, her nieces, her dad (and perhaps mum and brother if anything happened to dad) plus work on her shoulders. What would it be like to have them beside her - Rita noted anxiety if anyone offered to help her - identified all or nothing thinking - and explored whether anyone could handle responsibility she did, or whether everyone would feel like ‘going to sleep forever’. Rita acknowledged the pressure would be too much for anyone, however acknowledged that this amount of pressure prevented her from looking at her life properly.
Agreed for a further session this week.
29 Apr – Rita reported using safe place visualisations helpful and calming.
She found it difficult to talk during session, explored OCD (counting to 5) strategies and session focus was psychoeducation provided around OCD, anxiety and fight or flight
response. Rita wanted to continue with session tomorrow, plans to write notes. Discussed SI reported on PHQ9, Rita noted that having responsibility for others was helpful as it prevented her thinking about it, nil plans.
30 Apr – Rita was hyper aroused most of session - taught and used safe place visualisation and self-soothing strategies. Psychoeducation. Si without intent or plan.”
On 2 May 2015 the deceased again attended Dr Mullin. The notes of the session record:
“Extended session with Rita (2 hours) - played dominos to reduce distress and discussed goals/aims/reasons for entering therapy, pros/cons of therapy, options for therapy, costs of therapy, fees and rebates, therapeutic relationships and expectations for therapy. Also discussed therapy vs working - what the costs of being off work involved and whether therapy could be more gentle in approach than she intended.
Rita noted she wanted to do trauma work, highly frustrated by her inability to talk about the trauma (there are 4 events) and that she has sonly partial memories of one trauma. Normalised and discussed trauma therapy as 1. increasing her coping skills, 2. trauma work and 3. integration - what this would look like.
Rita keen to continue. During session PMG was taught and repeatedly practiced along with white light visualisation in order to reduce arousal levels.
Rita engaged in session, nil SI reported, sleep reported to be improved due to use of +imagery.”
The deceased continued to consult Dr Mullin regularly throughout 2015, and on
11 November 2015, Dr Mullin wrote a letter to South Coast Private Hospital in the following terms:
“Rita presented to the practise on 10 February 2015 with deterioration of her mood and increase in anxiety symptoms. She presented seeking help for obsessive-compulsive disorder and general anxiety. At that time, Rita was employed in a full-time capacity with IBM, however, she no longer felt well enough to work due to high levels of anxiety and was signed off work by her GP. She has remained on sick leave due to mental ill health since that time.
Rita has disclosed a significant history of childhood abuse and a series of traumatic events. She reports using alcohol and self-harm (superficial cutting of the left arm) to emotionally regulate (numbing). Although highly anxious, Rita does not report or exhibit in session either rapid or extreme mood swings, or patterns of impulsive behaviours. Rita reports a high level of motivation to work on her PTSD. However, her current living arrangements place her in a carer role, and she has poor distress to learn skills outside the therapeutic environment. To date, Rita has attended 48 sessions of individual psychotherapy with myself, which is focused on stabilisation, strength building and just increasing distress tolerance skills – using DBT, CBT and ACT techniques.”
There is no mention in that letter of any work-related stressor.
Dr Mullen provided a letter to the applicant’s solicitors dated 5 May 2020; at which time they were acting for the deceased. In that letter, Dr Mullin indicated the deceased was initially diagnosed with obsessive-compulsive disorder, however, the initial diagnosis was reformulated to that of complex post-traumatic stress disorder with comorbid obsessional-compulsive disorder, social anxiety disorder, agoraphobia, alcohol use disorder and major depressive disorder. Dr Mullin stated:
“By May 2015, Ms Riman had reported significant difficulties in coping with work demands. Her challenges in coping were evidenced by her reports of increased alcohol consumption, prescription medication, and self-harming. On my advice, she spoke with her GP regarding her capacity to work.”
Although that letter by Dr Mullin mentions the deceased having difficulty coping with work demands, the doctor does not indicate whether any downturn in her condition was brought about by work issues, or whether extraneous matters led to an inability to cope at work.
In an entry dated 22 March 2021, Dr Mullin noted she had no knowledge of the deceased’s workplace bullying issues, presumably against the background of being told of them after the deceased made a claim for weekly benefits. Dr Mullin reiterated her lack of records regarding alleged bullying in the workplace when she wrote to Dr Heiner, treating psychiatrist, and noted she had no documentation in any records of bullying in the workplace; stated the deceased rarely discussed her workplace and Dr Mullin said she had no memory of the subject being raised in her treatment sessions going back to February 2015.
Dr Mullin wrote a letter to the respondent’s insurer on 2 March 2021 in which she specifically answered which issues or events the deceased thought caused her psychological injury, and said:
“The focus of Ms Riman’s treatment was the impact of traumatic life events. No single event was attributed to her psychological symptoms. No assessments were focused on identifying cause, as the focus of attendance was symptom management.”
Dr Mullin was then specifically asked whether she considered the deceased’s employment with the respondent was the main contributing factor to the deceased’s psychological illness and replied:
“Ms Riman’s employment with IBM was not the focus of treatment, or described as the main contributing factor. She described shift work, being ‘on-call’ and high levels of responsibility as sources of stress.”
In summary, in that letter, Dr Mullin, when asked whether the deceased’s employment was the main contributing factor to any aggravation of a pre-existing condition replied:
“I would consider that Ms Riman had a pre-existing psychological condition. However, Ms Riman did not provide enough information about her employment with IBM, and how this affected her for me to determine whether IBM was a contributing factor in her deterioration. Due to the nature of the treatment relationship, information which may have been pertinent to this claim was not captured for the purpose of treatment.”
Mr Beran noted that in 1,872 pages of records contained in the notes from St Vincent’s Hospital, Westmead Hospital, South Coast Private Hospital, the Hills Clinic, Brunswick Better Health and Dr Mullin, the only references to work were those which had been set out above. He submitted that even if the deceased’s employment was a stressor, the nature and extent of her pre-existing problems and the non-work related factors which she was going through in her life such as family illnesses, relationship breakdown and recounting childhood trauma was such that the cause of the aggravation to the deceased’s condition was multifactorial and not mainly caused by her employment.
The applicant must prove the deceased’s employment was the main contributing factor to her aggravation. Her IME Dr Suman does not support this being the case. Rather, he has an inaccurate and incomplete history and comes to a conclusion the applicant’s psychological condition was mainly caused by her employment. That is plainly not the case, noting the
pre-existing history of psychological and psychiatric issues suffered by the deceased. I do not make that comment as a criticism of Dr Suman, as he was plainly provided with an inaccurate history.
Dr Suman provided a further report dated 1 April 2023. At that time, he had Dr Mullin’s clinical records. Notwithstanding the deceased’s history, Dr Suman said:
“Considering the information obtained from Ms Mullin's clinical documentation, it's evident that Ms Mullin suffered sexual and emotional abuse during her childhood. The abuse may have caused her stressors during her early childhood, although she was able to overcome these stressors. As highlighted in my previous report, Ms Riman
1. Completed her schooling.
2. Completed TAFE courses.
3. Worked in various roles, including working at her uncle's shop.
4. Worked full-time with QANTAS.
5. Started working full-time with IBM in 2000.
In addition to the above, she managed her personal affairs independently and socialised with her friends before 2014.
Considering the above information, it's evident that Ms Riman did not suffer from a mental illness/disorder before 2014. There appears to be no evidence of childhood trauma adversely affecting her mental health or functioning before 2014.
Evidence indicates workplace stressors (from 2014-2015) to have been the main contributing factor to the development of psychological injury. She never recovered from it. It is possible that childhood trauma resurfaced in therapy sessions in 2015 (which commonly happens when an individual struggles with another trauma or stressful experience in their life).
In nutshell, I am of the view that Ms Riman's workplace stressors remain the main contributing factor towards her psychological injury i.e., had Ms Riman not suffered workplace stressors, she will not have experienced psychological injury in 2014-2015 (and subsequent deterioration in her mental health and functioning).”
Notwithstanding Dr Suman’s opinion, the applicant’s case is presented as a work-related aggravation of a pre-existing condition rather than a work-related condition itself. The presentation of the case in that manner is consistent with the history of longstanding psychological issues recorded by Dr Mullin and Dr Heiner, among other practitioners.
In this matter, I am not satisfied on the balance of probabilities the deceased’s employment with the respondent was the main contributing factor to any aggravation of her pre-existing condition.
As already noted, Dr Heiner sets out the extraneous matters which contributed to the deceased’s deterioration up to and including April 2015 when she left work. They included relationship issues, failing health of her mother, hospitalisation of her sister, her partner’s epilepsy and her father’s cancer diagnosis which caused her to decompensate “with markedly increased depression and anxiety”, while the deceased becoming aware of her longstanding anxiety when she attended Dr Mullin’s mindfulness workshop in early 2015 “further led to a deterioration in her functional level”. Although Dr Heiner concedes there “might” have been increased stress in the workplace, that is as high as he puts the applicant’s case.
The Commission must decide whether the totality of the evidence, on a commonsense basis, establishes a causal link sufficient to find the deceased's employment was the main contributing factor to an aggravation of her underlying psychological condition.

In this matter, I am not so satisfied. It is apparent from the documents produced in this matter and before the Commission that the deceased was, tragically, in a very fragile psychological state owing to a number of pre-existing factors and also non-work related matters which were taking place in her life at the same time as she was experiencing an increase in stress at work. In my view, the cause of the deterioration in her condition was multi-factorial. The evidence does not establish her employment as the main contributing factor to her decline. There can be only one main contributing factor, as noted in AV. The applicant has failed to discharge the onus of proving the deceased’s employment was that main factor in this instance.
Even accepting the deceased was suffering an increase in work-related stress, that is not sufficient of itself to find such stress was the main contributing factor to an aggravation of her condition in a matter such as this. This is especially so when there were so many non-work related factors also at play, and against a background where the deceased’s treating psychiatrist noted her reaction following the attendance in February 2015 at the mindfulness workshop run by Dr Mullin also contributed to the downturn in the deceased’s condition. Correlation is not causation.
As Mr Beran noted, the deceased provided the statements on five years after she left work as to the alleged circumstances surrounding interpersonal conflict with a coworker. On balance, I am not persuaded on the balance of probabilities that the deceased statement is correct as to the alleged workplace conflict. The respondent has provided lay evidence which reveals no complaint by the applicant as to any interpersonal issues, and also no recording of any conflict between her and a coworker.
The circumstances of this case are undoubtedly tragic. Nevertheless, the applicant must demonstrate the deceased’s employment was the main contributing factor to the deterioration in her condition. If it was not, then it follows the deceased's death cannot have caused any such aggravation, because the initial requirement of main contributing factor to the aggravation has not been met.
The contemporaneous treating material reveals the deceased’s condition deteriorated in the face of a number of causative factors, the majority of which were non-work related. Additionally, the material from the deceased’s treating practitioners also reveal her employment at best made a material contribution to her decline, forming as it did at best a minor matter referred to by both psychologist Dr Mullin who treated the applicant for years, and by psychiatrist Dr Heiner. Likewise, the clinical material from the various hospitals indicates the deceased’s decompensation was in the face of not only her work-related issues but the very serious and important personal matters which beset her at and in the lead up to April 2015.
The applicant must discharge the onus of proof. On balance, having regard to the totality of the evidence, I am not persuaded the deceased’s employment was the main contributing factor to the aggravation of her underlying psychological condition
For these reasons, I find the deceased’s employment was not he main contributing factor to any aggravation of her underlying psychological condition.

Notice provisions

In any event, should I be mistaken on the primary question of liability, I do not believe the applicant has satisfied the notice requirements of s 261 of the 1998 Act. Whilst it is true the deceased made a claim for weekly benefits before her death, the question is whether adequate notice was provided in relation to the claim at issue by the applicant and that the claim was made within time. Prima facie it was not, and no explanation has been provided in the applicant’s evidence as to why there was any delay in the making of the claim.
Mr Hanrahan submitted the respondent was on notice of the claim as the deceased had herself provided notice of her claim for weekly benefits before her death. Mr Beran submitted that s 261(1) excludes the applicant from claiming compensation, subject to the exceptions to the preclusion set out in the section.
Section 261(3) provides a person is considered to have made a claim for compensation when that person makes any claim for compensation in respect of the injury or death concerned. The respondent submitted that notwithstanding the deceased having made a prior claim for weekly benefits, s 261(3) offers no comfort to the applicant, as the exception applies to claims made by the person at issue, in this instance the applicant, not the deceased.
I find favour with that submission. While I accept Mr Hanrahan’s submission there had been a prior claim in respect of the same injury by the deceased, that claim was not made by the applicant.
The question of the operation of the time limits under s 261 was known to be a live issue in the proceedings. The applicant offered no evidence by way of explanation of the delay in making a claim, such that s 261(4) affords her no comfort.
Accordingly, were I required to determine the question of the operation of s 261 of the 1998 Act, which given my primary findings on liability I am not, I would have found in favour of the respondent on that question.

Deliberate and Intentional Act

Although I have found for the respondent on the question of injury, I consider it appropriate to briefly deal with the defence of deliberate and intentional act. I am not of the view the respondent has made out its defence pursuant to s 14(3) of the 1987 Act. Whilst Mr Beran noted the applicant completed a will and made arrangements in the lead up to her suicide, that does not, in my view, of itself satisfy the requirement that she was acting with a sound mind at the time she took her own life, especially against a background of so protracted and serious a history of mental illness both before and after her alleged workplace injury.
Taking into account the applicant’s history of severe mental illness and having regard to the totality of the medical and lay evidence, I am of the view the applicant was not of sound mind when she made the decision to take her own life. There is no issue there must be demonstrated a positive intention to act, and for such an intention to exist, a worker must be of sound mind. In this matter, I am of the view, having regard to the totality of the evidence, that the deceased’s will was so overborne by her circumstances that the act of suicide cannot be said to be an intentional act: see Holden Pty Ltd v Walsh [2000] NSWCA 87 at [38].

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2023] NSWPIC 329

7 July 2023