Taccoli v State of New South Wales (Roads & Maritime Services)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taccoli v State of New South Wales (Roads & Maritime Services) [2022] NSWPIC 85
APPLICANT:	Monica Taccoli
RESPONDENT:	State of New South Wales (Roads & Maritime Services)
MEMBER:	Karen Garner
DATE OF DECISION:	2 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant alleged she sustained a psychological injury due to bullying and harassing behaviour at work by her supervisor; whether the applicant sustained an injury pursuant to sections 4(a), 9A and 11A(3) of the 1987 Act; respondent raised defence pursuant to section 11A of the 1987 Act; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; Held– applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 11A(3) of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; matter referred to President for referral to a Medical Assessor for determination of whole person impairment.
DETERMINATIONS MADE:	1. The applicant sustained a compensable psychological injury pursuant to ss 4(a), 9A and 11A (3) of the Workers Compensation Act 1987. 2. The respondent has not discharged its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline pursuant to s 11A of the 1987 Act. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 21 October 2019 (deemed) Body parts: Psychological Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include: (a) The Application to Resolve a Dispute and attachments, and (b) The Reply to Application to Resolve a Dispute and attachments. 5. The matter be placed on the Medical Assessment Pending List.

STATEMENT OF REASONS

BACKGROUND

Ms Monica Taccoli (the applicant) is a 54-year-old woman. She was employed as a Customer Service Representative by the State of New South Wales (Roads & Maritime Services) (the respondent).
The applicant claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from primary psychological/psychiatric injury (the psychological injury) sustained in the course of her employment with the respondent, during the period from 1 December 2016 to 21 October 2019, with a deemed date of 21 October 2019.
The applicant claims that she sustained the psychological injury as a result of being bullied and harassed by her supervisor, Ms Kelly Dennes (Ms Dennes) during the period from 1 December 2016 to 21 October 2019.
The applicant made a claim for s 66 entitlements in respect of psychological injury by letter dated 30 June 2021.
By notice dated 15 October 2021 (the s 78 Notice) issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer denied liability for permanent impairment lump sum compensation for the psychological injury on the basis that:
(a) it did not agree that the applicant suffered psychological injury which arose out of her employment as required by s 4 of the 1987 Act;
(b) it did not agree that the applicant suffered psychological injury and that the applicant’s employment was a substantial contributing factor to psychological injury as required by s 9A of the 1987 Act;
(c) in the alternative, if it is found that the applicant did suffer psychological injury in accordance with ss 4 and 9A of the 1987 Act, the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to demotion, transfer, provision of employment benefits, performance appraisal and dismissal of workers under s 11A of the 1987 Act;
(d) on that basis, it did not agree that the applicant was entitled to permanent impairment lump sum compensation in accordance with s 66(1) of the 1987 Act, and
(e) in the alternative, the applicant’s permanent impairment that results from psychological injury did not reach the requisite threshold of 15% whole person impairment (WPI) required by s 66(3) of the 1987 Act.
The applicant filed an Application to Resolve a Dispute (ARD) on 12 November 2021.
The respondent maintains its denial of liability on the grounds set out in the s 78 Notice.

ISSUES FOR DETERMINATION

The issues for determination are:
(a) Does the applicant have a psychological injury within the meaning of s 11A(3) of the 1987 Act?
(b) Did the factual allegations of bullying and harassment asserted by the applicant occur?
(c) If the factual allegations of bullying and harassment asserted by the applicant did occur, did the psychological injury arise out of or in the course of those events (as required by s 4 of the 1987 Act)?
(d) Further, were those events a substantial contributing factor to the psychological injury (as required by s 9A of the 1987 Act)?
(e) If relevant, is a defence available pursuant to s 11A of the 1987 Act: was the psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to demotion, transfer, provision or employment benefits, performance appraisal or dismissal?
(f) Further if relevant, does the applicant’s permanent impairment that results from the psychological injury reach the requisite threshold of 15% WPI required by s 66(3) of the 1987 Act?

PROCEDURE BEFORE THE COMMISSION

At a hearing on 2 February 2022, the applicant was represented by Mr Richard Petrie, Counsel, instructed by Ms Michaela Andrea Manila of PK Simpson & Co Lawyers. The respondent was represented by Mr John Gaitanis, Counsel, instructed by Mr Jasper Richards of SMK Lawyers.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attachments, and
(b) Reply to ARD and attachments.

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

SUBMISSIONS

Oral submissions made by the respective counsel were recorded.

Submissions of applicant’s counsel

The applicant’s counsel referred to ss 4, 9A, 11A and 66 of the 1987 Act.
The applicant’s counsel referred to various parts of the applicant’s evidence and submitted that it supports a finding that the numerous alleged stressor events, which the applicant perceived to be bullying and harassing conduct by the applicant’s supervisor, Ms Dennes, actually did occur in the workplace. The applicant’s counsel submitted that the evidence supports a finding that Ms Dennes was aware that the applicant suffered pre-existing back injury and that Ms Dennes did not suitably accommodate the applicant’s injury and, further, cancelled the applicant’s leave to attend a medical appointment following brain surgery. He submitted that Ms Dennes was also aware that the applicant suffered stress and anxiety prior to commencement of a Performance Improvement Process (PIP) in respect of the applicant, which was aggravated by complaints about the applicant’s work performance. He submitted that Ms Dennes unfairly targeted the applicant, for example by micromanaging her work performance, subjecting her to targeted CCTV observation, criticising her work performance and proceeding with the PIP, particularly in circumstances that Ms Dennes was aware that the applicant suffered anxiety and was taking medication which may have affected her work performance. The applicant’s counsel stated that the respondent has provided no evidence which supports a finding that the applicant’s error rate was significantly in excess of the error rates of other employees. Further, he submits that the respondent’s evidence does not include any denial that Ms Dennes engaged in certain alleged conduct.
The applicant’s counsel submitted that the evidence supports a finding that those alleged stressor events and the applicant’s work were a substantial contributing factor to the psychological injury. He submitted that medical evidence supported a finding that the applicant’s deteriorated psychological condition in 2017 following her son’s death, had substantially improved prior to deteriorating as a result of the workplace actions of Ms Dennes. He noted that the reports of the respondent’s independent medical expert (IME), Dr George, were somewhat inconsistent and that in one report Dr George acknowledged that the applicant’s perception of bullying and harassment conduct caused psychological injury.
The applicant’s counsel submitted that evidence supports a finding that the applicant’s psychological injury was not wholly or predominantly caused by action in relation to any of the categories listed in s 11A. Further, the applicant’s counsel submitted that the evidence supports a finding that the respondent’s actions in relation to any of the categories listed in s 11A was not reasonable. The applicant’s counsel submitted that, accordingly, a defence is not available under s 11A of the 1987 Act.

Submissions of respondent’s counsel

The respondent’s counsel also referred to ss 4, 9A, 11A and 66 of the 1987 Act.
The respondent’s counsel submitted that, in the circumstances, the respondent did not act unreasonably by undertaking the PIP and, further, that the PIP was implemented in a sensitive manner.
The respondent’s counsel submitted that there is inadequate evidence, and particularly a lack of contemporaneous evidence, to support a finding that the alleged workplace bullying and harassment events did occur.
The respondent’s counsel further submitted that there is inadequate evidence, and particularly a lack of contemporaneous evidence, to support a finding that such conduct was the substantial contributing factor to psychological injury. The respondent’s counsel submitted that whilst some evidence demonstrates that the applicant had a psychological condition in 2017, there is no contemporaneous evidence that the applicant had a psychological condition related to her work until the PIP was performed and concluded.
In the alternative, the respondent’s counsel submitted that, if there was a psychological injury which satisfies the requirements of ss 4 and 9A of the 1987 Act, a defence is available to the respondent under s 11A of the 1987 Act on the basis that the evidence supports a finding that the psychological injury was wholly or predominantly caused by reasonable conduct of the respondent with respect to performance appraisal and discipline. The respondent’s counsel submitted that the evidence supports findings that the applicant made critical errors and the respondent was reasonably entitled to undertake a PIP, the respondent undertook the PIP in a reasonable manner and, further, it was the PIP that was the whole or predominant cause of the psychological injury. The respondent’s counsel noted that there was a temporal connection between the applicant taking time off work and the PIP, however no such temporal connection existed between the applicant taking time off work and other alleged causes of psychological injury.
The respondent’s counsel submitted that the applicant’s allegations which were not corroborated by contemporaneous evidence should not be accepted as real events.

FINDINGS AND REASONS

The law

Section 9(1) of the 1987 Act provides that:
“(1) A worker who has received an injury (and, in the case of death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
In respect of claims for compensation pursuant to s 66(1) of the 1987 Act made after on or after 19 June 2012, as was the present claim, s 66(1) of the 1987 Act (as amended) relevantly states:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note –
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Section 66(3) of the 1987 Act states that “The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received”.
Subsections 65A(3) and 65A(5) of the 1987 Act makes special provision in relation to compensation for permanent impairment for psychological and psychiatric injury and relevantly states:
“(3)    No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
...
(5)     In this section –
       primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
...”
At the claimed date of injury, being 21 October 2019, s 4 of the 1987 Act defined “injury” as follows:
“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 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.”
Section 9A of the 1987 Act relevantly states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(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 section does not limit the kinds of matters that can be taken into account for the purposes of this 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 that 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.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 11A of the 1987 Act relevantly states:
“(1)    No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, or dismissal of workers or provision of employment benefits to workers.
(3)     A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
…
(6)     This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
…”
In Attorney General’s Department v K [2020] NSWCCPD 76, Roche DP, summarised as follows the authorities relevant to the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work:
“(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 Chelmer 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 a ‘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. (at [52])”.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, Kirby P (as he then was) stated at [463]:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question of whether the dispute of incapacity or death ‘resulted from’ the work injury which is impugned.”

Did the factual allegations in relation to the alleged stressors occur?

The applicant has set out in her statement a number of examples of conduct and events which she alleges gave rise to her perception that she was subjected to adverse, bullying and harassing treatment.

Allegations of general adverse, bullying and harassing treatment

The applicant

The applicant gave the following evidence by way of a written statement:
(a)    For approximately three years during the course of the applicant’s employment, Ms Dennes:
(i)bullied and harassed the applicant;
(ii)was very critical of the applicant’s work;
(iii)had an attitude towards the applicant that was consistently cold, distant and rude;
(iv)was verbally aggressive towards the applicant;
(v)unfairly targeted the applicant, and
(vi)after Ms Dennes commenced as acting manager, was passively aggressive towards the applicant.
(b)    On or about 9 December 2016, Ms Dennes made racial remarks in the applicant’s hearing, and specifically, referred to a person as “a wog”, stated “I find Wogs sly” and discussed a situation she had with a person of Mediterranean ancestry. A work colleague, Linda Whyte responded with words to the effect that “I also found a Greek car dealer in Townsville shonky”. The applicant believed the comments were directed towards her as she was the only person of Mediterranean background in the team. The applicant felt offended, singled out and ostracised by the comments.
(c)    When the applicant was processing applications, Ms Dennes acted in a racially discriminatory manner by denying the applicant authorisation to accept identification of an Italo-Australian customer without a middle name, but overseeing the applicant’s acceptance and processing of an application by an Ango-Australian friend of Ms Dennes without a middle name. Further, Ms Dennes sat at the applicant’s desk and oversaw the applicant processing the application of her friend, which caused the applicant to feel that she required supervision to perform her duties.
(d)    After the applicant sustained a back injury at work due to a broken chair in December 2015, Ms Dennes demonstrated a lack of empathy for the applicant’s ongoing pain condition and singled out and targeted the applicant with “relentless attacks”. Contrary to an agreement made between the applicant and the branch Service Manager, Greg Ebbs (Mr Ebbs), to seat the applicant at lower chairs, Ms Dennes regularly rostered the applicant to sit at higher chairs which aggravated the applicant’s back condition.
Ms Dennes consistently treated the applicant in a reproachful, untrusting and negatively judgmental manner. During conversations, Ms Dennes stated at the applicant in an unblinking manner with tense and angry body language that appeared to demonstrated Ms Dennes hatred of and irritation by the applicant. As a result of Ms Dennes behaviour, the applicant felt anxious any time they had a verbal exchange.
(a)    The applicant initially kept her issues to herself and did not speak up immediately about the effect of Ms Dennes’ conduct because, since navigating the death of her only son in 2013, it “seemed petty to make the abuse from Kelly an issue” and the applicant was optimistic that she would find a way to have a decent working relationship with Ms Dennes over time. Further, the applicant initially believed that she was a resilient person and had courage to “weather the storm” having been taught to “dig deep” at managerial training. The applicant also developed great fear that she would lose her job if she spoke up about Ms Dennes’ behaviour and the applicant needed a stable income.
(b)    On or about 16 December 2016, as she and Ms Dennes were together decorating the work Christmas tree, Ms Dennes said that she found people with children stupid and that she and her husband had made up a song about the stupidity of people with children. Particularly in the context of the death of the applicant’s son in 2013, the applicant was saddened and offended by Ms Dennes’s apparent insensitivity and unprofessional comments.
(c)    Later on 16 December 2016, when the applicant arrived at an after-work gathering of team members at a hotel, Ms Dennes pulled the applicant aside and ordered her to put on her wool work jacket despite heat and lack of air-conditioning and told the applicant that she was representing the respondent. The applicant noted that Ms Dennes had been observed to act in an inconsistent manner on a later occasion.
(d)    Ms Dennes often micro-managed the applicant by sitting at the applicant’s desk or hovering behind the applicant and constantly supervising the applicant when the applicant served a family member or friend of Ms Dennes. The applicant noted that Ms Dennes did not treat other staff members in a similar manner. Ms Dennes acted contrary to Service NSW Regulations by being personally involved in transactions for her family and friends.
(e)    The PIP commenced by Ms Dennes caused the applicant “further stress and anxiety”.
(f)    The applicant regularly informed Ms Dennes and the Human Resources Manager, Michelle Rohini (Ms Rohini), that her pre-existing stress and anxiety, was further exacerbated by the PIP.
(g)    During the PIP, and despite being aware that the applicant’s stress and anxiety was exacerbated by the PIP, Ms Dennes continued to closely supervise the applicant. Further, Ms Dennes closely oversaw the applicant when the applicant conducted transactions for Ms Dennes’ family and friends.
(h)    On one occasion during the PIP, Ms Dennes sat at the applicant’s desk whilst the applicant conducted a transaction for Ms Dennes’ father, even though the applicant was experienced in conducting transactions of that nature. During the transaction, Ms Dennes’ father asked the applicant “Don’t you like me” in what seemed to be a menacing tone. Ms Dennes kept a blank expression. At the time, Ms Dennes was aware that the applicant suffered stress and anxiety.
(i)    In late 2018, Mr Ebbs approved the applicant’s leave to attend a follow-up medical appointment after recent brain surgery to repair an abnormal venous malformation (AVT) in her left occipital lobe. However, Ms Dennes approved another team member’s leave on that day, forcing the applicant to cancel her approved leave.
(j)    The applicant informed management and her colleagues that she was vulnerable at that time to further brain injury triggered by increased anxiety. Despite her knowledge of the applicant’s vulnerability, Ms Dennes who was then in an acting manager role, continued to regularly ostracise, bully, micromanage and humiliate the applicant.
(k)    Ms Dennes subjected the applicant to constant CCTV surveillance and reprimanded the applicant if she noticed that the applicant was not at her seat, even when the applicant was discussing a work matter with a colleague during non-peak times. Only the applicant was subjected to that behaviour by Ms Dennes. The applicant felt singled-out and ostracised by Ms Dennes’ behaviour.
(l)    In early 2019, prior to commencement of the PIP, the applicant became aware that the CCTV camera view had been widened and enhanced to only take in the applicant’s counter. This caused the applicant to feel further agitated and anxious.
(m)     In around July 2019, the PIP was commenced after Ms Dennes identified that the applicant made a “Significant Error”. The applicant had failed to include a customer’s spectacle condition on their licence and subsequently completed the necessary paperwork to include the spectacle condition in the customer’s absence. The applicant explained that she did so because she was empathetic to the customer who had recently lost her son, was trying to provide good service and save the customer from having to return to the office and she was not aware that her actions constituted a serious breach with such severe ramifications.
(n)    In around September 2019, Ms Dennes left the applicant to work alone at the counter and excluded her whilst team photos were taken of the other team members. Ms Dennes ignored a work colleague who asked “what about [the applicant]”. Subsequently, Ms Dennes called the applicant into her office and asked if the applicant had been upset that Ms Dennes had excluded her, which the applicant perceived to confirm that Ms Dennes knew that she had acted improperly towards the applicant. The applicant’s anxiety, panic attack and depression deepened at that point.
(o)    Prior to and during the PIP, Ms Dennes unfairly singled the applicant out with criticism about her work performance but demonstrated favouritism towards other employees. Ms Dennes continually stated that the applicant had a high rate of errors. However Ms Dennes did not similarly criticise another employee who had a higher rate of errors but was a favourite of Ms Dennes.
(p)    Further, Ms Dennes also regularly humiliated the applicant in front of work colleagues. When the applicant did make an error, Ms Dennes would announce it to all work colleagues in the room, instead of discussing it with the applicant privately in a professional manner. Ms Dennes also often loudly, publicly and unnecessarily questioned the applicant whether she had washed the dishes in the kitchen when she was rostered to do so. Ms Dennes did not treat any other employees in such a manner.
(q)    On one occasion, when Ms Dennes visited the applicant at her home, Ms Dennes mentioned that her family friend overlooked the applicant’s home. Ms Dennes also started going through the applicant’s kitchen cupboards as if to search for something.
(r)    Ms Dennes’ intrusive and demeaning behaviour eroded the applicant’s confidence and caused severe anxiety.
(s)    From the onset of working at the branch, the applicant developed pseudodementia as a result of anxiety caused by Ms Dennes’ behaviour towards her.
(t)    On numerous occasions, the applicant complained to Mr Ebbs about Ms Dennes’ behaviour, including by email on 18 October 2018. Mr Ebbs and Ms Rohini were dismissive of the applicant’s complaints. Consequently, the applicant’s mental health deteriorated further as she believed that she had no support.
(u)    Ms Dennes’ conduct has caused the applicant to develop severe psychological injuries.

Ms Dennes

Ms Dennes gave the following evidence by way of her written statements:
(a)    Ms Dennes was aware that the applicant had a pre-existing back injury and “conditions including standing/sitting as required”. The branch had a chair that the applicant “could use as required”. The applicant showed no obvious signs of pain or injury during her initial time with the branch.
(b)    The applicant had a high level of sick leave due to health issues.
(c)    The applicant had a history of issues completing her work which included making a number of errors in completing paperwork. The applicant’s error rate “was often over” the respondent’s stated acceptable error rate of 5%.
(d)    Throughout 2018 and 2019, informal performance management was undertaken to improve the applicant’s work performance.
(e)    In July 2018, the applicant committed a Significant Error which could have resulted in her being dismissed.
(f)    Consequently, an official PIP was commenced on 12 August 2019.
(g)    The applicant continued to make errors and “was suffering anxiety about having her reviews”.
(h)    With the applicant’s consent, Ms Dennes communicated with the applicant’s doctor and enquired whether the applicant’s medication was affecting her concentration and ability to work. The doctor replied that the affects of the medication should have subsided but may not have impacted her. The doctor suggested that the applicant’s work hours were reduced.
(i)    On the applicant’s request, Ms Dennes allowed a two-week extension to the PIP and reduced the applicant’s work hours from 7.25 hours per day to 5.0 hours per day.
(j)    On numerous weekly checks, the applicant continued to have an error rate above 5%.
(k)    In early 2019, the applicant complained about back pain and Ms Dennes permitted her to utilise the low counter. Ms Dennes had been informed by the applicant’s doctor that he did not impose work restrictions in relation to the applicant’s back injury.
(l)    On 21 October 2019, Ms Dennes met with the applicant in relation to the end of the PIP. The applicant declined to have a support person present. Ms Dennes told the applicant that her error rate was above 5% on 6 weeks of the 10 week PIP period. Ms Dennes informed the applicant that she had not satisfied improvement requirement and the results would be provided to the respondent’s human resources department. The applicant was informed that potential consequences included the human resources department would decide the consequence included termination of her employment, reduction in remuneration, reduction or reclassification in grade or reassignment to a different role.
(m)     The applicant expressed concern that if her role was reduced that would affect the conditions in relation to management of her back injury. The applicant kept insisting that it was a mutual agreement that she use the low counter.
(n)    After the meeting, the applicant was very stressed. The applicant was permitted to have the rest of the day off work and she has not returned to work since. She provided medical certificates in relation to her absence from work.
(o)    Since the applicant’s WorkCover claim in relation to the back injury was closed since 2018, by mutual agreement, the respondent permitted accommodation to assist the applicant to manage her back pain. That included permitting the applicant to use a low counter and giving her access to a chair when she performed certain duties.
(p)     During the course of her employment at the branch, the applicant never reported bullying or racism and nor did Ms Dennes observe such conduct. After completion of the PIP, the applicant made a bullying complaint against Ms Dennes but the complaint was found to be unjustified.

Kurt Timothy Schirmer, Assistant Manager

Mr Schirmer gave the following evidence by way of his written statements:
(a)    He was involved in the applicant’s PIP.
(b)    The applicant had an error rate over 5% which was the allowable limit.
(c)    Throughout 2018 and 2019, Ms Denned undertook informal performance management activities to improve the applicant’s work performance and reduce her error rate.
(d)    In about July 2019, the applicant committed a significant error that could have resulted in her being dismissed.
(e)    Ms Dennes then placed the applicant on an eight-week PIP which commenced on 12 August 2019, which required weekly performance reviews.
(f)    The applicant continued to make errors and she suffered anxiety about having weekly reviews. The applicant was allowed a two-week extension of the PIP.
(g)    In early 2019, the applicant complained about her back and Ms Dennes allowed her to sit at a low counter.
(h)    Mr Schirmer never observed the applicant to be bullied and was not aware that she reported being bullied.
(i)    Mr Schirmer denied that the applicant had been subjected to racial abuse.

Gregory Ebbs, Branch Manager

Mr Ebbs gave the following evidence by way of a written statement:
(a)    Between December 2016 and May 2019, he worked as Branch Manager and was the applicant’s manager and direct supervisor.
(b)    The applicant never reported any bullying towards her and he never observed her to be bullied.
(c)    He denied that the applicant had been subjected to racial abuse.
(d)    He was aware that a PIP was implemented in respect of the applicant although he was not directly involved.
(e)    He was aware that the applicant had a pre-existing work related back injury but he could not recall details of that.

Michelle Rihani, Human Resources team member

Ms Rihani gave the following evidence by way of a written statement:
(a)    Ms Rihani received a copy of an email attachment titled ‘Appeal to HR Regarding PIP program’ sent by the applicant to members of the applicant’s human resources team in October 2019. It did not refer to racial abuse.
(b)    Emails were subsequently exchanged between the applicant and Ms Rihani.
(c)    On 11 March 2020, Ms Rihani responded to the applicant by email and asked the applicant to provided examples of Ms Dennes’ alleged “passive aggressive and demeaning behaviour”.
(d)    On 23 March 2020, the applicant advised that she would send Ms Rihani examples of Ms Dennes behaviour however Ms Rihani did not receive further information from the applicant in that regard.
(e)    Following informal performance management efforts, the applicant was subjected to a formal PIP which commenced on 12 August 2019. At the applicant’s request, the PIP was extended for two weeks.
(f)    During the PIP, weekly review meetings were conducted to give the applicant feedback on her progress against required performance objectives. The applicant received ongoing support and training through the PIP process, which included one-on-one bullying and coaching from 12 August to 16 August 2019. Thereafter, the applicant received ongoing one-on-one support by the leadership team or via live work checking and weekly review meetings.
(g)    In the sixth week of the PIP, the applicant provided Ms Dennes with a medical certificate and advised that she had resumed medication which may have side effects in the initial month. Ms Dennes asked the applicant how she could be supported and the applicant requested a reduction in working hours which was accommodated. The PIP was also extended for two weeks.
(h)    The respondent made contact with the applicant’s doctor who advised that the side effects of medication would have stabilised and referred to restrictions put in place as a result of a workers compensation claim that was submitted in 2017. The doctor advised that the applicant was fit to undertake her work duties but would benefit from a reduction in hours.
(i)    The applicant referred to the 2017 workers compensation claim in relation to her back injury and suggested that she was still suffering the impacts of that injury. The workers compensation claim had been closed. However, the human resources team reviewed and discussed the restrictions that were initially in place for the applicant with the management team who confirmed that such restrictions could still be reasonably accommodated. (Ms Rihani did not detail the timing of that review).
(j)    At a final PIP performance review meeting on 21 October 2019, the applicant was advised that she had not met objectives of the PIP. The applicant provided a self-assessment and advised a number of personal issues had impacted upon her over the course of the PIP.
(k)    The applicant commenced leave before a PIP outcome decision was made.

Other evidence

Other evidence included employment/human resources documents and file notes relevant to the respondent.
A document which was described as “Monica Conversations” and authored by the respondent, records various interactions with the applicant including in relation to the applicant’s errors, supervision and the PIP process. The document also records a number of occasions when the applicant apparently indicated her perception that Ms Dennes had acted inappropriately towards her. For example:
(a)    On or about 4 April 2019: “Monica issue with Kelly”.
(b)    On or about 25 May (the year is unspecified, but it appears from the context to be 2018): The document records an interaction between the applicant and “Greg” in the context that the applicant was reprimanded for commencing early and packing up early and was asked to apologise to Ms Dennes “for making out it was [Ms Dennes] fault”. The document records that the applicant agreed that she would apologise but then stated “well if I had to complain every time Kelly said something to me I would be in here every day”. The document then records that “Greg said to Monica that Kelly is her leader and is responsible for reasonable management action. Greg said to Monica that if she believed Kelly said somehitng [sic] inappropriate then she had the right to come and talk to me. Monica did not provide any examples of any inappropriate language by Kelly...”.
(c)    In or about August (the year is unspecified, but it appears from the context to be 2018): the applicant reported ongoing “back issues”.
(d)    On an unspecified date which appears from the context to be early 2019: the applicant reported back pain and advised that she needed to sit at a low counter. The respondent advised that it required medical evidence which confirmed the nature of the injury and the adjustments required.
(e)    On an unspecified date which appears from the context to be early 2019: the applicant complained that Ms Dennes “spoke rudely to her and was quite abrupt when she asked her to call a customer” and following investigation “Kelly said if she came across abrupt than [sic] she apologised and that it wasn’t intended. Monica accepted the apology and both Monica and Kelly seemed happy to bring this to a conclusion. NO further action”.
(f)    Following the above interaction, the applicant was questioned about a post on the branch group on Workplace. The document stated:
“I asked whether there was some hidden message in posting it, especially after her issue with Kelly (above). Monica said there were some things Kelly could learn. I said to Monica that it was inappropriate to use Workplace to post her issues and that it would have been more appropriate to talk to me or Kelly about it. I said to Monica she needs to think about how people might perceive such a post. I have since removed the post...”.
(g)    On an unspecified date, which appears from the context to be in or about August or September 2019, shortly after commencement of the PIP:
“Monica stated she was feeling very anxious and pressured this week due to the plan and having someone watch her every move... Monica felt it was unfair that she was having to do this as there were other people in the centre making the same mistakes, but I explained that she had already been given a number of opportunities to improve and although [sic] I did not want her feeling anxious I had to put a formal plan in place...” and the applicant reported ongoing medical issues which may affect her performance.
(h)    On an unspecified date which appears from the context to be in 2019:
“Kurt had a brief one on one with Monice RE a comment that was made by Monica, Monica was with Candice myself and Candice made a comment to me about how she feels like she is only recognised for the bad things she does in the centre, Monica threw her hands in the air and said ‘welcome to my world’ I decided to met [sic] with Monica shortly after as I was concerned about this comments [sic] considering she is currently on a PIP. Said to her that if that if [sic] the way she feels then she needs to speak up and let us know, To which monica [sic] told me she was only making a joke and that she didn’t mean it at the time but has felt like that in the past. I asked how she was currently feeling and if there was any additional support we could provide her which Monica declined”.
(i)    On various unspecified dates, the applicant referred to medical issues and medication which may have impacted her work performance.
(j)    On an unspecified date which appears from the context to be in 2019 after conclusion of the PIP:
“She stated that she still had restrictions in place as she believe [sic] this was a condition of the work cover being closed off. She stated that she had not been out the front for a few months because this affected her injury. I replied that the only reason I had not rostered her out the front was because she was on the PIP and I was giving her every opportunity available to her to be on the counter so that she could improve and that as far as I was aware the [sic] there was no work cover restrictions only a mutual agreement between Monica, her doctor and Greg for her to self-manage her ongoing back pain. She was [sic] insisted there are restrictions in place which I said I would discuss with HR”.

A document which was described as “Monica critical errors” and authored by the respondent, recorded errors made by the applicant which had been identified by the respondent.
A document titled “Performance Improvement Plan” authored by the respondent, detailed the PIP.
The evidence included three reports prepared by MJM Corporate Risk Services, respectively dated 19 October 2020, 22 March 2021 and 11 August 2021, which reported on factual investigation of the applicant’s allegations.
In addition, various other documents included correspondence between the applicant and her work colleagues and performance analysis/feedback provided by her manager. Relevantly:
(a) An email from the applicant to Mr Ebbs dated 18 October 2018, in which the applicant complained about actions of Ms Dennes which the applicant perceived to be “passive aggressive” and caused the applicant stress, “past difficulties” in their relationship and the applicant’s hope to have a more positive future working relationship with Ms Dennes.
(b) A letter from Dr John Van Dyck to the respondent dated 14 May 2019 (in response to a letter from the respondent), referred to “longstanding” and “ongoing”, over a period of years, work restrictions on the applicant’s work capacity and work environment following her accepted work injuries.

Discussion

The respondent’s counsel submitted that I should not accept the applicant’s evidence because there is no independent corroboration and no contemporaneous evidence of the applicant’s allegations of bullying and harassing conduct by Ms Dennes.
I note that whilst the applicant’s work colleagues gave broad denials of observing bullying and harassing conduct, there was a notable lack of evidence which specifically addressed and denied many of the particular examples of bullying and harassing conduct alleged by the applicant. Further, Ms Dennes’ statement did not address nor deny in any detailed or considered manner the applicant’s allegations in relation to specific conduct of Ms Dennes.
A body of evidence does seem at least consistent with the applicant’s evidence of specific conduct by Ms Dennes which the applicant may have perceived to be bullying and harassing conduct. For example:
(a)    Ms Dennes stated that she was aware that the applicant had a pre-existing back injury and “conditions including standing/sitting as required” and that the branch had a chair that the applicant could use as required. Ms Dennes said that in early 2019, the applicant complained about back pain and Ms Dennes permitted her to sit at a low counter. Mr Schirmer also stated that in early 2019, the applicant complained about her back and Ms Dennes allowed her to sit at a low counter. However, Ms Dennes also said she had been informed by the applicant’s doctor that he did not impose work restrictions in relation to the applicant’s back injury. Ms Dennes acknowledged that the applicant kept insisting that there was a mutual agreement that she use a low counter. Dr John Van Dyck acknowledged the applicant’s “longstanding” and “ongoing” injuries and work restrictions on the applicant’s work capacity and work environment following her accepted work injuries in 2015. An entry in the “Monica Conversations” document appears to note that the applicant complained of “back issues” in about August 2018 and that she further complained of back pain again. Another entry in the “Monica Conversations” document appears to note that in about early 2019, the applicant reported back pain and advised that she needed to sit at a low counter, however the respondent advised that it required medical evidence which confirmed the nature of the injury and the adjustments required. Taken as a whole, that evidence does seem to be consistent with the applicant’s evidence that mutually agreed work conditions were ongoing subsequent to her back injury in 2015, however Ms Dennes did not accommodate those work conditions, at least until the applicant complained of back pain in early 2019.
(b)    Mr Ebbs gave evidence that the applicant never reported any bullying conduct towards her and he never observed the applicant to be bullied. However, I note that in an email from the applicant to Mr Ebbs dated 18 October 2018, the applicant complained that certain actions of Ms Dennes were “passive aggressive” and caused the applicant stress, and further, the email referred to “past difficulties” in the working relationship between the applicant and Ms Dennes and expressed the applicant’s hope to have a more positive working relationship with Ms Dennes in the future.
(c)    An entry in the “Monica Conversations” document noted on about 4 April 2019: “Monica issue with Kelly” (although the precise nature of the issue is not apparent).
(d)    An entry in the “Monica Conversations” document noted on or about 25 May 2018, an interaction between the applicant and Mr Ebbs in the context that the applicant was reprimanded for packing up early and was asked to apologise to Ms Dennes “for making out it was [Ms Dennes] fault”. The document noted that the applicant agreed to apologise to Ms Dennes but then stated “well if I had to complain every time Kelly said something to me I would be in here every day”. The document then recorded that Mr Ebbs:
“said to Monica that Kelly is her leader and is responsible for reasonable management action. Greg said to Monica that if she believed Kelly said somehitng [sic] inappropriate then she had the right to come and talk to me. Monica did not provide any examples of any inappropriate language by Kelly...”.
(e)     An entry in the “Monica Conversations” document noted in or about early 2019 that the applicant complained that Ms Dennes “spoke rudely to her and was quite abrupt when she asked her to call a customer”. The document noted that, following investigation, Ms Dennes apologised if she came across as abrupt and said that it wasn’t intended and that the applicant accepted the apology.
(f)    An entry in the “Monica Conversations” document noted that, following the above interaction, the applicant was questioned about a post she put on the branch group on Workplace, and asked “whether there was some hidden message in posting it, especially after her issue with Kelly (above)”. The document noted that:
“Monica said there were some things Kelly could learn. I said to Monica that it was inappropriate to use Workplace to post her issues and that it would have been more appropriate to talk to me or Kelly about it. I said to Monica she needs to think about how people might perceive such a post. I have since removed the post...”.
(g)    An entry in the “Monica Conversations” document noted on an unspecified date, likely to be in or about August or September 2019, shortly after commencement of the PIP, that the applicant expressed that she was feeling very anxious and pressured due to the PIP and having someone watch her every move and that “she felt it was unfair that she was having to do this as there were other people in the centre making the same mistakes”.
(h)    An entry in the “Monica Conversations” document noted on an unspecified date, likely to be in 2019:
“Kurt had a brief one on one with Monice RE a comment that was made by Monica, Monica was with Candice myself and Candice made a comment to me about how she feels like she is only recognised for the bad things she does in the centre, Monica threw her hands in the air and said ‘welcome to my world’ I decided to met [sic] with Monica shortly after as I was concerned about this comments [sic] considering she is currently on a PIP. Said to her that if that if [sic] the way she feels then she needs to speak up and let us know, To which monica [sic] told me she was only making a joke and that she didn’t mean it at the time but has felt like that in the past. I asked how she was currently feeling and if there was any additional support we could provide her which Monica declined”.
I note that much of the alleged conduct by Ms Dennes appears to have been independent of and unrelated to the PIP process and indeed occurred prior to commencement of the PIP on 12 August 2019.
I accept that there were numerous opportunities for the applicant to have reported alleged bullying and harassing conduct by Ms Dennes much earlier than she did. In her evidence, the applicant explained her rationale for not making an issue of Ms Dennes’ conduct at an earlier time. Considering the evidence as a whole, the applicant’s explanation makes sense. I note that the “Monica Conversations” document note dated 25 May 2018 stated that the applicant was required to apologise to Ms Dennes. I consider that in all the circumstances, it is understandable that the applicant may have felt an obligation to try to manage Ms Dennes’ conduct herself and that she felt unsupported by management to address Ms Dennes’ behaviour.
I deal with the medical evidence in some detail below. However for present purposes, I note that Dr Gates appeared to have some reservations about the applicant’s credibility. I acknowledge and accept Dr Gates’ evidence that the applicant had reduced working memory. I consider that it is possible that may explain incompleteness and inaccuracies in the applicant’s evidence noted by Dr Gates.
On balance, whilst acknowledging that the applicant’s evidence about specific conduct of Ms Dennes is largely uncorroborated and acknowledging the concerns of Dr Gates, considering the evidence as a whole, I do feel a sense of actual persuasion that the applicant is a genuine and truthful witness. For that reason, I accept the factual allegations in relation to the alleged stressors described by the applicant in her evidence. On that basis, I find that the applicant was subjected to the alleged treatment by Ms Dennes.
Further, I accept the applicant’s evidence in relation to her perception of Ms Dennes’ conduct. Accordingly, I find that the above conduct was perceived by the applicant to constitute bullying and harassment and caused the applicant to feel humiliated and diminished.

Does the applicant have an injury within the meaning of ss 4 and 11A(3) and were the alleged stressors a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act?

The respondent’s counsel submitted that there is insufficient evidence to find that the applicant had an injury within the meaning of ss 4 and 11A(3) of the 1987 Act and to find that the alleged stressors were a substantial contributing factor to any psychological injury pursuant to s 9A of the 1987 Act.

Applicant’s evidence

The applicant stated that she saw a psychologist following the death of her son in 2013, however her mental state subsequently improved as a result of her successfully engaging in work. The applicant stated that Ms Dennes’ bullying and harassing conduct towards the applicant caused serious psychological injury.
The applicant’s evidence is that she experienced stress and anxiety as a result of the alleged stressors. She states that her pre-existing stress and anxiety were exacerbated by the PIP and Ms Dennes’ ongoing bullying and harassing conduct towards her.

Treating medical evidence

Dr John Van Dyck, nominated treating doctor

Dr Van Dyck was the applicant’s nominated treating doctor up to some time in August 2020.
Dr Van Dyck’s records noted that:
(a)    in 2013, the applicant tragically lost her only son at age 17 years;
(b)    in 2015, the applicant suffered work related severe back injury;
(c)    in about 2016, the applicant underwent cancer treatment, and
(d)    in August 2018, the applicant underwent surgical treatment for an AVT in her right occipital lobe (brain).
In relation to the applicant’s back injury, Dr Van Dyck’s clinical notes dated 19 April 2017 noted that the applicant had a long history of back pain since injury 2015 and was subject to ongoing work restrictions since April 2016. Clinical notes dated 26 February 2018 noted a long history of back pain and clinical notes during 2018 and 2019 noted that the applicant experienced ongoing back pain.
Dr Van Dyck’s clinical notes:
(a)    dated between May 2017 and July 2018, stated that the applicant was prescribed antidepressant medication for depression and anxiety and grief management/support;
(b)    dated 16 October 2018, stated that the applicant had “stresses at work” and was treated with medication, support and cognitive behavioural therapy CBT counselling for depression and anxiety and grief support;
(c)    dated 20 February 2019, stated that the applicant continued to be treated for depression and anxiety;
(d)    dated 17 April 2019, stated that the applicant had “work stresses” and was given grief counselling and depression and anxiety management;
(e)    dated 14 May 2019, stated that the applicant had “ongoing grief management”;
(f)    dated 26 June 2019, stated that the applicant had “re emerging depression” and was treated with antidepressant medication and psychotherapy;
(g)    dated 10 July 2019, stated that the applicant experienced “stresses at work”;
(h)    dated 22 July 2019, stated “depression and anxiety”;
(i)    dated 4 September 2019, recorded “depression”;
(j)    dated 9 October 2019, noted “major stresses at work” and “major support with depression and anxiety”;
(k)    dated 15 October 2019, noted “stresses ++ Major stresses at work due to potential downgrade and increased standing above previous W/C limits... Stresses++ at work sleeping poorly suggest possible stress leave”;
(l)    dated 22 October 2019, recorded “Stresses ++ after unsatisfactory resolution and apparent denial of need for ongoing restrictions Unable to work due to acute Anxiety and stress as a result of current work disputes”;
(m)     dated 29 October 2019, recorded “nightmares re work stresses +++ from work”;
(n)    dated 5 November 2019, noted “anxiety levels high shaking sleeping poorly referral to Margo Doohan”;
(o)    dated 11 November 2019, stated “GP MH Care plan 2013 Conf PH loss of son psychologist Antidepressants on and off insomnia anxiety and panic attacks K10 very high levels of anxiety and depression”, and
(p)    subsequently noted the applicant continued to be treated for post-traumatic stress disorder, anxiety and depression.
In a letter dated 9 October 2019, in response to the respondent’s question about what reasonable adjustments may be required to enable the applicant to carry out her work duties, Dr Van Dyck stated that the applicant:
“feels she has suffered major exacerbation of anxiety as a result of PIP program. Without these stresses I would regard her as fully fit to undertake her full role at her current Grade. However, due to flare up of stresses as above she may well benefit from a temporary reduction in current work hours”.
By certificate dated 22 February 2021, Dr Van Dyck certified the applicant as unfit for work with a current diagnosis of severe post-traumatic stress disorder, post-traumatic stress disorder, anxiety and depression, referred to reports of treating psychologists and noted “workplace harassment”.

Dr Eric Lim, nominated treating doctor

Dr Lim was the applicant’s nominated treating doctor from about August 2020.
Dr Lim’s report dated 17 August 2020 noted that the applicant initially presented for consultation on 17 August 2020 in relation to psychological injury. Dr Lim concluded that the applicant had suffered a psychological injury from work with a diagnosis of Adjustment disorder with depression. The report recorded symptomology of trouble sleeping, nightmares, flashbacks, overthinking, anxious and “scared of returning to work”. The notes further recorded a history that the applicant reported that:
“ ... whilst at work the applicant suffered a Psychological injury from a change in work circumstances requiring her to work outside her physical restrictions. She felt that she was intimidated and harassed, and stopped work, as she could no longer psychologically cope.
She has underlying neck, shoulder and back injuries, which impacted her ability to do the role, but was not accommodated for by her employer. She failed a trial of return to work after a period of leave.
She has difficulty coping with her new manager. She experienced interrupted sleep due to the pain and stress. She reported having nightmares and flashbacks about her work. She would come home from work, not change, take a Xanax and go to sleep.
From my understanding of the injured worker’s role as a Concierge, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury...”
Dr Lim’s report dated 19 November 2020 stated a current diagnosis of Major depressive disorder and Panic disorder in early remission. He noted symptoms of low mood, decreased energy levels, decreased interest in activities, concentration problems and anxiety. Dr Lim stated that the applicant remained unfit for work and continued to struggle with depressive and anxious cognitions which impaired her concentration and cognitive ability for work.

Dr Ben Dickson, nominated treating doctor

Dr Dickson was another of the applicant’s nominated treating doctors.
Dr Dickson’s report dated 16 September 2020 recorded a similar history and symptomology to that recorded by Dr Lim. Dr Dickson also diagnosed Adjustment disorder with depression and recommended treatment. Dr Dickson concluded that the mechanism of injury was the direct result of performing the applicant’s work. He considered that the history given was consistent with employment being the main contributing factor to the injury. He did not have evidence to indicate an alternate mechanism of injury. He opined that the applicant did not have the psychological capacity for work.

Margaret Doohan, Psychologist

Ms Doohan has treated the applicant on a regular basis since 11 November 2019 upon referral by Dr Van Dyck.
In a letter dated 19 November 2019, Ms Doohen stated:
“Monica came for a first visit on 19/11/2019.
We are working on patterns of anxiety and depression >> a reaction, I suspect, to having encountered a very difficult person, perhaps of narcissistic personality disorder tendencies, in the workplace.
Monica has worked in a high function work place environment capacity for many years and has never before encountered this sort of situation. Therapeutic dialogue managed to explain and ‘normalize’ this experience of unexpected toxic, unsupportive and negative behaviour in the workplace and the very valid effect this can have upon our stress and anxiety levels...”
A Client Assessment document completed by Ms Doohen on 19 November 2019 noted:
“? Workplace bullying
Manager difficult – felt judged
Wanted an Improvement of Performance assessment
Became highly anxious – felt she didn’t do well
...
Current job... >> not supportive
...
Feels it was workplace bullying & she was vulnerable”
In a letter dated 10 June 2020, Ms Doohen stated:
“Whilst in some ways Monica has come to terms with her journey of loss and grief, and recovery from or adjustment, to the unexpected death of her son Jordan, she still works to manage patterns of anxiety and recovery from the bullying-in-the work place situation. She still experiences patterns of anxiety and social anxiety, feeling agoraphobic at times. There are also ongoing physical and pain management issues.”
In a letter dated 16 September 2020, Ms Doohen stated:
“She suffers ongoing severe anxiety and depression triggered by a number of factors:
-There is history of immense loss and grief at the tragic loss of her only child in 2013;
-There has been in more recent years the stress of a litany of work related issues that are ongoing;
-She also is managing a number of physiological issues that require medical interventions;
-Her current ability to sustain work is highly compromised...”
In the absence of other explanation, it is reasonable to interpret the “litany of work related issues” referred to in Ms Doohen’s letter of 16 September 2020, in the context of Ms Doohen’s statements in her letter of 10 June 2020.

Progress notes completed by Ms Doohen dated 27 October 2021 refer to the applicant having nightmares “about work >> fighting for rights”.

Ms Stephanie Falero, Psychologist

Clinical notes of a psychologist, Stephanie Falero (Ms Falero), indicate that she also treated the applicant on a number of occasions.
Clinical notes of Ms Falero dated 28 August 2020 recorded that the applicant disclosed a history of her team leader speaking of “wogs”, targeting the applicant and micromanaging the applicant, causing her to feel humiliated. The notes recorded that thoughts about return to work made the applicant “feel sick to the stomach”.
Clinical notes of Ms Falero dated 8 September 2020 recorded that the applicant reported “nightmare about work last night – people ganging up on her. Noted flashbacks”.
Clinical notes of Ms Falero dated 28 October 2020 recorded that the applicant journaled about “a nightmare around work in which where was a function”.

Dr David Kumagaya, Consultant Psychiatrist

Dr Kumagaya treated the applicant upon referral by Dr Lim.
Dr Kumagaya’s report dated 21 September 2020 stated that the applicant reported being subject to unfair and unreasonable treatment during her employment with the respondent. The applicant reported that was not provided with work that was in keeping with physical restrictions on her work capacity certified by her nominated treating doctor. Further, the applicant reported being intimidated and harassed to engage in work that contravened her physical restrictions. As a result of the applicant’s work environment and stressors, the applicant reported the onset of an admixture of depressive and anxious symptoms which included low mood, anxiety, decreased pleasure, initial and middle insomnia, decreased energy and concentration difficulties. She reported unexpected panic attacks and that she was psychologically unable to work beyond 21 October 2019. The applicant also reported a significant pre-injury psychiatric background of depression and anxiety first diagnosed in approximately 1995 and a diagnosis of grief in 2013 following the death of her son. Dr Kumagaya noted that upon mental state examination, the applicant’s thought content reflected a preoccupation regarding her workplace stressors and depressive cognitions. He diagnosed Major depressive disorder and Panic Disorder. He recommended treatment.
Dr Kumagaya’s report dated 19 November 2020 stated that the applicant reported ongoing depressive symptoms. Upon mental state examination, the applicant’s thought content reflected ongoing depressive cognitions. Dr Kamagaya diagnosed Major depressive disorder and Panic Disorder in early remission. He recommended ongoing treatment.
Dr Kumagaya’s report dated 5 January 2021 stated that the applicant reported ongoing depressive symptoms and a re-emergence of panic attacks. He observed that her thought content reflected ongoing depressive cognitions and a preoccupation regarding the impact of the depressive symptoms on her quality of life. He diagnosed Major depressive disorder and Panic Disorder and recommended further treatment.
Dr Kumagaya’s report dated 18 February 2021 stated that the applicant reported a mild worsening in her depressive and anxious symptoms. He diagnosed Major depressive disorder and Panic Disorder and recommended treatment.

Other evidence

Various Medical Certificates and Certificates of Capacity/Fitness certified the applicant’s unfitness for work.

Evidence of independent medical experts

Dr Thomas Oldtree-Clark, Psychiatrist, Independent Medical Expert

Dr Oldtree-Clark’s report dated 28 June 2021 was based on his examination of the applicant on 9 June 2021 and review of file material. Dr Oldtree-Clark stated that the applicant reported that she was bullied at work for over three years, commencing in December 2016. The applicant stated that she was harassed at work by staff making racist remarks including being called a “wog”. She found herself panicking, full of anxiety and crying about work. She reported that her work deteriorated and she was given a performance review which exacerbated her feelings of being persecuted. The applicant reported that the performance issues were “the precipitating final exacerbation”. Her hours were reduced by agreement and eventually she was downgraded or terminated. She has not attended work since 21 October 2019. Dr Oldtree-Clark noted that the applicant reported that her depression “is about her work problems, being demeaned and shamed, being put on a PIP after all her years of experience”.
Dr Oldtree-Clark diagnosed Major Depressive Disorder which is part of a Persistent Depressive Disorder. Dr Oldtree-Clark noted that the applicant had been through a long-term bereavement process following the death of her son however she did recover her functioning after her loss. Dr Oldtree-Clark opined that further episodes of depression were precipitated by the conditions at the applicant’s work. Dr Oldtree-Clark concluded that the applicant’s employment was the main contributing factor to her psychiatric injury. He assessed that the applicant had 19% impairment for psychiatric injury, less 2% pre-existing impairment, giving a total WPI of 17%.

Dr Graham George, Psychiatrist, Independent Medical Expert

Dr George’s report dated 16 February 2021 was based on his assessment of the applicant on 29 January 2021 and review of file material. Dr George recorded that the applicant reported a history of being a victim of continual harassment from a coordinator, with whom she worked. She reported being ostracised, bullied and harassed for approximately three years within the workplace. She reported notifying her manager Mr Ebbs but there were no satisfactory results. After Ms Dennes returned as acting manager, the harassment continued. The applicant stated that as a result of the harassment over three years, she developed anxiety in the workplace and anticipatory anxiety on going to work for some time. The applicant said that when she left work she had reached a point where she could not cope any longer, which appeared to coincide with the lack of improvement in her performance even when monitored.
Dr George noted that the applicant reported that her sleep had been disturbed for a three year period and in the few months before leaving work her sleep was extremely poor. She would wake at night and ruminate about what was occurring in the workplace which would often promote agitation for her. The applicant described having panic attacks in the workplace and stated that her attention, concentration and memory were impacted in addition to having a depressed mood.
Dr George noted the applicant’s psychiatric history which included grief following the death of her son. On examination, Dr George noted that the applicant’s mood appeared tense, anxious and depressed to a degree.
Dr George diagnosed an exacerbation of chronic major depression. He opined:
“Ms Taccoli is a 53 -year-old woman, who, after the death of her only child, a son, aged 17 years, has not coped particularly well. She has struggled to come to terms with his sudden death from an aneurysm. She has been on antidepressant medication since then. She continues on the same antidepressant medication.
In the context of what she perceived as harassment or bullying in the workplace, she has succumbed to an exacerbation of major depressive disorder. Her major depressive disorder has been associated with sleep disturbance, anxiety, problems with initiative and motivation, social withdrawal and problems with attention and concentration. She has continued on antidepressant medication and has had psychological and psychiatric input.”
Dr George noted that the applicant had indicated that she had been subject to symptoms over a three-year period, during which time her coordinator monitored her performance and acted due to the applicant’s high error rate. Dr George opined that “the applicant’s high error rate might have been associated with a depressive disorder affecting her cognitive function” and “did suggest cognitive impairment related to a depressive disorder”.
Dr George noted the difference in the evidence of the applicant and Ms Dennes. Dr George stated:
“Having read the material available, it is my opinion that her perceptions are not, necessarily, real and of substance. She has had an exacerbation of an underlying disorder within the workplace. I would change my opinion, if it could be absolutely demonstrated that she has suffered harassment. I have indicated that she has come to the notice of her employer due to her high error rate in her work. I do not believe that harassment has been established.”
Dr George opined that the applicant’s condition “has been a relapse of a pre-existing condition and has not come about due to alleged harassment”. He also stated that “She appears to have an exacerbation of an underlying major depression which has impacted on her work performance”.
Dr George opined that the applicant appears totally incapacitated. He believed that her incapacity relates wholly to a relapse of an underlying condition. He stated that “unless harassment can be demonstrated that her condition is not work related”.
Dr George’s report dated 20 August 2021 was based on his assessment of the applicant on 17 August 2021 and review of file material. In relation to the applicant’s progress since he last saw her, Dr George noted her domestic arrangements, daily activities, that she continued not to work, continued on antidepressant medication and also took atypical antipsychotic medication to assist with her sleep. He noted that the applicant reported that her anxiety prevented her from going out to any great degree and caused her to shake, her mind to block, she did not function well and she then got overwhelming tiredness. However, she reported maintaining contact with friends through video, phone or them coming to visit her.
Upon mental state examination, Dr George noted her affect was responsive and her mood did not appear pervasively depressed. Her thought form was normal and she did not exhibit psychotic phenomena. Her cognitions, generally, appeared intact. (Incidentally, Dr George noted the applicant to be of Iraqi extract, which seems to be inconsistent with the applicant’s statement that she was of Mediterranean descent and Dr Gates statement that the applicant reported Italian heritage.)
Dr George diagnosed exacerbation of major depression (in partial remission) with anxious and depressed mood of a varying degree over time.
Dr George restated his opinion, expressed in his previous report, that he believed that “the applicant could only have a depressive disorder related to work if harassment could be demonstrated” and having regard to the various statements he did not, necessarily, believe that she had been subject to harassment because her allegations of bullying were not corroborated and because she had a high error rate even after being subject to performance management. On that basis, Dr George restated his opinion that the applicant did not have a work-related injury: rather he believed that “Her injury has come about in the context of reasonable actions of her employer”. Dr George did not find the applicant to be inconsistent or feigning the condition. Dr George opined that the applicant did not suffer any incapacity for work resulting from the claimed work-related injury. He believed that she was “potentially fit for normal pre-injury duties, but, probably, with a different employer”. He found that the applicant had no more than a mild impairment at that time. However he declined to conduct an assessment of WPI.
Dr George provided a supplementary report dated 17 September 2021. He stated that at the time of his previous report he had found that in all areas of functioning, related to activities of daily living, there was minimal to no impairment. He declined to make any formal assessment of maximum medical improvement or WPI because he was of the opinion that there was no psychiatric diagnosis related to any work injury.

Associate Professor Shashjit Varma, Consultant Psychiatrist, Injury Management Consultant

Because the applicant had been identified at risk of delayed recovery, Associate Professor Varma provided an Injury Management Consultant report dated 13 October 2021, based on a file review. Associate Professor Varma did not consider all of the material currently before the Commission, in particular he did not consider the later reports of Dr George after Dr George’s initial report dated 16 February 2021, nor the report of Dr Lim nor the psychologists’ notes or opinions.
Dr Varma stated:
“Monica suffers from chronic major depression, which was exacerbated due to work stress, where she continued to have high error rates and did not improve even with a performance improvement plan.
My opinion is, and I am in agreement with Dr George, that Monica’s perceptions are not necessarily real and of substance regarding work stress.
I believe her condition is an exacerbation of a pre-existing condition, for which she was being treated. I do not necessarily believe that she had been subjected to bullying/harassment, as her error rate was abnormally high and continued to be high, even when performance managed.
The error rate may be explained by the cognitive effects of depression, which is pre-existing. The bullying and harassment was not demonstrated in the documents provided to me.”
He opined that the applicant did not have a capacity to do the role in her current job, due to pre-existing depression.

Dr Nicola Gates, Clinical Neuropsychologist

Dr Gates prepared a report dated 14 October 2021 on the basis of an independent neuropsychological assessment conducted on 7 October 2021. The assessment involved clinical interview, behavioural observation, psychometric assessment and review of supplied documentation. Dr Gates apparently did not consider the psychologists notes and opinion.
Dr Gates noted that the applicant expressed considerable difficulty with her memory and appeared to be an incomplete and inconsistent historian. Dr Gates found it difficult to obtain a coherent and chronological history from the applicant. The applicant stated her first incident of bullying was during her induction process in December “2015 or 2016” and the “harassment” continued throughout the three years of her employment. The applicant described experiencing “shock and disbelief and I thought if this is how it is going to be it will be a rough ride”. The applicant described racist remarks made by her supervisor to another employee. The applicant said that she became a patient under Dr Van Dyke is 2016/2017 and that he had wanted her to commence a workers compensation claim in 2019. She could not recall a specific triggering event although she reported that at that time she “hit a wall and just could not go back to work” and experienced “extreme depression extreme anxiety, panic attacks and lethargy”. Dr Gates noted that the applicant omitted to refer to her previous allegations that the workplace failed to accommodate her physical restrictions, deterioration in her work capacity or PIP. The applicant reported receiving treatment for depression in 2013.
Dr Gates noted that the applicant reported current symptoms as a result of her workplace experience including difficulty with cognitive function, memory loss, difficulties with concentration, anxiety particularly when she had to go out and sleep difficulty.
Dr Gates noted that the applicant’s responses on psychometric scales indicated some evidence of exaggeration and over reporting of symptoms. She found no significant deficits on cognitive assessment although relative to the applicant’s intellectual capacity her working memory was reduced.
Notwithstanding that Dr Gates considered that the applicant’s responses had questionable validity, on balance Dr Gates was satisfied that he applicant suffers from a depressive disorder that is long standing and appears to currently manifest in traditional psychological symptoms along with somatic and cognitive symptoms. However, Dr Gates stated that given the inconsistencies, poor reliable history provided and evidence of exaggeration, it was not possible to provide a valid diagnosis for the applicant’s current condition nor to comment on the applicant’s work capacity. Dr Gates said that she “cannot find evidence of any work-related psychological injury”.

Discussion

There is considerable evidence from the applicant’s various treating medical practitioners that the applicant had psychological symptoms and a diagnosed psychological condition arising out of and in the course of her work, specifically the alleged stressors of workplace bullying and harassment:
(a)    Dr Van Dyck’s clinical notes dated 16 October 2018 and 17 April 2019 record the applicant experiencing psychological symptoms, a diagnosis of depression and anxiety and prescription for pharmacological and counselling psychological treatment, in the context of work stresses. In June 2019, Dr Van Dyck noted “re emerging depression”. On 10 July 2019, the applicant reported “stresses at work”. The applicant continued to receive psychological treatment. That was prior to commencement of the PIP in about August 2019 (on the evidence of Ms Rihani);
(b)    Dr Van Dyck’s clinical notes from July 2019 record that the applicant experienced ongoing depression and exacerbation of anxiety in the context of additional stresses at work following commencement of the PIP;
(c)    Dr Van Dyck’s certificate dated 22 February 2021 certified the applicant unfit for work due to a current diagnosis of post-traumatic stress disorder, anxiety and depression in the context of “workplace harassment”;
(d)    Dr Lim initially saw the applicant in relation to psychological injury on 17 August 2020 after the PIP was commenced. However, he then recorded a pre-existing history of psychological symptoms in the context of the applicant complaining of being subjected to bullying and harassing behaviour at work. Dr Liam diagnosed Adjustment disorder with depression and concluded that the applicant’s work was the mechanism of the applicant’s psychological injury. He considered that the reported history was consistent with employment being the main contributing factor to the injury;
(e)    Dr Dickson noted the same history. He concluded that the mechanism of injury was the direct result of performing the applicant’s work and noted that he did not have evidence to indicate an alternate mechanism of injury;
(f)    Ms Doohan, Psychologist, treated the applicant on a regular basis from November 2019 after commencement of the PIP. Ms Doohen observed psychological symptoms which were indicative of “patterns of anxiety and depression” which Ms Doohen attributed to the applicant having experienced bullying, toxic, unsupportive and negative behaviour in the workplace over a period of years. Ms Doohan noted that whilst the applicant had largely come to terms with and adjusted to her grief over the loss of her son, she still worked to manage patterns of anxiety and recovery from the workplace bullying;
(g)    Ms Falero, Psychologist, treated the applicant in the latter part of 2020. She noted the applicant’s reported history of being bullied and harassed in the workplace and reported that the applicant experienced ongoing nightmares and flashbacks in that regard, and
(h)    Dr Kumagaya, Consultant Psychiatrist, treated the applicant in 2020 and 2021. He diagnosed Major depressive disorder and Panic Disorder. He noted the applicants reported history of workplace bullying and harassment. Upon mental state examination in September 2020, he concluded that the applicant’s thought content reflected a preoccupation regarding her workplace stressors and depressive cognitions.
The applicant’s independent medical expert, Dr Oldtree-Clark, diagnosed Major Depressive Disorder which is part of a Persistent Depressive Disorder. Dr Oldtree-Clark noted that the applicant reported psychological symptoms as a result of being harassed, demeaned and shamed in the workplace. The applicant reported that her work deteriorated which led to a performance review. The applicant further reported that her psychological symptoms were exacerbated by the performance management. In Dr Oldtree-Clark’s opinion, the applicant had recovered her functioning after the long-term bereavement process following the loss of her son. He opined that the applicant’s further episodes of depression were precipitated by her work conditions which was the main contributing factor to her psychological injury. He assessed total WPI of 17%, arising from 19% impairment for psychiatric injury less 2% pre-existing impairment.

I consider that Dr Oldtree-Clark’s opinion is largely consistent with the symptoms recorded and opinions expressed by the applicant’s treating doctors and psychologists.
The respondent’s independent medical expert, Dr George, noted in his report dated 16 February 2021, that the applicant reported psychological symptoms as a result of being bullied and harassed in the workplace. He noted that the applicant reported disturbed sleep over a three year period, having panic attacks in the workplace, poor attention, poor concentration, poor memory and depressed mood which was consistent with her presentation. Dr George noted that the applicant had psychological symptoms over a three year period. He accepted that the applicant’s high error rate did suggest a depressive disorder affecting her cognitive function. He noted that the applicant had been on antidepressant medication since the loss of her son. Dr George diagnosed chronic major depressive disorder arising from the loss of the applicant’s son, which had been exacerbated in “the context of what she perceived as harassment or bullying in the workplace”. He opined that the applicant was totally incapacitated. He was of the opinion that there was no psychiatric diagnosis related to any work injury because he concluded from the material that the applicant’s perceptions of workplace bullying and harassment were not, necessarily, real and of substance. He stated that he would change his opinion if it could be demonstrated that she suffered workplace harassment.
In his report dated 20 August 2021, Dr George diagnosed exacerbation of major depression, then in partial remission, with anxious and depressed mood of a varying degree over time. He considered that the applicant demonstrated partial remission of symptoms. He considered that the applicant did not suffer any incapacity for work resulting from work and that she was potentially fit for normal duties, albeit with a different employer. However, it is clear from Dr George’s report that the applicant still apparently experienced significant psychological symptoms: the applicant continued on antidepressant medication, took atypical antipsychotic medication to assist her sleep, was unable to work and her anxiety caused physical symptoms and prevented her from going out to any great degree.
In his supplementary report dated 17 September 2021, Dr George stated that at the time of his previous report he had found that in all areas of functioning, related to activities of daily living, there was minimal to no daily improvement. He declined to make any formal assessment of maximum medical improvement.
I find that Dr George’s opinions expressed in his reports are somewhat inconsistent. For example, in his report dated 20 August 2021 he diagnosed that the applicant’s exacerbation of major depression was then in partial remission. It was clear from the report that the applicant still experienced debilitating psychological symptoms. Further, in his report dated 17 September 2021, Dr George stated that in his previous report he had found that in all areas of functioning related to activities of daily living, there was minimal to no daily improvement. On that basis, I further find that in making his diagnosis, Dr George gave insufficient weight to the applicant’s ongoing psychological symptoms.
Dr George accepted that the applicant’s high error rate did suggest a depressive disorder affecting her cognitive function. Dr George accepted that the applicant’s psychological injury was exacerbated by her perception that she was subjected to workplace bullying and harassment. It is clear from Dr George’s reports that his diagnosis of exacerbation of chronic major depression was premised on his conclusion that the applicant’s perceptions of workplace bullying and harassment were not, necessarily real and of substance. Dr George indicated that he would change his opinion if workplace bullying and harassment could be demonstrated. As I have set out above, I accept the applicant’s evidence in relation to the alleged workplace stressors. As the underlying premise of Dr George’s opinion is not applicable, his diagnosis must be given little weight.
Associate Professor Varma, Injury Management Consultant, in his report dated 13 October 2021, stated that the applicant did not have capacity to work due to pre-existing depression. His diagnosis that the applicant suffered from chronic major depression, exacerbated due to work stress, was also premised on the conclusion that the alleged bullying and harassment was not real. Again, that underlying premise is not applicable, Associate Professor Varma’s diagnosis must be given little weight.
Dr Gates, Clinical Neuropsychologist, noted that the applicant reported ongoing psychological, somatic and cognitive symptoms. On balance, Dr Gates considered that the applicant had longstanding depressive disorder which currently manifested in traditional psychological symptoms along with somatic and cognitive symptoms. Dr Gates declined to make any formal diagnosis due to what she considered to be inconsistencies in the applicant’s reported history and evidence of exaggeration.
For the above reasons, I prefer and accept the evidence of the applicant’s treating medical practitioners and the independent medical expert, Dr Oldtree-Clark and place little weight on the opinions of Dr George, Associate Professor Varma and Dr Gates.
Considering the evidence as a whole, I feel a sense of actual persuasion that the alleged stressors were the substantial contributing factor to the applicant’s psychological injury and I find accordingly.

Does the applicant have a psychological injury within the meaning of s 11A(3) of the 1987 Act?

Having regard to the evidence and my findings above, I feel an actual sense of persuasion and I am satisfied that the during the period from 1 December 2016 to 21 October 2019 the applicant sustained a psychological injury within the meaning of s 11A(3) of the 1987 Act, which was a primary psychological injury in the nature of Major Depressive Disorder which is part of a Persistent Depressive Disorder.

Did the psychological injury arise out of or in the course of the alleged stressor events (as required by s 4 of the 1987 Act)?

The respondent’s counsel submitted that I should not find that the applicant’s psychological injury arose out of the alleged stressor events because no temporal connection existed between the applicant taking time off work due to psychological injury and the alleged stressors. I do not accept that submission.
I do not accept the submissions of the respondent’s counsel that there was no contemporaneous evidence that the applicant had a psychological condition related to her work until the PIP was performed and concluded. Dr Van Dyck gives contemporaneous evidence that the applicant had a psychological diagnosis arising from work stresses prior to commencement of the PIP.
Dr Van Dyck’s evidence is supported by the evidence of the applicant’s other treating practitioners.
The applicant taking time off work temporally related to an exacerbation of the work stresses and psychological injury but could not be temporally related to the pre-existing psychological injury which, according to the evidence of Dr Van Dyck, arose at least in 2018 and 2019 out of and in the course of the applicant’s employment.
Having regard to the evidence and my findings above, I feel an actual sense of persuasion and I am satisfied that the applicant’s psychological injury arose out of and in the course of the applicant’s work and the alleged stressor events as required by s 4 of the 1987 Act.

Were the alleged stressor events a substantial contributing factor to the psychological injury (as required by s 9A of the 1987 Act)?

I have considered the matters which s 9A requires I must take into account in determining whether the applicant’s employment was a substantial contributing factor to the psychological injury.
The applicant was a longstanding employee of the respondent. I have found that the applicant sustained the psychological injury at work during the period from 1 December 2016 to 21 October 2019 arising out of and in the course of the applicant’s work and the alleged stressor events. During that time the applicant performed duties which included concierge and processing of customer applications and the like. Dr Van Dyck’s clinical notes record the applicant experiencing psychological symptoms, depression and anxiety in the context of stress at work on 16 October 2018 and 17 April 2019, prior to commencement of the PIP.
I accept that the applicant had a pre-existing history of psychological injury, having been diagnosed with depression following the death of her son. However, I am satisfied from the medical evidence that, although the applicant experienced ongoing grief, such psychological injury had substantially resolved by the time that she sustained the psychological injury which is the subject of her claim. The applicant was capable of and did work. In June 2019, Dr Van Dyck noted “re emerging depression”.
There is no evidence of any hereditary risks.
Since the psychological injury, the applicant has not returned to work. She lives in a domestic setting with family and this appears to be the core of her daily activities. She does not go outside the domestic setting a lot due to anxiety, although she does have continuing contact with friends who visit or by remote means.
Having regard to the evidence, I am not satisfied that there is a probability that the psychological injury which is the subject of the applicant’s claim 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 the employment.
On balance, I feel an actual sense of persuasion and I am satisfied that the alleged stressor events were a substantial contributing factor to the psychological injury as required by s 9A of the 1987 Act.

Is a defence available under s 11A?

Further and in the alternative, the respondent’s counsel submitted that the evidence supports a finding that the applicant’s psychological injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and discipline, giving rise to a defence under s 11A of the 1987 Act.
As noted above, the above evidence supports a finding that the alleged stressors were the substantial contributing factor to the applicant’s psychological injury. It is clear from the applicant’s evidence that many of the alleged stressors were unrelated to the applicant’s performance appraisal and discipline. In any event, I do not consider that the conduct alleged by the applicant (which I have accepted) should be regarded as reasonable action.
The applicant acknowledged that the PIP was an additional stressor which led to a worsening of the applicant’s psychological condition.
However, having regard to the whole of the evidence and my findings above, I am not satisfied that the applicant’s psychological injury was wholly or predominantly caused by the PIP, performance appraisal or discipline.
On that basis, a defence under s 11A of the 1987 Act is not available to the respondent.

SUMMARY

Having regard to the legal principles set out above, and having regard to the whole of the evidence, I feel a real sense of persuasion that that there is a causal chain between the alleged stressors and the applicant’s primary psychological injury.
For the above reasons, I make the following determinations:
(a) the applicant has an “injury” within s 4(a) and 11A(3) of the 1987 Act, namely a primary psychological injury that arose, during the period from 1 December 2016 to 21 October 2019, with a deemed date of 21 October 2019, out of and in the course of the applicant’s employment, in particular the alleged stressors;
(b) the applicant’s employment was a substantial contributing factor to the applicant’s psychological injury pursuant to s 9A of the 1987 Act, and
(c) the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, or dismissal of workers or provision of employment benefits to workers and accordingly no defence is available to the respondent pursuant to s 11A of the 1987 Act.
Accordingly, I determine that:
(a) the applicant sustained a compensable psychological injury pursuant to ss 4(a), 9A and 11A(3) of the 1987 Act,
(b) the respondent has not discharged its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline pursuant to s 11A of the 1987 Act.
The degree of the applicant’s impairment is in dispute and there is inconsistent medical evidence in that regard. It will be necessary to determine the degree of the applicant’s impairment in order to determine whether the applicant’s psychological injury gives rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.
On that basis, it is appropriate to order that the matter is remitted to the President for referral to a Medical Assessor for assessment of WPI.

[2022] NSWPIC 85

2 March 2022