Spinks v Campbell Page Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Spinks v Campbell Page Limited [2021] NSWPIC 380
APPLICANT:	Mitchell Spinks
RESPONDENT:	Campbell Page Limited
MEMBER:	John Isaksen
DATE OF DECISION:	28 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments, medical expenses and permanent impairment for psychological injury; whether the worker sustained a disease injury pursuant to section 4(b) of the Workers Compensation Act 1987; reference to AV v AW and Kelly v Western Institute NSW TAFE Commission; whether events at work perceived by the worker to be hostile and the cause of an increase in psychological symptoms; Held – the worker’s employment was the main contributing factor to the aggravation of an underlying psychological disease; award of weekly payments of compensation, medical expenses and referral for assessment of permanent impairment.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent by way of a disease injury pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 28 February 2020. 2. The applicant has had no current work capacity since 26 September 2020. 3. The date of the injury for the claim for a lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 is 1 June 2021.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation at the rate of $760 per week from 26 September 2020 to date and continuing pursuant to section 37 (1) of the Workers Compensation Act 1987, with variations of that award as provided for by section 82A of the same Act. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987. 3. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 1 June 2021 Body Part: Psychological injury Method of Assessment: Whole Person Impairment 4. The following documents are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the applicant on 3 September 2021; (d) Application to Admit Late Documents filed by the respondent on 8 September 2021, and (e) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mitchell Spinks, claims that he sustained a psychological injury in the course of his employment as a Candidate Coordinator with the respondent, Campbell Page Limited.
The applicant ceased work on 28 February 2020 and was paid weekly payments of compensation until 25 September 2020.
Icare issued a dispute notice on behalf of the respondent on 31 August 2020 wherein liability was disputed on the basis that the applicant’s employment was not a substantial contributing factor to his injury.
The applicant claims that he has continued to have no current work capacity since 25 September 2020. The applicant also seeks an order for the payment of reasonably necessary medical expenses for treatment for his psychological injury and has made a claim for 26% whole person impairment for the psychological injury he claims to have sustained in the course of his employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the applicant’s employment was the main contributing factor to the contracting of a disease in the course of his employment with the respondent (section 4 (b)(i) of the Workers Compensation Act 1987 (the 1987 Act)), or that the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease in the course of his employment with the respondent (section 4 (b)(ii) of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 16 September 2021. 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.
Mr McManamey appeared for the applicant, instructed by Mr Malai. Mr Stockley appeared for the respondent, instructed by Ms Turnbull.
The hearing was conducted by telephone in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $950.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 3 September 2021, and
(d)    Application to Admit Late Documents filed by the respondent on 8 September 2021.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 5 June 2020 and 29 August 2021.
The index to the ARD states that the first statement of the applicant is dated 29 January 2021, but the statement does not bear that date. The statement contains the “Date Taken” as 5 June 2020.
The applicant states that he commenced employment with the respondent at the start of 2019 in the role of Candidate/Administration Coordinator. He was to perform a 38 hour week at the respondent’s Dapto office.
The applicant states that he was to work with ‘Stream A’ clients to assist them with completing job applications, and after 13 weeks the client would move onto another coach in the office for Case Management.
The applicant states that when he went for his interview for the job with the respondent, he disclosed that his wife was pregnant with their first child and that he had a history of depression, which he had first experienced as an adolescent. He states that he wanted to be transparent with the respondent.

The applicant states that when he commenced his employment with the respondent, he was very enthusiastic and eager to learn the different aspects of the job. He states that he passed his probation period of six months with no issues. He states that his manager until October 2019 was Monica and that she reported to him that he was doing his job well.
The applicant states that Monica was very understanding throughout the time that his wife was pregnant.
The applicant’s baby daughter was born on 4 September 2020. He states that there were no major causes of stress at home following the birth, although his wife had some mild post-natal depression.

The applicant states that around October or November 2019, Monica was transferred to the Kiama office and Corinne Russell took over as manager. He states that he began to be allocated case management work because there were so many clients. He states that he questioned Ms Russell in regard to this because he was not being paid for this level of work and the work was outside the role that he was employed to do. He states that Ms Russell was adamant that he was to consult with Stream B and C clients.
The applicant states that he spoke to a senior officer with the respondent, Louise Sedgewick, regarding having to see Stream B and C clients and was told by Ms Sedgewick that he should not be seeing those clients. He states that when he then raised this with Ms Russell, she became quite angry with him for having approached Ms Sedgewick.
The applicant states that the additional work which was being set by Ms Russell meant that his administration duties were falling behind and he was placed on a one month probation period. He states that he still felt an obligation to continue to see Stream B and C clients when they attended the office.

The applicant states that the increased work and subsequent pressure was causing his mental health to deteriorate. He states that around 11 November 2019 he had a meeting with Ms Russell and Alison Carr, from People and Culture, and explained that he was struggling with his anxiety, that his wife had postnatal depression, and they had a new baby at home. A decision was made to give the applicant a rostered day off once a month and to reduce each working day by one hour in the afternoon. The applicant states that his preference was to have a later start time in the morning because this was the difficult time with the baby at home. He states that he did not feel that Ms Russell was being very family friendly.

The applicant states that on a day in January 2020 he was late for a meeting being conducted by Ms Russell. He states that Ms Russell abused him for being late in a Skype call despite him ringing her to say he was going to be late and running three or four kilometres in the rain from his home to get to the office. The applicant states that he was then issued with an email to attend a disciplinary meeting, which caused him to feel very deflated. The applicant states that following this he actually felt so low that he planned to kill himself and wrote notes to his wife and baby.
The applicant states that the disciplinary meeting occurred in early February 2020. He states that Ms Russell and Ms Carr conducted the meeting. He states that he explained that he had rung Ms Russell to tell her that he was running late for the meeting in January 2020, and that he would always ring her if he was going to be late. He states that he told them that at this point of time that his family was his first priority. The applicant states that Ms Russell replied: “Well with attitude like that you might not have a job to come to.” The applicant states that he felt this meeting was very intimidating.
The applicant states that two days after this meeting he missed his bus because he had to clean up his baby daughter. He states that he did not bother ringing in to advise that he was going to be late because his anxiety was now so bad, and he knew from two previous written warnings that Ms Russell was out to get rid of him.

The applicant states that he attended another disciplinary meeting with Stephanie Tonkin, the head of People and Culture, Gaby, a senior team member, and Ms Russell, who was linked by phone from the Batemans Bay office. The applicant’s wife also attended as a support person for the applicant. The applicant states that Ms Russell led the meeting and outlined the action already taken against him. He states that he felt that his employment was to be terminated. He states that he felt completely useless at this point and left the meeting to get some fresh air with his wife. He then told Ms Tonkin by telephone that he was not well and was experiencing panic attacks and needed a few days off work.

The applicant states that he then attended his regular general practitioner, Dr Gupta and told Dr Gupta what had occurred at work, and was issued with a Certificate of Capacity which certified the applicant as being unfit for any work. The applicant has not returned to work with the respondent or any other employer since 28 February 2020.
The applicant states that he only began to suffer psychological symptoms when Ms Russell took over. He states that he was coping well with work life and home life before he had to interact with Ms Russell. He states that he started to severely stutter after Ms Russell became involved with his work.

Lay evidence relied upon by the respondent

Corinne Russell has provided a statement dated 9 June 2020. Ms Russell states that she has been employed as a Business Manager with the respondent for the past seven years.
Ms Russell states that she took over managing the applicant from Monica Veljanovski in October or November 2019. She states that she was aware of some work attendance and performance issues with the applicant. She states that she had a discussion with the applicant when she took over managing him, and outlined her expectations and being at work on time.

Ms Russell states that at no time did she ever direct the applicant to undertake work for Stream B and C clients. She states that at no time was she ever angry with the applicant about an alleged discussion that he had with Ms Sedgewick.

Ms Russell states that on 30 October 2019 she had a further meeting with the applicant, which was only nine days after taking over as his manager, to remind him about taking excessive leave.

Ms Russell states that on 19 November 2019 a formal meeting was held between herself,
Ms Carr and the applicant to formally issue a warning in relation to his excessive leave. She states that in the week immediately following this meeting, the applicant took a further two days off work.
Ms Russell provided a letter to the applicant on 20 November 2019 which confirmed that a meeting had occurred on 28 October 2019 to discuss issues regarding the applicant’s attendance at work. The letter referred to areas of concern that over 46 days had been taken by the applicant as personal leave or leave without pay, and the applicant following policy to contact his manager via phone to discuss his absences.

Ms Russell states that on 25 November 2019 she had a conversation with the applicant about his daily tasks not being completed.

Ms Russell states that on 13 December 2019 a further formal meeting was held between herself, Ms Carr and the applicant, to advise the applicant that there continued to be issues of him meeting his work performance, and that a Performance Improvement Plan was to be implemented. She states that during this meeting the applicant disclosed that he suffered from pre-existing anxiety and that his wife’s postnatal depression was having an impact upon him. She states that the applicant was provided with details of the Employment Assistance Program for support, and also encouraged him to discuss any concerns he had with her so that she could support him in her capacity as his immediate manager.

Ms Russell states that she does recall that in January 2020 the applicant was running late for a meeting. She denies that she abused the applicant but did have discussions with him that his lateness for work was becoming a regular occurrence.

Ms Russell states that on 19 February 2020 a formal disciplinary meeting was conducted between Stephanie Tonkin, the applicant and herself. She states that her team leader, Gaby Harding was also present, as was the applicant’s wife. Ms Russell states that Ms Tonkin attempted to explain to the applicant that if he could not undertake to attend work as per the expectation of his employment, then the workplace could not continue to allow him to attend sporadically.
Ms Russell states that the applicant said that his wife and child were his priority. She states that both the applicant and his wife became quite overwhelmed by the level of talking, and his wife was quite aggressive in her speech. She states that Ms Tonkin stopped the discussion and suggested the applicant and his wife take a break for some fresh air. She states that the meeting never recommenced because the applicant advised via telephone that he was suicidal. Ms Russell notes that the applicant has not returned to work since this meeting.

Alison Carr has provided a statement dated 9 June 2020. Ms Carr states that she has been employed as the Business Partner with the respondent for the past 14 months.

Ms Carr states that Monica Veljanovski experienced issues with the applicant’s attendance and work performance. She states that on 8 May 2019 Ms Veljanovski advised the applicant that due to the amount of leave he had been taking, he may not pass his six month probation period.

Ms Carr states that in August 2019 Ms Veljanovski informed Ms Carr that the applicant’s attendance had improved but she had reason to speak to him about his work attire and maintaining motivation towards continuing to come to work. She states that she continued to discuss with Ms Veljanovski ways in which the applicant could be supported.

Ms Carr states that at the beginning of October 2019, Ms Veljanovski commenced in another role and the applicant was to report to Ms Russell. She states that at no time did the applicant complete case management work.

Ms Carr states that on 18 November 2019 there was a meeting between Ms Russell, herself and the applicant to discuss his increased leave. She states that during this meeting he disclosed his pre-existing mental health issues and that his wife was suffering from postnatal depression. She states that at that meeting it was agreed that the applicant could reduce his hours of work. She states that she and Ms Russell were trying their best to support the applicant.

Ms Carr states that on 13 December 2019 a Performance Improvement Plan was implemented because the applicant had continued to take leave from work and there were also some work performance issues identified.

Ms Carr states that on 24 January 2020 the applicant experienced a panic attack for the first known time at work. She states that later that day she talked with the applicant to identify a common trigger for his panic attacks, but they did not identify anything specific.

Ms Carr states that a couple of days later she was made aware of another panic attack that the applicant had at work.

Ms Carr states that in early February 2020 it was agreed that the Performance Improvement Plan for the applicant would be extended a further month as there had been some improvements, but they were not consistent.

Ms Carr states that she was on annual leave when the meeting on 19 February 2020 took place between Ms Tonkin, Ms Russell and the applicant.
There are six Performance Improvements Plans in relation to the applicant which cover a period from 2 January 2020 to 28 February 2020. Those Plans note some improvements by the applicant but also note continued shortcomings in the expectations of the respondent.

The medical evidence

The clinical notes from Horsley Community Doctors are in evidence for the period from 29 April 2019 to 3 December 2020, with most of the applicant’s attendances upon Dr Gupta at that practice.
Dr Gupta records on 14 May 2019 the applicant feeling very anxious and panicky but with no specific triggers. Dr Gupta also notes a past history of anxiety and depression.

Dr Gupta records the applicant being very anxious on 28 May 2019 and 1 July 2019. The notes for 1 July 2019 also record the applicant “cant function properly” due to severe anxiety symptoms.
Dr Gupta records the applicant doing better with medication on 17 July 2019 and 2 August 2019. On 26 August 2019 a referral is provided for the applicant to attend Dr Janelle Gallagher for psychological treatment, and there is a note: “He is stressed as wife heavily pregnant.”
Dr Gupta records on 30 September 2019 that the applicant’s mental health is not very good, although on 14 October there is a record of the applicant “currently stable on meds”.
Dr Gupta records on 13 November 2019 the applicant feeling quite anxious that day, with significant signs of social anxiety.
The next reference to psychological symptoms in the notes from Dr Gupta is on 24 January 2020, with a record of the applicant feeling very anxious and panicky with no specific triggers.
Dr Gupta records on 29 January 2020: “mental health much stable now”. However, on 5 February 2020 Dr Gupta records the applicant feeling quite anxious.
Dr Gupta records on 24 February 2020 the applicant feeling very anxious and panicky, with the specific trigger for now being stress at the workplace.

The notes from Dr Gupta record a Certificate of Capacity being issued on 28 February 2020.
The notes from Dr Gupta contain a consistent record of the applicant being prescribed Valium, and to a lesser extent Lovan, during the course of 2019.

Dr Gupta has provided a report dated 1 February 2021. Dr Gupta writes: “the original incident happening in early nov 1.11.2019”. He then writes:
“At that time, client had been having significant symptoms of anxiety and stress secondary to relentless demands put on him by his employer. He was getting repeated emails, phone calls and was constantly reminded of deadlines. He was asked to do duties outside his role description eg seeing clients outside his competence limits. He had been always reminded that he is not good enough. He was being constantly judged all the time. Mitch was doing much better with his work-life balance before the new manager took over and he had no position to go back into work place.”
Dr Gupta concludes the applicant had been suffering anxiety and depression for some time, but work related issues compounded his problems quite significantly and that the applicant’s employment was the main contributing factor to such an aggravation.

There is a report from Dr Burhan, psychiatrist, to Dr Gupta dated 3 November 2020 following a referral for treatment. Dr Burhan records the applicant having anxiety in late 2019 in the context of work related stress due to harassment by the manager and the applicant having to work outside his job description. Dr Burhan also records the applicant having an episode of depression when he was an adolescent. Dr Burhan provides no opinion on the cause of the applicant’s psychological condition.

There is a report from Queenie Chan, provisional psychologist, dated 27 February 2020, which is co-signed by Loan Pham, Director of Ripples Allied Health Consultancy. Ms Chan records that the applicant presented to her on 7 February 2020 and that he was dealing with the stress of financially supporting his family and caring for his young child and wife, who had her own health issues. She also records the applicant experiencing high anxiety in an unsupportive work environment. Ms Chan records the applicant having severe suicidal ideation in the week before a session on 24 February 2020.
It is apparent that the psychological treatment of the applicant was then taken over by
Loan Pham. Ms Pham has provided a report dated 22 January 2021. She states that she initially met with the applicant on 17 March 2020 and has had 14 consultations with him.
Ms Pham states that the applicant had previously attended two other practitioners at Ripples Allied Health Consultancy for anxiety and depression. She states that the first practitioner was Janelle Gallagher, who saw the applicant around the time his wife was pregnant and being induced. Ms Pham states that in regard to those applicant’s consultations: “The reason as far as I am aware is in relation to work stressors”.
Ms Pham records that the applicant did not experience severe anxiety and panic attacks until issues with his new manager arose. She records that the applicant was required to do tasks outside of his role and there was unreasonable time pressure being placed upon him after extra tasks were allocated to him.
Ms Pham records that on 12 February 2020 the applicant became more stressed when he was late for work when he missed his bus and was told by the manager that he had to start work at 8.30am. She records that on 16 February 2020 the applicant took steps towards taking his own life.
Ms Pham diagnoses the applicant having Adjustment Disorder, Depression and Generalised Anxiety Disorder.
Ms Pham writes that the risk of the applicant relapsing into a depressive episode was always present, but that based upon the applicant’s reports of his mental health having stabilised during his studies and in the early stages of his employment with a supportive manager, it was the bullying and harassment by new management that created his current episode of depression.
Ms Pham concludes:
“Based on Mitchell’s reports he was not suffering from the symptoms of his previously diagnosed condition prior to his workplace injury. He was highly functional able to study, complete his studies, attend work without issues and was given more responsibilities at work due to his great performance.
The circumstances at work where his stress was increased from the unreasonable demands placed on him triggered his previously diagnosed Depression to relapse and the consequences of the mismanagement of this situation had led to a Major Depressive Episode for Mitchell where he had nearly attempted to kill himself.”
Ms Pham states that the workplace stress reduced the applicant’s capacity to function at work, which then had an impact upon his ability to function at home. She states that the incident she recorded of the applicant being late for work and then being questioned about this later “illustrated how his mental status at the time reduced his ability to deal with undue interpersonal conflict and workplace stressors”.
Dr Chow, consultant psychiatrist, has provided reports at the request of the applicant’s solicitors dated 22 February 2021 and 7 September 2021.
In his first report dated 22 February 2021, Dr Chow includes a list of several sets of documents which he has reviewed, including the clinical notes of Dr Gupta. However,
Dr Chow does not record the applicant having any psychological difficulties during 2019 until October and the change of management at the applicant’s workplace. Dr Chow writes: “He said he started going to the doctor in October 2019 and he was started on antidepressants”.
Dr Chow records that the applicant was asked to do things outside of his role by the new manager. Dr Chow also records that the applicant was being given more tasks and he became more behind with his work. He records that the applicant started having panic attacks when seeing clients with more difficult backgrounds.
Dr Chow records that there was a meeting on the applicant’s last day of work where his employer was trying to fire him, and the applicant then queried the tasks he had been given outside of his role.
Dr Chow diagnoses the applicant having major depressive disorder. He notes that the applicant was hospitalised due to depression as a teenager, but then writes:
“As per the medical notes as well as the reported history from Mr Spinks, he was asymptomatic and was in good mental health prior to the workplace injury.”
Dr Chow opines that the applicant’s psychological condition is not an aggravation because the applicant was well for many years prior to his workplace injury. He concludes that the applicant suffers significant psychological symptoms as a result of the workplace injury.
In his second report dated 7 September 2021, Dr Chow refers to significant problems of anxiety and panic noted by Dr Gupta in May 2019. He refers to the applicant’s statement that despite difficulties which the applicant was having with his wife’s pregnancy and health and his newborn child, the applicant was able to remain at work with a supportive manager. It was the lack of support and maltreatments by the new manager which then affected the applicant and caused his injury. Dr Chow concludes:
“I agreed that this would be an aggravation of an underlying condition. The key concern in the workplace was following a change of manager and Mr Spinks’s alleged lack of support and maltreatments towards him.
After reviewing the additional information, I confirm it is my opinion that Mr Spinks has sustained an aggravation of his underlying major depressive disorder.”
Dr Chow then opines that assuming the validity of the applicant’s alleged difficulties in the workplace, then the applicant’s employment was the main contributing factor to the aggravation.
Dr Doris, psychiatrist, has provided reports at the request of the respondent dated 17 July 2020, 27 August 2020, 6 July 2021, and 29 July 2021.
In his report dated 17 July 2020, Dr Doris records that the last time the applicant was his usual self was in July or August 2019. Dr Doris records that the applicant started stuttering and becoming sweaty and having panic attacks. He records that the applicant’s baby daughter was born on 4 September 2019 and that the baby was healthy and strong, but that the applicant’s mood became lower in September and his anxiety problems persisted.
Dr Doris records that the applicant continued to struggle with anxiety and mood related problems towards the end of that year and that in early January 2020 the applicant’s mood was so low that he made preparations to end his life.
Dr Doris appears to record little of the effect that the applicant’s employment had upon his psychological condition. Dr Doris does write:
“There is mention of missing time from work from quite early on in the course of his employment and from around the middle of 2019 increasing focus on timekeeping and work performance issues.”
Dr Doris opines that the applicant would have experienced similar psychological symptoms around this time in his life irrespective of the nature and conditions of his employment. He considers the difficulties which the applicant’s wife was having with the pregnancy was a severe stressor upon the applicant. Dr Doris opines that the applicant had a pre-existing condition of major depressive disorder, which had been in remission but is a disorder that tends to recur.

In his report dated 27 August 2020, Dr Doris states that it is likely that a number of factors contributed to the applicant’s psychological injury, including some work factors, but the personal life factors are likely to be the greatest contributing factor.
In his report dated 6 July 2021, Dr Doris states that Dr Chow focuses very much on the applicant’s workplace as the predominant causal factor, but that Dr Doris considers that this is difficult to conclude. Dr Doris writes:
“Mitchell appears to have had significant problems with anxiety and panic which is noted in the consult with Dr Gupta in May 2019. He was commenced on treatments for this. At this time, his wife was pregnant with their first child and having a difficult time. Mitchell was supporting her including taking her to hospital as necessary and as a result this was having a negative impact on his work. This is a considerable stress in someone who is already vulnerable to developing mood and anxiety problems. My understanding is that the key concern in the workplace is following a change in manager which occurred several months later.”
In his final report dated 29 July 2021, Dr Doris again states that the applicant’s psychological condition is multifactorial, and it is not correct for him to opine that the applicant’s employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant’s psychological disease.

FINDINGS AND REASONS

Whether the applicant sustained an injury in the course of his employment with the respondent

Mr McManamey for the applicant submits that although there are some differences in the minutiae of matters in dispute between what is alleged by the applicant and the evidence of Ms Russell and Ms Carr, such as whether the applicant was seeing Stream B and C clients, there was clearly conflict in the workplace by late 2019. Whether the applicant was treated unfairly or singled out as he alleges, or the applicant was just not coping as claimed by
Ms Russell and Ms Carr, there was escalating conflict in the workplace, which became the main contributing factor the applicant’s psychological injury.
Mr McManamey submits that the ultimate question to be asked is what caused the change to the applicant’s psychological condition in February 2020 from being able to function at work, despite having some problems outside of the workplace, to not being able to function at all. He submits that the answer is the difficulties and conflict that the applicant had been experiencing in the workplace since he was the subject of new management in October/November 2019. Mr McManamey submits that the medical evidence relied upon by the applicant supports this.
Mr Stockley for the respondent submits that the applicant has an endogenous mood disorder of many years standing and that during the course of 2019 that condition caused symptoms which led the applicant to see Dr Gupta from time to time during that year. However, after those symptoms interfered with his ability to work, the applicant identifies his job as being the cause of the onset of those symptoms.
Mr Stockley submits that there is no rational, scientific basis for the claims made by the applicant of the cause of his psychological injury. He submits that the opinion provided by
Dr Doris should be preferred because it is apparent, especially from his first report, that he has approached the applicant as a “blank canvas”, has conceded that the cause of the applicant’s condition is multifactorial, including what the applicant has experienced at work, but based upon what he is told by the applicant and a review of the contemporaneous medical material, the applicant’s employment cannot be the main contributing factor to the aggravation of an underlying condition of major depressive disorder.
Mr Stockley did not argue against an opening submission made by Mr McManamey that the primary issue to be determined is whether the applicant has sustained a disease injury within the meaning of section 4 (b) of the 1987 Act. Although Mr McManamey relied upon both section 4 (b)(i) and (ii), it is apparent from a review of the medical evidence that the applicant’s prospects of success rest with section 4 (b)(ii).

In his first report, Dr Chow opines that that the applicant’s psychological condition is not an aggravation because the applicant was well for many years prior to his workplace injury and that the applicant suffers significant psychological symptoms and significant disability as a result of the workplace injury. That opinion would have met the provisions of section 4 (b)(i) of the 1987 Act. However, after being referred to the first two reports of Dr Doris, the entry made by Dr Gupta in May 2019 of significant problems of anxiety and panic, and the statement from the applicant dated 29 August 2021, Dr Chow opines that the applicant’s employment has been the main contributing factor to the aggravation of the underlying condition of major depressive disorder.
Dr Doris is also of the opinion that the applicant has an underlying condition of major depressive disorder but does not consider that the applicant’s employment has been the main contributing factor to the aggravation of that condition.
Section 4 (b)(ii) of the 1987 Act provides:
“In this Act:
Injury:
………….
(b) includes a disease injury, which means:
………….
(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.”
The application of section 4(b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
In regard to the application of the terms ‘aggravation’ and ‘exacerbation’ in the 1987 Act,
AP Roche said in Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly) at [66]:
“an aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626).”
It is therefore necessary, as has been set out in AV v AW and Kelly, to engage in an evaluative process of considering both the work and non-work related factors which led to an increase or intensifying of the applicant’s psychological symptoms, and to determine whether or not the applicant’s employment has been the main contributing factor to the increase or intensifying of those symptoms.
The clinical notes from Dr Gupta from April 2019 to 24 February 2020 indicate that the applicant’s psychological state, particularly in regard to his anxiety, fluctuated during this period. There are records of the applicant being very anxious in May 2019 and also on 1 July 2019, although on 17 July 2019 and 1 August 2019 Dr Gupta records that the applicant is doing better with medication. Dr Gupta records on 30 September 2019 that the applicant’s mental health is not very good, but two weeks later he records that the applicant is stable on his medication.
The records from Dr Gupta also record that in the middle part of 2019 the applicant was seeing a psychologist, Janelle Gallagher. A report from Janelle Gallagher, who worked from the same practice as Ms Chan and Ms Pham, would have been helpful in endeavouring to determine the intensity of psychological symptoms being experienced by the applicant at that time and the possible cause of those symptoms. The assumption made by Ms Pham that, as far as she was aware, the applicant was seeing Ms Gallagher in relation to his work stressors, is not consistent with the applicant’s own evidence that the stressful effects of his work only commenced in late October 2019.
While the clinical notes from Dr Gupta record a fluctuation of psychological symptoms during 2019, the available evidence in regard to what was occurring in the applicant’s workplace indicates that the applicant was not experiencing any major stress or difficulties in his employment with the respondent until at least late October 2019.

Ms Carr states that on 8 May 2019 Ms Veljanovski advised the applicant that he may not pass his six month probation period due to the amount of leave he had been taking. This has not been verified by Ms Veljanovski, but in any event, the applicant was able to continue his employment after his six month probation period.

Ms Carr states that in August 2019 Ms Veljanovski informed Ms Carr that she had to speak to the applicant, but that was in regard to his work attire and maintaining motivation to come to work. Ms Carr does not refer to the applicant’s work performance being discussed with
Ms Veljanovski at that time and states that Ms Veljanovski informed her that the applicant’s attendance had improved.

On my review of the available evidence, the applicant’s psychological symptoms were fluctuating during the course of 2019, but he was maintaining his employment with the respondent without any major difficulties until a new manager arrives in late October 2019.

There is a significant difference in some of the evidence regarding what pressures were being placed upon the applicant when Ms Russell started to manage the applicant. The applicant states that he was required to see ‘Stream B and C’ clients and work on their files. Both Ms Russell and Ms Carr dispute this. No evidence is provided by Ms Sedgewick which might assist in regard to this difference in the evidence.
However, it may be that Ms Russell was simply a harder taskmaster than Ms Veljanovski. The applicant states that Ms Veljanovski was very understanding throughout the time that his wife was pregnant, and that Ms Veljanovski told the applicant that he was doing his job well. It is logical and reasonable that the applicant would experience an increase in psychological symptoms when, after 10 months of working with the support of one manager, he begins to be criticised by a new manager and he is then placed on a Performance Improvement Plan.
There is not so much of a difference in the evidence of the applicant and Ms Russell and
Ms Carr on the issue of the applicant getting to work on time and the amount of leave that he was taking. The applicant concedes that he was late to work on occasions and provides explanations for this. He states he did not drive a car and was dependent on public transport to get to work. He also states that the morning was a difficult time for looking after his baby daughter. It is understandable that the applicant was also experiencing anxiety and stress from the pressure to get to work on time while also attending to the needs of his family.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche said 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 not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
From my review of the evidence, the applicant perceived that he was being harassed by representatives of the respondent on issues of work performance and timeliness for work after working in what he had found to be a supportive work environment for some 10 months, and that in turn led to an increase and intensifying of psychological symptoms.
There were events in the early part of 2020 which confirm that increase and intensifying of psychological symptoms and coincide with the applicant’s perception of harassment in the workplace.
There is the evidence from Ms Carr that she was present at work on 24 January 2020 when the applicant experienced a panic attack for the first known time at work, and that a couple of days later she was made aware of the applicant having another such attack at work. Ms Carr states that she discussed with the applicant what might have triggered the attack on 24 January 2020 but they could not identify anything specific. The applicant does not respond to this particular piece of evidence in his statement dated 29 August 2021, but it is reasonable to accept that the applicant would be reticent to volunteer personal information to a person who was also undertaking an ongoing review of his work performance.
There is the distressing evidence that the applicant took some steps towards taking his own life. There is some discrepancy in the evidence as to when this occurred. The applicant’s statement suggests it occurred in January 2020 after he was counselled for being late for work. Ms Chan records the event occurring in the week before 24 February 2020, which is around the time the applicant had the disciplinary meeting on 19 February 2020. The event nonetheless occurred around the time when the applicant states that he was experiencing ongoing stress at work.
Then there is the meeting on 19 February 2020. There is again some discrepancy in the evidence as to whether the meeting was being led by Ms Russell or Ms Tonkin, but the evidence from both the applicant and Ms Russell was that the applicant was being made aware that his employment was in jeopardy.
It is apparent from the evidence that what occurred at that meeting caused an increase of stressful symptoms for the applicant. The applicant states that he started to have panic attacks. Ms Russell states that she understood the applicant became suicidal. The applicant does not see Dr Gupta immediately after the meeting but does see Dr Gupta on 24 February 2020, and Dr Gupta records stress at work as being a specific trigger for the applicant’s symptoms.
I therefore accept from a review of the evidence that the applicant had an increase and intensifying of psychological symptoms by the beginning of 2020, which coincides with the applicant having a new manager and being subject to ongoing scrutiny regarding his work performance and punctuality for work.
However, this is a dispute where the medical evidence, as stated by DP Snell in AV v AW, is “relevant and desirable” in order to make a determination on the cause of injury.
Although the clinical notes from Dr Gupta have been very helpful in assessing the applicant’s psychological condition during 2019 and the early part of 2020, I do not have any confidence in relying upon what is set out in his report dated 1 February 2021.
Mr McManamey submits that significant regard should be given to the opinion of a general practitioner who has had the advantage of monitoring the applicant over a considerable period of time. I would usually concur with such a submission, but the details of “relentless demands” by the respondent do not appear in any of the notes provided by Dr Gupta between April 2019 and December 2020.
Dr Gupta also refers to “the original incident” happening on 1 November 2019, when there is no stressful incident recorded in Dr Gupta’s notes around that time. A reasonable conclusion to be drawn is that the date of 1 November 2019 is around the time that Ms Russell began to be the applicant’s manager and that 1 November 2019 is a date that has been selected for the commencement of events at work which begin to cause stress for the applicant.
Dr Burhan is a psychiatrist who commenced to treat the applicant in late 2020, but he does not provide an opinion on the cause of the applicant’s psychological condition.

Ms Chan treats the applicant at a time when, from my review of the lay evidence, there was an increase in the applicant’s psychological symptoms. Ms Chan records the applicant experiencing stressful symptoms from both events in his home life and at work, without indicating whether the applicant’s home life or work environment was the predominant source for that stress.
Ms Pham commences to treat the applicant within a month of him ceasing work. Ms Pham is aware of the applicant’s past history of psychological problems when he was an adolescent, is aware that the applicant was treated for anxiety and depression at Ripples Allied Health Consultancy around the time his wife was pregnant, and concedes that the risk of the applicant relapsing into depressive episode was always present. However, Ms Pham also records details of the difficulties that the applicant had at work with the new management and opines that it was those stressful events at work which triggered the applicant’s previously diagnosed depression to relapse.
Mr Stockley submits that Ms Pham’s opinion should be treated with caution because she treated the applicant as a workplace injury patient and assumed the correctness of the history of events now relied upon by the applicant.
I do not accept that submission by Mr Stockley. Ms Pham does make an assumption that the applicant saw Ms Gallagher in the middle of 2019 for “work stressors”, which is not consistent with any other evidence. However, Ms Pham is also made aware of difficulties which the applicant was having in the middle of 2019 in his home life, and the details she records of what occurred in the applicant’s workplace under new management is consistent with my review of the lay evidence. Ms Pham also has a professional responsibility to treat a patient in accordance with what she understands are the cause or causes of his psychological problems after an appropriate interrogation of her patient.

In my view, considerable weight should be given to the opinion provided by Ms Pham because she has had the benefit of treating the applicant at a time close to the increase in his psychological symptoms, and she has considered both work and non-work related events in forming an opinion that stressful events at work triggered the applicant’s previously diagnosed depression to relapse.
Mr Stockley submits that the opinion of Dr Chow is compromised because Dr Chow does not consider what effect the psychological symptoms which the applicant experienced during 2019 had upon the psychological condition which the applicant developed by early 2020. Furthermore, the opinion provided by Dr Chow is predicated on there being bullying and maltreatment at work, which is not borne out by the available evidence.
Mr McManamey submits that the opinion of Dr Doris is compromised because it is apparent that Dr Doris ignored and side-stepped significant stressful events involving the applicant in the workplace, such as the meeting on 19 February 2019.

I prefer the opinion of Dr Chow over that provided by Dr Doris. Although Dr Chow does not refer in his first report to the psychological difficulties that the applicant was having in 2019 and which caused the applicant to see Dr Gupta on multiple occasions and be prescribed appropriate medication, Dr Chow does acknowledge those problems in his supplementary report.
Dr Chow uses the terms “bullying” and “maltreatment.” Mr Stockley submits that the evidence does not support such a finding. However, I have accepted from a review of the evidence that the applicant’s situation in the workplace changed in late October 2019 from having been able to manage his work for some 10 months with a supportive manager to having demands being placed upon which the applicant perceived to amount to bullying. That perception of bullying from real events satisfies the test set out in Attorney General’s Department v K. The opinion reached by Dr Chow that what he describes as bullying and maltreatment was the main contributing factor to the applicant’s psychological injury is consistent with my review of the lay evidence.

Dr Doris concedes that the cause of the applicant’s psychological condition is multifactorial, and that the applicant’s work has contributed to this. However, I agree with the submission made by Mr McManamey that Dr Doris has not properly considered the increase and intensifying symptoms experienced by the applicant by early 2020 and how that coincided with changes in the applicant’s workplace.
Furthermore, Dr Doris’ understanding of the effect of what occurred at the applicant’s workplace is limited to “mention of missing time from work early on in the course of his employment” and increase focus on timekeeping and work performance issues in the middle of 2019. In my view, those observations downplay the significant increase in psychological symptoms experienced by the applicant by early 2020 and also is not consistent with the known chronology of events while the applicant was employed with the respondent.
In early 2020 the applicant experienced an increase and intensifying psychological symptoms. The evidence which I have reviewed supports a finding that the increase in those symptoms occurred as a result of real events in the applicant’s workplace. Ms Pham began to treat the applicant around this time and formed the opinion, after considering the applicant’s past psychological history, that unreasonable demands at work had triggered the applicant’s previously diagnosed depression to relapse.
Dr Chow then considers all of the relevant lay and medical material and opines that the applicant’s employment was the main contributing factor to the aggravation of the applicant’s underlying depressive condition. I prefer the details recorded by Ms Pham and the opinion provided by Dr Chow over that of Dr Doris because Dr Doris does not properly consider the effects that events at work had upon the applicant’s psychological symptoms after the commencement of new management in late 2019.
I am satisfied from a review of the evidence that the applicant meets the criteria set by section 4 (b)(ii) of the 1987 Act and that the applicant’s employment with the respondent is the main contributing factor to the aggravation of the applicant’s psychological disease.

Orders to be made by the Commission

Mr Stockley did not submit that the applicant has had any capacity for work since weekly payments ceased to be paid to him on 25 September 2020.
When Dr Chow saw the applicant in February 2021, he was of the opinion that the applicant was totally unfit for work and was unable to predict when the applicant would be fit for work in the short or medium term. When Dr Doris saw the applicant more recently in July 2021, he was also of the opinion that the applicant currently had no capacity for work, although he considered that the applicant would make a full recovery.
The medical evidence certainly supports a finding that the applicant has had no current work capacity since 26 September 2020.
PIAWE is agreed at $950. Eighty per cent of PIAWE is $760.

There will therefore be an order that the respondent is to pay the applicant weekly payments of compensation at the rate of $760 per week from 26 September 2020 to date and continuing pursuant to section 37 (1) of the 1987 Act, with variations of that award as provided for by section 82A of the same Act.
The matter will be remitted to the President for referral to a Medical Assessor to assess whole person impairment of the applicant’s psychological injury. The date of injury for the assessment of whole person impairment should be date of the claim made for the lump sum payment pursuant to section 66 of the 1987 Act, being 1 June 2021. That is despite this date being different to the date of injury for the claim for weekly payments of compensation.
That approach is consistent with a number of authorities including Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246, Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277, 1 DDCR 701 (Stone), and SAS Trustee Corporation v O’Keefe [2011] NSWCA 326 (O’Keefe). In Stone, Handley JA said at [10]:
“…Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker's incapacity injury we should nevertheless follow the Alto Ford case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.”
There will also be an order that the respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the 1987 Act.

[2021] NSWPIC 380

28 September 2021