Tareen v TAL Services Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tareen v TAL Services Limited [2024] NSWPIC 129
APPLICANT:	Arish Tareen
RESPONDENT:	TAL Services Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	18 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in relation to performance appraisal; Irwin v Director General of Education, Dunn v Department of Education and Training, Smyth v Charles Stuart University, Attorney General v K, and Hamad v Q Catering Limited discussed and applied; Held – findings made that the meetings with the applicant were not performance appraisal and section 11A defence not established; the meetings were not the whole or predominant cause of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The applicant has no current work capacity from 23 March 2023. 3. The respondent is to pay the applicant weekly benefits compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 23 March 2023 to date and continuing at the rate of $1,573.32 per week. 4. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Arish Tareen, the applicant, was employed as a as a claims consultant with the respondent, TAL Services Limited. He alleges that throughout his employment, between the period June 2022 to November 2022, he was exposed to interpersonal conflicts with a colleague in the form of discrimination, bullying and harassment and as a result he developed a psychological injury.
The Application to Resolve a Dispute (ARD) was amended to change the date of injury to 27 November 2022 and the weekly compensation claim to commence on 23 March 2023. The pre-injury average weekly earnings (PIAWE) were agreed at $1,966.95. It was also agreed that if Mr Tareen is successful, then a “general order” can be made for his claim for treatment expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent’s counsel confirmed that “injury” is not in dispute, that the issue relates to the application of s 11A of the 1987 Act in relation to performance appraisal, and if the respondent is unsuccessful in establishing a defence under s 11A, then an issue arises in relation to the entitlement to weekly compensation and Mr Tareen’s capacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 18 December 2023 conducted on the MS Teams platform. Mr McManamey of counsel appeared for Mr Tareen instructed by Ms Rogers, solicitor. Ms Balendra of counsel appeared for the respondent instructed by Ms El Khatib, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-1) dated 1 November 2023 filed by the respondent, excepting from page 5 to the end of the bundle which relate to another person;
(d)    Application to Admit Late Documents (AALD-A) dated 12 December 2023 filed by the applicant, and
(e)    Application to Admit Late Documents (AALD-2) emailed to me by the respondent during the arbitration hearing, which were subsequently filed in the Commission bearing the date 19 December 2023.

Oral evidence

There was no oral evidence. The parties made oral submissions which have been recorded and a written transcript (T) has been made from the sound recording.

FINDINGS AND REASONS

It is useful to summarise the main evidence before considering counsels’ submissions.

Mr Tareen’s statements

Mr Tareen has provided statements dated 22 December 2022[1] and 10 May 2023.[2] He is 44 years of age and completed his schooling in Pakistan and then attended university in Canada obtaining a Bachelor of Computer Science and Business. He migrated to Australia from Pakistan in 2007 with his family. He is fluent in the English language. He also obtained an Advanced Diploma in Business Management in 2009. He says before working for the respondent he never experienced any mental health issues.
[1] ARD p 1.
[2] ARD p 11.
On 14 June 2022 he started his employment with a company that was taken over by the respondent. He was a claims consultant. His manager since 7 October 2022 was Bhumika Mehta. At [23] of his first statement he states that he has not been counselled for any work performance issues nor any procedure and policy breaches.
At [31] he states that Bhumika did not give him support. At [33] he describes that his previous manager, Patrick, gave him a performance score of 95% and he was happy with his performance and Patrick was always positive. He says Bhumika is negative towards him. He cites some instances at [34] and [35] when she did not support him. At [35] he states in September 2022 he went to Ms Mehta and spoke with her due to a detailed claim he had. He said Ms Mehta was sitting with others and she said she did not have time and was too busy to help. He said he felt embarrassed and five minutes later Ms Mehta was with others laughing.
Mr Tareen also refers to an incident on 17 October 2022 when he had previously discussed a claim with Pat who said it should be closed. Mr Tareen said he put this in his assessment and Ms Mehta said that he could not leave those comments. At [38] he cites an example of another colleague leaving notes and at [39] he said he was not aware of any guidelines saying he cannot leave notes on claims but Ms Mehta said he could not document the discussion with Pat and he says he felt singled out, targeted and bullied by Ms Mehta.
At [36] he says Bhumika would ask him to do unnecessary work on claims.
At [42] he advises he was on weekly meetings with Bhumika and Belinda Nicholson. He says he was not on a performance improvement plan. The meetings would last for an hour, He said he was “grilled” in the meetings, they would say three good things about him and five negative. Apparently there were some tasks dealing with breaches but he was told he could not do this work but he checked with other staff and they were allowed to deal with breaches. He said he was told to report by 2.00pm all the tasks he could not do. He said no one else had to do this. He said he worked to 6.00pm each work day. He said he was psychologically affected, he had so much stress, was anxious and could not sleep. He felt he was being targeted by Bhumika.
He says on 6 November 2022 he saw his doctor and was given medication to control his anxiety.
At [45] he relates a conversation with a colleague, Darren, who said to him that it seemed Bhumika is being tough on him. From the context of how Mr Tareen relates this it is not clear that Darren was advising him of what he had observed or if he made this comment in response to Mr Tarren telling him how Bhumika was treating him.
At [46] he refers to his increasing anxiety and that he could not take it anymore and on 22 November 2022 he was referred to a psychologist, Gaston Gugoun. However, an appointment did not go ahead as she was on leave. He says he later saw Mitch Jolly [sic, Mitchell Jordan], psychologist.
He says he was told on 25 November 2022 that he would not get his delegated authority due to the quality of his work not being up to the mark. However, he says his assessment was an average of 96.72 whereas the average is 84. He said he could get his delegated authority with his mark. At [54] he says he spoke to Nadine who advised him to speak to “P and C”.
He says he first made a formal complaint to P and C on 25 November 2022. In his second statement at [23] he says he spoke to Human Resources to clarify the purpose of the meetings and they confirmed he was not under any kind of performance management plan or appraisal, formally or informally.
He describes feeling heartbroken, anxious and let down. He was stressed and could not sleep so at 9.00am on 28 November 2022 he rang and advised he could not come to work as he was not well. He says at 10.48am that day Belinda emailed him highlighting the discussion from 25 November 2022 and stating he had to do certain things to pass his probation. He said this email made his anxiety feel worse. He attended Dr Mydhili Immadi that day and was certified as having no capacity to work from 28 November 2022.
He says no one else was subjected to weekly meetings with Bhumika and at his meetings each week new issues were added on. He said he did not have the chance to answer and explain. He was said he was being hammered in those meetings and he asked to be given a plan to improve. He refers to the situation with Kim who is also on probation and says she does not have weekly meetings with Bhumika and when she started she was being shadowed. Earlier in his first statement he said no one shadowed him.
In his second statement he lists his ongoing symptoms. He also addresses the matters canvassed in the s 78 notice issued by the insurer on 27 February 2023. At [36] Mr Tareen says he was never spoken to via verbal or written communication regarding any performance appraisal or improvement nor has he been on a performance management plan.
Much of his second statement strays from giving evidence and it is more in the form of submissions. However, at [41] of his second statement Mr Tareen states he is completely incapacitated to return to work because he is constantly feeling depressed, anxious, exhausted and unmotivated. He says he is always tired and cannot focus. He says the workplace injury has eroded his self-confidence and self-esteem and he would struggle to take on responsibilities or forming trusting relationships with people.

Belinda Nicholson’s statement

Ms Nicholson has provided a statement signed on 23 December 2022.[3] She is the National Manager Income Protection with the respondent. She says she has known Mr Tareen since 14 June 2022 however she has not seen Bhumika and Mr Tareen work closely. She has only seen them in the meetings the three of them had. At [24] she says all probationary staff attend meetings to be provided feedback on their work performance and told where they need to improve to get through their probationary period. She says there were two particular incidents with Mr Tareen. One was on 24 October 2022 when he did not log on until 10.30 to 11am and he was not answering his phone. He told them he had taken some strong pain killers for his back pain and fell asleep and could not wake up. She also mentions on 28 October 2022 that he slept through after taking medication. She says he got on well with other workers but chose to sit in a different area of the office.
[3] Reply p 23.
Ms Nicholson said she sat in on meetings on 4, 18 and 25 November 2022. She said these meetings were an opportunity to provide feedback. She says Mr Tareen would get defensive and argue some responses and comments that were made. She said everything was put in writing for him and at no time did he say that he needed support. She said that she did most of the talking in the meetings. She states, “the reason for the meetings was to get him through his probation and get his delegated authority.” She says Mr Tareen never complained to her about Bhumika or told him he was suffering from stress or was working under pressure.

Bhumika Mehta’s statement

Ms Mehta is a senior case manager with the respondent. She filled in for Patrick Stanton while he was on parental leave. She says Mr Tareen was well liked and no one has complained to her about him. She says she was his buddy when he started work.
She says providing feedback is part of the procedure to all workers during their probationary period and to workers not on probation. She says on two days he logged on late and they did not receive a phone call about this. She says Mr Tareen has not met his deadlines and he closed tasks prematurely. She says that Mr Tareen never raised with her that he needed more support from her. She says sometimes she is busy and cannot get back to him immediately. She states that meetings with Belinda and herself were there to provide feedback so he can improve and get through his probation.
She says she did ask Mr Tareen if he had a physiotherapy background and he said he had a business background. She said this had no implications on him at all.
She gives similar description to Ms Nicholson of the meetings they held with Mr Tareen. She states that she has taken appropriate action with meetings with Mr Tareen to ensure he would succeed. She said they have provided feedback and gave him area to improve on. She adds “this is guidance. The claimant has not been set up to fail.” She said Mr Tareen never asked for more support. She also states he never told her he was stressed and anxious and could not sleep. She says she never bullied or targeted.

Treating medical evidence

On 6 November 2022 Mr Tareen saw Dr Gulyaeva, general practitioner, at the Belmore Medical Centre. In the clinical entry it is recorded that the reason for the visit was anxiety/depression, mental health consultation. The doctor records “anxious, insomnia- bullying at work, a lot of stress at work, depressed mood, not enjoying his usual activities.” The doctor lists his symptoms as poor sleep, early morning wakening, low self-esteem, depressed mood, anxious, stress at work. The doctor suggested a referral to a psychologist and prescribed Axit tablets.[4]
[4] AALD-1 p 18.
On 22 November 2022 Mr Tareen saw Dr Gulyaeva again where “stressed, anxious, depressed, no support at work/job stressful, worked at insurance company, insomnia” were noted. Lexapro and Zolpidem were prescribed and Axit was ceased as it was not effective.
On 28 November 2022 Mr Tareen consulted Dr Immadi and complained about work place bullying that had been ongoing for some time. He noted that Mr Tareen had seen another doctor on 6 November 2022 and was started on Mirtazepine but Mr Tareen said he felt worse with it. He told the doctor he never had any mental issues in the past. He was unable to sleep and concentrate at work. The doctor notes “says ‘feels like hunting’ trying to find very small mistakes, having meeting [e]very Friday and feels like trying to find all neg things never any positive feedback”.[5] The doctor records that Mr Tareen did go to work today but he feels unable to go until the situation improves at work. A workcover certificate was issued.
[5] AALD-1 p 30.
On 30 November 2022 Mr Tareen saw Dr Immadi again and received a referral to a psychologist. A further referral was given on 6 December 2022 and complaints about poor sleep recorded. Dr Immadi’s clinical notes record further attendances and on 8 February 2023 he notes there were worsening panic attacks, nightmares, sleep issues and need to see a psychiatrist.[6] Further attendances are recorded and on 10 May 2023 it is noted that the psychiatrist changed his medication to Seroquel and Zoloft and Mr Tareen is feeling very drowsy and zombie and he is having a lot of negative thoughts, he is sleeping the whole days and feels like sleep walking. He was advised to see the psychiatrist again but if he could not talk to him to stop talking the Seroquel.[7] On 6 June 2023 Dr Immadi noted worsening panic attacks for the last one to two months. Further attendances are recorded with continuing psychological symptoms.
[6] AALD-1 p 27.
[7] AALD-1 p 26.
Mitch Jordan, psychologist, reported to Mr Tareen’s solicitors on 7 July 2023 about the treatment he had provided to Mr Tareen.[8] He first consulted with Mr Tareen on 21 December 2022 and had seven consultations up to the time the report was written and was planning to continue with treatment after that.
[8] ARD p 51.
He has a history consistent with Mr Tareen’s statements that he was receiving different treatment from a senior staff member to that being provided to a person who started work with the respondent at the same time as him. He also related the requirement to notify work he could not complete by 2.00pm and Mr Tareen said this was unreasonable as he would still have time to complete the tasks and it added undue pressure on him in the middle of the day. He felt his anxiety increase and trouble sleeping and was anxious attending work.
Mr Jordan took a history that Mr Tareen felt his manager has no empathy and was cold in her approach to him. He relates having a panic attack after the meeting where he was told his probation was threatened as was his ability to be given delegation to sign off on claims.
Mr Jordan states a diagnosis of an adjustment disorder with mixed anxiety and depressed mood is appropriate. He believes Mr Tareen’s mental state deteriorated over several months due to the issues with his colleague who became his manager. He stated that the commencement of weekly meetings in November exacerbated his condition to the point where he could no longer work but his psychological condition had started before this. At the time of the report Mr Jordan found Mr Tareen unfit for work and needing treatment but in the longer term he expected he could get back to some form of employment.
Dr Chow was Mr Tareen’s treating psychiatrist who reported to Dr Immadi on 4 April 2023. He advised that he could not continue to treat Mr Tareen because the doctor worked for TAL. He provided an “impression: 43 year old male presented with adjustment disorder with anxiety in the context of reported workplace maltreatment by a senior colleague”.[9]
[9] ARD p 46.

Dr Virk

Dr Virk, psychiatrist, provided a medico-legal report for the respondent dated 7 February 2023.[10] He has the history that Ms Mehta gave him the ‘cold shoulder’ for no apparent reason and she did not respond to his messages on Teams. He told the doctor that another newcomer had thrice weekly meetings with her senior and he did not receive the same support from Ms Mehta. Mr Tareen told the doctor that six weeks after he commenced he provided feedback to his manager Patrick Stanton that Ms Mehta was not providing support and after that she gave him one hour per day during the week. Mr Tareen says he felt she was deliberately targeting him. He said Mr Stanton would provide positive feedback but Ms Mehta provided excessively negative feedback that would contradict Mr Stanton.
[10] Reply p 13.
He discussed with the doctor having to attend the weekly meetings with Ms Mehta and Ms Nicholson and related that he felt constantly criticised. He said he was told he needed zero breaches and this did not apply to others. He was told that he had to email Ms Mehta by 2.30pm if he could not complete his work tasks and he only did this twice and often stayed back until 8.00pm to finish his work. He advised in the meeting on 25 November 2022 he was told they were not happy with his performance and he may not receive his delegated authority. He said they spoke to him in a cold and uncaring manner. He said he checked about the cutoff for delegated authority and was told it was 84% yet he had 96% and so it seemed to him that Ms Nicholson had lied to him.
Dr Virk diagnosed an adjustment disorder with mixed anxiety and depression. He says Mr Tareen developed symptoms around in early November 2022 after being informed of the weekly meetings that he would be required to attend with Ms Nicholson and Ms Mehta and that his psychological symptoms were then exacerbated by them reportedly informing him that he would not be given his delegated authority due to his work performance on 25 November 2022. Dr Virk added that while Mr Tareen’s interactions with Ms Mehta did cause him to experience emotional distress, he does not believe that such distress amounted to a psychological injury at the time.

Dr Virk found the employer’s actions with respect to performance management were the predominant cause of his psychological condition. Dr Virk explained,
“The basis for my opinion is Mr Tareen's description of the onset of his anxiety and depressive symptoms occurring in the context of being informed that he would be subjected to weekly performance meetings. His psychological symptoms then accelerated in the context of receiving critical feedback during these meetings before he eventually ceased working upon learning that he may have his delegated authority withheld.”
Dr Virk later stated:
“I am guarded about Mr Tareen returning to pre-injury duties due to his marked anticipatory anxiety about returning to work, interpersonal conflict with Ms Mehta and dissatisfaction with management regarding the performance management meetings.”
In terms of capacity for employment, Dr Virk found that Mr Tareen was unable to work and required psychiatric treatment, sessions with a psychologist and anti-depressant medication. He doubted he could return to work at the respondent.

Dr Saboor

Dr Saboor, psychiatrist, has provided Mr Tareen’s solicitors with a medico-legal report dated 17 March 2023.[11] He took a history consistent with Mr Tareen’s statements and diagnosed that he had an adjustment disorder with depressed and anxious mood in the context of experiencing bullying and harassment. He opined that Mr Tareen’s employment was the main contributing factor to the development of his psychological injury and subsequent incapacity and need for treatment. He stated that Mr Tareen started feeling anxious in July and subsequently worsened and had his first panic attack in September after Bhumika shouted and screamed at him. The doctor says his condition worsened further until he stopped working.
[11] ARD p 34.
Dr Saboor considered the opinion of Dr Virk and agreed with his diagnosis but not his findings about the cause of the psychological injury. Dr Saboor says Dr Virk considered the meeting on 25 November 2022 was the cause whereas Mr Tareen had symptoms from July 2022 and September 2022 and he was experiencing anxiety and panic attacks then and the meeting caused further exacerbation but was not the main cause of the psychological injury. He finds Mr Tareen to have no capacity for employment and requiring further treatment.

Respondent’s submissions

The respondent submitted that what should be clear is that Mr Tareen’s performance was being appraised and this was the cause of his psychological injury. It is submitted there is no issue about the diagnosis of an adjustment disorder with depressed and anxious mood but the issue is the cause of that injury. The respondent says there is no medical evidence to support it occurring earlier. Dr Saboor says that Mr Tareen’s psychological symptoms started in July 2022 and that he had a panic attack in September 2022 after he alleges Ms Mehta screamed at him at work. However, the respondent submits that the facts upon which this conclusion is based are not certain. It was submitted that there is no evidence to confirm a panic attack actually occurred in September and, furthermore, that Mr Tareen in his statement said in September he went up to Bhumika to speak about a claim and she was sitting with others and said she did not have time and was too busy to help.
The respondent’s counsel submits that while Mr Tareen said he was embarrassed about this he does not state in his first statement that Bhumika raised her voice or screamed at him and this assertion only appears in his second statement. She argues that greater weight should be placed on the first statement because it was earlier. She states that the respondent does not have a version of events dealing with screaming because they only had the first statement.[12] However, one would have expected the respondent to obtain updated statements if they wished to challenge the version in the second statement.
[12] T17.06.
The respondent submits that at [53] of Ms Mehta’s statement she deals with what happened in September 2022, and she says she does not recall the particular incident.[13]
[13] T18.30.
The respondent’s counsel narrates the contents of the statements of Ms Nicholson’s and Ms Mehta’s relating to their roles and Mr Tareen’s work. She cited the opinion of Dr Virk, that while the interactions with Ms Mehta caused Mr Tareen emotional distress it did not amount to a psychological injury.
It was submitted that the meetings held with Mr Tareen were performance appraisal and the fact that Dr Virk called them performance management is not applicable. Counsel submitted that it was due to these meetings that Dr Virk found Mr Tareen was worried for his employment. It was argued that this conclusion is supported by the fact that Mr Tareen consulted his doctor on 6 November 2022, which was shortly after the commencement of the meetings and it was at this time his doctor prescribed medication to assist with anxiety.
It was submitted that Mr Tareen’s psychological symptoms deteriorated over the course of the next several weeks due to his belief that he was being unfairly criticised in these meetings before culminating in him being informed that his delegated authority would be withheld.[14] Counsel submitted that Mr Tareen interpreted this as being that his employment would be terminated and this resulted in his symptoms accelerating to the point where he was unable to continue with his employment. It was submitted that the general practitioner’s clinical entries on 6 and 28 November 2022 support this scenario.
[14] T20.20.
The respondent submits that Mr Tareen developed psychological symptoms as a result of the performance appraisal from 3 November 2022. It is argued that any suggestion by Mr Tareen that his injury occurred due to earlier incidents is not borne out by the evidence including the first statement of Mr Tareen. It was submitted that there is nothing to suggest he developed psychological symptoms earlier in the clinical records.
In relation to capacity, the respondent submits it relies upon the opinion of Dr Virk that Mr Tareen could return to work within three months of his report of 7 February 2023. It is argued that Dr Virk had the clinical records before him and he has the best history, and that there are not up to date certificates and so it is argued that the Commission should find a graded return to work from three months after that report reflects his capacity. In terms of the claim for section 60 expenses, a general order was agreed to if the respondent did not establish a s 11A defence.

Mr Tareen’s submissions

Counsel submitted that Mr Tareen had a psychological injury from 6 November 2022 when his doctor diagnosed anxiety and depression. He submits the question to resolve is, what were the causes of that injury? He argues that anything which happened after that time would be of some relevance in terms of exacerbation of the condition but the crucial time is to look at what occurred before 6 November 2022.
It is submitted that it is important to see what in fact Dr Virk has said because it is his opinion that the respondent has relied upon to discharge its onus to establish a s 11A defence. It is submitted that Dr Virk asked himself the wrong question when he stated that Mr Tareen’s interactions with Ms Mehta did cause him to experience emotional distress but Dr Virk did not believe that this stress amount to a psychological injury at that time. Counsel argues that there can be many things that contribute the development of a psychological injury, they accumulate to reach the point where the injury manifests itself. Counsel submits that Dr Virk asked himself when did the injury manifest itself, not what was the causes of the injury.
Counsel submits that given Mr Tareen suffered the psychological injury on 6 November 2022, the meeting that is relevant to consider in relation to the s 11A defence is that which occurred on 3 November 2022. Counsel addressed the email forwarded to Mr Tareen on 4 November 2022 at 7:40 AM confirms what was discussed in the meeting the day before.[15] Counsel described the contents of the email as innocuous and that it did not contain anything to suggest anything serious was going on. Counsel submitted that this meeting was an innocuous event so the question is, why did Mr Tareen seek medical attention on 6 November 2022? and he suggests the answer is to be found in the events which led up to this meeting.
[15] AALD-1 p 2.
It is submitted that Mr Tareen’s first statement sets out his ongoing issues with Ms Mehta, her lack of support and the negativity she displayed to him compared to Mr Patrick Stanton her earlier manager, including an email from him saying Mr Tareen’s average was 95%. Counsel argued that the respondent has not put on any evidence from Mr Stanton to deny the accuracy of the information Mr Tareen provides about their relationship. In addition counsel submits that there is no dispute that there was an incident on 25 August 2022 when there was a disagreement about what was put on a claim. Counsel submits that Ms Mehta states that the line was taken out of context. He submitted that Ms Mehta says she does not recall the September incident, when Mr Tareen approached Ms Mehta for help but she had no time but saw her laughing with colleagues, so one can accept Mr Tareen’s version. Counsel says it does not matter if Ms Mehta screamed in the incident or not, what is relevant is that she said she could not help Mr Tareen but proceeded to sit and laugh with colleagues.
It was submitted that there was another incident in October 2022, which I have summarised earlier, where Mr Tareen says he felt singled out and bullied by Ms Mehta. Counsel says Ms Mehta’s response is she does not know of the claim and she says everyone is trained on appropriate file note taking.
Mr Tareen’s counsel submits that when one gets to 6 November 2022 and determining what is the cause of the injury, the answer is that it is the accumulation of all of the matters that Mr Tareen has raised. He said Ms Mehta has acknowledged some occurred, some of the events are not denied and others not addressed.
It was also submitted that one needs to look at what the doctor recorded on 6 November 2022. It was submitted that Mr Tareen told the doctor that he had insomnia, bullying at work, and stress at work, and that there is nothing about him being performance appraised. It is submitted that this is far more consistent with what Mr Tareen says in his statements than what Dr Virk relied on. Counsel submits that Dr Chow attributes the cause to being mistreated at work and Dr Saboor dates the causes of injury back to July 2022 and following.
Mr Tareen’s counsel also submitted that the meetings that the respondent relies upon are not performance appraisal. He submits that the respondent’s witnesses say the meetings were arranged to assist Mr Tareen in training and developing his skills and for guidance. Various cases are cited such as Irwin v Director General of Education,[16] Dunn v Department of Education and Training[17] and Smyth v Charles Sturt University.[18]
[16] No 14068/97 (18 June 1998 unreported), Irwin.
[17] [2000] NSWCC 11: (2000) 19 NSWCCR 475, Dunn.
[18] [2007] NSWWCCPD 184, Smyth.

Respondent’s submissions in reply

The respondent submitted that the meetings were not an improvement process as opposed to an appraisal process and drew attention to the emails sent to Mr Tareen after the meetings, in particular that of 25 November 2022. This email set up a further meeting on 30 November 2022 and advised Mr Tareen that they “had shared with you ongoing areas of your assessment that are not aligned to our expectations of your experience, which could likely impact on your ability to pass your probation.”
It is argued that this indicates there has been an appraisal of Mr Tareen’s abilities. It was also submitted just because this occurred over a period of time does not mean that appraisals did not occur.
Counsel also relied upon Mr Tareen’s doctor who stated that the psychological symptoms only started after the performance review started. However, when one considers this comment from Dr Immadi’s it needs to be borne in mind it is in response to questions about his capacity to work. Also, Dr Immadi was not the doctor who saw Mr Tareen on 6 November 2022. His first visit to Dr Immadi about work issues was on 28 November 2022.
The respondent also submitted a psychological injury is different to some low grade discomfort with a different manager.

Determination

In Irwin Geraghty J stated,
“Performance appraisal is more like a limited discreet process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.”
Deputy President Byron applied Irwin in Smyth rather than the narrower view of performance appraisal discussed by Neilson J in Bottle v Wieland Consumables Pty Limited.[19]
[19] [1999] NSWCC 32; (1999) 19 NSWCCR 135, Bottle.
In Dunn Geraghty J at [68] stated, referring to Irwin, “that a performance appraisal should be formal, somewhat like an examination or a test rather than an extended and continuing assessment.” In that case it was found that Mr Dunn was not involved in a performance appraisal process and he was part of an improvement program, or an enhancement program or some type of in-service training.
In Mr Tareen’s case I also find that the meeting arrangement does not come within the concept of performance appraisal. Firstly, the meetings were to occur on a weekly basis so this falls more into the category of continuing assessment or training. Secondly, and more importantly, the nature of the meetings as described by Ms Nicholson and Ms Mehta do not, in my view, come within the concept of performance appraisal discussed in the above-mentioned cases. For instance, Ms Metha states at [33] of her statement that the weekly meetings were about “his performance, feedback on his performance, gave examples of the claims of what was not up to standard and where he had to improve”. At [24] Ms Mehta states “giving feedback is part of procedure to all workers during their probationary period and to workers not on probation.” Ms Nicholson at [47] of her statement also made it clear that they discussed positive things he was doing well, areas he needed to focus on more and they shared actual claims he worked on and provided feedback. At [48] she says the meetings were an opportunity to provide feedback and Mr Tareen was given an opportunity to respond. She adds “the reason for the meetings was to get him through his probation and get his delegated authority”.
Therefore, I accept the submissions made by Mr Tareen’s counsel that the respondent has not discharged its onus required to establish a defence under s 11A of the 1987 Act because even if Mr Tareen’s psychological injury was caused by these meetings they do not come within the concept of performance appraisal.
Furthermore, Mr Tareen’s submissions have force that even if these meetings were performance appraisal they were not the whole or predominant cause of the psychological injury. I find the interpersonal relationship with Ms Mehta was the predominant cause of the injury developing. I accept Mr Tareen’s submission that the injury manifest itself on 6 November 2022 and was due to the accumulation of stressors perceived by Mr Tareen up to that time. I find it is significant that when he first complained to a doctor about his mental state he did not mention the meetings, with the doctor recording “anxious, insomnia- bullying at work, a lot of stress at work, depressed mood, not enjoying his usual activities.” Also Dr Saboor took the history that Mr Tareen experienced symptoms from July and had panic attacks in September. Just because he did not seek treatment straightaway does not mean that he should be disbelieved that his symptoms started before the regime of meetings commenced. In fact, I find it is consistent with his statement evidence that he had issues with Ms Mehta since he started in relation to lack of support and matters escalated once she took over from Mr Stanton when he went on paternity leave in October 2022.
In Attorney General v K[20] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[20] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Even if Ms Mehta has a different perception of the work relationship with Mr Tareen, or did not mean her conduct to be viewed as bullying, that does not mean that Mr Tareen has not sustained a psychological injury. Mr Tareen’s counsel submitted about a number of events which occurred at work, which on one view seem innocuous, but I accept they were real events and Mr Tareen perceived they created a hostile environment for him. Even the question asked by Ms Mehta did he have a physiotherapy background seems innocuous but it was a real event and Mr Tareen perceived it showed he was not valued because he did not have that background or he was set apart. This perception may not have been rational on his behalf but that is not the test. But this feeling of being treated differently pervades Mr Tareen’s statements, for example he refers to others not being criticised for making notes on claims or them receiving more support than he did from Ms Mehta.
Dr Virk dismissed the role of the interpersonal conflict as being causative of the psychological injury because the meetings occurred closer in time to Mr Tareen being diagnosed with a psychological injury. In Hamad v Q Catering Limited[21] at [88] Deputy President Snell in found:
“In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic.”
[21] [2017] NSWWCCPD 6, Hamad.
I find Dr Virk by considering the causation of the psychological injury in a narrow fashion did not provide a sufficiently reasoned opinion on causation and did not acknowledge that psychological injuries, such as suffered by Mr Tareen, can be multifactorial and manifest themselves after a period of time and after a series of stressors.
Therefore, I prefer the opinion of Dr Saboor over that of Dr Virk because he has taken a more comprehensive history of the stressors in Mr Tareen’s case and provides the most assistance in relation to the issue of the whole or predominant cause of injury.
However, as found earlier I do not accept that the meetings were performance appraisal and so the s 11A defence has not been established by the respondent. The defence also fails because the meetings were not the whole or predominant cause of the psychological injury. Therefore, I find Mr Tareen is entitled to receive workers compensation benefits under the 1987 Act.

Weekly compensation

In relation to the issue of Mr Tareen’s capacity for employment I find he has no current work capacity as defined in Schedule 3 cl 9 of the 1987 Act because he has had an inability since 23 March 2023 to date to return to work either in his pre-injury employment with the respondent or in suitable employment.
I consider the medical evidence is overwhelming that Mr Tareen cannot return to work for the respondent due to the interpersonal issues with Ms Mehta. Dr Virk supports such a conclusion. In relation to his capacity to work in suitable employment, noting the factors in s 32A which includes the medical information, I find it supports a finding that Mr Tareen cannot return to any work, certainly at present. Dr Saboor, Dr Virk and the treating psychologist Mr Jordan all hold that view. Hopefully he will improve with treatment.
The respondent submitted that there is no current medical evidence about capacity. However, I accept Mr Tareen’s counsel’s submission that the presumption of continuance will apply in the circumstances of the case.
Therefore, I find that Mr Tareen is entitled to an award of weekly compensation from 23 March 2023 to date and continuing pursuant to s 37 of the 1987 at 80% of the agreed PAIWE figure of $1,900 which is $1,520 per week. A general order is also made in relation to s 60 expenses.

[2024] NSWPIC 129

18 March 2024