Sirikci v Hewlett Packard Australia Pty Ltd - [2015] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45
APPELLANT:	Rukiye Sirikci
RESPONDENT:	Hewlett Packard Australia Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6904/14
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	20 April 2015
DATE OF APPEAL DECISION:	10 August 2015
SUBJECT MATTER OF DECISION:	Bipolar disorder; whether short period of employment was the main contributing factor to the contraction and or aggravation, acceleration, exacerbation or deterioration of the disease; s 4(b)(i) and (ii) of the Workers Compensation Act 1987; injury based on perception of real events; application of State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	P K Simpson & Co
Respondent:	Rankin Ellison
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 20 April 2015 is confirmed.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s finding that the worker did not suffer a psychological injury by reason of alleged bullying and harassment, through a series of emails and phone calls over a two week period of employment.
The appeal also challenges the Arbitrator’s finding that the worker’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a pre-existing bipolar disorder.

BACKGROUND

Ms Rukiye Sirikci, the appellant worker, had previously worked for Hewlett Packard Australia Pty Ltd, the respondent, for four years until 2010 when she was made redundant following a restructure. After the redundancy Ms Sirikci was unemployed for a period until she commenced work with Westpac. Ms Sirikci worked for Westpac for a period of five months until 7 November 2011, when she resigned due to stress.
On 20 February 2012, Ms Sirikci re-commenced employment with the respondent as a sales analyst. Her duties involved sales pipeline management, preparing weekly sales forecasts, consolidation of weekly sales and financial figures, and sales support.
Ms Sirikci reported directly to Michael Ciantar, the respondent’s head of sales operations of Asia Pacific and Japan for enterprise security products. As Mr Ciantar was based in another state to Ms Sirikci, they communicated daily via email, telephone or instant message.
On 5 March 2012, Ms Sirikci attended on her general practitioner, Dr Aladdin Emin, complaining of workplace “abuse”. On that same day, Ms Sirikci ended her contract of employment as a sales analyst with the respondent, following what she describes as a period of constant abuse from Mr Ciantar.
On 15 November 2012, Ms Sirikci completed a Worker’s Injury Claim Form. The date of injury is identified as 5 March 2012 and the injury is described as “Clinical Depression & Anxiety Disorder due to bullying, harassment at work by manager”.
On 10 December 2012, CGU Workers Compensation (NSW) Ltd (CGU) issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining Ms Sirikci’s claim for ongoing workers compensation benefits in relation to the allegation of psychological injury sustained on 5 March 2012. The reasons for that decision were because Ms Sirikci did not cooperate with her obligations pursuant to s 71 of the 1998 Act, namely refusing to participate in a factual investigation and independent medical examination. Liability was also declined for failure to comply with s 254 of the 1998 Act, in that notice was not given for some five months after the alleged injury occurred.
Following an internal review of the above decision, CGU issued a second s 74 notice on 12 December 2012, maintaining its decision to decline liability in respect of the alleged psychological injury sustained on 5 March 2012.
On 29 January 2013, Ms Sirikci lodged an application for review of CGU’s decision to decline liability. On 12 February 2013, CGU issued a review notice pursuant to s 74 of the 1998 Act and s 54 of the Workers Compensation Act 1987 (the 1987 Act) again maintaining its decision to dispute liability. Amongst other things, CGU raised the issue of injury pursuant to s 4 of the 1987 Act; denied that any injury was a substantial contributing factor pursuant to s 9A of the 1987 Act and relied on the defence under s 11A of the 1987 Act, that any “actions in relation to performance appraisal and discipline were reasonable”.
On 17 September 2014, Ms Sirikci’s legal representatives wrote to the respondent seeking weekly payments, lump sum compensation, and payment for medical and related expenses.
On 19 December 2014, Ms Sirikci filed an Application to Resolve a Dispute in the Commission (the Application). Ms Sirikci sought lump sum compensation for a 26 per cent whole person impairment for a primary psychiatric injury, which was described to be as a result of being “bullied and harrassed [sic] by her direct manager Michael Ciantas [sic]”. The date of injury was identified as being 15 February 2012 to 5 March 2012, with a deemed date of injury being 5 March 2012. It appears that the initial claim for weekly compensation and medical and related expenses was not pursued.
On 23 January 2015, the respondent filed a Reply denying liability, relying upon the grounds stated in its s 74 notices.
On 20 March 2015, the matter proceeded to a conciliation and arbitration hearing. After the hearing the Arbitrator reserved his decision.
On 20 April 2015, the Arbitrator issued a Certificate of Determination and a Statement of Reasons in favour of the respondent.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

LAY EVIDENCE

Ms Sirikci

In evidence is a statement by Ms Sirikci dated 4 December 2014. Attached to the Application are two further statements by Ms Sirikci which are undated. Each statement raises similar issues and appears fairly consistent.
Ms Sirikci states that she is suffering “from post trauma stress disorder, anxiety disorder as well as rapid cycling bipolar disorder, which all started back in March 2012 with a nervous breakdown” caused by Mr Ciantar. She specifically states:
“…my manager at the time, Mr Michael Ciantar has harassed me on countless occasions. The very last harassment has been extremely shocking.”
Ms Sirikci said that Mr Ciantar had “constant mood swings on daily basis”. He got stressed and took the “toll for his stress and anger out of on me”. He would respond to her questions by “shouting and typically saying something like ‘I do not understand what you are saying, I have no time for this!’”. He would ring Ms Sirikci several times per day and abuse her over the phone, which would be followed by emails to remind her that the tasks “are due ‘NOW!!! Due ASAP!!!’”.
Ms Sirikci states:
“I have been verbally abused at least 4 to 5 times a day. I have worked 10 to 12 hours a day, sometimes I realise that I did not even drink water to complete [Mr Ciantar’s] unacceptable deadlines. Example of one of the abuse was ‘As a department we need to put together a forecast template from scratch’ where no explanation given what so ever. While I am working on a task; [Mr Ciantar] will ring and ask ‘how it is going? When is it going to finish? Is 20 minutes good time for a review? This is super urgent you need to reliase [sic] that…etc’ yelling over the phone and after the phone call he would email me with CAPITAL LETTERS and several lines of continuous exclamation marks. These have happened every day, 4 to 5 times a day with almost all his emails until I went home.”
Ms Sirikci recounts an incident when she was working on a forecast template in her second week of employment, when Mr Ciantar rang her on her work mobile with an aggressive yelling voice asking her to open the file and stating “Read line five! What does it say? Read it loud out [sic] to me right now!!!!!!”. Ms Sirikci responded “weekly forecast”. Mr Ciantar then said “Do you know what weekly forecast is? Can you read it out tell me the meaning right now!!!”, “you don’t get it. This is very important and we need to get this out of the OMG!!! Do you have any brains? I am very very disappointed in your performance”. Mr Ciantar then hung up on Ms Sirikci.
In the afternoon of 5 March 2012, Ms Sirikci could no longer take the constant abuse after receiving a phone call with abusive and foul language. She broke down with tears and started shaking uncontrollably. She then attended on Dr Emin who administered an injection to calm her down and certified her unfit for work. She said that she was “not able to control my hands and body from shaking and I am not able to remember what I did for the next couple of days” which included resigning from her position via email.

Mr Ciantar

In evidence is a statement, dated 5 December 2012, by Mr Ciantar. Mr Ciantar states that he communicated daily with Ms Sirikci. He said:
“In the two weeks [Ms Sirikci] worked for HP, it [sic] was always positive and I did not have any issues with her. She was consolidating files and through this process I would ask her some questions. I am not sure if she would have taken that negatively or not? I was not aware that she may have been having some issues. When I would question her work and told her what was required she would say she was confident in what she had to do and would go away and do it again.
I had always advised her if required she would come and ask me questions. I would question her work when required. I would be matter of fact and was not rude or hostile towards her. I would ask her to take me through her work so we could work on things together.”
Mr Ciantar did not respond to any of Ms Sirikci’s specific allegations but said that Ms Sirikci never advised or complained that she did not know how to do her job or that she felt unsupported. He was always giving her positive reinforcement and reassuring her that she was doing a good job.

Ms Kay

In evidence is a statement of Sandra Kay, dated 4 December 2012. Ms Kay worked for the respondent initially as a contingent contractor and then as the executive assistant in the enterprise security products. She states that Ms Sirikci had informed her that Mr Ciantar “had been rude to her on the phone” and in response Ms Kay advised her to speak to Mr Ciantar.
Ms Kay thought that Ms Sirikci was affected when she was asked to re-do her work by Mr Ciantar. Ms Kay did not notice Ms Sirikci “being stressed” until two days prior to her last day. She states that Ms Sirikci was “really annoyed with [Mr Ciantar]”.

MEDICAL EVIDENCE

Clinical Notes

On 5 March 2012, Ms Sirikci attended on Dr Emin. He issued a medical certificate certifying Ms Sirikci unfit to work from 5 March 2012 to 24 March 2012. The clinical notes for that consultation record:
“stressed at work place abused verbally by her boss at work
         tearful crying shaking angry red eyes
         counselling
         does not want to go under work cover
         valium imi”
On 6 March 2012, Dr Emin records that Ms Sirikci was still very stressed and tearful. He also records the following: “COUNSE;LLING [sic] PSYCH R/V ON 10/3/2012 1130 AM VALIUM IMI”. A similar clinical note dated 7 March 2012 records:
“still very tearful crying alot [sic] chest tightness inconfident [sic]
         counselling
         advised to have valium 2mg tds po pc
         dr chaudhry [sic] r/v on 10/3/2012”
Several clinical notes between 12 March 2012 and 6 December 2012 record Ms Sirikci’s “ongoing psychological symptoms” and continued “counselling”.
Dr Emin records, in a report dated 27 March 2012, that he has been Ms Sirikci’s family doctor for over ten years and that on 5 March 2012 Ms Sirikci attended his rooms seeking help for “acute nervous breakdown and was experiencing emotional or psychological collapse”. He advises that work related stress due to harassment and emotional abuse appears to be the underlying cause of her severe depression and anxiety attacks.
On 28 August 2012, Dr Emin issued a WorkCover medical certificate certifying Ms Sirikci unfit for work from 5 March 2012 to 5 September 2012 due to workplace harassment which he records as a substantial contributing factor to the diagnosis of acute psychosis and depression.
There are several earlier consultations with Dr Emin that are of relevance to Ms Sirikci’s mental health, the clinical notes of which are noted below.
On 10 November 2004, Ms Sirikci attends on Dr Emin. The clinical notes for that date record: “on loven still tearful sleep ok but can easily get upset”. Ms Sirikci is prescribed Apropax, an antidepressant, and is referred to Dr Tran regarding “ongoing depression and anxiety attacks, long term suffering as a carer for her deaf daughter”.
On 16 January 2005, Ms Sirikci again attends on Dr Emin and he records “start cipramil”, a drug which is commonly used for depression. Dr Emin arranges a further prescription of Cipramil on 12 June 2005.
The next relevant clinical note is dated 12 November 2011, where Dr Emin records:
“work place stressors few family issues work very stressful not comfortable there
         left work early last Monday
         r/v by lmo she was crying alot on that day he put her on zoloft still not better
poor appetite poor sleep irritable poor concentration labile mood isolated lack of interest
counselling
         education
         on leave for the last week
         she already resigned
         headache with earache”
This clinical note is presumably related to the time when Ms Sirikci resigned from her employment with Westpac.
Also on 12 November 2011, Dr Emin refers Ms Sirikci to Dr M A Chaudhary, consultant psychiatrist, for “her recent onset and worsening acute reactive depression”, “for r/v and need for further investigations and treatment”. He notes that Ms Sirikci is on “Zoloft but still not better”.
On 19 November 2011, Dr Emin records that Ms Sirikci “still has alot [sic] of shakes not intentional palpitation with sob”.
On 30 November 2011, Dr Emin records the following: “moodiness unhappy loss of interest in life angry upsets easily try to make earlier appointment with dr chaudhry [sic]”.
On 31 January 2012, Dr Emin records Ms Sirikci to have the following symptoms: “feeling weak and tired with lethargy”. A similar entry on 3 March 2012 records: “tired poor appetite angry lost weight very tired unhappy”.

Expert medical evidence

On 5 March 2012, Dr Emin referred Ms Sirikci again to Dr Chaudhary. In a report dated 12 March 2012, Dr Chaudhary reports that Ms Sirikci had resigned from her position at Westpac, after five months, as the job conditions and the reporting lines of communication had changed. In regard to her last role at the respondent, Dr Chaudhary said that she “couldn’t stand the manager due to verbal abuse at least four times a day…After three days of her starting work he said that she wasn’t performing according to his expectations”. He records that Ms Sirikci was “shouted at; she had chest pains; she couldn’t get rid of the pressures, and she fainted at home. He said that she had no brains and she was incapable and not fit for the job”. He also records that Ms Sirikci resigned from her position on 5 March 2012 as she “couldn’t take anymore”, “[s]he has lost her confidence and she is feeling very down and depressed”.
In view of Ms Sirikci’s clinical presentation, Dr Chaudhary found that she had “gone through verbal abuse by her boss, and she has been harassed and intimidated by her [sic]. She has suffered from severe anxiety, depression and profound distress”. He advised her to take Lexapro and Valium.
Dr Emin also referred Ms Sirikci to Dr Fatma H Lowden, consultant psychiatrist. In a report dated 26 March 2012, Dr Lowden records a history of “anxiety, panic attacks and depression over the past four weeks against a background of work place bulling”. She records a provisional diagnosis of panic attacks and depression with post-traumatic features.
In a further report dated 6 August 2012, Dr Lowden diagnoses Ms Sirikci with “major depression with a lot of anxiety symptoms and some mood disorder features triggered by work injury”. She also states that Ms Sirikci was “not mentally in a fit state to make any decision in March this year regarding her work based on the severity of her condition and the fact that she was under very heavy sedation during that time”.
Dr Anne-Marie Rees, consultant psychiatrist, provided a report, dated 6 February 2013, at the request of CGU. Dr Rees records a history that Ms Sirikci was bullied by Mr Ciantar who was verbally abusive towards her six times per day – “[h]e would shout at her and every day he would start sending emails with multiple tasks and then could not answer questions that she was asking of him”. She also records that Dr Emin had given her Valium injections four days in a row and that it was during that time that she apparently had emailed the workplace resigning although she cannot even remember doing this because she was so unwell. Dr Rees further records that Ms Sirikci denies any previous history of issues with her mental health.
Dr Rees diagnosed Ms Sirikci with “a bipolar disorder/mood disorder with a period of depression as well and has had psychosis”. However, Dr Rees was unable to determine whether this diagnosis was “accurate and hence a constitutional illness as opposed to an illness that has been substantially contributed to by the workplace” without further collateral information.
Dr Rees concludes that “[s]tress in the workplace can trigger these types of illnesses to declare themselves however they are constitutional and underlying and would present with another stress down the track”.
On 19 April 2013, Dr Lowden referred Ms Sirikci to the Sydney Clinic for assessment and further management of her mood fluctuations. She was under the care of Dr Zhen Zhang, forensic psychiatrist, while she was an inpatient. Dr Zhang diagnosed Ms Sirikci with “bipolar affective disorder, mixed type, and post-traumatic stress disorder”. Ms Sirikci was discharged from the clinic on 17 June 2013.
On 27 January 2014, Dr Zhang wrote to Professor Philip Mitchell seeking an opinion on Ms Sirikci’s management. He detailed Ms Sirikci’s medical history and advised that Ms Sirikci “presented with a lifelong history of mood fluctuations”. He reports that about “3 years ago, she had a conflict at work with one of her supervisors, who she claims was tormenting and bullying her. She suffered from worsening anxiety symptoms with some features of post-traumatic stress disorder”.
On 10 July 2014, Ms Sirikci attended on Professor Mitchell, following the referral from Dr Zhang. In a letter to Dr Zhang dated 12 August 2014, Professor Mitchell agreed with the diagnosis of bipolar disorder. He also advised that Ms Sirikci has “significant anxiety, particularly generalised anxiety disorder and PTSD”.

Dr Klaas Akkerman, consultant psychiatrist, provided a report dated 2 September 2014, at the request of Ms Sirikci’s legal representatives. He briefly records a history that “there was verbal abuse from the manager. She said that she would receive six or seven abusive emails every day from the manager”. He records that Ms Sirikci’s psychological symptoms commenced in March 2012. He further records that in 2004 and 2005 she was “briefly depressed” due to looking after her daughter, and as a result had taken Aropax and Cipramil, but that she had recovered from this.
Dr Akkerman diagnosed Ms Sirikci with major depression and found that her condition was caused by her employment, which he found to be a substantial contributing factor. He assessed Ms Sirikci to have a whole person impairment of 26 per cent, but would add one per cent for potential deterioration if treatment was stopped. Although Dr Akkerman was asked to express an opinion regarding the cause of Ms Sirikci’s condition, he was not asked to express an opinion on the question of aggravation and did not do so.
On 23 January 2015, Dr Rees provided a further report following the provision of the medical report from Dr Akkerman, dated 2 September 2014, and lay statements from Ms Kay and Mr Ciantar. Dr Rees found that:
“…[Ms Sirikci] does not suffer from Posttraumatic Stress Disorder. She would not meet criteria under DSMIV for Criterion A related to a trauma being caused by [Mr Ciantar] at Hewlett Packard who was her boss for approximately three weeks when she returned to Hewlett Packard in February 2012. I note that she may well have felt stressed by this work role but whether this was caused by problems with [Mr Ciantar] in the form of bullying and harassment as she describes or whether her perception was distorted because she was already unwell with prodromal bipolar disorder/psychosis has not been proven from the information I have been provided with.
However it is my opinion that she was likely prodromal with increasing symptoms of the mood disorder as she came back on board with Hewlett Packard.”
Dr Rees records Ms Sirikci’s employment history, noting her redundancy in 2010 and that she did not return to work until she commenced employment at Westpac one or two years later. After five or six months Ms Sirikci left her position at Westpac as it was too stressful. Dr Rees considers this to indicate that there were problems with Ms Sirikci’s health during that period of time and notes that it would be helpful to review any medical notes that may be available in that regard.
Dr Rees notes the importance of the traumatic death of Ms Sirikci’s brother being knifed in Turkey in 2010, the same year Ms Sirikci was made redundant. Dr Rees also notes that there was trauma when Ms Sirikci was in her early 20s when her father was killed in a motor vehicle accident and she was left to finance the family when she was living in Australia and they were living back in Turkey.
Dr Rees considered the possibility that Ms Sirikci suffered an adjustment disorder due to the stress imposed on her by her employer. However she concluded that it was more likely the condition was due to her prodromal state and an inability to cope in the workplace. Dr Rees said:
“There is a possibility that she was stressed in the workplace by her boss which ordinarily would have resulted in a person moving on without any mental health problems if they did not have underlying vulnerability or were not already unwell or may have resulted in an Adjustment Disorder with anxious and depressed mood which if they did not have significant underlying vulnerability then one would expect that this would have resolved fairly quickly. For her to have then developed the high level of dysfunction that she now has related to her bipolar disorder is very unusual given the history that she had an abusive boss for three [sic] weeks at Hewlett Packard.
In my opinion far more likely is the scenario that she was already prodromal and somewhat unwell when she joined and that the stress of work over several weeks be it with a boss causing her no significant problems or a boss that she perceived to be abusive (I would question her judgement [sic] at this time if she was in fact prodromal) then resulted in her going off work because she was actually already unwell and not able to cope in the workplace.”
Dr Rees questions Ms Sirikci’s denial of any previous psychiatric problems prior to March 2012, but notes that she may well have not presented with any psychological problems or been diagnosed with or treated for them. She concludes that: “in my opinion the predominant cause is not related to her three weeks that she worked at Hewlett Packard under the boss [Mr Ciantar]”. She assessed Ms Sirikci to have 23 per cent whole person impairment, but deducted the whole percentage “because the bipolar disorder and anxiety disorder that she has developed are subsequent unrelated conditions that were not wholly or predominantly caused by the employer”.
Dr Rees provided a supplementary report, dated 10 February 2015. Dr Rees said that she had reviewed all the medical documentation provided and notes that there was clear “documentation in 2004 of [Ms Sirikci] being prescribed antidepressants including Lovan and Aropax and having some psychological symptoms”, but there was no other reference to these types of problems until 2011. She records a history that Ms Sirikci had “poor appetite, poor sleep, irritability, poor concentration, labile mood, isolation, lack of interest” around November 2011, which she presumes was related to the position at Westpac. She also notes that Ms Sirikci “was trying to make an earlier appointment with Dr Chaudhury [sic]”; Dr Emin had prescribed multiple antidepressants, and that she was put on special consideration for university in December 2011.
In view of that history, Dr Rees confirms her original opinion that Ms Sirikci has “a psychiatric illness, namely an underlying bipolar I disorder if not a schizoaffective disorder and this has had an insidious onset over many years”. She notes that it is frequent for a person developing these types of disorders to go undiagnosed for 10–20 years.
In her opinion, Ms Sirikci “was a lady who was unwell in the workplace who had not functioned in her previous workplace Westpac…and had been off work for approximately two years apart from the time she had been at Westpac”. She adds:
“she was a person that was unwell in the workplace and would have therefore been struggling. Whether the boss was abusive or not is difficult to ascertain or whether it was her perception because she was struggling. Even if he was abusive one would expect if she did not have underlying psychiatric illness that she could at worst have had a mild adjustment disorder which would have resolved within a few weeks.”
Dr Rees concluded that the:
“fact that she has now been off work for several years, not able to work and has a severe mental illness requiring intensive treatment in my opinion has nothing to do with the workplace of Hewlett Packard and relates to her underlying pre-existing psychiatric disorder.”
In response to a specific question regarding relevant previous medical history of psychological/psychiatric problems, Dr Rees said that Ms Sirikci had been treated with multiple antidepressants prior to working with the respondent in 2012. Dr Rees said that Ms Sirikci was in fact being treated and had been referred to Dr Chaudhary several months prior to her commencement of work with the respondent in 2012.

THE ARBITRATOR’S REASONS

The Arbitrator accepted Ms Sirikci’s evidence that she was distressed and upset by the manner in which Mr Ciantar had spoken to her during the short period of her employment either by telephone or email. His finding was based on Ms Sirikci’s evidence and the contemporaneous complaints made by Ms Sirikci to her co-worker Ms Kay.
After carefully analysing all of the relevant lay and medical evidence, the Arbitrator was persuaded that Dr Rees’ opinion was the most compelling, namely that based on all of the information available to Dr Rees she concluded that Ms Sirikci suffered from a psychiatric illness, namely an underlying Bipolar I disorder, if not a schizoaffective disorder, and that this condition had had an insidious onset over many years.
Dr Rees concluded, and the Arbitrator accepted, that Ms Sirikci’s employment with the respondent had nothing to do with her condition which related to the underlying pre-existing psychiatric disorder. Dr Rees considered that Ms Sirikci was “probably prodromal at the time she was employed for that two week period”.
The Arbitrator noted that Ms Sirikci had been prescribed anti-depressant medication as early as 2004. He also noted that there was a referral to Dr Chaudhary for treatment in 2011, which was not pursued.
The Arbitrator was not satisfied that Ms Sirikci’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar disorder. He did not accept that Ms Sirikci suffered from a mild adjustment disorder that may have been caused by Mr Ciantar’s actions. The Arbitrator found (at [83]):
“In the circumstances described by Dr Rees of the ongoing and increasing lability of [Ms Sirikci’s] mood prior to her starting work, the brevity of the employment and the fact that these exchanges occurred where each protagonist was in a different city give me pause as to whether any psychological injury occurred in that brief time. I think it more likely that what did occur was the beginning of the bipolar disorder manifesting itself.”
The Arbitrator rejected the opinion of Dr Akkerman on the basis that he had “none of the material before him that Dr Rees amassed” ([84]). Dr Akkerman was unaware of Ms Sirikci’s pre-existing condition, as evidenced by Dr Emin’s notes, medication Ms Sirikci was prescribed [sic] and referral to Dr Chaudhary on 12 November 2011. Dr Akkerman was also unaware of the two major traumas Ms Sirikci had suffered “with the traumatic death of her father and her brother” ([84]).
The Arbitrator found against Ms Sirikci on the basis of s 4 of the 1987 Act ([85]). He was satisfied that Ms Sirikci suffers from a disease process ([86]). However, he was not satisfied that Ms Sirikci’s employment was the main contributing factor in this case (s 9A) ([88]). Accordingly, the Arbitrator entered an award for the respondent.

GROUNDS OF APPEAL

Ms Sirikci alleges that the Arbitrator erred in:
(a)     finding that her employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar disorder;
(b)     not accepting Dr Rees’ diagnosis of mild adjustment disorder caused by the actions of Mr Ciantar;
(c)     finding that her bipolar disorder was “beginning to manifest itself”, and
(d)     misapplying the definition of “injury” by confusing causation of aggravation of her condition at the time of the alleged injury with her condition at the time of the assessment by Dr Rees.

SUBMISSIONS AND DETERMINATION

Was Ms Sirikci’s employment the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar disorder? (ground one)

Ms Sirikci submits that the Arbitrator erred in accepting Dr Rees’ opinion because she failed to take into account the fact that her perception of Mr Ciantar’s treatment of her is the relevant matter that must be considered in view of the Arbitrator’s finding that Mr Ciantar’s conduct was significant (State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler)).
Ms Sirikci also submits that there is no other factor that is seen as causative in the development of her psychological condition “which at the least is the aggravation of her bipolar condition or an adjustment disorder”.
Ms Sirikci further submits that the Arbitrator’s rejection of the speculation that she suffered a mild adjustment disorder and his finding of the bipolar disorder manifesting itself rather than a finding of injury caused by the employment is “unstainable” in view of the factual findings regarding Mr Ciantar’s conduct.
Finally, it is submitted that the Arbitrator misdirected himself (at [73]–[78]) “when he considered Dr Rees’ evidence of the ‘current reason’ for Ms Sirikci’s condition when he should have considered the question of injury at the date of the alleged injury, not its ongoing consequences” (Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139; Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79).

Discussion

The Arbitrator accepted that Ms Sirikci was distressed by the manner in which Mr Ciantar spoke to her and/or by the email exchanges between them. He also accepted that Ms Sirikci perceived Mr Ciantar was harassing and bullying her.
In Chemler, Spigleman CJ, (Basten JA and Bryson AJA agreeing) held (at[40]):
“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability.”
If the 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], see also Attorney General’s Department v K [2010] NSWWCCPD 76).
Notwithstanding her perception of events in the workplace, Ms Sirikci failed to satisfy the Arbitrator, on the balance of probabilities, that a psychological injury resulted or that her treatment by Mr Ciantar was the main contributing factor to the aggravation of a pre-existing condition.
It is not to the point, nor is it correct, that no other causative factor in the development of Ms Sirikci’s condition has been identified. Ms Sirikci carries the onus of establishing that the condition of which she complains arises out of or in the course of her employment under s 4. The proceedings before the Arbitrator failed because Ms Sirikci did not satisfy that onus.
It is incorrect to assert that no other causative factor was identified to account for Ms Sirikci’s condition. Dr Rees opined, and the Arbitrator accepted, that Ms Sirikci’s condition had an insidious onset over many years. The Arbitrator accepted, based on Dr Rees’ evidence, that on the balance of probabilities Ms Sirikci was prodromal at the time she commenced her two week period of employment with the respondent. This was evidenced by a history of mood swings and general loss of interest in life being recorded in Dr Emin’s clinical notes in late 2011. That finding was open on the evidence and discloses no error.
I reject the submission that the Arbitrator’s conclusions were “not sustainable” given his findings of fact in respect of Mr Ciantar’s conduct. It does not follow that because it has been established that Ms Sirikci was bullied and harassed in the course of her employment, or even that she perceived that to be so, that she must therefore succeed. The case failed before the Arbitrator because he was not satisfied that those events, real or perceived, caused or aggravated Ms Sirikci’s psychological condition. Given the evidence of pre-existing psychological symptoms, for which Ms Sirikci was seeking treatment prior to commencing employment with the respondent, the short period of the employment, and Dr Rees’ evidence, it was open to the Arbitrator to conclude (at [83]) that any symptoms displayed by Ms Sirikci were the emerging symptoms of the underlying bipolar disease manifesting itself.
The Arbitrator’s conclusion is reinforced by the history of treatment between 12 November 2011 and 31 January 2012, that is, after Ms Sirikci’s employment with Westpac ended but before she commenced working for the respondent. During that period Ms Sirikci saw Dr Emin on four occasions for treatment of psychological symptoms, which included referrals for urgent specialist psychiatric treatment by Dr Chaudhary and the prescription of various anti-depressants.
In view of Dr Akkerman’s evidence, which does not appear to have addressed whether Ms Sirikci’s employment caused an aggravation injury, and given the detailed evidence of Dr Rees, which addressed that issue in detail and concluded that there was no aggravation, the only reasonable conclusion open was that Ms Sirikci had failed to make out her case, as the Arbitrator found.
Although it was not raised in submissions, the Arbitrator was incorrect to assert that Dr Akkerman had none of the material that Dr Rees amassed. Dr Akkerman was aware of a history of psychological problems in 2004/2005 and the medication prescribed at that time. However, Dr Akkerman did not have any of the recent history of psychological symptoms and treatment prior to commencing work with the respondent. His conclusion that Ms Sirikci’s condition was caused by her employment with the respondent cannot be accepted on any view of the facts. Ms Sirikci was clearly suffering significant psychological symptoms prior to commencing work with the respondent which Dr Akkerman failed to consider in reaching his conclusion.
For these reasons ground one fails.

Did the Arbitrator err by not accepting Dr Rees’ diagnosis of an adjustment disorder? (ground two)

Ms Sirikci submits that the opinion of Dr Rees of itself did not take into account her perception of Mr Ciantar’s conduct or the severity of that conduct as found by the Arbitrator.
It is submitted:
“The Arbitrator, cannot disregard his own findings and the evidence of Dr Rees when making a finding of ‘No Injury’ as he has purported to do in this case, without the support of any medical evidence, or lay evidence to support a finding of no injury the arbitrator would need to find Mr Ciantar did not engage in the conduct the arbitrator has found he engaged in.”

Discussion

I reject the submission that Dr Rees’s evidence did not take into account Ms Sirikci’s perception of Mr Ciantar’s treatment and the alleged severity of that conduct. In her report of 6 February 2013, Dr Rees took a careful and thorough history of Ms Sirikci’s perception of the alleged mistreatment by Mr Ciantar. In particular, Dr Rees noted that Ms Sirikci was “feeling angry about her previous boss and that she now cannot work because of him”.
Ms Sirikci’s other submissions in relation to this ground do not support the alleged error. This alleged error is based on the false assumption that Dr Rees diagnosed Ms Sirikci with a “mild adjustment disorder”. For the reasons explained above Dr Rees did not diagnose an adjustment disorder. Dr Rees considered the possibility of a diagnosis of a mild adjustment disorder, however, after considering all relevant material, including the treating doctor’s clinical notes, she excluded that possibility, finding on balance that Ms Sirikci suffered a pre-existing bipolar condition and that work played no part in her condition (see [62] above). The Arbitrator closely considered this evidence in his determination.
It follows that, I reject the submission that the Arbitrator erred by failing to find that Ms Sirikci suffered an adjustment disorder caused by her employment with the respondent.
Apart from Dr Rees’ evidence, there was no other evidence to support a diagnosis of an adjustment disorder. Ms Sirikci’s own medical expert, Dr Akkerman, diagnosed her with major depression.
The submission that the Arbitrator disregarded his own findings and acted without “the support of any medical, or lay evidence to support a finding of no injury” is without merit. Having considered, in some detail, the whole of the medical evidence, it was open to the Arbitrator to prefer the evidence of Dr Rees for the reasons he explained. Dr Rees did not rush to the conclusion she ultimately reached, she did so after carefully examining the whole of the history and the medical records relating to Ms Sirikci’s bipolar disorder.

For these reasons ground two fails.

Was Ms Sirikci’s pre-existing bipolar disorder beginning to manifest itself at the time of the alleged injury? (ground three)

Ms Sirikci submits:
“There is no evidence from any treating doctor that there was any diagnosis of bipolar disorder before the alleged injury. The treatment referred to by Dr Rees was not significant and did not cause sufficient ‘alarm’ or the need for action on behalf of [Ms Sirikci’s] treating doctors until after the work injury occurred.”

Discussion

There seems to be little controversy that Ms Sirikci suffers from a bipolar disorder. That was the conclusion reached by Dr Rees, Dr Zhang and Professor Mitchell.
The Arbitrator concluded (at [83]) that it was more likely that what occurred (at work) was the manifestation of the bipolar disorder.
The Arbitrator’s findings were open for these reasons previously discussed and no error is demonstrated.
In addition, while Dr Emin may not have diagnosed Ms Sirikci with bipolar disorder, he was sufficiently concerned by her psychological state prior to recommencing work with the respondent to see her several times within a short period, prescribe anti-depressant medication and arrange an urgent referral to a psychiatrist. These facts further support the Arbitrator’s conclusion that Ms Sirikci was prodromal before she commenced work for the respondent. Consequently, ground three fails.

Was the employment the main contributing factor to the aggravation of the disease process? (ground four)

Ms Sirikci submits:
“In applying s 4B [sic] of the Workplace Injury Management Act the arbitrator has confused the causation of the adjustment disorder or the aggravation of the bipolar disorder with the bipolar disorder itself and his perception that [Ms Sirikci’s] symptoms at the time of Dr Rees’ last report were solely caused by [Ms Sirikci’s] bipolar disorder.”

Discussion

Ground four is in substance a repeat of the submissions in support of ground one, which I have considered and rejected for the reasons stated above.
I would add that there is no substance to the submission that the Arbitrator’s approach was confused. The Arbitrator rejected (at [83]) the speculation that Ms Sirikci may have suffered from an adjustment disorder. That finding was based on Dr Rees’ evidence and was open to the Arbitrator. It did not involve error.
The Arbitrator’s findings demonstrate that he was not satisfied that Ms Sirikci suffered any injury during her brief period of employment with the respondent. That was a question of fact and was also open on the available evidence, as previously discussed.
Further, the Arbitrator’s findings demonstrate that he accepted Ms Sirikci suffered from a disease condition, however he was not satisfied that the employment was the main contributing factor to the contraction, aggravation or exacerbation of the disease ([85]–[88]). That was because, at the relevant time Ms Sirikci was prodromal ([81]) and that the symptoms displayed were symptoms of the bipolar disease manifesting itself ([83]). Those findings were open on the evidence for the reasons stated above.
For the reasons given ground four fails.

ORDERS

The Arbitrator’s determination of 20 April 2015 is confirmed.

Judge Keating
President

10 August 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE