Smith v Nestle Australia Limited
[2022] NSWPIC 469
•24 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Smith v Nestle Australia Limited [2022] NSWPIC 469 |
| APPLICANT: | Brian Anthony Smith |
| RESPONDENT: | Nestle Australia Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 24 August 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Psychological injury allegation by employee of 36 years; notice of injury and claim issues resolved in favour of the applicant; injury and causation established on the evidence; respondent’s defence on section 11A of the Workers Compensation Act1987 not established because matters as to performance and discipline occurred much later than onset of work-related psychological condition; applicant no capacity for work for first and second entitlement periods but some capacity beyond then on the evidence; Held — award for the applicant 130 weeks of weekly payments but not thereafter; matter remitted for section 66 medical assessment of the 1987 Act. |
| determinations made: | The Commission having considered this matter determines as follows: 1. The applicant in the course of his employment for a number of years up until 31 March 2019 suffered psychological injury namely aggravation, acceleration, exacerbation or deterioration of a disease “within the meaning of section 4 (b) (ii) of the Workers Compensation Act1987 (1987 Act). 2. The applicant’s failure to comply with the notice provisions of sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) is not a bar to the recovery of compensation by the applicant because of special circumstances. 3. The applicant’s employment was the main contributing factor to the aggravation etc., of his disease. 4. The respondent’s defence pursuant to section 11A of the 1987 Act fails. 5. The applicant had no capacity for work between 1 April 2019 and 27 September 2021. After 27 September 2021 the applicant has had some capacity for work. 6. Award in favour of the applicant for weekly payments of compensation as follows: (a) from 1 April 2019 to 1 July 2019 in the sum of $1,110. 80 per week pursuant to section 36 of the 1987 Act being the “first entitlement period”, and (b) from 2 July 2019 to 28 September 2021 in the sum of $935.41 per week pursuant to section 37 of the 1987 Act being the “second entitlement period”. 7. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 31 March 2019. 8. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute, a copy of the Reply, a copy of all Applications to Admit Late Documents and a copy of this Certificate of Determination. 9. The respondent is to have credit for payments of weekly compensation already made. 10. General award in favour of the applicant in respect of section 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
Brian Anthony Smith (the applicant) is a 56-year-old-man who was employed by Nestle Australia Limited (the respondent) as a machine operator. He alleges that in the time he worked up until 1 April 2019 he suffered psychological injury during the course of his employment within the meaning of section 4 (b) (ii) of the Workers Compensation Act1987 (1987 Act). He alleges this was as a result of being bullied, harassed, absence of management support and unreasonable performance management.
The applicant brings a claim for weekly payments of compensation (sections 36 and 37 of the 1987 Act) and a lump sum claim for whole person impairment (section 66 of the 1987 Act). The claim commences from 1 April 2019.
The applicant attended Kempsey High School up until year 10 “and then engaged in several years of diverse casual work before starting his employment at the Nestle factory in 1984”.[1] He commenced work with the respondent at age 18 and continued that work for a period of 36 years.
[1] Report of Dr Bertucen at Application at page 11.
The applicant’s pre-injury average weekly earnings have been agreed in the sum of $1,169.26.
ISSUES
The respondent’s counsel has identified the issues in this matter as the notice provisions, injury, causation, capacity and section 11A of the 1987 Act.[2] Within any finding of “capacity” must I note be a determination regarding the extent of economic loss, if any.
[2] Respondent’s written submissions of 27 June 2022 at page 1 at [2].
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
This matter came to teleconference on 19 April 2022 and was listed for conciliation and arbitration hearing on 31 May 2022. Mr Beran of counsel instructed by Mr Dufour, solicitor, appeared for and with the applicant. Mr McMahon of counsel instructed by Mr Totaro, solicitor, appeared for the respondent. Ms Virtudavo and Mr Lacsina were present on behalf of the insurer.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
Lengthy discussions occurred in the conciliation process such that there was insufficient time to complete the matter on 31 May 2022. A Direction for written submissions was issued and those submissions were received as follows:
(a) on behalf of the respondent prepared by Mr McMahon on 27 June 2022;
(b) on behalf of the applicant prepared by Mr Beran dated 11 July 2022, and
(c) respondent’s submissions in reply prepared by Mr McMahon dated 20 July 2022.
Mr McMahon for the respondent made the first submissions by agreement because of the section 11A issue.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute and attachments lodged on 21 March 2022 (Application);
(b) Reply and attachments lodged on 11 April 2022 (Reply);
(c) Application to Admit Late Documents and attachments lodged on 21 April 2022 by the respondent (AALD1);
(d) Application to Admit Late Documents and attachments lodged on 25 May 2022 by the applicant (AALD2), and
(e) Application to Admit Late Documents and attachments lodged on 16 June 2022 by the respondent (AALD3).
Documents the subject of 19 (c), (d) and (e) above were admitted into evidence on
31 May 2022 without objection.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The notice provisions
The respondent relies upon sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In terms of the giving of notice, an applicant’s failure to give notice is not a bar to the recovery of compensation if special circumstances exist.[3] Those special circumstances include that the respondent has not been prejudiced by the failure, the failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause.[4]
[3] Section 254 (2) of the 1998 Act.
[4] Section 254 (3) (a) and (b) of the 1998 Act.
In terms of section 261 of the 1998 Act the applicant’s claim was made within three years of the date of his injury[5] and the considerations which apply in excusing a late claim made more than six months after the injury are similar to those outlined in relation to section 254 of the 1998 Act. The respondent points to the applicant’s statements which include the following facts:[6]
(a) the applicant had previous workers compensation claims in 2000 for a back injury and 2016 for a shoulder injury;
(b) the applicant was referred by his doctor at Crescent Head Medical Centre “to Allan Anderson, psychologist”. It was Allan who “persuaded me to put in the workers compensation claim” and the applicant “thought that I was handling the abuse at the time and that it was not having any effect on me”.[7]
Notwithstanding the respondent’s submission on this point, the referral to
Mr Anderson was dated 13 July 2020 so the applicant’s lateness in claim is somewhat explained;[8](c) the applicant states[9] that it took “me a long time to put in this claim as I did not want to confront the issues I had at work”, and
(d) the applicant says that he did not make any formal complaints but initially informally told his supervisors about the fellow worker’s constant verbal bullying and abuse.[10]
[5] See section 261 (4) of the 1998 Act.
[6] Respondent’s submissions at [9]-[10].
[7] Application at page 6 at Applicant’s statement at [20].
[8] AALD3 at page 25.
[9] Application at page 5 at [21].
[10] Applicant’s statement AALD2 at [2].
Dealing with (d), Mr Silvia, an employee of the respondent, confirms in his statement[11] that he worked with Mr Kenah (the alleged perpetrator of the abuse) and that he was aware of
Mr Kenah raising his voice at times and would have to speak with him about it. Additionally, Mr Anderson of the respondent confirms that he had to speak to Mr Kenah on numerous occasions due to him being abusive in the workplace.[12][11] AALD1 at page 1.
[12] Reply at page 65.
The applicant also offers two further reasons for the delay. The first is that as the bullying and abuse continued, he became more and more depressed, his memory became poor, and he started to forget things.[13] The second reason is that he was struggling with the effects of his injury and was not aware until he spoke to Mr Anderson (psychologist) that he could even make a worker’s compensation claim.
[13] AALD2 at Applicant’s supplementary statement at [10].
The nature of the applicant’s prior workers compensation claims were physical injuries, and it is not surprising to my mind that an applicant engaged in physical work for 36 years may be ignorant of the fact that psychological injury can also be claimed under workers compensation legislation. Dr Bertucen[14] was aware of the applicant having co-morbid physical and medical conditions but was of the view that the applicant was experiencing cognitive difficulties secondary to his depressive condition. Dr Smith also refers to these cognitive difficulties.[15] It appears clear that over time the applicant’s depression increased, even beyond the termination of Mr Kenah’s employment on 20 February 2017. According to the “timeline of events” provided by the respondent[16] warnings to and counselling of the applicant appears to have escalated somewhat by 10 October 2018.
[14] Application at pages 12 and 13.
[15] Reply at page 76.
[16] Reply at page 27.
That the applicant was unaware of his rights and ignorant of them and additionally was experiencing increasing cognitive difficulties in my view supports the proposition that the applicant’s failure to comply with sections 254 and 261 of the 1998 Act should be excused because of this ignorance and/or for “other reasonable cause”, namely the applicant’s cognitive problems which as will be seen below are consequential to the work exposure itself.
Injury and causation
The applicant’s submissions detail the relevant parts of the applicant’s statements concerning the nature of the behaviour to which he was subjected at work.[17] Various statements by other workers confirm the existence of this behaviour over a period of time and the medical opinion of Dr Bertucen of 23 June 2021[18] as well as the opinion of Dr Smith confirm the applicant experienced adjustment disorder/ major depressive disorder.
[17] Applicant’s submissions at pages 1-2.
[18] Application at page 7.
Dr Bertucen expresses the view:
“On the whole, in my opinion, Mr Smith’s depression was largely occasioned by his interactions with Mr Kenah, and subsequent difficulties keeping abreast of changes and evolving practices within the workplace. To a large extent these cognitive difficulties, however, were in my view secondary to the depressive condition.”
This opinion in Dr Bertucen’s report concerning a “strong causal connection between the bullying and harassment that he has experienced in the workplace and the psychological injuries sustained” is echoed by Mr Anderson, psychologist, in his report dated
10 May 2021.[19] It is also supported by the applicant’s general practitioner, Dr Pea in certificates where he refers to “diagnosis of work-related injury/ disease”.[20][19] Application at page 18.
[20] See AALD3 at page 42 and 51, for example.
Dr Smith assessed the applicant at the request of the respondent and was aware of the applicant’s deteriorating work performance in the latter part of his employment. The different diagnosis on causation is that whilst Dr Smith accepted the applicant’s deteriorating performance and ultimately dismissal[21] he also accepts that the applicant’s reduced cognitive function was secondary to the applicant’s adjustment disorder.[22] Whilst Dr Smith provided a further report of 14 October 2021[23] in which he was of the view that there were several serious medical conditions causing the applicant’s cognitive and physical decline,[24] this view of causation appears to be inconsistent with the opinion expressed by Dr Smith in his earlier report. This is because in his earlier report Dr Smith attributed the applicant’s cognitive decline partly to his adjustment disorder which was the cause for his decline in work performance. On the facts, it was that decline in work performance which led to the applicant’s termination of employment/dismissal.
[21] Reply at page 76.
[22] Reply at page 76.
[23] Reply at page 101.
[24] Reply at page 108.
On that view the opinions of Dr Bertucen, Mr Anderson and Dr Pea are in my view to be preferred in that they outweigh Dr Smith’s inconsistent opinion on the issues of injury and causation.
Section 11A
Dr Smith’s opinion that the applicant’s reduced cognitive function was secondary to his adjustment disorder so that he was experiencing deteriorating performance and ultimate dismissal supports the fact that the applicant was suffering from a psychological injury before he had to undergo performance appraisal, discipline and dismissal. That being the case, the applicant’s psychological injury cannot in my view have been “wholly or predominately caused by reasonable action taken or proposed to be taken…with respect to…performance appraisal, discipline…or dismissal” simply because the condition already existed before those events occurred.
Additionally, it appears (and Dr Smith supports this view) that there were a number of causes of the applicant’s psychological injury and whilst in his second report Dr Smith makes reference to the adjustment disorder being “principally attributable to the termination of his employment and the consequences thereafter”,[25] this view is inconsistent with his earlier report, inconsistent with the opinion of the treating doctors and Dr Bertucen and therefore cannot, in my view, be accepted.
[25] Reply at page 109.
In the circumstances, the respondent has failed to discharge its onus of establishing a section 11A defence.
Capacity
Dr Bertucen in his report of 23 June 2021[26] comments in relation to the applicant’s capacity to perform pre-injury work as follows:
“Mr Smith, in my opinion, is not psychologically capable of returning to his pre-injury work due to ongoing impairments of concentration and memory, difficulties interacting with other people and the potential for severe anxiety/panic AF episodes.”
[26] Application at page 13.
Dr Smith in this first report further commented[27]:
“At the present stage Mr Smith has not improved sufficiently to be able to seek or sustain work on the independent labour market.” (emphasis added)
[27] Application at page 13.
In Dr Bertucen’s second report dated 23 June 2021[28] and at arriving at his whole person impairment assessment Dr Bertucen raises the possibility that the applicant “may possibly have the potential for autonomous work within 12 to 18 months (e.g., driving/ courier work, overnight warehousing/ night fill)”.[29] (emphasis added)
[28] Application at page 15.
[29] Application at page 16.
Mr Anderson, psychologist, in his report dated 10 May 2021[30] expresses an opinion “that there is a solid likelihood that Mr Smith could return to employment after courses and other treatment have been applied”.[31] Mr Anderson concludes that there is “quite a lot to be done in order for him to be able to return to any workplace. However, such an end result is definitely not out of the question”. (emphasis added)
[30] Application at page 18.
[31] Application at page 20.
The Certificates of Capacity from Dr Pea are dated 25 September 2020[32] and
14 January 2021[33]. Those certificates certify the applicant with no current capacity but the periods in question end on 9 February 2021.[34] The report of Dr Pea is dated 21 May 2021[35] in which Dr Pea concludes that the applicant “could be okay to start self-management job/ business in future”.[32] Application at page 42.
[33] Application at page 47.
[34] Application at page 46.
[35] Application at page 22.
It is evident from the above that each of the applicant’s treating doctors as well as
Dr Bertucen support the view that whist the applicant could not at that time return to his pre-injury employment he may “in future” be capable of some alternative employment. It is important in this regard to recognise that these opinions are provided in May and June 2021 and all offer (to my mind) a reasonable glimmer of hope for the applicant’s future employability with appropriate training and/ or treatment being implemented.Dr Smith saw the applicant for a second time on 14 October 2021, a time more proximate to the applicant’s claim for weekly payments, beyond 27 September 2021.[36] In terms of capacity he took the view that the applicant could not work in his same pre-injury position but thought he could perform “less than 20 hours per week in a different position…less stressful”.
[36] Applicant’s submissions at page 11 at [32].
The relevance of the period 1 April 2019 to 27 September 2021 is that the latter date represents the conclusion of the applicant’s second entitlement period pursuant to section 37 of the 1987 Act.
Given that the applicant’s doctors do not entirely rule out the applicant’s potential for alternative employment and because Dr Smith’s examination and assessment is very near 27 September 2021 I am satisfied that the applicant as at 28 September 2021 was capable of performing some alternative employment. I note that Dr Smith suggests less than 20 hours per week. The respondent submits 19 hours per week. Having regard to the matters set out in section 32A of the 1987 Act, in particular the nature of the applicant’s incapacity, his age, education, skills and work experience I am of the view that from 28 September 2021 the applicant was capable of working in some suitable employment some hours per day, some days per week. That means that unless and until the applicant receives any favourable whole person impairment assessment he is limited to receiving weekly payments for 130 weeks.
For the period 1 April 2019 to 27 September 2021 the applicant will be entitled to his weekly payments in accordance with sections 36 and 37 of the 1987 Act. The extent of any ongoing weekly payment beyond 27 September must await a Medical Assessor’s determination in the absence of a favourable work capacity decision.
FINDINGS AND ORDERS
The applicant in the course of his employment for a number of years up until 31 March 2019 suffered psychological injury namely aggravation, acceleration, exacerbation or deterioration of a disease (aggravation etc.) within the meaning of section 4 (b) (ii) of the 1987 Act.
The applicant’s failure to comply with the notice provisions of sections 254 and 261 of the 1998 Act is not a bar to the recovery of compensation by the applicant because of special circumstances.
The applicant’s employment was the main contributing factor to the aggravation (etc) of his disease.
The respondent’s defence pursuant to section 11A of the 1987 Act fails.
The applicant had no capacity for work between 1 April 2019 and 27 September 2021. After 27 September 2021 the applicant has had some capacity for work.
Award in favour of the applicant for weekly payments of compensation as follows:
(c) from 1 April 2019 to 1 July 2019 in the sum of $1,110. 80 per week pursuant to section 36 of the 1987 Act being the “first entitlement period”, and
(d) from 2 July 2019 to 28 September 2021 in the sum of $935.41 per week pursuant to section 37 of the 1987 Act being the “second entitlement period”.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 31 March 2019.
The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of all Applications to Admit Late Documents and a copy of this Certificate of Determination.
The respondent is to have credit for payments of weekly compensation already made.
General award in favour of the applicant in respect of section 60 expenses.
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