Smith v Moraitis Administration Pty Limited
[2021] NSWPIC 268
•30 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Smith v Moraitis Administration Pty Limited [2021] NSWPIC 268 |
| APPLICANT: | Mahaswari Smith |
| RESPONDENT: | Moraitis Administration Pty Limited |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 30 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim pursuant to section 66 of the 1987 Act for lump sum compensation in respect of a primary psychological injury; previous consent orders awarding weekly compensation; whether consent orders create an estoppel on the question of injury; whether the same injury was relied on in both proceedings; where subsequent periods of employment and non-work stressors; Held- previous consent orders created an estoppel on the question of injury; Manpower Pty Limited v Harris considered; applicant sustained a psychological injury pursuant to sections 4, 11A(3) and 9A; matter remitted to President for referral to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant sustained a compensable psychological injury pursuant to ss 4(b)(i), 9A and 11A(3) of the Workers Compensation Act 1987. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 28 April 2008 (deemed) 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments. |
STATEMENT OF REASONS
BACKGROUND
Ms Mahaswari Smith (the applicant) was employed as a Quality Assurance Officer by Moraitis Administration Pty Limited (the respondent). The applicant claims that she sustained a psychological injury due to bullying and harassment by her employer between 2000 and April 2008.
The applicant made a claim for compensation in respect of which proceedings were brought before the former Workers Compensation Commission in 2010. Proceedings WCC 10789/10 were resolved by way of consent orders issued on 20 April 2011 under which the respondent was to pay the applicant a closed period of weekly compensation. The respondent also agreed to pay, on a voluntary basis, the applicant’s incurred s 60 expenses up to $1,500. Awards were made in favour of the respondent otherwise and thereafter.
The applicant subsequently made a claim for lump sum compensation in respect of a psychological injury based on an assessment of 18% whole person impairment (WPI) by psychiatrist, Dr Thomas Oldtree Clark. Dispute notices were issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of that claim on 11 April 2019 and 16 April 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. In the ARD, the applicant described the injury as:
“Primary psychological injury. The Applicant was bullied and harassed by her employer from early 2000 to April 2008 (deemed 29/06/2003 and 28/04/2008) resulting in psychological injury.”
The applicant seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with the assessment of Dr Oldtree Clark.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 20 July 2021 by telephone. The applicant was represented by Mr Richard Petrie of counsel, instructed by
Ms Medea Hanna. The respondent was represented by Mr Graham Barter of counsel, instructed by Mr Christopher McCourt. A representative from the insurer was also present.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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the consent orders issued on 20 April 2011 create an estoppel in favour of the applicant on the issue of injury;
(b) if not, whether the applicant has sustained a psychological injury pursuant to ss 4, 11A(3) and 9A of the 1987 Act; and
(c) the degree of permanent impairment resulting from any injury.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents; and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by her on 25 September 2009, 24 August 2010, 8 November 2019 and 11 May 2021.
In her first statement, the applicant stated that she suffered from an acute stress reaction, post-traumatic stress disorder (PTSD) and depression as a result of repeated harassment she experienced during the course of her employment with the respondent. The applicant said she was subjected to physical and verbal sexual harassment and bullying on a daily basis. The events were reported to management, however, management failed to appropriately respond to the issue and the harassment continued.
The applicant’s psychological problems had led to her marriage breakdown and an attempt to take her own life. The applicant was taking antidepressant medication as well as tablets for a heart condition that had developed after the harassment.
In her second statement, the applicant stated that she had been employed as a police officer in the Singapore Police Force between 1971 and 1997. The applicant retired when she migrated to Australia. The applicant and her daughter were sponsored by the respondent for a work visa.
The applicant commenced employment with the respondent and was the only female supervisor. Around the time that the Olympics started, work was very busy. Another supervisor named “TY” worked in the same factory in a business making cold salads. One day when TY’s wife was away, TY on several occasions walked behind the applicant had used his hand to push her buttocks up. TY’s fingers touched the applicant’s vagina as they were going upstairs towards the production office. The applicant reported the matter to a production supervisor, Mr Joe Huang. The applicant was advised to see the general manager Mr Nick Drazic.
The applicant explained the incident to Mr Drazic, who responded that the applicant should take it as a compliment. The applicant felt insulted. In normal circumstances, she would have made a police report but as she was working under a four year visa with her daughter as a dependent, she felt unable to make a report against the company. The applicant was worried that she would end up losing her visa. The applicant responded:
"Nick, if your wife was molested by [TY] would you have said the same, to take it as a compliment?"
The applicant said Mr Drazic was angry with her and his tone of voice changed. The applicant was instructed to go back to work at the same location.
A few days later, the applicant’s operation manager called the applicant and TY up to his office and asked them to shake hands. The applicant refused and walked away. After this, TY started picking faults with the applicant’s work.
The applicant believed that these things were happening to her because she was single. Soon afterwards, she met and married a man introduced to her by her friends. On 17 September 2001, the applicant was involved in a car accident and was off work for six months. The applicant’s marriage took a turn for the worse and eventually ended in divorce in 2003/2004.
The applicant returned to work after receiving a letter advising that her employment would be terminated if she did not return to work. The applicant was using a walking stick at the time and she developed a muscle spasm which meant she could not move her neck. The applicant was placed on medical leave and underwent further treatment.
The owner of the business, Mr Moraitis would often call the applicant to his office to discuss work and sometimes ask questions regarding the loss of fruits and vegetables which he suspected were being sold by other staff. The applicant advised that large quantities were being stolen. Middle management who were responsible for the losses were not happy with the meetings and wanted the applicant out of work. The operational manager, Mr Buddy Kaossum, verbally abused the applicant about parking her car in the factory car park. The applicant was told to stay away from the first floor where they were conducting meetings. The applicant felt isolated at times.
The applicant began parking her car in the street even though other supervisors were able to park their car in the factory car park. Mr Kaossum called the applicant into his office and shouted loudly that she should not be talking to Mr Moraitis. Mr Kaossum would become more aggressive when she tried to explain. On three occasions, Mr Kaossum told the applicant off in front of all of the supervisors and casual staff. The applicant was placed in charge of rubbish collection, which the applicant felt was intended to humiliate her.
In late 2003 or early 2004, the applicant was asked to assist at a juice station at Westfield Eastgardens shopping centre. The applicant was told that she would have to send leave applications through the general manager, Mr Drazic. When the applicant applied for any kind of leave she was always turned down, even when her mother was very ill in Singapore. The applicant was forced to bypass Mr Drazic and see Mr Moraitis to be allowed to go to Singapore.
In the same period, there were other incidents including the human resources manager, remarking to the applicant that she was a liability to the company. An operations manager, Mr Germil Tadros called the applicant into his office and remarked that he was the most trusted person and that the applicant was an Indian who lived on a tree top. The applicant was always accused of anything that went wrong. Even on days when the applicant was not working she was blamed for problems that occurred.
The applicant had a problem with her back and had difficulty carrying heavy bags of potatoes and onions. Despite explaining this to Mr Tadros, the applicant was never provided with assistance. When the applicant requested assistance, the men would laugh it off and say they were busy. The applicant had to do the work herself and her back condition became worse. When the applicant queried why other staff in her role were not asked to do the same job, the applicant was told by the QA manager that she was specially chosen for the task. He then smiled and walked away. The applicant was annoyed as the QA manager knew about the applicant’s car accident and her back injury.
The applicant was also specifically tasked with monitoring compliance by casual staff with requirements not to wear big jewellery or particular shoes. When the applicant insisted that other staff had a part to play in this, the applicant was called a troublemaker. The applicant felt alone. The applicant was trying her best to be brave but broke down many times in the bathroom when no one could see her.
On one occasion in 2004, when the applicant was accused of a mistake made by another staff member, the applicant was told that she was a “nobody” and had no right to speak. The applicant felt embarrassed and had no one to speak to. The applicant went home and took all of her Valium tablets and a bottle of wine and went to sleep. The Valium had been prescribed by her doctor who knew about her office problems, depression and difficulty sleeping. The applicant woke up in Concord Hospital. The applicant was given two weeks leave without pay before she returned to work.
After the applicant returned to work, the applicant requested to attend a training course but was told that she was overqualified and she would not be allowed to attend. The applicant’s duty roster was changed so that she worked more weekends. When the applicant complained she was told off.
The applicant was feeling low and felt that her work colleagues wanted to make her life harder so that she would resign. When the applicant requested days off after working long hours, this was refused. The QA manager used to use his finger to call the applicant which made the applicant feel like a dog. He did not treat the rest of the staff that way. The applicant developed pneumonia at one point and when she asked for time off was told that she was bluffing the whole thing.
In 2006, the applicant was called into Mr Tadros’ office. He was with a maintenance manager and they asked her what a Brazilian wax was. When the applicant asked why she had been called into the office and asked this embarrassing question involving parts of the female body, they laughed. The applicant walked away but developed pain in her left hand and difficulties breathing. The applicant was given two days of stress leave and referred to a cardiologist. The applicant’s cardiologist thought the applicant should take a break from work. The applicant was diagnosed with coronary artery spasm. The applicant requested a year of leave with no pay which was granted.
Between 2006 and November 2007, the applicant tried doing cleaning jobs with her friend. When the applicant was living in Singapore she used to have maids cleaning her house and the job felt low. The applicant felt cheated out of her job and reflected on all the problems she had faced in the factory. The applicant felt useless for not speaking up about her treatment. When the applicant called Mr Moraitis to go back to work, he replied that she did not have a job and he would think about it.
The applicant made a second attempt on her life on 3 August 2007 when her request to return to work fell on deaf ears. At the same time, the applicant had a misunderstanding with her husband. The applicant took some Valium and went into her car and closed the garage door. The applicant's husband found her and she was admitted to Manly Hospital for a few days.
In November 2007, the applicant was called into work and told that her work agreement had changed. The applicant was to start as a new staff member on a lesser salary. The applicant had no choice but to accept the job hoping that the workplace situation would change. When the applicant returned to work Mr Tadros and Mr Drazic were not working there anymore. The applicant thought the work environment would change but the QA manager was not happy with the applicant working there. He used his finger to call the applicant and a few times shouted at the applicant instructing her that she was not allowed to come into the office to drink water. He insisted that the applicant take over weekend duties while she was on probation. The applicant was allocated a roster with only short breaks between shifts. The applicant would work until 9pm on Monday and then be required to commence work again at 6am on Tuesday. It took the applicant an hour and half to drive home and back.
The applicant tried to work but the straw that broke the camel’s back was when the HR manager, Mr McIntosh passed by and remarked that the applicant should have retired from the job. The applicant went home and the next day found it hard to go to work. The applicant started crying and her husband told her to go see the doctor. The applicant was given workers compensation forms and some antidepressant tablets to relax. The applicant’s husband sent in the forms but the respondent refused to accept them. The applicant slept for three days. When the applicant was able to communicate, she asked her husband to write a note resigning from the job. The applicant had lost all of her self-confidence and felt crushed did not want to go through another breakdown again.
The applicant applied for other jobs and got a job in Melbourne with Westfield as a risk management coordinator as she knew one of the senior managers there. The applicant wanted to regain her self-confidence after being humiliated and abused. The applicant left for Melbourne on 12 May 2008 and returned on the weekends.
One of the applicant’s responsibilities in her new job was environmental health and safety. There was a stallholder who regularly dumped rubbish in front of the lift and emergency doors and the applicant had reported this to management. In October 2008, the stallholder came straight for the applicant and placed his hands near her face and spoke very loudly to her. The applicant froze as the incident brought back the memories of how she felt whilst employed by the respondent. The applicant was incapable of speaking and started having stabbing pains in her lung area. The applicant could breathe in but not breathe out. The applicant said without the prior history of harassment she would not have reacted in this way to the incident. When the applicant had worked as a police officer in Singapore this type of incident would not have affected her. An ambulance was called and the applicant was sent to Box Hill Hospital. The applicant was informed that she had a stress attack. The applicant tendered her resignation in November 2008.
The applicant said she used to be a strong person and capable of handling any situation. The applicant felt crushed to the extent that she was unable to perform jobs for which she had been trained. The applicant liked working for Westfield and would not have resigned if she had not faced the situation with the respondent which made her vulnerable to any kind of confrontation.
In her statement dated 8 November 2019, the applicant said that after she stopped work for Westfield, the applicant’s husband was forced to sell his apartment and they moved to Terrigal. The applicant was not working and they began to have financial issues. The incident at Westfield had exacerbated the applicant’s condition temporarily and after a month or two the applicant’s condition subsided to what it was at the time she left employment with the respondent. In 2010, the applicant was seeing a psychologist in Erina, Ms Joanne Walters.
In 2012, the applicant was offered a job in Cairns by friend as a document controller. It had been sometime since the applicant had worked and she hoped that she would be capable of doing the job without her psychological injury flaring up. The applicant worked weekdays and every second weekend, flying back to Terrigal on her days off. Unfortunately, the administration manager started sending the applicant emails confronting her about trivial issues and telling the applicant that she was doing things incorrectly. The applicant’s depression and anxiety flared up and she felt she was being bullied and harassed. Due to the applicant’s psychological injury with the respondent she found it difficult to deal with confrontation. Any criticism triggered flashbacks of the way the applicant was treated during her time with the respondent.
During the same period, the applicant was having major problems in her relationship with her husband. In June 2012, the applicant attempted suicide by ingesting sleeping pills. The applicant collapsed and hit her head on the toilet tap. The applicant was taken to Cairns Base Hospital and was unconscious for about a week. The applicant remained in the hospital for around two weeks. After submitting a Queensland workers compensation claim the applicant received some benefits including weekly payments. The applicant resigned from the job in around September 2012.
In 2013, the applicant and her husband were forced to move even further from Sydney. Due to the applicant’s financial situation and misunderstandings with her husband, she took another overdose and was hospitalised at Wyong Hospital for six days.
The applicant made a further suicide attempt in 2016 or 2017 and was taken by ambulance to the Calvary Mater Hospital in Newcastle. The applicant went on medication again. The applicant did not ask to be treated as a workers compensation claimant and funded her treatment largely through Medicare. The applicant thought that she was not entitled to anything further after the settlement in 2011. The applicant’s condition had, however, significantly deteriorated since that time.
In her final written statement, the applicant stated that she had a pacemaker inserted in 2020 and after experiencing symptoms which felt like a heart attack on 14 February 2021 was diagnosed with a broken heart syndrome. The applicant’s heart became enlarged due to stress. The applicant believed that the condition was due to the stress of her workplace injury.
The applicant said she found it hard to get out of bed most days. The applicant just wanted to sleep. The applicant only brushed her teeth a few times a week and would stay in her pyjamas all day. The applicant’s husband did most of the cooking or they ordered takeaway food. The applicant only left the house around four times per month to see the doctor. Sometimes the applicant cancelled her appointments as she did not feel like leaving the house. The applicant always needed her husband to support her when leaving the house. The applicant had lost all of her friends. The applicant hardly saw her daughter and was unable to care for her grandchildren. The applicant found it hard to concentrate and lost enjoyment in reading books. The applicant expressed the belief that she could not do any work due to her depression.
Other factual evidence
Amongst the documents in evidence is a letter written to Mr Nick Moraitis, dated 16 May 2002. In that letter, the applicant referred to working 60 to 90 hours in some weeks although her pay records showed only 38 hours. The applicant said she had:
“… given my maximum time to my job, even though other Managers tried unsuccessfully to cause me to fail (because of their jealousy at my close working relationship with you).”
The applicant further stated:
“I have been molested and assaulted at No 28 Carter Street. I reported these incidents to both Buddy Koussam and Nick Drazic, Buddy informed me not to tell Management about the incident even though I put in an incident report, it went nowhere. Nick Drazic laughed at the report and informed me that I should be proud that at my age there were men interested in me. I was greatly insulted, but chose not to take the matter further because of my loyalty to you Mr Nick Moraitis. These incidents are documented, including a letter in my possession from one of the Managers. I did not want to hurt you or your company so I continued to put up with insults and vulgar words thrown at me repeatedly, even though I have been advised that such behaviour was illegal and that the Company would be held responsible for allowing such behaviour to continue without intervention from Management. My loyalty to you seems only to have given some of your Management team the impression that I was not able to defend myself.”
The applicant referred to her motor vehicle accident on 17 September 2001 and her consequent physical injuries and stated:
“I am an Accident Victim, trying my best to perform my work, was placed in a job where a healthy male person finds it hard to perform, and was expected to perform long hours against the doctors instructions.”
In a further letter to Mr Moraitis dated 20 September 2004, the applicant stated:
“This letter sets out further incidences that Bob S has used to try to intimidate and threaten me since my return to work last week. I wish to convey to you my annoyance and shock that a person in a senior position within your group can threaten me and appears to be "setting me up" with filthy jobs and unrealistic claims so that I will resign and forgo my contract with you.”
A letter addressed to Mr Glen McIntosh, Human Resources Manager, dated 27 July 2007 stated:
“To make it quite clear I am not resigning my position of Quality Assurance Officer as you seem to want me to do. It is my feeling that you are trying to place me into an awkward situation, rather than offer me my position back. Therefore I will have to seek legal representation to assist me with this matter.
My believe is that I should be able to return to work, doing the same job at the same rate of pay. In the event that you no longer have that position available to me then I should be made redundant and should receive redundancy payout.”
Treating medical evidence
The treating medical evidence before me includes various reports relating to orthopaedic injuries sustained by the applicant in a motor vehicle on 17 September 2001. The applicant’s orthopaedic surgeon, Dr Ronald F. Clark prepared a report on 17 January 2002 which noted that the applicant “had been informed by her work that no selected light duties were available”.
A letter from the applicant’s general practitioner, Dr Quentin Cameron dated 3 August 2004 referred to the applicant’s physical injuries and stated, with regard to her psychological state at the time:
“From a psychological point of view Mahaswari reports very poor sleeping habits since the motor vehicle accident requiring medication frequently. Irritable Bowel Syndrome has developed since the motor vehicle accident and I include reports from Dr Antony Wettstein Gastroenterologist - regarding this. She also has been through a marriage break-up recently which I believe is partly related to these injuries she sustained.
Mahaswari has had to change her work duties from being a supervisor to managing a juice station because of her injuries. She tells me she can no longer perform the recreational activities she used to enjoy which included dancing, walking, and some sports. She also tells me performing domestic duties such as shopping and cleaning the house are now more difficult.”
A report from gastroenterologist, Dr David Byrnes, dated 18 August 2005 referred to abdominal symptoms and stated:
“With further discussion of her symptoms it appeared that her problem related to anxiety with aerophagy and associated dysmotility. She is obviously quite stressed at work but cannot leave because the employer is sponsoring her work permit.”
The applicant was referred to cardiologist Dr Eugene Loh for assessment on 9 September 2006. Dr Loh took a history as follows:
“She had an episode of chest tightness as well as a pain that radiated down her left arm 2 weeks ago. It occurred in the morning while she was preparing to go to work and lasted only minutes. Her left arm felt numb for 40 minutes afterwards however. Her symptoms spontaneously resolved and she returned to work with no further problems.”
The applicant was seen by another cardiologist, Dr Neville Sammel on 3 April 2007.
Dr Sammel took a history that included the motor vehicle accident in 2001 and involvement in a class action against the manufacturers of Vioxx which was prescribed for her pain. It was noted that the applicant had not worked since September the previous year due to her symptoms.A report titled “Mental state of a detained person” completed on 3 August 2007 in relation to the applicant referred to the applicant taking a major overdose with suicidal intent. The doctor observed that the applicant was “preoccupied by her drop in social status”, felt worthless and guilty. The applicant was regarded as a risk to herself and required care and containment in hospital.
A handwritten assessment form completed on 3 August 2007 at Manly Hospital referred to the applicant’s reasons for presentation as follows:
“Employment: quality improvement officer for fruit and vegetable company. Previously held high position in the Singapore Police Department. Has had recent stress leave from place of employment. Has felt depressed for a very long time. Has close relationship with boss. Was her sponsor to come to Oz et cetera had commenced legal proceedings and yesterday phoned boss re-commencing new job with company. Boss had become aware of legal proceedings. Had an argument re-same – trigger – felt hopeless.
…
Sexual harassment (last job) couldn’t make a complaint. Fearful of losing Visa – could terminate job. Manager told her take it as a compliment”A discharge/transfer summary from Manly Hospital dated 5 August 2007 documented a diagnosis of adjustment disorder with depressed mood and gave the following reasons for admission:
“Mahaswari lives with her second husband and has recently become an Australian citizen. She presented following a serious benzodiazeplne overdose. She had left a note and gone to her car, not expecting to be discovered. This was an impulsive act in response to several stressors including financial, cultural difficulties, drop in social status and problems at work. On presentation to the hospital she was regretful of her actions and denied any ongoing suicidal and thoughts. She was kept in hospital under the MHA (mentally disordered) and observed. She was pleasant reactive and more hopeful about the future. She was discharged after successful overnight leave.”
Clinical records from Warringah 24-hour Medical Centre from 2005 onwards showed regular prescriptions for Valium tablets. A consultation recorded on 8 October 2007 stated:
“Ex police officer from Singapore
retired medically with Achilles tendinosis, IHD and stress from attending fatalities
180/90 on Coversyl 5mg, inc to 10 mg
Need BP done
Form done for her pension from S’pore”At a consultation on 21 April 2008 it was recorded:
“Was verbally abused, shouted at work on a regular basis over last 4-5 years. Her work helped her to get permanent visa and that was reason she was quiet. She reports that she was molested at work several years ago. Gets very stressed, depressed mood, afraid to go to work, initial insomnia. Lack of concentration, anhedonia, worselessness Councelling. Stop working. Avanza 15m nocte r/v 2/52”
The applicant was provided with an initial New South Wales WorkCover certificate o this date.
WorkCover certificates were issued again on 23 February 2009 and 21 September 2009 in relation to “acute stress reaction, post-traumatic stress reaction, depression”.
On 21 September 2009, the applicant was referred to consultant psychologist Mr Howard Wiggins for review and advice regarding the applicant’s depressive symptoms.
A referral to psychologist Ms Joanne Walters dated 20 August 2010 referred to depression for three years requiring counselling.
A registered psychologist, Ms Sandra Bowden prepared a report for the applicant’s general practitioner on 11 August 2015, following an initial session on 28 July 2015. The letter stated:
“I have commenced further assessment of her condition using the DASS-21. Results indicate depression and anxiety within the severe range, and stress within the moderate range: Mahaswari outlined family current issues having an impact on her emotions and her relationship with her husband, Paul. She reported anger at Paul's son and his management of the family business, and the financial impact this has had as well as causing stress in her marriage.”
On 6 October 2016, the applicant was referred to a psychologist, Ms Diana Bentele for “management of depression/bipolar affective disorder?”.
Records from Toronto Private Hospital referred to a psychiatric admission on 7 October 2016. The discharge summary, dated 29 October 2016, stated that the applicant had presented for in patient management of her depression:
“Mahaswari gave a history of recurrent depressive episodes dating from 2003. Currently, she reported low mood, lack of enjoyment in life, suicidal thoughts and had plans to take an overdose of her tablets. This episode had occurred in the context of several recent stressors.”
Progress notes from the same admission referred to the applicant suffering a breakdown and stopping work in 2013. Reference was made to family stressors and financial stressors. The note stated:
“1st depression – 2003
• experienced racial discrimination plus bullying in the workplace. Talk overdose of sleeping tablets. Wanted to die at the time. No support/family at the time.2nd depression
• Manly hospital in 20052012 – Cairns, Lend Lease - document controller
- seven day job; 10hrs / day
- worked for two weeks, then home for W/E
- enjoy job but broke down
- took tablets; fell plus hit head
- unconscious
…
Currently
Misunderstanding w husband
tried to take tablets 10 – 12 days ago
friend of 30 years moved out
he blamed her for loss of income• wanted to take tablets”
The applicant’s general practitioner, Dr Agerico Miclat prepared a report for the applicant’s solicitors on 27 November 2020. Dr Miclat certified that the applicant had a mental health condition possibly due to complex PTSD with severe anxiety/depression stemming from workplace bullying and sexual harassment between 2000 and 2008. Dr Miclat stated:
“I have been treating Mrs Smith for Severe Depression and Anxiety Disorder and Panic attacks through the GP Mental Health Care Plan- Referrals to Psychologist / Psychiatrist were organized. During this time she was experiencing marital relationship difficulties and financial problems.
There were multiple incidents that she has been admitted for Psychiatric care due to suicide attempts. Self worth and self confidence is extremely low, a loud noise or raising of voice by the husband can trigger anxiety attack and palpitations, Blood Pressure was fluctuating all the time with difficulty to control, with palpitation symptoms.
17/11/2020 - Mrs Smith has further revealed to me in detail about the sexual harassment and workplace bullying in the past had a significant impact in her life. She was a Police officer in Singapore and was quite satisfied with her work and with her life and happy with herself until she experienced this workplace bullying and sexual molestations. She had to endure this for a couple of years (8 years) and was forced to stay in the workplace since she was in the process in getting her daughter to come and get a Visa to Australia hence she need to have a stable job.
Some incidents shared: "I have been touched inappropriately (private parts) by her direct supervisor while climbing up stairs. When she reported this incident to the administration they just laughed at it and was told to take it as a compliment”
"Was given odd jobs which is not part of her work, like fixing rubbish bins etc."'
"Was being shout at and embarrassed in front of other employees"
"Supervisor/admin took away her designated parking spot where she needs to walk far to her work"
"A potato out of nowhere was thrown at her and hit her face while she was walking through the work premises"Among several other things of workplace bullying this has led to severe anxiety and depression.”
The applicant’s treating psychologist, Ms Annika Carroll prepared a report for the applicant’s solicitors on 29 October 2020. The applicant had been referred by Dr Miclat for treatment of anxiety and depression on 23 July 2018. Ms Carroll made a diagnosis of adjustment disorder and treated the applicant over five sessions ending on 4 December 2018. Treatment predominantly focused on processing trauma from the workplace incidents described.
Ms Carroll stated:“With regards to the injury history, Ms Smith reported that she began to experience a significant decline in her mental health due to ongoing bullying and harassment experienced in her role as a supervisor for a large food packing company (Moraitis Administration Pty Ltd) after the year 2000. She denied any prior history of problematic mental health issues. She advised she had worked as a Police Officer in Singapore and that this was a well-regarded position and she considered herself a resilient person. Ms Smith reported that the bullying and harassment at Moraitis included sexual assault. She described worsening anxiety and depressed mood (with suicidal ideation) as a direct result of these workplace incidents and she was unable to remain in this job. Ms Smith reported continuing difficulty with her mental health since this experience, with ongoing suicidal ideation and multiple attempts at suicide.”
Ms Carroll said she had formed the opinion that the applicant’s presentation appeared to stem directly from the workplace bullying and sexual harassment reported by the applicant.
Workers Compensation Commission proceedings WCC 10789/10
The applicant lodged an Application to Resolve a Dispute in the former Workers Compensation Commission (10789/10) which described an injury as follows:
“Primary Psychological/Psychiatric Injury
- Adjustment disorder with depressed mood. Major Depression. PTSD.The applicant commenced employment with Moraitis Administration Pty Ltd in early 2000. During the course of her employment with the respondent, the applicant was subjected to physical and verbal sexual harassment and bullying. These events were reported to management, however, management failed to appropriately respond to this issue and the harassment continued. The applicant has suffered various psychological injuries as a result of these events. In 2007, the applicant attempted to take her own life. She has sought treatment but continues to suffer from these injuries.”
The date of injury was specified as:
“Due to the nature and conditions of employment from early 2000 to April 2008 [Deemed dates of injury: 29/6/06 (Allianz) & 28/4/08 (EML)]”
The consent orders issued on 20 April 2011 in those proceedings were in the following terms:
“1. The respondent is to pay the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $208.33 per week from 7 July 2006 to 12 May 2008, agreed to total $20,000.
2. Award for the respondent in respect of the weekly claim prior to 7 July 2006, and beyond 12 May 2008.
4. Award for the respondent in respect of the claim pursuant to section 60 of the 1987 Act, beyond 17 April 2011.
5. The respondent is to pay the applicant's costs as agreed or assessed. The costs of both parties are to be subject to an uplift of 25 per cent on account of complexity.
The following is not a determination of the Commission. However, I note that the parties have agreed to the following:
5. The respondent will voluntarily pay the applicant's expenses pursuant to section 60 of the 1987 Act on production of accounts and/or receipts, for treatment afforded prior to 17 April 2011, up to the total figure of $1,500.
6. Note the applicant acknowledges and the parties agree:
(i) The applicant has received all entitlements to compensation or wages prior to 7 July 2006.
(ii) Beyond 12 May 2008 the applicant suffered no incapacity as the result of any injury with the respondent.
(iii) Beyond 17 April 2011 any need for medical treatment does not result from any injury with the respondent.”
Dr Thomas Oldtree Clark
In these proceedings, the applicant relies on a medicolegal report prepared by consultant forensic psychiatrist, Dr Thomas Oldtree Clark, dated 16 October 2018.
Dr Oldtree Clark took a history of harassment between 2000 and 2006 and November 2007 to April 2008. The applicant described being stalked and bullied with suggestive remarks being put to her over a long period of time. People ganged up against her, she was abused at work and sexually harassed. This had resulted in continuing severe depression.
After the applicant gave up work for the respondent she worked for Westfield in Melbourne. There was no harassment at Westfield but the pressures of work got to her. The applicant also had a time working in Cairns when her manager started harassing her.
The applicant had worked as a policewoman and a police trainer in the Police Academy in Singapore.
The applicant had suffered psychiatric problems for the last few years. The applicant had made multiple suicide attempts, most recently in January 2018. At the time of Dr Oldtree Clark’s examination, the applicant was more settled on her medication. The applicant was prescribed a major tranquilizer quetiapine, temazepam and sertraline.
Dr Oldtree Clark made a diagnosis of persistent depressive disorder with a deterioration over recent times. With regard to causation, Dr Oldtree Clark stated:
“Her chronic depression, her Persistent Depressive Disorder, is a result of the harassment at work. There is no evidence of any other cause. Therefore, her employment is a substantial contributing factor.”
Dr Oldtree Clark made an assessment of 18% WPI resulting from the injury.
Dr John Albert Roberts
The respondent relies on medicolegal reports prepared by psychiatrist, Dr John Albert Roberts dated 23 December 2008, 12 April 2011, 27 March 2019 and 5 March 2021.
In his first report, Dr Roberts noted that the applicant had obtained a job in Melbourne after ceasing employment with the respondent. Dr Roberts commented:
“The fact that Mrs Smith was able to obtain and at least initially work in what she described as a good job in Melbourne, would be inconsistent with the presence of a significant incapacitating psychiatric illness arising as a result of a date of injury that occurred on 28 April 08.”
After taking a history and performing a mental state examination, Dr Roberts gave the opinion:
“That Mrs Smith is understandably anxious and depressed by circumstances is quite understandable, there is no evidence however of a DSM-IV diagnosis and there is no evidence of a reactive state. The extent to which Mrs Smith is anxious and depressed as a result of a variety of circumstances including her cardiovascular state and her account of work related difficulties should in my view be seen to be on reasonable psychiatric grounds, an understandable response of a normal person to disagreeable circumstances.”
Dr Roberts referred to a report prepared Dr Christopher Canaris dated 4 August 2008 in which he reported an improvement in the applicant’s demeanour and way of being.
Dr Canaris did not consider that the applicant’s whole person impairment approached the 15% threshold. Dr Roberts considered the applicant’s history was “riddled with inconsistencies” and summarised his opinion as follows:“In summary I would consider that Mrs Smith in terms of her work with Moraitis Administration, assuming her account of such circumstances is true and accurate, would have been upset and understandably annoyed and distressed at circumstances, which relate to entirely inappropriate behaviour.
I do not consider that there is any evidence to assert that such circumstances caused more than normal upset in a normal person.
The history of a significant motor vehicle accident and cardiovascular disorder would constitute potentially significant stressors.
The history of fluctuating moods suggests a non-environmentally determined recurrent major depressive illness. There is no evidence of a work related condition.”
In his 2011 report, Dr Roberts took a history of subsequent events, performed a further examination and gave the opinion:
“I am unable to find any evidence of a reactive state namely a condition arising as a result of circumstances and note that on 29 March 2011, as was the case when I assessed Mrs Smith on 5 December 2008, I found no evidence of a psychiatric diagnosis that would satisfy and Axis I diagnosis, namely of a condition that has arisen as a result of her alleged circumstances that would qualify for the diagnosis either of Major Depression or an Adjustment disorder.
I raised the possibility of an Axis II disorder namely a Personality Disorder which would a circumstance unrelated to the circumstances and conditions of employment.
Mrs Smith is now presenting in terms of her mental state as a smiling person, capable of interacting normally with no obvious evidence of depression, who assures me that she would take a job if it was offered to her tomorrow, of having little evidence of heightened anxiety of inappropriate degree.”
In his 2019 report, Dr Roberts reviewed the report of Dr Oldtree Clark and took a history of the applicant’s subsequent psychiatric history. Dr Roberts took a particular history of the applicant suffering cardiomyopathy and referred to literature on the connection between cardiomyopathy and secondary psychopathology. Dr Roberts expressed disagreement with the opinion of Dr Oldtree Clark on the cause of the applicant’s psychological symptoms and stated:
“I do not agree with my colleague in this regard since his attribution of Mrs Smith's psychopathology to employment in the absence of acknowledging the impact of her cardiomyopathy both physical and psychiatric, ignores a potent cause of anxiety depression and incapacity.”
Further:
“I note the allegations raised, I note that Mrs Smith blames all her symptomatology on her employment with Moraitis.
Having regard to her subsequent history especially her physical medical history, I consider that such is untenable on reasonable psychiatric grounds, based on her physical state especially the apical hypertrophic cardiomyopathy, I would consider that she would be unemployable regardless of any psychiatric diagnosis.
In terms of physiological concomitants of anxiety these are remarkably few and would be inconsistent with a psychiatric condition of significance.
It is difficult to correlate the paucity of symptomatology described by Mrs Smith with her assertions of psychiatric impairment, once is reliant on her statements in this regard.
If a psychiatric condition is assumed I would consider that the substantial cause of such a condition would be her serious physical condition.”
In his final report, dated 5 March 2021, Dr Roberts maintained his previous opinion, stating:
“I again emphasise that on reasonable psychiatric grounds it was untenable that any depression or depressive disorder that the worker may suffer could be the result of harassment at work in the 2000, particularly having regard to her functioning subsequent to her leaving Moriatis was continuing to the present.
…
An appropriate diagnosis to be given in regard to Mrs Smith is that of an Adjustment Disorder secondary to the cardiac disease from which she has suffered and the quality of life, and alterations that have occurred. This condition is secondary to her physical condition and is unrelated to her employment with Moriatis.”Commenting upon Dr Oldtree Clark’s PIRS assessment, Dr Roberts commented:
“I consider that the assessment of impairment undertaken by Dr Thomas Oldtree Clark is not in accordance with the psychiatric impairment rating scale since the description of incapacity utilised by Dr Clark in his assessment of permanent impairment, dated 16 October 2018 attributes the incapacity to matters psychiatric when the substantial cause of Mrs Smith’s incapacity is physical not psychiatric and as mentioned, Mrs Smith has demonstrated a capacity to undertake gainful employment as described by Dr Canaris doing so for a period of time which would negate impairment that could be attributed to the circumstances and conditions of employment prior to that time.
There is no evidence of an injury continuing to be present at the time Mrs Smith worked in Melbourne.”
With regard to Dr Miclat’s opinion, Dr Roberts stated:
“I note that in a certificate issued by Dr Agerico Miclat such is untenable on reasonable psychiatric grounds for reasons previously stated, namely that Mrs Smith has demonstrated a work capacity post-date of injury which would indicate that there was no ongoing psychiatric condition arising as a result of the inappropriate behaviours to which she was allegedly exposed in her treatment with Moriatis and that has subsequently dissipated.
There is no basis to assert that anything arising from the employment at Moriatis could have returned subsequent to her being in a state of remission.”
Applicant’s submissions
Mr Petrie submitted that the applicant only had to establish that there was a work injury with a deemed date on 28 April 2008. Whatever had happened in the subsequent period and whether the injury was still causing disability was a matter for a Medical Assessor. Mr Petrie referred in this regard to the authorities in Greater Taree City Council v Moore[1] and Haroun v Rail Corporation NSW & ors[2].
[1] [2010] NSWWCCPD 49.
[2] [2008] NSWCA 192.
Mr Petrie submitted that the respondent was estopped from asserting that there was not an injury due to issue estoppel. The ARD lodged in the prior Workers Compensation Commission proceedings 10789/10 described the same injury as in these proceedings. There was a consent award entered into in 2011.
By entering into that award, there was an admission by the respondent that the applicant sustained an injury. As a result, the respondent was estopped from denying that injury.
Mr Petrie referred in this regard to Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine[3] and, in particular, the passage from the judgement of Meagher J at [22] to [26].[3] [2016] NSWCA 213.
If the Commission was not satisfied that there was an estoppel, Mr Petrie submitted that the applicant had sustained an injury for the purposes of s 4 of the 1987 Act. Mr Petrie referred to the applicant’s statement and noted that there was no material in evidence to refute the applicant’s allegations.
The applicant was admitted to hospital on psychiatric grounds on 3 August 2007. Mr Petrie referred to the handwritten records regarding that admission and submitted that they showed that the applicant was complaining of work stress at that time.
Mr Petrie also referred to the clinical notes from the applicant’s general practitioner including those dated 21 April 2008 and in 2009 as well as the Workcover certificate of capacity dated 23 February 2009. Mr Petrie submitted that there was evidence at that stage of work related stress causing psychiatric issues.
With regard to the more recent evidence, Mr Petrie referred to the evidence from the applicant’s current general practitioner Dr Miclat, her treating psychologist and psychiatrist
Dr Thomas Oldtree Clark.Dr Oldtree Clark diagnosed a persistent depressive disorder and went through the DSM-V indicia for the diagnosis. Asked about causation, Dr Oldtree Clark said the current disorder was a result of harassment at work and employment was a substantial contributing factor.
Mr Petrie noted that the respondent relied on a number of reports from Dr Roberts. In the first report in 2008, Dr Roberts expressed an opinion that the applicant was anxious and depressed by her circumstances but had no diagnosable condition. In giving this opinion,
Mr Petrie said Dr Roberts had conceded anxiety and depression but did not explain why that did not meet a DSM-V diagnosis.In his report of 27 March 2019, Mr Petrie noted that Dr Roberts did make a diagnosis of an adjustment disorder but said that any condition resulting from employment had been overshadowed by subsequent events. Mr Petrie submitted that this opinion did not rule out an injury arising out of employment with the respondent. Rather it was a comment on the applicant’s current presentation.
In his third report, Dr Roberts seemed to be conceding that there was a psychiatric condition arising out of the inappropriate behaviour to which the applicant was exposed. The mere fact of subsequent employment did not, however, mean that any psychiatric condition had resolved. Dr Roberts noted that the applicant had tried to work and said this was inconsistent with a “significant incapacitating injury”. Mr Petrie said this suggested some injury but not one which was at that time significantly incapacitating.
Mr Petrie submitted that the reports of Dr Roberts would not be accepted because there were too many inconsistencies.
Respondent’s submissions
Mr Barter referred to the same authorities as Mr Petrie but distinguished Haroun on the facts, noting that the issue of “injury” had not been conceded at any stage in this case. In particular, the injury the applicant now sought to have referred to a Medical Assessor had not been conceded.
Mr Barter said that the injurious incident or event pleaded in the ARD was similar but not identical to that pleaded in the 2010 proceedings. The dates of injury and description were not identical. The pleadings would have to be exactly the same in order to create an estoppel but they were not. The requirements for establishing an estoppel were not met.
Mr Barter submitted further that the Commission and the former Workers Compensation Commission both relied heavily on the conciliation model. That involved concessions for the purpose of resolving a dispute. The concessions in the 2010 proceedings related to the dispute then before the Commission, which involved the entitlement to weekly compensation and s 60 expenses. To bind the respondent to those previous concessions would discourage the resolution of disputes by way of compromise. Any concession made in the conciliation phase in respect of a claim for weekly payments did not amount to a concession sufficient to give rise to an estoppel where the dispute related to the degree of permanent impairment.
Mr Barter observed that the Commission was being asked to refer a psychological condition to a Medical Assessor. It was incumbent upon the applicant to satisfy the Commission that events in the workplace were the main contributing factor to the applicant’s current condition, noting the condition would be accepted as a disease for the purposes of s 4(b)(i). The applicant’s current medical condition resulted in part from what may or may not have happened at work and in part from a number of factors separate to work including her heart condition, which was identified by Dr Roberts as the main contributing factor to any psychological condition.
Mr Barter noted that the applicant had relied on a series of contemporaneous letters to the respondent. The applicant had reflected back on events in the workplace and described them as harassment and bullying but in the letter dated 16 May 2002, her main complaint was the failure to offer appropriate employment following her motor vehicle accident. The applicant’s problems resulted from her physical injuries in the car accident not any sexual harassment, bullying or abuse other than not getting a sympathetic response to her complaints of physical pain. The applicant complained that her role was under threat largely because of the physical complaints she was suffering. No mention was made of psychological symptoms.
In the letter of 20 September 2004, the applicant made complaints about a perceived attempt to get rid of her because of her physical injuries. There was no suggestion of bullying and harassment or sexual harassment. The applicant was at this stage still continuing at work.
In her 27 July 2007 letter, the applicant expressed her wish to continue to work and to be able to do so at her previous rate of pay. It was around this time that the applicant was admitted to Manly Hospital following a suicide attempt on 3 August 2007. The notes from the applicant’s admission at Manly Hospital referred to a number of stressors including financial, cultural difficulties, drop in social status and problems at work. The applicant’s cardiac problems were also noted. Mr Barter submitted that this evidence did not suggest that employment was the main contributing factor to any psychological injury at that time.
Mr Barter submitted that it was clear from the evidence attached to the ARD that the applicant had cardiac health issues. When the applicant saw cardiologist, Dr Sammel in 2007 there was no reference in his reports to problems at work and was keen to continue at work. There was reference to a class action and the motor vehicle accident. This evidence did not suggest that harassment and bullying at work were relevant stressors contributing to the applicant’s cardiac issues.
All of this information was available to the insurer in the previous proceedings. Mr Barter submitted that in these proceedings the Commission was required to be satisfied that the main contributing factor to the applicant’s disease was employment. Mr Barter submitted that the history of what had happened since employment including difficulties in Melbourne and Cairns and the applicant’s health conditions had not been provided to Dr Oldtree Clark.
Mr Barter submitted that the Commission would not be satisfied that the applicant’s current condition was an injury within the meaning of s 4(b)(i) of the 1987 Act. The Commission would not be satisfied that any bullying and harassment between 2003 and 2007 was the main contributing factor to the current presentation.
Applicant’s submissions in reply
Mr Petrie observed that Mr Barter had not referred to any authority that consent orders made after a period of conciliation could not create an estoppel. To accept this submission would be to accept that consent orders could never create an estoppel.
FINDINGS AND REASONS
Estoppel
The applicant has alleged that the consent orders issued in Workers Compensation Commission proceedings 10789/10 on 20 April 2011 create an estoppel on the question of “injury”.
There are a number of authorities in which consent orders have been found to create an estoppel.[4] Consent orders may only create an estoppel between the parties, however, in relation to matters that are necessarily decided. In Habib v Radio 2UE Sydney Pty Ltd[5] McColl JA (Giles and Campbell JJA agreeing) said (at [73]):
“The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531–532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v SeltsamPty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.”
[4] See, for example, Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine) at [23]; Rail Services Australia v Dimovski [2004] NSWCA 26; Isaacs v Ocean Accident and Guarantee Corporation Limited [1958] SR (NSW) 69 at 75; Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508.
[5] See for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
In respect of consent orders, her Honour said (at [186]):
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] – [65]); Abigroup Contractors Pty Ltd (at [146]).”
In Manpower Pty Limited v Harris[6] the Commission had issued a Certificate of Determination – Consent Orders in earlier proceedings by which the employer consented to an award for weekly payments and medical expenses. On appeal in subsequent proceedings, Roche DP found at [93] - [94]:
“The right to compensation under the 1987 Act only arises if a “worker” has received “an injury” (s 9 of the 1987 Act) arising out of or in the course of his or her employment (s 4 of the 1987 Act) and to which employment was a substantial contributing factor (s 9A of the 1987 Act). The right to weekly compensation only arises if incapacity for work (total or partial) results from the injury (s 33 of the 1987 Act). The Commission has no jurisdiction to order the payment of compensation unless it makes a finding on each of these matters, or the employer expressly or impliedly admits them.
…the consent orders ‘necessarily involved’ the admission by Manpower that Mr Harris was a ‘worker’ employed by it, that he received an ‘injury’ in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions follow from the face of the consent orders and the history of the matter.
…This leaves the consent orders to take effect according to their terms as formal orders of the Commission under Pt 15 r 9 of the Rules. That the Commission made the orders with the consent of the parties does not diminish their legal effect. They were and are as effective as any decision of the Commission made after a contested hearing. Such orders were and are binding on the parties unless and until revoked or varied on appeal or by further order of the Commission.”[6] [2011] NSWWCCPD 10.
In the present case, the respondent has submitted that the injury relied on is not identical to the injury relied on in the prior proceedings. As a result, it is submitted that an estoppel does not arise.
There are some differences in the description of injury contained the present ARD compared with that in 10789/10. In the present proceedings, the applicant identified 28 April 2008 as the “deemed date” of injury although in the description of injury an alternative deemed date of 29 June 2003 was identified. The applicant relied on “bullying and harassment by her employer from early 2000 to April 2008” as causative of a psychological injury.
The ARD lodged in 10789/10 described a primary psychological injury occurring “due to the nature and conditions of employment from early 2000 to April 2008”. It referred to the 28 April 2008 deemed date but identified 29 June 2006 as an alternative deemed date of injury. The description of injury provided further detail, referring to “physical and verbal sexual harassment and bullying”. It was said that these events were reported to management, however, management failed to appropriately respond to this issue and the harassment continued.
Whilst the expressions used to describe the injury in each proceeding were not identical, both ARDs appear to describe the same injury. Both involved a claim of primary psychological injury, due to events in the workplace over the same period of time, perceived by the applicant as bullying and harassment.
The difference in the alternative deemed date of 29 June 2003 or 2006, is not in my opinion material. Deemed dates of injury are essentially a “fiction”[7] or arbitrary date determined by operation of ss 15 or 16 of the 1987 Act. A date of 28 April 2008 has been relied on in both proceedings. In both proceedings, workplace events during the same period of time were relied on as actually causative of the injury.
[7] See, for example, Wilson v Blayney Abattoir County Council & Others [1995] NSWCC 36.
In the 2010 proceedings, the applicant relied on the description of workplace events set out in the written statement dated 24 August 2010. Whilst additional statements are in evidence in the present proceedings, providing elaboration or new evidence as to subsequent events, I am satisfied that the same causative events occurring between 2000 and April 2008 were relied upon. The same contemporaneous letters to the employer were also annexed to both ARDs.
The medical evidence, including the medicolegal opinion on which the applicant relies in these proceedings, is different. That can, however, be explained by reference to the different forms compensation sought in each proceedings and the operation of cl 44 of the Workers Compensation Regulation 2016. The different medical evidence does not materially change the nature of the injury alleged.
The fact that different compensation was sought in each proceedings was a further basis on which the respondent denied the existence of an estoppel. In the previous proceedings the applicant sought weekly compensation and s 60 expenses. In the present proceedings only lump sum compensation pursuant to s 66 of the 1987 Act is claimed. I am not satisfied, however, that this circumstance prevents an estoppel.
Both the compensation sought in the previous proceedings and that sought in the present proceedings required the applicant to establish that she had sustained an “injury” pursuant to ss 4 and11A(3) and that for the purposes of s 9A employment was a substantial contributing factor to the injury before compensation was payable. In order for the applicant to obtain an award for weekly compensation pursuant to s 40 of the 1987 Act in the 2010 proceedings, therefore, it must “necessarily” have been agreed that these provisions were satisfied.
For the reasons given above, I am satisfied that the consent orders issued in 10789/10 created an estoppel in favour of the applicant on the question of “injury” and “substantial contributing factor” for the purposes of ss 4, 11A(3) and 9A of the 1987 Act.
In the event that I am wrong on this question, I have, however, considered the same issues for myself.
Injury
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act. In its current form, s 4 provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
This definition was introduced in 2012. Prior to the 2012 amendments, s 4 provided:
“In this Act: “injury”:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment
and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any
disease, where the employment was a contributing factor to the
aggravation, acceleration, exacerbation or deterioration,”
Section 9A of the 1998 Act provided:
“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
Clause 20, of Pt 19H Sch 6 of the 1987 Act provides that the 2012 amendment extends to a disease injury received on or after 19 June 2012 but does not apply to an injury received before that date.
Section 15 of the 1987 Act governs the date of injury and the identification of the liable employer in the case of a disease injury. Relevantly, it provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[8] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
[8] [2010] NSWWCCPD 76.
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
Further at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she has sustained a compensable injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[9] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[9] [2008] NSWCA 246.
As a starting point, it is noted that none of the applicant’s evidence as to her experiences in the workplace is contradicted by the respondent’s evidence. The applicant’s evidence is broadly consistent with her contemporaneous letters to the respondent. Those letters refer to:
(a) sexual harassment by a particular co-worker;
(b) an inadequate and inappropriate response from the applicant’s managers when the sexual harassment was reported;
(c) being required to work long hours and perform physically demanding work despite her physical injuries;
(d) being asked to perform duties which the applicant perceived as dirty or demeaning;
(e) conversations between the applicant and other staff which the applicant perceived as “threats;
(f) the applicant’s perception that she was being set up to fail or resign due to jealousy over the applicant’s close working relationship with the business owner.
The applicant’s written statements refer to each of these matters and provide further detail as to events in the workplace which the applicant said she perceived as hostile, including:
(a) being verbally abused about parking her car in the factory carpark;
(b) being told to stay away from the first floor where management meetings were held;
(c) being told off in front of other staff;
(d) being placed in charge of rubbish collection;
(e) having leave applications turned down, including when the applicant’s mother was sick in Singapore;
(f) remarks being made that the applicant was a liability to the company;
(g) a refusal by co-workers to assist her with heavy tasks;
(h) being tasked with performing unpleasant jobs such as monitoring compliance with the dress policy;
(i) being labelled a troublemaker and a “nobody”;
(j) having a training request declined;
(k) being allocated unfavourable rosters;
being called or summoned by a manager using his finger;
(l) being required to commence a new contract of employment at a lesser rate of pay following a period of leave without pay;
(m) a comment from a human resources manager that the applicant should have retired from the job.
In the absence of any contradictory evidence, I accept that real events of the kind described by the applicant actually occurred.
It is necessary to consider whether those events were causative of a psychological injury.
The applicant has, in her written statements, provided an account of her response to these events. The applicant has variously described feeling insulted, worried, isolated, alone, embarrassed, humiliated and depressed by these events. The applicant said she was unable to leave the workplace due to her visa situation. The applicant described “breaking down” many times in the bathroom where no-one could see her.
The applicant has given evidence that she was prescribed Valium during the period of her employment with the respondent due to depression and difficulty sleeping. The clinical records in evidence confirm that Valium was prescribed from at least 2005 but do not give an indication of the circumstances in which it was prescribed.
The applicant has also described overdosing on Valium tablets in around 2004, leading to an admission to Concord Hospital. I have not, however, been referred to any contemporaneous record of that event.
A report from the applicant’s general practitioner, dated 3 August 2004, refers to poor sleeping habits requiring medication. The psychological symptoms referenced in that report do, however, appear to be secondary to the physical injuries the applicant sustained in her 2001 motor vehicle accident and other personal stressors rather than the events described above.
That the applicant was experiencing stress at work but was unable to leave because her employer was sponsoring her for a visa was mentioned in a report from a gastroenterologist, Dr Byrnes, dated 18 August 2005. Dr Byrnes suggested that some of the gastrointestinal symptoms the applicant had reported to him were related to “anxiety”. No further detail as to what events were causing the applicant’s “stress” or anxiety was provided.
The applicant has attributed the cardiac symptoms investigated in 2006 to events at work. The evidence from Dr Loh in 2006 and Dr Sammel in 2007 do not, however, make particular reference to any stress at work or suggest that such stress might be contributing to the applicant’s symptoms. Dr Sammel’s report does refer to the applicant having ceased work but identifies non-work risk factors including, having been prescribed Vioxx following the motor vehicle accident, in the context of the applicant’s cardiac symptoms.
The first clear reference in the medical evidence to events of the kind described above causing psychological symptoms appears in the records of Manly Hospital relating to the applicant’s admission following a suicide attempt on 3 August 2007.
There can be little doubt that the applicant was suffering from a diagnosable psychological condition at that time. The applicant was assessed as requiring care and containment in hospital due to being a risk to herself. The applicant was diagnosed with an adjustment disorder with depressed mood.
The Manly Hospital records identify a number of factors contributing to the applicant’s presentation. Some of these do not appear directly related to the events in the workplace described above. These include a general “preoccupation” with a drop in social status and financial and cultural difficulties. Work-related stressors do, however, feature prominently in these notes. The applicant described being on stress leave from her employment, a telephone conversation the previous day with her boss regarding recommencing employment, sexual harassment and being told by management to take such harassment as a compliment.
The applicant appears to have returned to work following this event but has described ongoing difficulties in the workplace. On 21 April 2008, a clinical record from the applicant’s general practitioner recorded complaints of being verbally abused and shouted at work on a regular basis over the last four to five years. The applicant also reported that she was molested at work several years earlier. The applicant was fearful of returning to work. The applicant reported symptoms of stress, depressed mood, initial insomnia, lack of concentration, anhedonia and worthlessness. The applicant was referred to counselling and prescribed Avanza. The applicant was issued with a WorkCover certificate and ceased employment with the respondent.
The contemporaneous medical evidence up until this point is therefore consistent with the applicant’s claim that the events described by her in the workplace were causative of a psychological injury.
The respondent has pointed to the reference to non-work stressors in the clinical records from Manly Hospital and her cardiologists’ reports, the applicant’s physical injuries arising out of the 2001 motor vehicle accident and her cardiac issues in support of its submission that the workplace events were not the “main contributing factor” to the applicant’s psychological condition.
As is indicated above, however, in the case of a disease injury received prior to 19 June 2012, it is the previous version of s 4 which applies. That required only that employment be “a contributing factor” to the contraction of the disease. In order for compensation to be payable, however, the applicant was additionally required to demonstrate on the balance of probabilities that employment was “a substantial” contributing factor to the injury pursuant to s 9A of the 1987 Act.
The respondent relies on a series of reports from Dr Roberts, the first of which was dated 23 December 2008.The applicant’s submissions highlighted a number of inconsistencies in
Dr Roberts’ reports. Dr Roberts appeared to accept that the applicant may have been anxious and depressed by her circumstances including her work-related difficulties but not to the extent that a DSM-V diagnosis was warranted. Dr Roberts appears to have been heavily influenced by the applicant’s ability to obtain employment in Melbourne not long after she ceased employment with the respondent.In giving this opinion, Dr Roberts has not engaged with the applicant’s account of the difficulties she experienced during that employment, the evidence of the admission to Manly Hospital in August 2007 and the evidence from the applicant’s general practitioner describing significant psychological symptoms in April 2008. In suggesting that the 2001 motor vehicle accident and the cardiac issues were potentially more significant stressors, Dr Roberts’ opinion does not appear to be consistent with the Manly Hospital records or the general practitioner’s record of 21 April 2008.
Dr Roberts’ opinion that the history of fluctuating moods suggested a non-environmentally determined recurrent major depressive illness failed to engage at all with the applicant’s evidence and contemporaneous treating evidence of workplace events and circumstances triggering psychological symptoms.
Dr Roberts’ opinion has remained largely unchanged in his subsequent reports.
The applicant has not placed in evidence before me a clear medical opinion, contemporaneous to her employment with the respondent, that employment was “a substantial contributing factor” to a psychological injury. Rather, she has in these proceedings relied on the opinions of doctors who first saw the applicant many years after she ceased employment with the respondent. The passage of time causes me to approach those opinions with some caution.
Those opinions have also been criticised by the respondent for failing to take adequate account of evidence of periods of apparent work capacity and subsequent stressors including family and relationship issues, financial issues and, in particular, the applicant’s significant cardiac condition.
The non-work related stressors identified, for example, in the records from Toronto Private Hospital and in the report from Ms Bowden, and the events in subsequent workplaces in Melbourne and Cairns have not been specifically addressed or explained by Dr Oldtree Clark. Dr Oldtree Clark has not addressed the evidence of the applicant’s physical injuries contributing to psychological symptoms following the 2001 motor vehicle accident, or addressed the applicant’s cardiac health issues. The contribution of any stressors arising from the applicant’s personal relationships is also not addressed. Dr Oldtree Clark has simply suggested that there was “no evidence” of any other cause of the applicant’s condition. In these circumstances, there are serious questions around the weight to be given to Dr Oldtree Clark’s opinion that employment was a substantial contributing factor to the condition diagnosed by him, as well as his assessment of permanent impairment.
The applicant has, however, also placed in evidence reports from her current general practitioner, Dr Miclat and her current psychologist, Ms Carroll, both of whom provide an opinion that the events the applicant experienced in the respondent’s workplace have had a substantial and enduring psychological impact on the applicant.
The respondent has made submissions that the Commission would not be satisfied that employment with the respondent was the main (or a substantial) contributing factor to the applicant’s current psychological condition. I am not satisfied, however, that that is the question which I am tasked with determining. The applicant relies in these proceedings on a psychological injury, caused by workplace events between 2000 and April 2008, with a deemed date of 28 April 2008. If the applicant did in fact sustain a compensable injury as claimed, it would be a matter for a Medical Assessor to determine the current effect of that injury in the circumstances of this case.
In Haroun v Rail Corporation New South Wales[10] (Haroun), the Court of Appeal determined that it was solely within the province of an Approved Medical Specialist (AMS) to determine whether any permanent impairment resulted from an injury. Haroun, as in the present case, involved a claim for lump sum compensation.
[10] [2008] NSWCA 192.
Although, as noted by Mr Barter, the issue of injury was determined by consent in Haroun, the Court of Appeal (Handley AJA, with whom McColl JA and McDougall J agreed) held that the arbitrator had no jurisdiction to make findings that were binding on the AMS or Appeal Panel as to the contribution of that injury to any permanent impairment.
It has been held in numerous cases that arbitrators in the former Workers Compensation Commission did have jurisdiction to determine questions as to causation, amongst other issues, for the purpose of determining claims for weekly compensation and medical expenses[11]. However, in a claim for lump sum compensation, cases such as Greater Taree City Council v Moore (Moore)[12], indicate that arbitral jurisdiction was limited to a determination of the issue of injury. In Moore, Roche DP said at [99]:
“This construction is consistent with Haroun, where it was held (at [20]) that ‘[i]f there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but “may refer it for assessment” by an AMS: s 321(1)’. The Court (Handley AJA, McColl JA and McDougall J agreeing) went on to observe that, since the Arbitrator had no jurisdiction to decide the medical dispute, namely, the extent of whole person impairment, he had no jurisdiction to make findings that were binding on an AMS or an Appeal Panel. That the parties agreed that the effects of an injury were continuing did not prevent an AMS from finding that no impairment resulted from that injury. Thus, in the present case, the Arbitrator’s finding that Ms Moore suffered only a temporary strain did not bind the AMS in making his finding as to the degree of permanent impairment as a result of the injury.”
[11] See, for example, Workcover New South Wales v Evans [2009] NSWWCCPD 95.
[12] [2010] NSWWCCPD 49.
In Jaffarie v Quality Castings Pty Ltd (Jaffarie)[13], an arbitrator found the worker had sustained a strain to his lower back from which he had recovered. The worker was awarded a closed period of weekly compensation. The arbitrator, having regard to the finding of recovery, declined to refer a claim pursuant to s 66 of the 1987 Act to an AMS. Deputy President Roche observed:
“…in a claim for lump sum compensation, the physical consequences of the injury (in relation to the assessment of whole person impairment as a result of the injury) are not within the exclusive jurisdiction of the Commission. They are within the exclusive jurisdiction of the AMS. That is so even if the matter also involves a disputed claim for weekly compensation and disputes about causation, which the Commission has determined.”
[13] [2014] NSWWCCPD 79.
In my opinion, and notwithstanding amendments to the statutory scheme in 2018, the reasoning in Haroun, Moore and Jaffarie remains relevant to the position of a Member of the Personal Injury Commission in dealing with a claim for lump sum compensation where there is a dispute as to the ongoing effects of an injury.
If the applicant has sustained an injury, as claimed, the current condition and any contribution to that condition by employment with the respondent would be a matter for a Medical Assessor to determine. What I have to determine is whether a compensable psychological injury was caused by the events between 2000 and April 2008 as claimed.
An opinion favourable to the applicant on this question has ostensibly been provided by
Dr Oldtree Clark. For the reasons given above, however, I am not willing to place any significant weight on Dr Oldtree Clark’s opinion. I am also not persuaded that Dr Roberts’ opinion should be accepted for the reasons identified above.The absence of a reliable medical opinion on the ultimate question of whether employment with the respondent was a substantial contributing factor to a psychological injury, as claimed, is not necessarily fatal to the applicant’s case. Although he was considering s 4(b)(ii) in its current form, in State Transit Authority of New South Wales v El-Achi[14], Roche DP, said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
[14] [2015] NSWWCCPD 71.
Having regard to the evidence as a whole, including the applicant’s uncontested evidence, the contemporaneous records of Manly Hospital in August 2007 and the clinical record of 21 April 2008, as well as the evidence from the applicant’s current treating practitioners
Dr Miclat and Ms Carroll, I am satisfied on the balance of probabilities that the applicant sustained a diagnosable psychological condition in the course of employment. I am further satisfied that the events described earlier in these findings were a “contributing factor” to a diagnosable psychological condition. I am satisfied that the applicant sustained an injury pursuant to s 4(b)(i) as it applies in this case.In determining whether that injury is compensable pursuant to s 9A I have given consideration to the factors set out in s 9A(2). I accept that there is evidence of non-work stressors contributing to a psychological condition in the treating medical evidence, including in the reports from the applicant’s cardiologists and in the records from Manly Hospital. The contemporaneous treating medical evidence does, however, suggest that the relevant workplace events were also a substantial contributing factor to the applicant’s condition. The more recent medical evidence is also consistent with that proposition.
The timing of the decompensations in August 2007 and April 2008; the nature of the applicant’s work and the events she experienced in the workplace; the duration of her employment, including the prolonged period over which the applicant encountered hostile behaviour in the workplace; and the absence of any evidence of a diagnosed psychological condition prior to the commencement of employment with the respondent (notwithstanding the reference to “stress” in the applicant’s previous employment as a police officer in Singapore in the clinical notes); all, in my opinion, favour a finding that employment was a substantial contributing factor to the injury. I am not satisfied that a similar injury would have happened anyway, at about the same time or at the same stage of the applicant’s life, if she had not been at work or had not worked in employment with the respondent.
I am satisfied that the applicant sustained a compensable psychological injury pursuant to
ss 4(b)(i), 9A and 11A(3) as claimed.
Referral to a Medical Assessor
In view of the findings above, I am satisfied that the appropriate course is to remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the psychological injury deemed to have occurred on 28 April 2008.
Notwithstanding the reservations expressed above as to the reliability of Dr Oldtree Clark’s assessment of whole person impairment, I am satisfied that the applicant has provided evidence of an assessment of a degree of permanent impairment greater than 15% from a qualified permanent impairment assessor for the purposes of s 65A(3) of the 1987 Act.
The materials to be referred to the Medical Assessor are to include all of the documents attached to the ARD and Reply.
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