Smith v Inghams Enterprises Pty Ltd
[2022] NSWPIC 141
•5 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Smith v Inghams Enterprises Pty Ltd [2022] NSWPIC 141 |
| APPLICANT: | Julie Smith |
| RESPONDENT: | Inghams Enterprises Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 5 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claims for psychological injury, right knee and lumbar spine; consideration of factual material and treatment documents; consideration of CCTV and surveillance footage viz Asim v Penrose & Anor; physiological effects of psychological injury, Stewart v NSW Police Service, NSW Police Force v Gurnhill considered; perception based upon real events in psychological injury, Attorney General’s Department v K considered; consideration of the main contributing factor; AV v AW considered; section 32A of the Workers Compensation Act 1987 and real employment; Wollongong Nursing Home Pty Ltd v Dewar considered; pre accident weekly earnings and relevant pre injury earning period considered relating to two deemed dates of injury and whether discretion as to pre injury 52 weeks in absence of relevant categories pursuant to the Workers Compensation Regulation 2016; Held- award in favour of applicant for psychological, right knee and lumbar spine injuries, referred to Medical Assessor assessment of whole person impairment (psychological) and award for applicant weekly compensation for lumbar spine, right knee and psychological injuries. |
| DETERMINATIONS MADE: | 1. The applicant sustained chronic adjustment disorder with depressed and anxious mood, pursuant to section 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), deemed to have happened on 7 February 2019 as a result of her employment with the respondent. 2. The applicant sustained injury to her right knee on 7 February 2019 in the course of her employment with the respondent. 3. The applicant sustained aggravation of pre-existing degenerative lumbar spine disease, pursuant to section 4(b)(ii) of the 1987 Act, deemed to have happened on 23 October 2018 as a result of her employment with the respondent. 4. Respondent to pay the applicant weekly payments of compensation: a. pursuant to section 36(1) of the 1987 Act, from 20 May 2019 to 18 August 2019 at the rate of 95% of pre-injury average weekly earnings (PIAWE), and b. pursuant to section 37(1) of the 1987 Act, from 19 August 2019 to 19 November 2021 at the rate of 80% of PIAWE. 5. Liberty to the parties to apply in respect of PIAWE. 6. Matter remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment in respect of primary psychological injury deemed to have happened on 7 February 2019. Documents to be included in the brief to the Medical Assessor are the Application to Resolve a Dispute and attached documents, the Reply and attached documents, and the Applications to Admit Late Documents dated 29 July 2021, |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute, Ms Julie Smith (the applicant) claimed weekly compensation and lump sum compensation in respect of injuries said to have been sustained in the course of her employment with Inghams Enterprises Pty Ltd (the respondent). The injuries were said to be aggravation of degenerative disease of the lumbar spine deemed to have happened on 23 October 2018; injury to the right knee on 7 February 2019; and psychological injury deemed to have happened on 7 February 2019 as a result of bullying and harassment since 2002 and including an alleged assault on 7 February 2019. The applicant claimed weekly compensation from 20 May 2019 and continuing, and lump sum compensation in respect of psychological injury on 7 February 2019.
In a section 78 notice dated 20 May 2019, the self insurer declined liability in relation to injury to the applicants back said to have been sustained on 23 October 2018. The respondent disputed injury pursuant to section 4 of the Workers Compensation Act (the 1987 Act), substantial contributing factor pursuant to section 9A of the 1987 Act, and, with less clarity, whether employment was a substantial contributor factor to the contraction or aggravation of a disease in accordance with sections 15 or 16 of the 1987 Act, as well as incapacity and a dispute as to reasonable necessity of medical expenses.
In a section 78 notice dated 31 March 2020, the solicitors for the respondent disputed liability in respect of injury said to have been sustained on 2 February 2019 and that any medical condition as a result was not causally connected to injury on that date; that employment on that date was not a substantial contributing factor to injury; or in the alternative if injury was sustained then it was in the nature of a disease process and the applicant’s employment on 2 February 2019 was not the main contributing factor to the cause or aggravation of any such disease; and the applicant was not impaired as alleged or at all.
PROCEDURE BEFORE THE 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.
At the conciliation/arbitration conferences on 16 September 2021 and on 24 January 2022 the applicant was represented by Mr T Hickey of counsel, instructed by Mr Ferraro, solicitor, and the respondent by Mr Saul of counsel, instructed by Mr Macken, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Applications to Admit Late Documents dated 29 July 2021, 27 August 2021, 26 October 2021 and 17 January 2022, and
(d) applicant’s Wages Schedule dated 17 January 2022.
Oral Evidence
There was no application to cross-examine the applicant nor was there an application to give oral evidence.
Applicant’s statements and diary entries
The applicant provided statements dated 25 May 2020, 13 November 2020 and 3 February 2021 and also copies of handwritten diary entries.
In her statement dated 25 May 2020, the applicant stated that she had worked for the respondent for about 30 years. She stated that for most of this time her duties included process work as a fill-in supervisor or leading hand. The applicant stated that this work is fast paced and physically demanding and involved non-stop bending, lifting and twisting and required her to be on her feet all day and she would sometimes have to push tubs weighing up to 200 kg.
The applicant stated that she lodged a workers compensation claim in about 2001 follow-up back pain and she did not recall any specific incident which caused this injury but “more likely than not” the nature and conditions of her work including bending, twisting at a fast pace without a break and also often slipping on the damp floor and straining her back while trying to steady herself. She stated that these conditions had been constant in her employment with the respondent.
The applicant stated that on 6 June 2008 she submitted a claim for workers compensation for injury to her back and strain on her right side, being in respect of symptoms in her upper back when she was pulling heavy trolleys upstairs and down to the floor and also fully loaded tubs which would weigh up to 200 kg each.
The applicant stated that she did her best to live with her lower back pain but it never went away and she would use an ice pack on her back if the pain was particularly bad.
The applicant stated that on 23 October 2018 she had been pushing heavy tubs at work on that day and the pain in her back became excruciating and she could no longer manage it herself and she initiated a workers compensation claim. She stated that she was referred to Dr Makarious by the respondent for treatment. Dr Makarious referred the applicant for physiotherapy. She was also referred for radiological investigations including an MRI. The applicant stated that she was able to keep working as she delegated her physical duties.
The applicant stated that on 7 February 2019 at about 9:05 am, a work colleague,
Ms Gibbons, was pushing a big blue tub at the end of the line and the applicant said to her “can we not bath tub there” for meat to be put in as the bath tub is higher off the ground and can be wheeled into the chiller easily. The applicant stated that Ms Gibbons replied “it’s what Glenn wants”. I note at this point that the reference to Glenn is to Mr Glenn Chuter, the plant manager. The applicant stated that she had never been instructed by Glenn to use the blue tub and as she was the leading hand she needed to make sure that the correct tubs were being used and the blue tubs were not appropriate as they were deep and low and there had been complaints about back strains when unloading meat from the tubs.The applicant stated that Ms Gibbons was wearing a fluorescent yellow vest and came around the pallet Jack and began to push a blue tub towards the end of the line. The applicant stated that she was walking back towards the end of the line and she walked towards Ms Gibbons to repeat her instructions as she had been ignored by Ms Gibbons. The applicant stated that suddenly Ms Gibbons pulled the steel Euro tub and shoved it in the applicant’s path, causing it to impact on her knees and legs which forced her backwards and hunched forward. The applicant stated that the Euro stainless steel tubs weighed about
40 kg when empty. The applicant said that she immediately called out to Ms Gibbons “you just hit me with the Euro tub” and the reply by Ms Gibbons was “you deal with it”. The applicant said that Ms Gibbons walked off and the applicant walked around to get the bath tub and brought it around and she said again to Ms Gibbons “you hit me with the Euro tub” but Ms Gibbons ignored her and walked off. The applicant stated that at first she continued walking to get another tub but shortly afterwards she became aware of pain and swelling in her right knee.The applicant stated that she complained to her union representative and as she had pain in her knees and legs she went to first aid where she was treated with ice packs by Ms Napoli. Another employee of the respondent arranged for an appointment with Dr Makarious at
1 pm. The applicant stated that she also saw another general practitioner (GP), Dr S, for both her physical and psychiatric conditions. She said that at the time of the statement she was not having any specialist intervention or physiotherapy because she could not afford it as liability had been denied by the insurer.The applicant stated that as a consequence of her years of employment with the respondent she suffered physical symptoms being pain in the lower back, pain in the right knee, which occasionally gives way, and pain and stiffness in the neck.
In respect of her claim for psychological injury, the applicant stated that she had been directly employed by the respondent, a chicken production company, as a process worker and boner since December 1989. She stated that she commenced her employment with the respondent at the factory in Hoxton Park and worked there for about 18 ½ years and then in about 2008 she transferred to the Tahmoor factory, again as a leading hand. She stated that her primary duties in working on the process line were receiving, boning and processing of chicken meats at her duties were to debone the chicken meats and have them ready for packaging for distribution.
The applicant stated that in working for the respondent for over 30 years she had been exposed to bullying, harassment, victimisation and adverse behaviour by other staff and management. She stated that she had lodged complaints to management and had lodged a previous workers compensation claim for bullying and harassment in the past. She stated that the earliest incidents of bullying and harassment that she could recall was in the year 2000 when she lodged a claim for psychiatric symptoms including anxiety, depression and insomnia as a result of bullying and harassment by other staff when she was working at the Hoxton Park factory, and in particular when she was bullied by another worker. She stated that she received treatment from her GP at the time and she returned to her work on her
pre-injury hours and duties.The applicant stated that in about 2007 she transferred from Hoxton Park to the Tahmoor factory as the former was closing down and remaining staff were made redundant.
The applicant stated that during her time working at Tahmoor she was again exposed to many incidents of bullying and harassment and other adverse behaviour and the primary protagonist was another staff member, Ms Gibbons, who was already at the Tahmoor plant prior to her arrival. The applicant recounted a number of specific incidents in 2009 involving Ms Gibbons.
The applicant stated that her supervisor, Ms Wood, was not a good supervisor and did not acknowledge others or even say good morning and she was rude to staff and sometimes ignored staff for the whole day and she would sometimes not speak to the applicant or just ignore her and pass her instructions to Ms Gibbons when the applicant was the leading hand on the line and at most times she was not aware of what was going on. The applicant also recounted instances in which she said that Ms Wood spoke to her aggressively and on another occasion the applicant felt worthless and useless at the way she had been spoken to.
The applicant also recounted specific instances in 2010, 2017 and 2018 involving in some instances Ms Gibbons, and separately Ms Wood, and also another worker, Ms Hayward.
The applicant stated that she suffered over the years at the bullying and harassment by
Ms Gibbons and Ms Wood but she continued working as she had worked for the respondent for so many years and was not ready to throw her career away because of them. She stated that she had made many complaints to management about this behaviour, but her complaints were ignored or lost as there was always a revolving cycle of management staff and workers and so she just let it go and continued working.The applicant stated that following the incident on 7 February 2019 that she felt “flabbergasted, in awe” that she had been assaulted in the workplace and ignored, and that Ms Gibbons was getting away with this behaviour and the applicant felt that she was treated like she was nothing and a nuisance and she had been always deliberately undermined, embarrassed and treated like an idiot. She stated that she consulted Dr Makarious in relation to her psychiatric injury and she was put off work for a week. She stated that she had a case conference with the respondent’s return to work coordinator and Dr Makarious on the following Monday and she understood that her complaint would be investigated and she went back to work the following week with a restriction not to work with Ms Gibbons. She stated that Dr Makarious did not appreciate how she was feeling and she was kept on being certified as fit for full hours work when she was not feeling well and she continued to see
Ms Gibbons as it was unavoidable and she felt anxious, worried and stressed. She said that she was suffering at work, became emotional and tearful when she had to push steel tubs and she would constantly take breaks and walk out then break down and cry.The applicant stated that in a meeting at work on 20 May 2019 she was informed by
Mr Chuter that there were no more light duties available and this was the last day that she worked for the respondent. She stated that she was distraught, emotionally spent and her anxiety was through the roof. She said that on the same day she received notice that her workers compensation claim had been declined.In her statement dated 13 November 2020, the applicant provided her observations in relation to the CCTV footage.
In her statement dated 3 February 2021, the applicant stated that her back pain seemed to be getting worse and she had been taking strong medication to control it and was referred to Dr Diwan.
In respect of the applicant’s handwritten notes, little reliance was placed upon them in submissions and I will not deal with them further.
Other statements
Ms Gibbons was a work colleague of the applicant and performed the role of recorder of the line on which the applicant worked as leading hand. Ms Gibbons provided two statements dated 13 February 2019 and 23 November 2020, both of which are discussed below.
Ms Wood, the applicant’s supervisor, also provided two statements dated 13 February 2019 and 23 November 2020. These statements will also be discussed below.
Mr Chuter, Plant Manager of the Tahmoor site, provided a statement dated 18 February 2019. This statement will be discussed below.
Ms Napoli provided a statement dated 18 February 2019. This will be discussed below.
There were also statements from Mr Howlett dated 18 February 2019, Ms Hayward dated 13 February 2019 and Mr Prsad dated 18 February 2019. As discussed below, I consider the statements not to be probative or relevant and I have placed no weight upon them.
Mr Lakis, former work colleague of the applicant, provided a statement dated 5 November 2020. This statement will be discussed below.
Ms Allen provided a statement dated 17 September 2019. This statement recounted what the applicant had said to her in relation to complaints of harassment by a co-worker and also lack of communication and support from her supervisor, failure of management to resolve the applicant’s issues and the applicant’s statement to Ms Allen in relation to the incident of 7 February 2019.
Complete Medical Centre, Campbelltown
Clinical records were provided by the Complete Medical Centre. These documents included an initial clinical record dated 19 June 2019, completed by Dr Soumakiyan. It was noted “last Oct low back spasms… Had it at work for a while at work… Having physio… Work – lot of manual work… Since the injury – stopped doing manual duties” and “in… 7.2.19 – was hit by metal knee B/L… This was done by another colleague who she had some altercation… Work [took] liability for the back but investigating [the] metal tub injury…” and “Work is denying the [claim]… Worked for the company for 30 years – this branch 11 years… Whilst the investigation was going on was doing suitable duties…”.
Tahmoor 7 Day Medical Centre
Clinical records were provided by the Tahmoor 7 Day Medical Centre. Included in these documents were reports of Dr Modem and Dr Wallace, discussed separately, and treating physiotherapist reports of Mr Dalgleish dated 8 November 2018 and 7 February 2019, also discussed below. Also referred to in submissions were a number of clinical entries, mental health plans (MHP) and medical certificates, also discussed below. The clinical notes were relevantly completed by Dr Makarious and Dr Hathiramani.
Ms Jackson
Ms Jackson, treating clinical psychologist, provided clinical notes, treatment reports and a report to the applicant’s solicitors dated 23 March 2021.
The clinical note dated 8 April 2019 recorded a work-related incident due to altercation with another colleague with knee and back injury from work. It was noted that the applicant had been harassed many years with no support from supervisor “them being friends with her co-worker who bullies her”. Also noted was that the applicant had been harassed by the recorder for 10 to 11 years and the applicant was the leading hand and had worked for the respondent for 30 years all up. It was noted that on 7 February 2019 there was a knee injury when the applicant was explaining rules and Ms Gibbons pushed a Euro stainless steel tub into her knees. Also noted was that in October 2018 there was a repetitive strain injury on the lower back from pulling and pushing large tubs. An entry of 8 May 2019 noted a referral “to GP for MHP”. An entry dated 27 May 2019 recorded that the applicant was on sleeping tablets and had difficulty sleeping and had nightmares about what had happened and also that she had anxiety and panic due to worry around her knee injury and the denial of her workers compensation claim.
In her report dated 23 March 2021, Ms Jackson noted multiple specific dates examined from 20 May 2019 to 29 March 2021. These were on a regular and frequent basis. Ms Jackson recorded a history that the applicant had been working at the respondent for 30 years and in the last 10 to 11 years she had been bullied and harassed by her co-worker Ms Gibbons, who is the recorder at work, and the applicant is the leading hand. Ms Jackson noted that on 7 February 2019 Ms Gibbons physically abused her by pushing a Euro tub intentionally into the back of the applicant’s knee while she was explaining the rules. Ms Jackson noted that the applicant reported that she had no support from her supervisor when she would report her co-worker’s behaviour due to this supervisor and the co-worker being good friends who would back each other up. Ms Jackson recorded the history that the applicant’s co-worker would frequently set people up in order to bully them and the applicant was one person that had been targeted. Ms Jackson noted also that the applicant had a repetitive strain injury to the lower back from pulling and pushing the large steel tub repeatedly and chronic pain in both her knees and her back from injuries received as a result of working for the respondent.
Ms Jackson diagnosed the applicant with adjustment disorder with mixed anxiety and depression as well as chronic pain disorder.
Ms Jackson was of the opinion that the applicant’s anxiety and depression were improving but she had still not adjusted to her disability and had recently reported that following consultation with an orthopaedic surgeon she was considering a recommendation to have an operation on her back in order to improve her pain and overcome her disability. Ms Jackson was of the opinion that therefore the applicant’s adjustment disorder was likely to take much longer to overcome and the applicant did not have any capacity to work both currently and in the long-term. Ms Jackson was of the opinion that the applicant’s chronic pain is directly related to her depression, anxiety and stress and that the bullying that she endured in the past at work was also still impacting on her ability to overcome the depression and anxiety and therefore also restricting her capacity for further work at that stage. She noted that the chronic pain is also persistent. Ms Jackson was of the opinion that considering the applicant’s age and disability’s she is not likely to be hired or employable. It was
Ms Jackson’s opinion that the applicant’s incapacity is the result of the injuries she sustained at work and her employment with the respondent was a substantial contributing factor to her injuries.
Dr Wallace
Dr Wallace, of the South West Pain Clinic, provided a treating report to Dr Makarious dated 5 June 2019.
Dr Wallace noted a history of low back pain and progressively worsening at work but becoming suddenly worse over a year ago with physiotherapy treatment since then. He noted that in February 2019 a large tub was pushed by a co-worker and hit the applicant in the right knee and this has created some right knee pain as well as exacerbating her right low back pain.
Dr Wallace noted a history of continuing back pain exacerbated by prolonged standing and somewhat relieved by medication, which is a low-dose tramadol with paracetamol.
Dr Wallace noted that the applicant had stopped work two weeks ago as restricted duties were no longer available. He also noted significantly affected mood and she had felt more nervous and anxious than before. He also noted that physiotherapy had been quite effective until the knee injury and the applicant had been seeing a psychologist, Ms Jackson, at that time on four occasions, and it was somewhat helpful.On psychometric testing, Dr Wallace noted high levels of depression, anxiety and distress and significant anxiety related to the right knee injury. On examination Dr Wallace noted exacerbation of pain on extension and flexion of the lumbar spine and some right lateral knee numbness and right L5 numbness. He was of the impression that there was chronic low back pain, likely facetogenic with right L5 radiculopathy. He recommended trial of medication, neurosurgical review specifically in relation to right L5 radiculopathy, bone scan, physiotherapy, continuing psychological treatment with Ms Jackson and diagnostic right L3 – S1 facet medial branch blocks.
Dr Modem
Dr Modem, consultant psychiatrist, provided a treating report dated 17 December 2019.
Dr Modem recorded a long history of repeated harassment and bullying over the time that she had worked for the respondent. He noted that the applicant was a leading hand she was constantly undermined and harassed and since then she has reported onset of stress and anxiety, sad/depressed mood and psychiatric symptoms. He noted that the applicant said that she felt worthless after being told she was no longer needed at work. He noted no previous history of any of these symptoms.
Dr Modem was of the opinion that the applicant met the criteria for major depressive disorder, current episode severe without psychotic symptoms. He recommended treatment with prescription of medication and psychological interventions including continuation of seeing her psychologist.
Dr Diwan
Dr Diwan, spine and scoliosis surgeon, providing a treating report dated 25 January 2021, and a report to the applicant’s solicitors dated 5 May 2021.
In his report dated 25 January 2021, Dr Diwan recorded a history that the applicant first injured herself in October 2018 and she had worked with the same employer for nearly 30 years and during the time of her injury she was the leading hand at the boxing line for turkeys and she remembered that her back started causing her trouble as she was bent over doing some work. Dr Diwan recorded that since then her symptoms had been getting worse and in recent times she also had a direct injury to her right knee with a bucket and that had been troubling her significantly. Dr Diwan reviewed an MRI scan of the lumbar spine and stated the following:
“I explained to Julie with the help of her own images the nature of the problem.
I explained that degenerative spondylo-listhesis are not uncommon in the remain asymptomatic until such time that the patient may injured himself or hurting himself at work, sport or water accident. That these stabilisation leads to persist on an ongoing pain.”Dr Diwan recommended a standing x-ray, a series of spinal injections and discussion of surgery after nonoperative options.
In his report dated 5 May 2021, Dr Diwan was of the opinion that restrictions on the applicant’s work capacity were to limit repetitive bending and twisting movements, limit repetitive lifting to 3 to 5 kg while following treatment recommendations, undertaking a series of spinal injections to provide targeted pain relief and confirm diagnosis relevant to the source of pain. Diagnosis by Dr Diwan was severe for facetal osteoarthritis at L4/5, grade 1 anterior listhesis and bilateral foraminal stenosis, small disc herniation at L4/5 and minor contained herniations at L3/4 and L2/3.
Dr Diwan was of the opinion that the history provided was consistent with the symptomatic presentation of sustained aggravation of the spine through work duties involving repetitive lifting, bending, and twisting in the course of performing her duties on the factory production lines and were considered to be a substantial contributing factor to the injuries sustained. He was of the opinion that treatment would need to be undertaken, however a plan to return for a suitably modified or lighter role was the most likely recommendation.
The referral letter from Dr Makarious to Dr Diwan dated 10 December 2020 stated that the opinion was sought regarding the applicant’s lower back pain “since fall at work two years ago”.
Dr Rastogi
Dr Rastogi, consultant psychiatrist, provided medicolegal reports and supplementary reports to the applicant’s solicitors dated 15 October 2019, 23 October 2020, 11 November 2020, 2 August 2021 and 5 August 2021.
In her report dated 15 October 2019, Dr Rastogi recorded a history that the applicant worked with the respondent for over 30 years, and that she worked at the Hoxton Park branch, a chicken plant, for 19 years, and then transferred to Tahmoor, a turkey plant. She noted that the applicant was subjected to bullying and harassment by a co-worker four years at the Tahmoor plant and had lodged multiple grievances against her and the supervisor.
Dr Rastogi noted a work-related back injury in October 2018 but continued working as a leading hand with physical restrictions but still worked full-time hours.Dr Rastogi noted that on 7 February 2019 the same co-worker threw a Euro tub in the context of being frustrated and this has resulted in a right knee injury and the applicant continued working in suitable duties but was advised that the employer could not offer suitable duties in May 2019. Dr Rastogi noted the onset of bullying and harassment by a
co-worker at Hoxton Park and lodgement of the workers compensation claim for a psychological condition in 2002.Dr Rastogi noted that the applicant moved to the Tahmoor plant in 2007 and that issues with a co-worker commenced since 2008. Dr Rastogi noted that the applicant was a leading hand and her co-worker, Ms Gibbons, was very oppositional and dismissive towards her and the applicant reported that Ms Gibbons was very hostile and intimidating and constantly undermining her and calling her supervisor reporting what she was doing. Dr Rastogi noted that the applicant was being monitored by Ms Gibbons who was having a go at her constantly. Dr Rastogi noted that the applicant had lodged multiple grievances against
Ms Gibbons and a plant manager at the time supported the applicant, but he was terminated, and she had little support from the respondent. Dr Rastogi noted that the applicant found it extremely frustrating to deal with Ms Gibbons and she continuously felt undermined, dismissed and ignored in front of other staff and Ms Gibbons made sarcastic remarks.
Dr Rastogi also noted that the applicant had difficulties with her supervisor who was also dismissive and very rude and hostile towards her and spoke in a derogatory manner and things escalated from there on.Dr Rastogi noted that the applicant suffered a lower back injury in 2018 due to repetitive pulling, pushing and carrying.
Dr Rastogi also noted that the applicant said that the floor was very slippery and in view of safety requested Ms Gibbons get a Euro tub to place the products, but Ms Gibbons was dismissive and then threw the Euro tub on 7 February 2019 resulting in hitting Ms Smith on her right knee and forced her to go backward and lunge forward. Dr Rastogi noted that the applicant confronted Ms Gibbons stating that she hit her deliberately and did not apologise for her behaviours and reported the incident to the union representative and documented the complaint. Dr Rastogi noted that on 20 May 2019 after the completion of her shift the applicant was advised that there were no more suitable duties and was told that if she did get a clearance she would not be working as a leading hand in the future and be demoted and this was the last day of work.
Dr Rastogi diagnosed chronic adjustment disorder with depressed and anxious mood. She noted that the applicant had reported chronic bullying and harassment since 2000 by various co-workers during her employment with the respondent at Hoxton Park and then at Tahmoor. She lost a claim for workers compensation for psychological injury at Hoxton Park but continued working on pre-injury duties and was not provided any support and she continued to persist in the hostile environment and had to move houses and seek an AVO against the co-worker. Dr Rastogi noted that since the move to the Tahmoor plant the applicant reported being dismissed, denigrated, alienated and belittled by her co-worker with a lack of support by her employer and supervisor despite putting in multiple grievances. Dr Rastogi noted that the applicant had a right knee injury in February 2019 due to a co-worker allegedly throwing a Euro tub at her and in the opinion of Dr Rastogi this was the last straw for her psychological decline aggravated by her employer not being able to provide suitable duties and denial of her claim.
Dr Rastogi was of the opinion that there is a direct connection between the chronic alleged bullying and harassment that the applicant faced at the respondent since 2002 and ongoing negative experiences by her co-worker since 2008 at Tahmoor culminating in adjustment disorder and exacerbated by chronic pain, denial of the claim and inability to provide suitable duties after physical injury. Dr Rastogi was of the opinion that the applicant had no current capacity to work and in the future she may be able to work from a psychological perspective in a part-time role or duties with a different employer. She noted that the applicant had always worked as a labourer and had current physical restrictions making future vocational options challenging and her vocational prognosis is poor and limited. Dr Rastogi was of the opinion that employment was a substantial contributor to the psychological injury.
In her supplementary report of 23 October 2020, Dr Rastogi noted the reports of Dr Samuell, Dr Kaplan, which was not before me, and Dr Casikar. Dr Rastogi noted that she did not have the CCTV footage. Dr Rastogi was of the opinion that the applicant’s adjustment symptoms had built up over time given the strained relationship with the employer since 2002.
Dr Rastogi noted that the various report stated that the CCTV footage did not show evidence of the alleged incident on 7 February 2019, however the perceived victimisation over time resulted in psychological injury. Dr Rastogi was of the opinion that the psychological injury was the cumulative effect of experiences with her employer over time rather than related specifically to the incident on 7 February 2019 and the right knee injury at work caused her to be more vulnerable.In her report of 11 November 2020, Dr Rastogi stated that she was unable to assess from the CCTV footage the alleged incident as the footage was not very clear but her opinion did not change. She was of the opinion that the applicant’s psychological injury was the cumulative effect of experiences with the employer over time rather than related specifically to this particular incident of 7 February 2019.
In her report of 2 August 2021 Dr Rastogi noted that she had reviewed the CCTV footage and again confirmed her previous opinion, noting that at the time of the CCTV footage the applicant was still working in partial capacity and at the time of her assessment in October 2019 the applicant was not working due to her psychological conditions and impairments, that is after the footage. I note that it was agreed that the reference by Dr Rastogi in this report to “CCTV footage” was in fact a reference to the surveillance footage of April 2019, having regard to the report of Dr Rastogi dated 5 August 2021 referring to CCTV footage provided on 12 April 2019 and 28 April 2019.
Dr Maniam
Dr Maniam, orthopaedic surgeon, provided medicolegal reports to the applicant’s solicitors dated 10 August 2020 and 30 October 2020.
In his report dated 10 August 2020, Dr Maniam recorded a work history that the applicant worked with the respondent for 30 years until she was sacked on 2 May 2019 and had not worked since. He noted relevant injuries on 6 June 2008, low back injury, and 9 May 2009, low back injury.
Dr Maniam noted a history of the conditions of the applicant’s employment involving process work, backup hand and leading hand and that the work was fast paced and physically demanding and involved non-stop bending, lifting and twisting and required her to be on her feet all day and from time to time to push tubs weighing up to 200 kg.
Dr Maniam noted that on 23 October 2018 the applicant’s back pains had recurred due to the repetitive pushing, pulling and carrying and became excruciating and she could no longer manage with work. He noted that her back injury did not prevent her from continuing with her work, except the more physical type of duties.
Dr Maniam recorded a history that on 7 February 2019 a fellow worker pushed a blue tub towards the end of the line and the applicant was walking backwards at that time and a steel Euro tub subsequently hit her on the knees with severe impact. Dr Maniam also noted a claim for bullying and harassment.
Dr Maniam reviewed documentation including in respect of an MRI of the right knee on 16 May 2019, in which it was noted that there was a short, closed horizontal tear at the posterior horn of the lateral meniscus of doubtful clinical significance. He also noted in respect of an MRI of the lumbar spine of 4 December 2018 disc and facet chains is at L3/4 resulting in moderate right foraminal narrowing and degenerative spondylolisthesis at L4/5 without high-grade canal foraminal narrowing and inflammation of the right L3/4 and L4/5 facet joints.
Dr Maniam also noted the reports of Dr Casikar and Dr Edwards.Dr Maniam diagnosed, in relation to the lumbar spine at L3/4 a circumferential irregular disc bulge with abutment and slight distortion of the exiting L3 nerve root, brought about by repetitive spinal movements, heavy physical work and other manual activity and there had been multiple episodes of pain which eventually came to a crescendo on 23 October 2018, and, in addition to the protrusions, there is also aggravation of degenerative changes at L3/4 and L4/5 levels and this was an aggravation and deterioration stemming from the injuries.
In relation to the applicant’s right knee, Dr Maniam was of the opinion that there is evidence of a tear of the posterior horn of the lateral meniscus and oedema in the pre-patellar soft tissue is suggestive of pre-patella bursitis and the right knee injury was brought about by an impact on the knee from the stainless steel tub. He was of the opinion that employment had been a substantial contributing factor to the injuries.
Dr Maniam was of the opinion that the applicant was permanently unfit for duties involving pulling and pushing, repetitive bending and trunk twisting, heavy lifting, fast pace working and standing all day.
In his report dated 30 October 2020, Dr Maniam stated that he had reviewed the CCTV footage and it did not cause him to vary or alter his previous report.
CCTV, surveillance footage and factual investigation report
Also lodged were CCTV and surveillance footage. The CCTV footage was from a number of different camera angles in respect of recordings made on 7 February 2019 at the relevant time at the production line on the respondent’s premises at which the applicant worked. The surveillance footage was of the applicant attending sporting fixtures in April 2019. The CCTV footage and surveillance footage will be discussed below.
The investigation report was provided by Virtual Intelligence and dated 27 February 2019. It contained a number of statements discussed elsewhere in this decision as well as summaries of matters referred to in the statements and observations of CCTV footage.
Dr Samuell
Dr Samuell, clinical and forensic psychiatrist, provided a medicolegal report and supplementary report to the respondent’s solicitors, both dated 25 March 2020.
In his substantive report dated 25 March 2020, Dr Samuell noted a history in which he concluded that the applicant was not experiencing clinically significant anxiety before going off work and she was able to return to work after the incident of 7 February 2019. He could not connect the applicant’s anxiety to the workplace events if she was accurate in her description of her anxiety symptoms, and given the evidence against her accusation. He was of the opinion that if she was accurately reporting her psychological symptoms, then the applicant had an anxiety disorder not otherwise specified as symptoms did not clearly fit within other diagnostic criteria. He stated that anxiety disorders did not require external events to have a causal relationship with the onset of anxiety and most anxiety disorders are idiopathic. He was of the view that at the very least the applicant could work for 20 hours per week without other restrictions, noting that she was able to work until suitable duties were withdrawn from her and she said that her anxiety had deteriorated from then, and there was a strong question about the reliability of her self-report.
Dr Samuell in his supplementary report of 25 March 2020 stated that there was no whole person impairment as the applicant had not been injured during the course of her employment.
Dr Samuell’s report and opinion will be discussed further below.
Dr Roberts
Dr Roberts, consultant forensic psychiatrist, provided a report dated 9 April 2019. In the course of the arbitration hearing, I ruled that having regard to regulation 44 of the Workers Compensation Regulation 2016 this report would be considered only in respect of the history provided, and not in respect of commentary provided by Dr Roberts nor in respect of his opinion.
Dr Roberts noted a prior injury in October 2018 when the applicant said that she sustained injury to her low back as a result of pushing and pulling tubs on wheels weighing in excess of 200 kg.
Dr Roberts noted a history that the applicant had seen her local GP, Dr Hathiramani, about a history of disagreements with her co-worker, Ms Gibbons, that there was a conflict between herself as a leading hand and the alleged person causing injury, Ms Gibbons, whom she referred to as the recorder. Dr Roberts noted that the nature of the conflict was described by the applicant as Ms Gibbons trying to take control and undermine her and that the applicant had complained and that nothing had happened and that matters had got worse. Dr Roberts noted that the applicant said that there was a work health and safety issue and that
Ms Gibbons had pushed the tub back, hurting her legs and she reported walking off when Ms Gibbons hit her in the legs, and that Ms Gibbons could have said something, namely indicating remorse that the accident had happened, and that the applicant felt that this interaction including this event follows a pattern. Dr Smith noted that the applicant commented that she was distressed by the situation and denied the presence of a mental problem in the absence of a disorder as such.
Dr Edwards
Dr Edwards, surgeon, provided a report dated 13 May 2019 to the self insurer.
Dr Edwards noted a history of her back problem commencing prior to October 2018 with niggles, but it became excruciating on 7 October 2018. He also noted a history that on
7 February 2019 Ms Gibbons grabbed a Euro tub and pushed it to move it out of the way and the applicant said that it made contact with her legs, told Ms Gibbons that it happened, went to get a bath tub and told Ms Gibbons again. Dr Edwards reviewed the CCTV footage, made certain observations, discussed below, and concluded that there was no indication of any incident. He concluded that he could not find any objective clinical evidence of any organic right knee disability. He was of the opinion that on the information available, he did not consider there was any evidence that the applicant had sustained an injury at work. The report of Dr Edwards will be discussed below.
Dr Casikar
Dr Casikar, neurosurgeon, provided a medicolegal report to the self insurer dated 9 May 2019.
Dr Casikar recorded a history that on 23 October 2018 the applicant noticed back pain, which she had been having a couple of months earlier, had increased on that day. He noted a previous history of low back pain 10 years ago while pushing a trolley for which she had physiotherapy and recovered completely. He also noted a history that in February 2019 the applicant was allegedly knocked by a steel cart onto her right knee. He noted some inconsistency between the report of the injury by the applicant and the report from the CCTV camera. He noted that following this the applicant developed pain in the right knee which seemed to be getting progressively worse.
Dr Casikar was of the opinion that the applicant had a constitutional degenerative disease of the lumbar spine and there had been no specific work-related injury and in his opinion the back pain was mainly due to the natural progression of the degenerative disease. He was of the opinion that her current capacity to work was limited due to the symptoms related to the degenerative disease of the lumbar spine and the right knee injury. He was of the opinion that clinical examination did not indicate any structural problems in the right knee, but this needed evaluation by an orthopaedic surgeon. He was also of the opinion that the combination of degenerative disease and emotional issues would make the prognosis of the condition poor. He noted that at that time the applicant was doing a rotating kind of job which did not seem to be as strenuous as her pre-injury work. He was of the opinion that the applicant could gradually return to her pre-injury duties, but this was unlikely to happen unless her emotional issues are corrected and this requires further evaluation by an appropriate specialist.
Dr Casikar was of the opinion that the applicant had not suffered a work-related injury because there had been no specific work-related incident and the injury to the right knee was controversial. He was of the opinion that it was reasonable to accept that the applicant had aggravated her pre-existing degenerative disease due to the nature of her employment but this aggravation had probably ceased.
FINDINGS AND REASONS
I have closely watched the relevant CCTV footage, which was identified by counsel for the respondent as commencing at “Cam 7” and “Cam 8” at 9.05:15 on 7 February 2019. Cam 7 was of some assistance in providing a view of the location of the alleged incident in question and a somewhat longer distance view of the movements of the applicant and Ms Gibbons. Cam 8 provided an overhead somewhat wide angled view at a significantly closer distance than that of Cam 7, although the precise distance to the applicant and Ms Gibbons was not identified.
There was no dispute that the applicant was identified in the relevant CCTV footage as wearing a white covering or jacket, and Ms Gibbons as wearing a yellow jacket or vest over white clothes.
I observed from Cam 7 Ms Gibbons pushing the blue bin towards the end of the production line, visible near the top left of the screen, heading generally in a similar direction as the applicant, who was at that time standing stationary near the same head of the production line, a few steps back from the production line towards the left of the screen. At that time the applicant was facing towards the production line. Ms Gibbons ceased moving the blue tub and moved around it and reached with her left hand to an object located in front of the blue tub, that is closer to the applicant, while at the same time her body was still faced in the same direction as the production line. At that moment the applicant was standing to the right and to the side of Ms Gibbons. At the moment that Ms Gibbons reached towards the object, the applicant commenced to move towards Ms Gibbons. Ms Gibbons proceeded to pull the object backwards and to her right at the same time as the applicant approached Ms Gibbons, over about three or four steps. I observed the object, which is identified more clearly in Cam 8 as a silver grey bin, come into contact with the lower part of the applicant’s body. At this point in the footage the applicant’s body was next to that of Ms Gibbons and facing the silver grey bin. I observed the applicant’s right leg at that moment. I observed the object to come into contact with the applicant’s upper right leg, including her right knee, and I saw the applicant’s upper body move forward over the bin at the same time. I was not able to observe the applicant’s left leg, although her body appeared to me to be placed so that her left leg was in the same position relative to the object as her right leg.
I observed from Cam 8 the applicant walked into the vision around the corner of the production line and then moved out of the picture at the bottom of the screen. Shortly afterwards, Ms Gibbons walked around the same corner moving in the same direction as the applicant, and moved a blue bin, continuing in the same direction, towards the production line to a position close to an apparently smaller silver grey bin located in the bottom right of the picture. Ms Gibbons moved around the blue bin and took the edge of the silver grey bin with her left hand. At the moment Ms Gibbons took hold of the bin, her body was facing the bin and she was looking down at the bin. This footage appeared at the bottom right of the screen and the approach of the applicant could not be seen until the top of her head appeared at the bottom of the screen, apparently very close to the silver grey bin. The applicant’s left arm was outstretched towards the left side and to the closest short edge of the rectangular bin, close to where Ms Gibbons was pulling the left corner of the bin, closest to Ms Gibbons, as it appeared in the picture. At this time the applicant had moved to be close to Ms Gibbons and to her right. Ms Gibbons continued to pull the bin with her left hand back towards her right as the applicant’s upper body come into the upper picture. The applicant’s upper body obscured the part of the bin closest to her, and her lower body was not in the picture. I observed Ms Gibbons to release the hold of her left hand on the bin at the same moment as the bin appeared to move very close to the applicant’s lower body and as the applicant’s upper body moved over the bin. Ms Gibbons then moved away from the silver grey bin, and away from the applicant, to assist another worker move the blue bin. At no point did I observe Ms Gibbons to look towards the applicant until the applicant moved next to her at the blue bin. Ms Gibbons looked at the applicant at that time as the applicant pointed with her left hand. Ms Gibbons commenced to move away from the applicant and made a gesture with her left hand by raising her left lower arm and lowering it with the palm of her left hand facing down as she walked away from the applicant. It appeared to me that a brief conversation had taken place.
The applicant said that the tub that impacted her was a “Euro” tub of stainless steel and weighing about 40 kg. Ms Gibbons stated that the tub that she was moving at the relevant time was a Euro tub. I find that the silver grey bin referred to above was a “Euro” tub of stainless steel construction. It was not disputed that the “Euro” tub weighed about 40 kg.
I find that the “Euro” tub that was being moved by Ms Gibbons at the relevant time weighed about 40 kg.As I have viewed the CCTV footage, I am not assisted by, and I do not accept, the comments of other persons, including the investigator and lay witnesses, regarding what is shown in that evidence, as suggested by the respondent. None of these persons were suggested to be experts in the interpretation of CCTV and surveillance footage.
I find that the Euro tub came into contact with both the applicant’s upper legs, including her right knee.
In my view, it is not necessary to decide whether or not the Euro tub was “thrown” by
Ms Gibbons towards the applicant in finding that the incident took place as I have found above.However, I consider this issue to the extent that the respondent sought to attack the applicant’s credit in this regard, and also in the histories recorded, including that of
Dr Rastogi.I approach the interpretation of the CCTV (and the surveillance) footage in an “extremely cautious” manner. As was observed by Tobias JA in Asim v Penrose & Anor[1] (Asim),
“It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence: Angel v Hawkesbury City Council [2008] NSWCA 130 at [70] to [72]; Blacktown City Council v Hocking [2008] NSWCA 144 at [8] to [12], [167] to [170]; Warren v Gittoes [2009] NSWCA 24 at [54] to [55]; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20] to [28].
Camera footage and photographs of poor quality are particularly suspect and ought to be interpreted with an enhanced degree of caution. This is particularly so where a judge has rejected an expert’s evidence with respect to those photographs. In the present case there is nothing to suggest that Mr Bailey was an expert in the interpretation of photographs; but then neither was his Honour or, for that matter, this Court.”
[1] [2010] NSWCA 366 at [57-58]
In this case the difficulty was the distant view of Cam 7, and the wide angle overhead view, with the applicant’s lower body partially off-screen, in Cam 8.
The respondent submitted that the applicant’s use of the word “thrown”, in a number of instances in recording the incident in question, is to be understood as implying an “obvious, and from the applicant’s point of view, a deliberate intentional act by Ms Gibbons to injure her by using that tub, if you like, as a form of weapon to create that injury”.
I do not accept this submission. In my view, it was open on the CCTV footage for the applicant to perceive that the tub was thrown at her. This perception was based upon a real event, that is the movement of the tub which struck her body. This in my view does not detract from the applicant’s credit, nor does it reduce the weight given to medical opinion based upon this perception.
The respondent submitted that on the issue of credit the statement of Ms Gibbons was to be preferred to that of the applicant. I do not accept this submission. Ms Gibbons did not deny that the tub came into contact with the applicant. She stated that she was not aware at the relevant time that a physical incident took place. What she did deny was that she threw the tub at the applicant on 7 February 2019 and that the applicant had said to her “you just hit me” when she had attempted to move the Euro tub away from the line.
However, in my view, the CCTV footage above is not inconsistent with the applicant’s description that the Euro tub was thrown at her, and that the applicant’s perception was based on a real event. It is not necessary to prefer the statement of Ms Gibbons or the applicant as to credit in this regard. In my view the applicant’s description and perception of the tub being thrown at her was not inconsistent with the CCTV footage and her credit is not impeached. At the same time, it is not necessary to find for or against Ms Gibbons on credit on this point, as her denial of intention is also not inconsistent with the relevant footage. In my view this is in accordance with the extremely cautious approach to the interpretation of CCTV footage that is required by Asim.
The statement of the first aid officer, Ms Napoli, recounted a conversation with the applicant shortly after the incident in which it was recorded that the applicant said that the tub had been pushed with force purposely into the applicant. It is not clear that the purpose to which Ms Napoli referred was simply the movement of the tub or some other reason. Ms Napoli also stated that she documented her first aid treatment of the applicant. The “1st Aid Treatment Notes” completed on 7 February 2019 at 9:10 am recorded that the applicant stated that a fellow employee had “pushed a Euro tub with force into both of [the applicant’s] upper legs”. Absent from this description was a reference to “purpose” or “purposely”. In my view, this treatment note was completed by Ms Napoli. I do not prefer the statement of
Ms Napoli to that of the applicant in this regard.The applicant attended her GP, Dr Makarious of the Tahmoor 7 Day Medical Centre, on the same day, that is on 7 February 2019, as noted above. Dr Makarios formed the impression that there was a soft tissue trauma and in the medical certificate on the same date diagnosed trauma to the right knee and thigh and adjustment disorder. The clinical note on that occasion recorded that another worker who had been bullying the applicant pushed a big tub accidently hitting her right knee. The medical certificate of the same day used the words “thrown…at”. In my view the clinical note provides evidence of a description of the incident without reference to an attribution of intention, similar to the note of the first aid attendant that was entered even closer to the occurrence of the incident.
The applicant submitted that the clinical note of 7 February 2019 was consistent with her statement and this is relied upon for the purpose of her claim. I accept this submission. Additionally, in my view, this is also not inconsistent with the note of the first aid attendant.
The subsequent clinical records support the occurrence of a traumatic incident to the right knee on 7 February 2019. Dr Makarious, GP, did not note swelling on 7 February 2019, although slight upper leg swelling was noted by the first aid officer shortly after the incident, with application of an ice pack to the thigh area. The physiotherapist, Mr Dalgleish, on 7 February 2019 noted a very recent workplace incident which negatively impacted therapy progress. The next clinical entry of Dr Makarious on 11 February 2019 noted bruising to the lateral aspect of the right knee, as well as not sleeping, stressed and upset and a diagnosis of right knee trauma and adjustment disorder, which was also noted on 7 February 2019. In my view, the initial observation by the first aid attendant on 7 February 2019 was of slight swelling in the right leg after noting forceful impact of the tub with the upper legs, with treatment with an ice pack for 15 minutes, means that the observation of Dr Makarious of no swelling or bruising later that day, and then bruising to the right knee on 11 February 2019, is not inconsistent with injury to the right knee on 7 February 2019.
I am satisfied that the applicant suffered injury to her right knee on 7 February 2019.
In relation to psychological injury, the applicant provided a detailed history of conflict at work commencing in about 2002, and particularly with Ms Gibbons after the applicant transferred to the Tahmoor site in 2007, and including issues and conflict in 2017 and 2018. This history was consistent with the statement of Mr Chuter, who noted the applicant’s informal and formal reports of conflict. Mr Chuter also noted that the applicant and Ms Gibbons had a long history of conflict.
Clinical notes of the GP, Dr Makarious, also confirm a prior history of symptoms described as anxiety or depression related to work. Confirming notes include 2 August 2012, “upset, depressed re problems with a senior leading hand at work…anxious+”, and notes on 19 December 2016, 26 October 2017, “depressed at present” and a number of entries in 2018, including 30 August 2018, “work issues stress anxiety panic attacks”. The medical certificate of 7 February 2019 diagnosed adjustment disorder.
I do not accept the respondent’s submission that Dr Makarious’s diagnosis in the medical certificate of 7 February 2019 should not be accepted as it was not made or supported at that time by a psychologist or psychiatrist. Dr Makarious is a medical practitioner and qualified to make that diagnosis. I do not accept the respondent’s submission that the adjustment disorder came “out of the blue” at that time. In my view the diagnosis was consistent with the emergence of a psychological condition over time, with the clinical history noted by medical practitioners in the same medical centre as that of Dr Makarious. I do not accept the respondent’s submissions that there was no injury or injuries with reference only to descriptions such as stress or upset. The relevant clinical entries were evidence of their cumulative effects, not of individual instances of injurious events. Hence, the decisions of Stewart v NSW Police Service[2] (Stewart) and Mannie v Bauer Media Pty Ltd[3] are not applicable to these individual clinical entries, as discussed below.
[2] (1998) 17 NSWCCR 202
[3] [2016] NSWWCCPD 47
In relation to the witnesses Mr Lakis and Ms Allen, I do not accept the respondent’s submissions that no weight is to be given to them on the basis that they were self-serving and lacking in detail. Ms Allen in my view confirmed a history that the applicant over a period of two years had complained of harassment by a co-worker involving withholding information, interference, hindrance and obstruction in the applicant’s role as a leading hand. This, in my view, fits with the applicant’s evidence of complaints about Ms Gibbons, but also Mr Chuter’s acknowledgment that there was long-standing conflict in this regard. Although he did not provide specific detail, Mr Lakis said that he often saw arguments between the applicant and Ms Gibbons and also Ms Wood and that in his observation it was Ms Gibbons who was the instigator of the problems between her and the applicant. This evidence also supports that of the applicant and that of Mr Chuter, that is that the conflict between the applicant and
Ms Gibbons over the years was real.
Mr Chuter stated that the applicant on 19 December 2018 had provided him with a number of handwritten notes with complaints dating back to August 2018. He listed the dates of these complaints, by my count a total of 16, of which all but one were described by Mr Chuter as involving Ms Gibbons solely or with other persons. He stated that he subsequently investigated some specific complaints relating to specific dates, four in total, which he described as normal interactions without supporting evidence. He stated that his investigations in this regard were continuing, and he had not been able to inform the applicant of his findings. In my view, this evidence does not detract from the reality of the conflict between the applicant and Ms Gibbons that was acknowledged by Mr Chuter. This evidence also confirms that the applicant had made complaints about Ms Gibbons and also that the conflict between the two, by December 2018 was not intermittent. Ms Gibbons in her statement said that she had lodged grievances against the applicant with management prior to 7 February 2019, including in the period prior to the commencement of Mr Chuter.
Ms Gibbons said that her grievances against the applicant included bullying, yelling at her, aggression, abuse towards her and verbal attacks.I do not prefer the statements of Ms Gibbons to the evidence of the applicant. The applicant’s statement that there were three short conversations with Ms Gibbons at the time of the incident on 7 February 2019, when Ms Gibbons was pushing the blue bin, to the effect that the applicant said that Ms Gibbons should not move the blue bin to that spot, and the others after the Euro tub collided with her, to the effect that the applicant said that Ms Gibbons hit her with the Euro tub, was not inconsistent with my observation of the relevant CCTV footage. Ms Gibbons account of the incident on 7 February 2019 was that there was only one short conversation at the time that she went to move the Euro tub, to the effect that the applicant told her not to put the blue tub in that spot, which was not inconsistent with that of the applicant. However, Ms Gibbons said that she then walked away at the time of the conversation when she was moving the Euro tub. Ms Gibbons also denied that the applicant said that she had hit the applicant when she tried to move the Euro tub. In my view,
Ms Gibbons account, in which she denied a conversation after moving to the other side of the blue tub, was not consistent with the CCTV footage, which showed a short conversation at the blue tub after having moved away from the Euro tub, when Ms Gibbons raised and lowered her arm and hand and then walked away.Ms Gibbons’ statement dated 23 November 2020 is in the form of question by the investigator and answer by Ms Gibbons. I accept the applicant’s criticism of this statement that caution should be exercised in weighing this statement as it simply provides responses to leading questions raised by the investigator in respect of the statement of Mr Lakis without Ms Gibbons providing her own narrative or context to the issues raised by Mr Lakis, other than what in my view was an allegation by Ms Gibbons, without evidence other than discussion, of little weight in my view, of a past relationship between Ms Gibbons and
Mr Lakis, and of collusion between the applicant and Mr Lakis in making untrue statements in a desperate attempt get at Ms Gibbons because of their dislike and deep hatred of her. To the extent that there is any evidence of some weight in this statement of Ms Gibbons, such evidence does not assist the respondent. In particular, Ms Gibbons alleged that the applicant was incompetent in her job, but Ms Gibbons knew hers and therefore the applicant had a vendetta against her. In disputing Mr Lakis’s observation that he would see the applicant upset often he would see Ms Gibbons or Ms Woods arguing with the applicant, Ms Gibbons said that she was not arguing with the applicant, rather she was discussing work requirements not being met due to the applicant’s misunderstanding of requirements and the applicant taking offence to the feedback. In my view, this is confirmation of continuing conflict between the applicant and Ms Gibbons and Ms Woods. On the evidence of Mr Chuter and Ms Wood, it was the latter who was the applicant’s supervisor, not Ms Gibbons. Neither
Mr Chuter nor Ms Wood suggested that the applicant was not competent in her job, although Mr Chuter said that he had counselled her in relation to making complaints rather than her leading hand role. The latter comment in my view did not amount to a criticism of competency, but it did support the applicant’s view of a lack of support. This is also evidence that Ms Gibbons did not like or respect the applicant, and hence also gives me reason to view her evidence against the applicant with the caution suggested by the applicant. Other than the matters that do not assist the respondent, I do not place weight on the statements of Ms Gibbons.The same question and answer considerations and caution also apply to the second statement of Ms Woods dated 23 November 2020, in which she provided brief answers to questions put by an investigator about the statement of Mr Lakis, other than a somewhat lengthy account of Mr Lakis’s departure from the employ of the respondent and her understanding of conversations with other persons in which she understood that Mr Lakis received an inheritance. I place no weight on these aspects of this statement. To the extent that some weight is put on this statement, it is to the extent that it does not assist the respondent. Ms Wood, in disputing Mr Lakis’s statement that the applicant was targeted by Ms Gibbons, said that they had video footage of the incident, by implication from context that of 7 February 2019, of the applicant targeting Ms Gibbons and not as the applicant had accused Ms Gibbons. In my view, this assertion was not consistent with the CCTV footage and detracts from the weight to be given to both statements of Ms Wood.
In my view the applicant’s claim of a lack of support from Mr Chuter and Ms Wood is also substantiated on the evidence. The clinical notes record a history of her complaints to management in 2012 and feeling unsupported by the plant manager in 2017 and also on 11 February 2019, that is four days after the incident on 7 February 2019. Her complaints about Ms Gibbons were in written form, as acknowledged by Mr Chuter and Ms Woods, and in oral form as acknowledged by Ms Wood. Ms Wood acknowledged that the applicant and
Ms Gibbons had a long history of workplace conflict. Ms Wood on the one hand said that she investigated the applicant’s complaints and usually found her allegations not to be substantiated as it was “he said, she said”, yet she said she had spoken to the applicant in respect of complaints made by others against her, but had not proceeded with them as they had not been formalised. Mr Chuter at the time of his statement had not informed the applicant of the outcome of the four written complaints that he had investigated, and he had not investigated the balance of the complaints, with a generalised assertion that they were about ordinary interactions between employees. In the meeting on 7 February 2019,
Mr Chuter also challenged the applicant on a view of the CCTV footage which in my view was not available on the evidence. Mr Lakis’s statement, which I accept, also provided his observations of arguments over the years between the applicant and Ms Wood.I do not accept the respondent’s submission that the applicant was not assisted by the absence of a statement of the union delegate regarding the meeting on 7 February 2019, in which it was said by Mr Chuter and Ms Wood that the CCTV footage was viewed and discussed with the delegate and the applicant. In my view, the statement of Ms Wood recounted the arguments put by the delegate and Mr Chuter in relation to their views of the CCTV footage. In my view, this is evidence of the relevant discussion between Mr Chuter and the union delegate, details of which were not given in the statement of Mr Chuter. It is also evidence that Mr Chuter did not acknowledge in his statement the alternative interpretation put forward by the union delegate, that the CCTV footage showed a motion of Ms Gibbons pushing the Euro tub into the applicant, and also of Mr Chuter asserting that the CCTV footage showed no obvious sign of injury, with the response from the applicant asking whether she was being called a liar. As noted above, I have found evidence of injury to the applicant’s right knee in the incident of 7 February 2019. In my view, the evidence of
Ms Wood in relation to the meeting with the applicant on 7 February 2019 substantiates her interpretation that management did not provide support in respect of her complaints. Indeed, Ms Wood’s description that the applicant had not “come into major contact with the euro tub” was rather faintly put.It follows that I also place limited weight on the statement of Mr Chuter. He acknowledged the presence of the union delegate but did not refer to the delegate’s argument about the CCTV footage as referred to by Ms Wood. I have otherwise noted above his evidence in relation to the applicant’s prior complaints.
I place no weight upon the statements of Mr Howlett, Ms Haywood and Mr Prsad. Mr Howlett and Ms Haywood recounted circumstances involving the applicant on 7 February 2019 prior to the subject incident. In my view this was not probative or relevant. All three statements also referred to their own grievances against the applicant, which in my view were not relevant.
The respondent submitted that, based upon Stewart, when considering injury, the clinical notes do not assist in establishing either a psychological condition over a period of time, or a back condition as a result of the nature and conditions over a period of time. It was submitted that the clinical notes, with reference to stress or distress, mere anxiety and stress, and to back symptoms, do not establish injury. I do not accept this submission. As was submitted by the applicant, the applicant’s claim is not based upon injury resulting from a particular event, for which physiological effect should be found, the claim is based upon the cumulative effect of the instances of perceived bullying and harassment over a period of time from at least her commencement at the Tahmoor plant until 7 February 2019, culminating in the incident of 7 February 2019, and also as a result of her employment duties, as described above, until 23 October 2018. It is not necessary that there be a sudden physiological change or disturbance of the normal physiological state in respect of her back or her psychological condition at any particular time during the period relied upon. As was observed in NSW Police Force v Gurnhill[4]:
“Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms ‘disease’ and ‘personal injury’ in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance. As noted by Gleeson CJ and Kirby J in Petkoska (at [40]):
‘The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense.’”
[4] [2014] NSWWCCPD 12 at [73]
It was also submitted by the respondent that in a case not involving section 11A it is still an accurate summary of the authorities relied upon in Stewart, which establish that:
i) frustration and emotional upset do not constitute injury[5];
ii) where a mere anxiety state, a straight litigation neurosis is not compensable[6];
iii) a misinterpretation of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable[7], and
iv) that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable[8].
[5] Thazine-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 304
[6] Karathanos v Industrial Welding Co Ltd [1973] 47 WCR (NSW) 79 at 80
[7] Kirby v Trustees of the Society of St Vincent de Paul (NSW), NSWCC, No. 20708/94, 11 April 1997, unreported (Kirby)
[8] Kirby
I do not accept this submission. In my view, in circumstances where perception is based upon real events, as is the case here, the absence of a section 11A defence is not determinative of the approach to be taken in psychological injury cases. In particular, in my view the correct approach was outlined in the decision of Attorney General’s Department v K[9] (K), in which the relevant authorities were summarised as follows:
“The following conclusions can be drawn from the above authorities:
(1) 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]);
(2) 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]);
(3) 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]);
(4) 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);
(5) 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
(6) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[9] [2010] NSWWCCPD 76 at [52]
I have found that the incident on 7 February 2019 was a real event, and also that the applicant experienced conflict with Ms Gibbons over the years, and I have accepted the applicant’s evidence that she was subjected to bullying and harassment by her work colleague over the years. On these findings, these were real events without requiring a consideration of perception, hence it is not necessary to further consider the principles summarised in K. I accept the applicant’s submission that, while the applicant may have perceived the tub was thrown at her, the evidence was that it did strike her, and therefore the term “thrown” is not relevant. In my view the applicant’s perception of both the incident of 7 February 2019 and the preceding bullying and harassment and lack of support in the workplace since about 2008 were based on real events and it is not necessary that her reaction to these events must be rational, reasonable and proportionate for her to succeed in her claim for psychological injury. Further, in my view, as the events in the workplace were real, and were perceived by the applicant as creating a hostile working environment, and psychological injury followed, based on the opinion of Dr Rastogi, I can conclude that causation is established.
In respect of the surveillance footage, I observed the applicant watching sporting fixtures, apparently on three occasions in April 2019, in which she was seen to be standing, walking and sitting. There was a fourth occasion on 28 April 2019, but I could not ascertain whether or not the applicant was pictured. The respondent submitted that this was significant in showing a lack of restrictions in the applicant’s movement and activity at an early stage, that is shortly after the incident of 7 February 2019 and also after the development of her alleged back symptoms. I do not accept this submission. In my view this footage did not show any matter that was inconsistent with the applicant’s claim. None of the activities shown appeared to me to be strenuous or inconsistent. The respondent referred to an absence of a limp, but I was not able to see such absence, as on at least one occasion the applicant’s gait was not inconsistent with a limp.
I do not accept the respondent’s submission that the applicant returned to normal duties prior to the cessation of her employment in May 2019. The evidence in my view establishes that she worked on restricted duties until they were withdrawn by the respondent and the applicant’s employment was terminated in May 2019. The clinical note of Dr Makarious of 25 October 2018 recorded management of the lower back injury including modified duties. Entries on 8 January 2019 and on 25 January 2019 noted lower back symptoms and no change in the condition, and continuation of job restrictions and modified duties.
The respondent submitted that the clinical notes also showed Dr Makarious declining to treat the applicant, and that showed a lack of trust or confidence in the applicant by her doctor.
I do not accept this submission. Dr Makarious continued to treat the applicant after the relevant notes in 2019 and 2020. I do not accept this interpretation from the clinical notes, as in my view these notes should be treated with caution in this regard, absent contextual details of the actual conversations between the applicant and her doctor.It follows that the history recorded by Dr Rastogi as to a tub being thrown at the applicant provided the basis of a fair climate for her opinion, in which the incident of 7 February 2019 was the last in cumulative effect of the applicant’s experiences in her employment over time.
The evidence for the deemed date of psychological injury in my view is clear. The medical certificate diagnosing adjustment disorder dated 7 February 2019, which I have accepted as medically qualified evidence, certifies no current capacity for work on that day. Ms Wood stated that the applicant took half the day off work following the incident on 7 February 2019. Therefore, the deemed date of injury for the applicant’s psychological injury, initially diagnosed as adjustment disorder, is 7 February 2019.
The respondent also submitted there was a lack of contemporaneous evidence in support of the applicant’s psychological injury and also that there was evidence of increasing anxiety related to work after 7 February 2019. I do not accept these submissions. As noted above, clinical notes recorded attendances by the applicant with complaints of stress, bullying and harassment at work, and symptoms of anxiety and depression at times, commencing in 2012 and continuing in 2016, 2017 and increasingly in 2018. The clinical notes of Ms Jackson commenced on 8 April 2019 which recorded the history of harassment by a work colleague, the recorder, over 10-11 years, the incident of 7 February 2019 and also repetitive strain injury to the lower back in October 2018. Dr Wallace, of the South West Pain Clinic, in his report of 5 June 2019 noted presentation with low back pain worsening at work about a year before, and right knee pain from an incident in February 2019, and on psychometric testing noted high levels of depression, anxiety and distress.
In relation to the applicant’s claim for back injury, in my view the evidence of the clinical note of 25 October 2018 by Dr Makarious supports the applicant. It recorded “w/c” back pain pushing heavy tubs of meats. Dr Makarious referred the applicant for physiotherapy and his referral letter of 25 October 2018 sought opinion regarding work related muscular back pain. The report of Mr Dalgleish, physiotherapist, dated 8 November 2018 recorded first presentation by the applicant on 26 October 2018 for treatment of the lumbar spine following injury sustained at work. His further report of 7 February 2019 noted further presentation for treatment of lower back symptoms on 4 February 2019 and 7 February 2019. Radicular symptoms were first noted by Dr Makarious on 4 December 2018. There was also in evidence a claim form completed by the applicant on 4 July 2008 for an upper back injury as a result of reaching up to change the dials on the boning line. The applicant’s statement described the flare up of lower back pain on 23 October 2018 after pushing heavy tubs at work, following which she attended Dr Makarious. She also described lower back pain in 2001 and constant employment conditions involving pulling heavy trolleys, pushing fully loaded bathtubs, bending and twisting at a fast pace and often slipping and steadying herself and straining her back. Ms Wood in her statement of 13 February 2019 said that since the applicant’s work related back injury, sustained in late 2018, she had been working on restricted duties performing her tasks as a leading hand but did no physical tasks. In my view, the treatment evidence supports the applicant’s claim that the duties that she described culminated in a flare up of low back pain on 23 October 2018, following which she sought and underwent treatment. I also note in this regard the report of Dr Wallace noted above. This treatment evidence was in my view contemporaneous in the sense that it commenced shortly after, and then continued thereafter, the flare up of low back pain on 23 October 2018. This evidence is in my view consistent with the applicant’s statement.
The respondent also submitted that the test is not whether the employment is capable of causing aggravation, rather what must be shown is that there is a direct connection between the employment and the condition of which the applicant complains[10]. It was submitted there are no contemporaneous medical attendances that would establish that the applicant injured her back. It was submitted that the clinical note of 25 October 2018, which recorded pushing heavy tubs of meat, there was no frank injury pleaded. I do not accept this submission, as in my view that clinical entry is consistent with the applicant’s claim of aggravation of a lumbar spine disease condition as a result of employment duties over time. It was also submitted that there did not appear to be any restriction in duties, nor treatment for a further period of two and half years, following the attendance on 25 October 2018. In my view the evidence noted above did establish that the applicant remained on suitable duties from October 2018 until cessation of employment in May 2019 with evidence including the applicant’s statement, Ms Wood’s statement, a clinical note referring to restricted duties, on 8 January 2019, while also noting the applicant still had back pain, and also the physiotherapist notes of
Mr Dalgleish, referred to above. In my view the clinical note of 25 October 2018 and subsequent treatment by Mr Dalgleish and continuing back symptoms noted on 8 January 2019, while the applicant was performing restricted duties, are evidence of a direct link between the applicant’s employment duties as she described and the onset of her back symptoms on 23 October 2018 and subsequent symptoms and treatment.[10] Mannie
Further, in my view there was also later contemporaneous evidence of continuing back symptoms, as well as right knee and psychological symptoms. Recover at work plans were issued on 24 April 2019 for the back, and on 20 May 2019 for the right knee and anxiety. A mental health plan was requested on 27 May 2019. The applicant consulted Dr Wallace on 5 June 2019 with presenting symptoms of low back pain and right knee pain. The clinical record of Dr Soumakiyan of 19 June 2019 recorded a history of back pain, right knee pain and anxiety and workers compensation certificates were issued for low back pain and also for the right knee and anxiety. The applicant consulted Dr Modem, psychiatrist, for treatment on 17 December 2019. Clinical records continued in 2020 for lower back pain, including in June and August 2020, and the applicant was referred to Dr Diwan, whom she consulted in December 2020. In my view the evidence supports the applicant’s complaints of continuing back and right knee pain and psychological symptoms.
I do not prefer the opinion of Dr Samuell. His opinion referred to no report of anxiety or seeking psychological treatment prior to the incident of February 2019, was not substantiated by the history that he recorded. More importantly, his opinion was based upon acceptance of the premise that the CCTV footage demonstrated no such incident occurred, and on the basis that there was no clinically significant anxiety before going off work and that she was able to return to work after the incident of February 2019. In my view the incident of 7 February 2019 did occur. Moreover, Dr Samuell in his opinion did not deal directly with the conflict with Ms Gibbons over a number of years, other than noting it in the history, as he was of the view that she had attributed her anxiety to the incident of February 2019. As
Dr Samuell’s opinion was based upon an incorrect premise that the subject incident did not happen, I do not give weight to his report and opinion. I note that the opinion of Dr Roberts could not, and was not, relied upon in these proceedings, other than for a matter of history.The reports of Dr Rastogi had regard to the surveillance and the CCTV footage. Dr Rastogi’s later report of 11 November 2020 confirmed that she had viewed the CCTV footage and that her opinion was unchanged, that is the applicant’s psychological injury was the cumulative effect of experiences with her employer over time rather than related specifically to the incident of 7 February 2019. Having regard to Dr Rastogi’s reports as a whole, in my view the reference to “employer” in the last report of Dr Rastogi, was a reference to the applicant’s employment, in which she perceived she was bullied, harassed and victimised by
Ms Gibbons. In my view Dr Rastogi’s opinion was supported by the evidence that I have discussed above. I prefer the opinion of Dr Rastogi to that of Dr Samuell. I accept that the applicant’s psychological injury, diagnosed by Dr Rastogi as chronic adjustment disorder with depressed and anxious mood, was the result of her perception, based upon real events, that she underwent bullying and harassment by Ms Gibbons continuing from the time of commencement at the Tahmoor plant of the respondent, up to and including the incident on 7 February 2019, and also lower back and pain in both knees as a result of her employment. I accept the opinion of Dr Rastogi that the incident of 7 February 2019 was the last straw for the applicant’s psychological decline, noting that Dr Rastogi thought there was some aggravation after 7 February 2019. It seems to me that the last straw characterisation is in accordance with the opinion of Ms Jackson.Ms Jackson, in her report to the applicant’s solicitors dated 23 March 2021, noted multiple treatment consultations from 20 May 2019 to 29 March 2021. Ms Jackson recorded a consistent history of bullying and harassment by Ms Gibbons over the last 10 to 11 years, as well as the incident of 7 February 2019 and the lack of support from her supervisor.
Ms Jackson diagnosed adjustment disorder with mixed anxiety and depression along with chronic pain disorder, while also noting panic attacks due to worry about her knee injury and her claim being denied by the insurer. Ms Jackson was of the opinion that the adjustment disorder with depression and anxiety would be likely to take much longer to overcome, and the bullying that she endured in the past at work was also still impacting on her ability to overcome the depression. Ms Jackson was of the opinion that the applicant’s employment while working for the respondent was a substantial contributing factor to her injuries. I find the opinion of Ms Jackson to be detailed and well explained, with the benefit of multiple treatment consultations with the applicant. I accept the opinion and report of Ms Jackson.On consideration of the report of Ms Jackson as a whole, in my view Ms Jackson attributed the applicant’s psychological condition to the employment over the years until 7 February 2019. Ms Jackson had the benefit of multiple treatment consultations in forming her opinion, which noted worry and indeed panic attacks relating to her knee injury and denial of her claim after 7 February 2019. However, Ms Jackson was clear that it was the bullying that the applicant endured in the past which was still impacting on her ability to overcome the depression and anxiety. This is also consistent with the clinical records and the report of
Dr Modem, discussed below. To the extent that the report of Dr Rastogi indicates or implies, which in my view is not clear, that events after 7 February 2019 were implicated in the causation of the condition she diagnosed, then I prefer the opinion of Ms Jackson in this regard, that is that the applicant’s condition relates to employment over the years until 7 February 2019, and, I infer from the opinion of Ms Jackson, with no contribution to that condition by employment after 7 February 2019. The evidence of the applicant, and the history and opinion of Dr Rastogi, was that the bullying and harassment started in about 2002. I accept that this was the case.Dr Modem, in his treating report of 17 December 2019 noted a history that the applicant was a leading hand who was constantly undermined and harassed and since then she reported onset of stress and anxiety, with description of psychological symptoms. Other than a brief notation that the applicant felt worthless after being told she is no longer needed at work, there was no other history of events at work in respect of the applicant’s mental state. Although the incident of 7 February 2019 was not recorded by Dr Modem, in my view this history is broadly consistent with history of bullying and harassment by Ms Gibbons over the years.
In my view, the complaints of bullying and harassment and lack of support over a number of years, with descriptions of depression and anxiety on occasion, and the onset of significant psychological symptoms following the incident on 7 February 2019, which was another episode in that history of bullying and harassment and lack of support, is best characterised as a disease of gradual onset, having regard also to the opinions of Ms Jackson and
Dr Rastogi, supported by the report of Dr Modem, which diagnose the psychological condition as resulting from employment over a number of years.I find that the applicant sustained a disease process of chronic adjustment disorder with depressed and anxious mood as a result of her employment with the respondent from about 2002, and including from the time of her transfer to the Tahmoor plant in about 2007, until 7 February 2019. As discussed above, pursuant to section 15 of the 1987 Act, the deemed date of injury is 7 February 2019.
It is necessary to consider whether the employment was the main contributing factor to the contraction of that disease process. In this regard, Ms Jackson was of the opinion that the applicant’s employment was a substantial contributing factor to the adjustment disorder with depression and anxiety. Dr Rastogi addressed the issue in this regard by opining that there is a direct connection between the alleged chronic bullying and harassment in her employment since 2002 and negative experiences by her co-worker at the Tahmoor plant culminating in adjustment disorder, exacerbated by chronic pain, denial of the claim and inability to provide suitable duties after physical injury. I have preferred the opinion of Ms Jackson, as noted above, in relation to the contribution of the period of employment up to 7 February 2019, which is also consistent with clinical records, which commence diagnosis of the applicant’s adjustment disorder on 7 February 2019. I have accepted that the relevant period of employment in which the applicant was subject to bullying and harassment commenced in 2002. The relevant approach was summarised in AV v AW[11]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[11] [2020] NSWWCCPD 9 at [77-78]
There was no evidence before me of any other psychological condition, other than a 2002 claim for psychological injury for bullying and harassment, such claim and circumstances being accepted as part of the causation of the adjustment disorder that Ms Jackson and
Dr Rastogi diagnosed. Having regard to the opinion of Ms Jackson, the report of Dr Modem, and the supporting clinical records which commence the diagnosis of adjustment disorder on 7 February 2019, in my view, as at 7 February 2019 there was no other competing causal factor. It is not fatal in these circumstances that neither Ms Jackson nor Dr Rastogi did not specifically refer to the issue of the main contributing factor to causation of the disease process. On consideration of the whole of the evidence before me, I find that the applicant’s employment was the main contributing factor to her adjustment disorder with mixed anxiety and depression. Ms Jackson had regard to circumstances of right knee pain and the denial of the workers compensation claim after 7 February 2019 but provided her opinion in the terms discussed above. In my view, having regard to the opinion of Ms Jackson, there was no contribution or competing causal factor in respect of the applicant’s employment after 7 February 2019.Dr Casikar, in my view, took a history of low back pain which was inadequate for consideration of a claim for back injury arising from the effects of employments duties over a number of years. There was no history or consideration of the employment duties said to have resulted in the lower back condition. The history recorded in relation to the right knee injury was incorrect, referring to the applicant being knocked by a steel cart onto her right knee. Dr Casikar diagnosed constitutional degenerative disease of the lumbar spine with no specific work injury. He accepted there was an aggravation of the pre-existing degenerative disease of the back due to the nature of employment, but that aggravation had probably ceased. He did not explain why the aggravation had probably ceased. Dr Casikar did not provide an opinion as to the relationship between his diagnosis of injury to the right knee and employment, describing the injury as “controversial”. Due to the brevity of the history, the failure to engage with the applicant’s employment duties and the relationship of the right knee condition, diagnosed only as “injury”, to the incident of 7 February 2019, in my view the opinion of Dr Casikar has no weight.
Dr Edwards, noted a history of the incident on 7 February 2019 which was consistent with the evidence. However, Dr Edwards stated that he checked the dimensions of the Euro tub, which was 4 inches off the ground and 1m high. He did not give any explanation as to this measurement process. He then stated that he found it difficult to understand “how this tub struck her above the knee, nor do I consider it could have struck her on the knee”. I accept the applicant’s submission that this amounts to supposition and is not properly the subject of medico-legal opinion. Dr Edwards also noted the factual investigator’s report that stated that, based upon the CCTV footage and Ms Gibbons’s statement, the evidence obtained did not support the applicant’s allegations. He stated that he viewed CCTV Cam 8, recounted what he saw, and concluded there was no indication of any incident. He did not refer to Cam 7. These matters were the basis for Dr Edwards concluding that on the information available he did not consider there was any evidence the applicant sustained an injury at work. As I have accepted that Dr Edwards opinion was based upon unexplained supposition as to measurements relating to the possibility of collision with the right leg and knee, and that such unexplained supposition is not a matter for a medico-legal opinion, and also his conclusion on viewing one aspect of the CCTV footage, in respect of which I have found otherwise, I do not place any weight upon the opinion of Dr Edwards.
Dr Maniam, in my view, in his report 10 August 2020, engaged with the applicant’s history of the conditions of her work in respect repetitive and demanding physical activities and to push tubs weighing up to 200 kg from time to time. He recorded the applicant’s back pain becoming severe on 23 October 2018, following repetitive pushing, pulling and carrying. I do not accept the respondent’s submission that this was a history of a frank incident not relied upon in the current proceedings. Considering Dr Maniam’s report as a whole, this was a history of a worsening of back pain. Dr Maniam also took a consistent history of the incident on 7 February 2019, noting severe impact of the tub with her knees. In my view, the history recorded by Dr Maniam is consistent with the treating reports and documents, including the report of Dr Diwan. I accept the opinion of Dr Maniam that the mechanism of injury in relation to the lumbar spine, diagnosed as pathology at L3/4 and slight distortion of the exiting L3 nerve root, was brought about by repetitive spinal movements, heavy physical work and other manual activity, with multiple episodes of pain which eventually came to a crescendo on 23 October 2018. Dr Maniam also opined that a grade 1 anterolisthesis at L4/5 with marked bilateral facet arthropathy will also be a source of continuing pain. He was of the opinion that, as well as the protrusions which may have been a direct result of the injury, there is also aggravation of degenerative changes at L3/4 and L4/5, and the latter, that is the aggravation of the degenerative changes, was an aggravation and deterioration stemming from the injuries. This opinion as to aggravation of the degenerative lumbar spine condition, is in my view in accordance with the opinion of Dr Diwan, noted below.
I also accept Dr Maniam’s opinion that the right knee injury, diagnosed as a tear of the posterior horn of the lateral meniscus and furthermore oedema in the pre-patella soft tissues suggestive of pre-patella bursitis, was brought about by an impact on the knee from the tub.
I do not accept the respondent’s submission that Dr Maniam’s opinion of the MRI scan of the right knee of 16 May 2019 was that the pathology at the lateral meniscus was of doubtful clinical significance. In my view, Dr Maniam noted the MRI scan report, and was of the opinion that the relevant pathology was significant.Dr Diwan, in his treating report of 25 January 2021, took a history of back pain starting to cause trouble as she was bent over doing some work and that her symptoms had been getting worse. He noted pain on examination of the lumbar spine. He reviewed an MRI scan of the lumbar spine and noted it showed severe facetal osteoarthritis at L4/5 with grade 1 anterior listhesis and bilateral foraminal stenosis, small disc herniation at L4/5 and minor contained herniation at L3/4 and L2/3. Although brief, in my view this history was sufficient to be a fair climate for Dr Diwan to provide his opinion in relation to the applicant’s back.
Dr Diwan’s explanation from the applicant’s imaging was that degenerative spondylo-listhesis is not uncommon and remains asymptomatic until injury at work, or other accident, and this leads to persisting ongoing pain. I accept the applicant’s submission that this an opinion of work related aggravation of a disease process of the lumbar spine. This is consistent with the consideration of disease injury in Federal Broom Co Pty Ltd v Semlitch[12]. In his report of 5 May 2021 Dr Diwan opined that the history was consistent with the symptomatic presentation of sustained aggravation of the spine through the work duties involving repetitive lifting, bending, and twisting in the course of performing her duties on the factory production lines, and thus are considered a substantial contributing factor to the injuries sustained. I accept the opinion of Dr Diwan in this regard.[12] [1964] HCA 34
I accept Dr Maniam’s opinion that the applicant’s employment was a substantial contributing factor to the injury to her right knee. I find pursuant to section 4(a) of the 1987 Act that the applicant sustained injury to the right knee in the course of her employment on 7 February 2019.
I find that the applicant sustained aggravation of a disease process of the lumbar spine as a result of her employment with the respondent. It is necessary to consider whether the employment was the main contributing factor to the aggravation of the disease process. In this regard, both Dr Maniam and Dr Diwan were of the opinion that the applicant’s employment was a substantial contributing factor to the lumbar spine condition. The discussion of AV v AW above also applies here.
There was no evidence of any competing causal factor to the aggravation of the applicant’s lumbar spine disease process. It is not fatal in these circumstances that Dr Maniam did not specifically refer to the issue of the main contributing factor to the aggravation of the disease process. Neither Dr Diwan nor Dr Maniam identified any other competing causal factor to the aggravation. On consideration of the whole of the evidence before me, I find that the applicant’s employment was the main contributing factor to the aggravation of the applicant’s lumbar spine disease.
I am satisfied that the injuries to the right knee, lumbar spine and psychological condition resulting from the applicant’s employment with the respondent are continuing. In my view, the clinical records, the treating reports of Ms Jackson and Dr Diwan, and the reports of
Dr Rastogi and Dr Maniam all support this conclusion.I find, pursuant to section 4(b)(i) of the 1987 Act, that the applicant sustained disease, being chronic adjustment disorder with anxiety and depression as a result of her employment with the respondent, and that her employment was the main contributing factor to that disease. The disease injury is deemed to have happened on 7 February 2019, pursuant to section 15 of the 1987 Act. I find that this was a primary psychological injury, as in my view the accepted expert evidence, of Ms Jackson and Dr Rastogi was that the psychological condition was the result of both the incident of 7 February 2019, as distinct from the right knee injury itself, and a history of bullying and harassment and lack of support.
I find, pursuant to section 4(b)(ii) of the 1987 Act, that the applicant sustained aggravation of disease of the lumbar spine as a result of her employment with the respondent, and that her employment was the main contributing factor to the aggravation of that disease. The disease injury is deemed to have happened on 23 October 2018, pursuant to section 16 of the 1987 Act, as the evidence was that the applicant in her statement said that was when she commenced her claim for her back. She consulted her GP for treatment shortly after that date, and was placed on restricted duties.
I find, pursuant to section 4(a) of the 1987 Act, that the applicant sustained injury to her right knee in the course of her employment with the respondent on 7 February 2019. I find, pursuant to section 9A of the 1987 Act, that the applicant’s employment was a substantial contributing factor to the right knee injury.
Having regard to the definition of suitable employment in section 32A of the 1987 Act, I have considered the nature of the applicant’s incapacity with medical information as to her injuries to her lumbar spine, right knee and psychological condition; and also with regards to her age, education, skills and work experience.
The applicant has injury to the right knee, lumbar spine and a psychological condition. She had worked for the respondent for about 30 years before her employment was terminated. Her employment skills and background are narrow and limited to process work with the respondent. She is presently 58 years of age. Dr Maniam, Dr Rastogi and Ms Jackson were of the opinion that the applicant is not fit for her pre-injury duties. Ms Jackson was of the opinion that due to her psychological condition the applicant had no capacity for employment and this was likely to be the case for the long term. Dr Rastogi was of the opinion that, as a result of the psychological condition, the applicant had no capacity for work, although she was of the view that the applicant may be able to return to some form of work at a later time. Dr Maniam was of the opinion that the applicant was not fit for her pre-injury duties, as result of the injuries to the right knee and lower back, and was able to perform restricted duties from a physical point of view. I am satisfied that the applicant is not able to return to her
pre-injury employment.Bearing in mind the principles elucidated in the decision of Wollongong Nursing Home Pty Ltd v Dewar[13] (Dewar), and noting the preclusion of section 32A(b) of the 1987 Act, that no regard is to be had to whether the employment or work is available and whether the work or the employment is of a type or nature that is generally available in the employment market, suitable employment should still exist as a real job. The applicant was provided with employment until termination in May 2019, with duties with physical restrictions removing the manual component of her job, and also not having contact with Ms Gibbons. Although she performed limited duties until May 2019, this in my view would not amount to a real job existing in the real world. That is because the applicant was at that time 56 years of age and had been employed by the respondent for about 30 years as a process worker. The applicant had specific job skills related to her duties with the respondent, and accommodation of restrictions in relation to the knee, back and psychological condition followed, in my view, from the specific circumstances of her long employment with the respondent. I am satisfied that the duties provided by the respondent to the applicant until termination in May 2019 were not real in the sense described in Dewar. Having regard to the incapacities arising from the injuries to the applicant’s right knee, lumbar spine and psychological condition, and to the opinions of Ms Jackson, Dr Rastogi and Dr Maniam, I find that the applicant is not able to return to work in suitable employment. I find that the applicant has had no current work capacity since 20 May 2019.
[13] [2014] NSWWCCPD 55
The parties did not agree as to the pre-injury average weekly earnings (PIAWE) amount. The applicant alleged in the wage schedule that PIAWE was initially $1,509, based upon a list of wages paid by the respondent, with increases to PIAWE on each 1 October and 1 April for the relevant period after 20 May 2019, presumably due to indexation. In my view where there are essentially two dates of injury contributing to incapacity, 23 October 2018 and 7 February 2019, the latter date should apply, unless there is a particular reason to the contrary such as zero or reduced earnings in the period between the two dates, which was not before me on the evidence. The required pre-injury 52 week period ceased on 6 February 2019. The respondent objected, correctly in my view, to the applicant’s tax returns as the basis for the wage schedule, as it did not identify the breakdown of wages for that period for the purposes of a PIAWE calculation. The applicant submitted that the basis of the wage schedule was the respondent’s list of wages and the tax returns substantiated receipt of those wages. However, the list of wages was for the 52 week period up to and including week 16 of 2019, that is the week ending 20 April 2019, by my calculation. This is not the correct period for calculating PIAWE and I am unable to ascertain PIAWE from these figures. There were no wage amounts prior to week 17 of 2018, when the commencement date was 7 February 2018, that is about week 5, by my calculation.
In my view there is no discretion in schedule 3, clause 2 of the 1987 Act (the meaning of PIAWE) as to the relevant earning period provided by clause 2(2), unless within the exceptions of clause 2, which do not apply in this case. In any event, from the tax material provided, by my calculation the figure is $1,409.02, and from the wages material $1,361.06. Neither amount is the PIAWE from the evidence before me. On the other hand, there was no indication on the material before me that the respondent had determined PIAWE. The section 78 notices dated 20 May 2019 and 31 March 2020 did not refer to PIAWE. I am unable to determine PIAWE from this information.
In my view, the parties should have liberty to apply if PIAWE cannot be resolved following this decision.
In relation to the period of the weekly compensation award, in my view the extent of the award is at present restricted to the first and second entitlement periods pursuant to sections 36 and 37 of the 1987 Act. For payment pursuant to section 38, it will be necessary for the appropriate procedures and matters to be attended to by the self insurer, following which a further order may be made, if a dispute arises.
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