Thomas v Newcastle Permanent Building Society

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomas v Newcastle Permanent Building Society [2021] NSWPIC 198
APPLICANT:	Suzanne Thomas
RESPONDENT:	Newcastle Permanent Building Society
MEMBER:	Michael Wright
DATE OF DECISION:	22 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation for psychological injury; whether there was a pre-existing psychological condition; consideration of whether alleged personal stressors were causative rather than work issues; consideration of section 4(b)(i) disease or section 4(b)(ii) aggravation of a disease; whether alleged personal stressors were competing causative factors in consideration of whether employment was the main contributing factor; Held- found there was no pre-existing condition; personal stressors were not causative of the psychological injury and were not competing causative factors; found employment was the main contributing factor; award for the applicant for claim for weekly compensation.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant sustained psychological injury under section 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act) arising out of or in the course of her employment with the respondent with date of injury deemed to be 4 November 2019. 2. The applicant’s employment with the respondent was the main contributing factor to her psychological injury. 3. The applicant had no current capacity for work for the periods 22 February 2020 to 8 March 2020 and 4 April 2020 to 30 April 2021. The Commission determines: 4. Respondent to pay the applicant pursuant to section 37(1) of the 1987 Act weekly compensation: a. for the period 22 February 2020 to 8 March 2020 at the rate of $1031.03 per week, and b. for the period 4 April 2020 to 30 April 2021 at the rate of $868.23 per week. 5. Respondent to pay the applicant’s reasonably necessary medical, hospital and related treatment expenses pursuant to section 60 of the 1987 Act as a result of the applicant’s psychological injury with a deemed date of 4 November 2019. 6. The Commission notes that the respondent has paid leave entitlements to the applicant in the above periods and credit to be given to the respondent for payments made. 7. Applicant has liberty to apply in respect of deemed date injury.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD) , Ms Suzanne Thomas (the applicant) claimed weekly compensation and related medical and treatment expenses for a psychological injury said to be sustained in the course of her employment with Newcastle Permanent Building Society (the respondent) with injury on 4 November 2019 in the course of employment said to be sustained due to excessive workload without adequate support and interpersonal conflicts in the workplace.
In a section 78 notice by Allianz dated 30 July 2020 and a section 287A review decision by iCare dated 15 March 2021, the respondent disputed that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury as required by section 4(b). It was also disputed that employment was a substantial contributing factor as required by section 9A. Capacity for work was also disputed. Section 60 expenses were also disputed. Allianz relied on a factual investigation report and also the report of Dr Clayton Smith dated 25 June 2020. ICare in its review decision confirmed the section 78 notice and maintained the decision pursuant to sections 4(b), 9A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act) and preferred the opinion of Dr Smith to that of Dr Rastogi.
The respondent did not rely upon a defence under section 11A of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 18 May 2021, the applicant was represented by Mr Morgan of counsel, and the respondent by Mr McMahon of counsel.
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 application was amended at the commencement of the arbitration to claim weekly compensation for the periods 22 February 2020 to 8 March 2020 and 4 April 2020 to date and continuing.
Prior to the completion of the arbitration, the applicant closed the second and later period of the weekly compensation claim to end at 30 April 2021.
Preinjury average weekly earnings were agreed by the parties to be $1,085.29.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents, and
(b)    Application to Admit Late Documents dated 11 May 2021, and
(c)    Application to Admit Late Documents dated 12 May 2021 (enclosing Reply and attached documents), and
(d)    Application to Admit Late Documents dated 13 May 2021.

Oral evidence

There was an application by the respondent to cross examine the applicant on a limited basis about issues relating to capacity for work. I declined that application as the matter had not been previously raised at the telephone conference, and also in my view the respondent would be able to make submissions in that regard. There was also some question in my mind as to the applicant’s ability to deal with cross-examination in these circumstances. There was no application to give oral evidence.

Other evidence

The applicant’s statements

The applicant provided signed statements dated 6 May 2020 and 23 February 2021.
In her statement dated 6 May 2020, the applicant said that she commenced employment with the respondent in 2012 and she has been employed by the respondent since that time. She stated that she commenced employment with the respondent on 26 November 2012 as a Member Service Officer at the Jesmond branch where she worked for three years.
She said that her duties were as a front-line staff member providing services to members who came to that branch, and she also did cashier work and similar duties.
The applicant stated that she had previously seen a psychologist seven or so years ago when she had a marriage breakup and she was placed on antidepressants to help with that stress. She was prescribed antidepressants at that time, which she continued to take over the years until the time of the circumstances that are the subject of these proceedings.
She said that she had two weeks off work when her marriage broke up and then she went back to work and had functioned very well and continued to work in full time employment until the circumstances of this claim. She said she had received a number of awards from the respondent over the years in relation to her work.
The applicant stated that at the time of the current circumstances at work she thought her health status was fine in relation to her depression.
The applicant said that her antidepressant medication was changed from about mid February 2020 and thereafter increased, from an initial dosage of 10 mg daily, to eventually 20 mg daily. She also said that she was prescribed anxiety medication with effect from 25 February 2020.
The applicant stated that in July 2019 she commenced work as a payment officer in the head office of the respondent.
The applicant described how she was not really able to get assistance if she needed it with her work as it was a very busy department with quite a few people working in it and with lots of changes happening. She said that before the onset of her symptoms in relation to the claim the daily duties as a payment officer were originally to do ATM and BPay transactional details and the extent of those duties grew into other things including processing internal transactions.
The applicant said that she was on a very steep learning curve to try and learn a new system which she did not grasp quickly enough. She said that she tried her best and she found it very difficult to get assistance. She said that she found the workload and the pressures kept increasing from November 2019 when her colleague or “buddy” who was helping her went on maternity leave. She said that she felt from that time that expectations of her kept increasing and staff were asked to cancel unnecessary leave, with other similar measures.
She said that she cancelled her personal leave and she found that she felt “very alone and isolated” with bigger issues and less people to troubleshoot problems. She said that when her new Team Leader commenced she started to feel pressure and scrutiny which kept on mounting.
The applicant said that she was told on a number of occasions by the new team leader that she was not up to standard and that she was not quick enough and that she did not pick things up quickly enough. The new team leader was Ms Townsend. The applicant thought that Ms Townsend was trying to help her and so she did not speak with anyone above her team leader.
The applicant said that she had no previous experience in the area and when she commenced she thought she could get through. However, she thought she was the weak link and matters kept spiralling and she kept getting more and more confused and she felt that she just could not cope with more and more tasks being put on her.
The applicant said that she started to feel unwell when the pressure started in November 2019 but she thought she could manage it until she got to a breakdown point probably towards the end of January 2020. She said that by this time she didn’t want to drive to work and she struggled to put her uniform on and struggled to get to work and it was a struggle to be at work.
The applicant described the scrutiny that she felt she came under with the commencement of the new team leader. She described how the team leader stood behind her watching her do her tasks and at some point the new team leader asked the applicant how many mistakes she had made today. The applicant described how the new team leader would sit on her desk and talk to her and she felt intimidated.
The applicant also stated that on a Monday in about March 2020 as she was about to leave the office for the day she was called into an office with their manager Mr Atkins. The applicant said that she was told that she was being placed on discretionary leave because it was in her best interests as she was not functioning enough to be at work. The applicant said that she felt shattered and she felt worthless. She said that she had no prior knowledge that the meeting would take place.
The applicant said that she was not offered any type of support to go into that meeting. The applicant stated
“Tash asked me could she have a quick word with me? And they took me into one of the meeting rooms just near our area and Wayne was there as well. He told me he was there for a support, but I didn’t request that he was… Tash was… It was obviously arranged by them and I had no prior knowledge”
She said that she had not returned to work since that meeting.
In her supplementary statement of 23 February 2021, the applicant referred to being placed on very minimal duties and her team leader told her that this was all she could handle. The applicant stated that this made her feel useless and belittled.
The applicant stated that she did not report her team leader’s actions as she felt isolated and she feared for her job and she did not trust her employer to support her either as she felt that she could not rely on anyone in the organisation if she had lodged a formal complaint.
The applicant also denied in her statement of 23 February 2021 that the issues at work arose from problems she was having at home, as heavily attributed by Ms Townsend. The applicant said that she was having issues at home in the first few weeks that Ms Townsend was team leader but these issues had settled and did not have an ongoing effect on her mental health. The applicant said that what caused her continuing issues was the bullying and intimidation by Ms Townsend.
At this point I note that the applicant’s supplementary statement of 23 February 2021 is a response to the statements of Ms Townsend, Ms Hodge, Mr Atkins and Mr Chapman. In my view that statement focuses on work issues in relation to what the applicant describes as intimidation and bullying by Ms Townsend. The applicant did not resile from her previous statement which described her difficulties at work as noted above.

Factual investigation report

Attached to the Reply was a factual/circumstance investigation report of MJM Corporate Risk Services dated 8 June 2020. This report contained the statements of the applicant of 6 May 2020 and also Ms Tash Townsend, Mr Wayne Atkins, Ms Sarah Hodge and Mr Chris Chapman, referred to below, as well as a report of Dr Bhaskar dated 25 February 2020 to the insurer, as well as other documents to which no reference was made in submissions.

Statement of Tash Townsend

In her signed statement dated 22 May 2020, Ms Townsend stated that she commenced her team leader role in the payment operations team on 6 January 2020 and she was the applicant’s team leader from that time. Ms Townsend said that the applicant’s permanent role was that of a member services officer in a branch and was on secondment to her team.
Ms Townsend stated that she knew that the applicant had some mental health issues and had had them for a long time and had been on medication for a number of years.
Ms Townsend also described that leading up to the applicant lodging her workers compensation claim there were personal issues at home and problems with her partners, children and stepchildren. Ms Townsend stated that the applicant had moved out of home and there was obviously a flareup of her mental health that prevented her from doing basic things such as driving, going to work and putting her uniform on which had a flow on effect for her doing her job.
Ms Townsend said that she was unaware whether the applicant was feeling pressure at work from learning new systems prior to the time that Ms Townsend joined the team.
Ms Townsend also described conversations with the applicant in which the applicant
had previously asked for assistance with previous managers and a work colleague. Ms Townsend also stated that the applicant had told her that when she first started learning the job in July and August she needed help from the person who is training her and that person went on maternity leave at the end of July or August. She said that the applicant’s personal life started to get worse and it got to the point where the applicant could not be trained on a task because it was making it worse.
Ms Townsend also stated that she did have a conversation with the applicant about how she was not quick enough because activities are timed, but she did not say to the applicant that she didn’t pick things up quickly enough. Ms Townsend said that the applicant was not targeted.
Ms Townsend stated that she would sit next to the applicant on the desk due to the configuration of the desk so that she could talk face-to-face with the applicant. Ms Townsend said that she did that but she did not believe it was an intimidating thing. Ms Townsend also said that she was watching the applicant for accuracy.
Ms Townsend stated that she knew the applicant had “some mental health issues and has had them for a long time and has been on medication for a number of years” and “it so obviously some flare ups going on” [sic]. Ms Townsend also described the applicant telling her that at some time in the end of January or February the applicant had moved back to her mother’s place.
Ms Townsend further stated that the applicant “had moved out of home, there was a flareup obviously of her mental health which was preventing her from doing basic things…”
I note at this point that Ms Townsend’s references to “flare ups” were made in the context of relating them to nonwork matters. More importantly, they were conclusions as to the applicant’s mental state and the relationship between that mental state and her activities such as driving, going to work and putting her uniform on. I do not place any weight on this aspect of Ms Townsend’s evidence.
Ms Townsend also stated that “I know they were building a house which obviously that takes a lot of time and I know she’d mentioned financial pressures with that and the builder”.
At this point, I note that Ms Townsend did not identify the source of her knowledge, such as whether the applicant had spoken to her about building the house and financial pressures. I also note that it is unclear whether Ms Townsend was reaching a conclusion about financial pressures, as the details of the conversation or conversations were not provided. I do not place much weight on this aspect of Ms Townsend’s evidence.
Ms Townsend also stated that she and her manager, Mr Atkins, had a meeting with the applicant. She said that it was due to their concerns over the applicant’s well-being and at that point the applicant had made many batch errors for which she had been spoken to but she had gone home early and hadn’t been able to drive. Ms Townsend stated that the applicant attended the office one day physically shaking and took her about 40 minutes to calm down. Ms Townsend stated that they told the applicant that she should go on discretionary leave.
Ms Townsend’s account of that meeting was at best confusing as her statement moved back and forth between the time of the meeting and referring to her reasons for the meeting and then returning to the meeting itself. She commenced her account of the meeting by stating that
“Wayne Atkins and I had a meeting with Sue due to our on-going concerns over her wellbeing. At that point she had made so many errors on batch and I'd spoken to her, the doctor had said she was right to be back at work, she'd had multiple tears, gone home early, hadn't been able to drive…
We were conscious of the financial impact for Sue because she had mentioned that there was some financial stresses for her having to move out of the house with her partner separating, they were building at the same time and her leave was not there…
That's the conversation that we had with her, so we pulled her in and said look we can see that you're still not coping, how are you feeling, she admitted that she was still struggling, her comprehension was there, everyday basic tasks getting up going to work driving that was you know too much, she couldn't predict how she was going to feel and we could see that the impact was obviously happening at work and it negatively affecting her…”
I note that Ms Townsend did refer to “so many errors” as one reason for the meeting, but in the context of her view that it was the applicant’s personal issues that were causing the problem. Ms Townsend said the meeting was called out of concerns for the applicant’s well-being. However, after another three lengthy paragraphs dealing with attempts to have a structured plan with the psychologist, there was a somewhat jarring note in the only direct quote attributed by Ms Townsend to the meeting. The direct quote had a more forceful and interrogatory tone:
“Sue's initial response to the meeting was she was ‘But I thought I was doing okay.’
I said ‘Well you know we spoke about the multiple conversations we'd had that week. Do you believe that that's what we would consider normal?’
Sue said, ‘Well, no I'm not doing it normally.’
I said, ‘Yes, we understand that. I said you know the doctor's signed you off to say you're fine. Do you agree with that comment.’
Sue said, ‘No I don't.’
I said, 'Well, that's what we're concerned about as well because the doctor's saying you're a hundred percent but you're coming to work and taking forty minutes to stop shaking because it took you that much to get through the door. The information does not seem to correspond and that's what we're concerned about. If we have you at work and you're making mistakes, or we keep giving you more tasks we're actually making this situation worse when the doctor said you're fine which you're clearly not.’”

Notwithstanding the earlier particularity of Ms Townsend’s comments in her statement in relation to the applicant’s mental state, after another three paragraphs referring to matters other than the meeting, Ms Townsend stated
“Sue was obviously upset and I think she in Sue’s head, and this is a complete personal opinion I have no professional training, but I think she thought I’ve gotten back to work so things are going to go back to normal and walking through the door was enough…”
This was Ms Townsend’s only reference to the applicant’s reaction at that meeting, other than the direct quote above, and again she related the applicant’s response to nonwork related issues and made assumptions about the applicant’s mental health and motivations.
Ms Townsend denied knowledge of matters referred to by the applicant in the payments operations team before she became team leader in January 2020. She did concede that there was an increase in workload. She stated that
“Prior to joining the team, I have no idea if Sue had been requested to cancel leave. I had no idea if the team were asked to or not. I know that the workload is increasing in our team and it has been since the team was merged. The team was only created in July so what it was going to look like and what was going to happen workload wise was going to change no matter what the situation.”
In relation to training and workload, Ms Townsend stated:
“Sue's training was adequate for her tasks. We didn't have any new systems introduced like as far as we had nothing while I was there and as far as I know there's been no new systems since the team was created in July but the tasks that she was doing she had done beforehand. The batch which is pretty much the only thing she was left on is very simple. It's one screen and it's copying the data from this printed piece of paper onto the computer screen. It's not difficult at all.”
What is missing from Ms Townsend’s statement in relation to the preceding paragraph is an identification of when and how the applicant’s duties changed. Ms Townsend described earlier in her statement that “we couldn't train her on a task anymore because it was making it worse so we pulled her off the activity and said look we're not going to give you the pressure of having to do them”.
Ms Townsend’s statement as to her view of the personal issues of the applicant, together with the confused, meandering and often vague nature of the statement, make it difficult for me to prefer the statement of Ms Townsend to those of the applicant on matters in which there was dispute with the applicant. I do not prefer the statement of Ms Townsend to that of the applicant.

Statement of Wayne Atkins

Mr Atkins provided a signed statement dated 25 May 2020.
He is the acting manager, lending systems and payments, based at head office.
He stated that the applicant was seconded into one of the teams that he managed, the payment operations team, from July 2019. Mr Atkins stated that he had worked with the applicant previously for a period of four months when she was also on secondment. He was acting manager of the loans processing area and the applicant was working in the member assist area in that secondment before moving back to the retail branches and returning in July 2019 to the payment operations team. Mr Atkins moved to the acting manager, lending systems and payments, role in August 2019.
Mr Atkins described how the payment operations team had been “under a bit of pressure” with some resignations, a retirement and people going on maternity leave. From July 2019 there was a restructure and the payment operations team became a mixture of an electronic service department and an administrative support team, resulting in new tasks. He said that the culture was impacted by the workload, the restructure, the resourcing and the training that was happening at that time.
He stated that the current team leader was Ms Townsend, who commenced in January 2020 as relief for maternity leave and before that there was an acting team leader for a couple of months from October 2019, and prior to that there was the team leader who went on maternity leave.
Mr Atkins described how he was informed that the applicant had personal issues and at the same time there were processing issues which were being managed by Ms Townsend.
Mr Atkins also stated that
“I think it was around about the end of January early February that I was informed that she had been basically kicked out of home by her partner and she was emotionally distressed at that time”.
I do not place any weight on the quoted statement of Mr Atkins in the previous paragraph. In my view it has little probative value and is hearsay without any identification of the maker of the statement or indeed any identification with some precision of what the statement was. In a similar vein Mr Atkins stated:
“My understanding is that the comments that Sue made is that she got divorced I thought she said it was about seven years ago, that speaking with the physiologist through this current scenario she had come to realise that she had bottled all of that up and it's been a progressive build-up of issues in her personal life. Sue had been having trouble with her then partner at the time in the weeks leading up to what I saw as being the real trigger with the emotional outpours so my initial understanding was that it was all on that basis, the claim in the worker's comp was really the first time that I'd come across that it was being perceived that we had done the wrong thing by her.”
For the same reasons, I do not place any weight on the preceding quoted statement.
However, at this point I note that this is part of the standard of information that was provided to Dr Smith and to which he referred in making his opinion. In my view, this is an inadequate standard of evidence.
Mr Atkins referred to some conversations with the applicant, but as would be expected, he relied on Ms Townsend for information regarding the applicant’s issues at work. He stated
“The team leader was in conversations with Sue throughout the period. It started off from memory they had identified some processing issues and started to go down the path of talking to Sue on that but it was during that period as I understand it that the emotional aspects of her personal life were coming to the full. Tash focused on her welfare and was keeping me informed of the events as it went along.”
In my view, Ms Townsend’s view of the applicant’s personal life was relied upon by Mr Atkins.
Mr Atkins described the meeting that he attended with Ms Townsend and the applicant. He noted that “Sue was teary as we were talking through the issues…”
He stated that “Sue was not one that openly came forward and she made the comment that in past conversations with Tash she found it difficult to even talk about some of those things but was getting better at It.”
Mr Atkins also stated
“Sue Thomas has never ever complained to me directly in the sense that she'd been harassed, intimidated or bullied by Tash Townsend. There was a conversation that I had with Sue after that meeting that Tash and I had with her and Sue was recalling her perception was what was discussed in the meeting. Sue made comment there that she'd felt that she had been harassed and bullied through that. Having been in that meeting and knowing what was actually discussed, there wasn't performance issues discussed in there. There was nothing to do with performance plan or anything else. There might of been passing mention to a question that she raised with regards to errors and as leaders we need to point out errors to our staff so, that they can fix them or not make them again, but the meeting was really focused on her welfare.”
Mr Atkins described how in that meeting the applicant mentioned on several occasions that “her head was just all over the place” and that she was having “trouble getting it clear in her head as to what was going on” or where she needed to go or what she needed to do. Mr Atkins stated that in that meeting they discussed with the applicant about taking discretionary leave. Mr Atkins stated that the meeting was to do with the applicant’s welfare, although there may have been a passing mention to a question raised by the applicant as to errors.
Mr Atkins stated that he had not witnessed any bullying, harassment or intimidation by Ms Townsend of the applicant. He stated that no complaint had been made to him in that regard. He also said that he had not seen Ms Townsend sit on the applicant’s desk.
I do not place much weight upon the statement of Mr Atkins, other than confirming that a meeting took place between the applicant, Ms Townsend and himself and during that meeting the applicant was teary and that during the meeting the applicant’s errors at work were discussed; and also confirming that the team had been under pressure with resignations, a retirement and absences on maternity leave, all following a restructure.

Statements of Sarah Hodge and Kris Chapman

Attached to the reply were unsigned statements of Ms Sarah Hodge and Mr Kris Chapman.
Ms Hodge stated that she is employed by the respondent as an “employee relations adviser”. Ms Hodge did not work in the same area as the applicant.
The unsigned statement of Ms Hodge among other matters referred to her understanding of the applicant’s personal circumstances and also to a discussion that Ms Hodge had with Ms Townsend about Ms Townsend’s understanding of the applicant’s mental state.
I do not place any weight on the unsigned statement of Ms Hodge as in my view it has low probative value.
Mr Chapman was a work colleague of the applicant in the payment operations team.
In the unsigned statement of Mr Chapman he said that the payment operations team had struggled over the previous 12 months, probably longer, with the turnover of staff, change in management and restructuring in a big way. He said that there was a lot of turmoil.
Mr Chapman also said that he did not know the circumstances of the applicant going on an extended break, but when she returned to the office she told Mr Chapman that she’d come back to work and she was wanting to work but that she was not being allowed to do work and she felt like she was sitting there doing nothing because no one would give her any more work to do.
He did not witness any conflict between the applicant and Ms Townsend. He also stated that it was not uncommon for Ms Townsend to wander around and stand behind people and watch what they were doing.
Mr Chapman said that the applicant was a work colleague and friend and they often chatted about life and family and their kids having a common interest but it was not a relationship outside of work. He said that they spoke as friends about the applicant building a house because he was also building a house and they talked about some of the issues and stresses of that process. He did not know how that affected the applicant.
He also stated that he did not witness the matters to which the applicant referred.
In my view, Mr Chapman’s unsigned statement has some probative value, but I do not give it significant weight as to contested matters in relation to the non-work-related issues referred to by the respondent.

Reports of Dr Richa Rastogi

Dr Rastogi, psychiatrist, was qualified by the applicant’s solicitors and provided a report to them dated 28 October 2020, and a supplementary report dated 2 May 2021.
In her report dated 28 October 2020, Dr Rastogi recorded a history that the applicant was asked to work in payment operations in July 2019 after finishing a secondment at head office. Dr Rastogi recorded that the applicant said it was a very high pressure area and she had no prior training or experience. Dr Rastogi recorded that there were a lot of compliance requirements in that department and the applicant said that she was learning about Bpay and ATM under the supervision of Kim and Michelle, her specialist buddy in the department. The team leader Rebecca went on maternity leave in September 2019 and a temporary team leader was brought in as a replacement.
Dr Rastogi noted a history that in November 2019 everything changed when Michelle went on leave. The applicant was asked to learn all the different things Michelle had left and she found it overwhelming. She felt at that time that she could learn and manage the increased workload but she felt unsupported and alienated. She felt obliged to work through the Christmas break and she cancelled her holidays with her children. In January 2020 her previous manager was replaced by Tash Townsend. Tash changed the work environment and changed everything. The applicant had very little support and everyone was working under pressure. She said that emotionally she started to spiral down and she was not coping.
Dr Rastogi noted the history that Tash would interrogate the applicant and make comments that she was too slow. The applicant said that she was being micromanaged and was always being given demeaning and critical comments. Everything she did was being watched and she was never appreciated. The pressure increased and the manager always made negative comments stating how many errors she made constantly.
Dr Rastogi noted the history that the applicant had never been criticised before by her previous managers in the area and had never been belittled in the past. She felt she was being singled out. Due to her limited experience she was unsupported and constantly criticised. She felt intimidated and isolated. She was not coping and she hated coming to work.
It was noted by Dr Rastogi that the applicant saw her GP in February 2020 and took sick leave for the month. Dr Rastogi noted that the GP changed her medication from Sertraline to another antidepressant and she had severe side effects.
The applicant tried returning to work in March 2020, in the history recorded by Dr Rastogi, and she was unwelcome and was targeted. Tash had taken the roles and responsibilities from the applicant and she stated that everything the applicant did was wrong and too slow. Tash changed the applicant’s hours of work, claiming that the applicant was unproductive in the last hour and this was a shock to the applicant.
Dr Rastogi recorded that on 16 March 2020 the applicant was called for a meeting at 4:45 PM, as she was about to leave, for a quick catch up with Tash and Wayne. She was told that she was being placed on discretionary leave and was sent home. She was told that she was useless and was not part of the team and she was not doing her tasks and was doing things inaccurately. She felt humiliated and unsupported.
Dr Rastogi noted the history of symptoms since that time including feeling sick, nauseous, being homebound and socially isolated. She was debilitated by anxiety and felt socially inept and avoids social situations. Dr Rastogi noted the current symptomatology including anxiety with panic attacks, loss of confidence, limited social contact, feeling of void and anhedonia, hopelessness and sense of despair, severe avoidant behaviours and feelings of betrayal, rejection and alienation.
Dr Rastogi noted impact on activities of daily living included poor self-care, very restricted driving, does not participate in household chores and lacks motivation, social activities restricted with being isolated, homebound, and avoiding social gatherings and seeing family. Concentration was very poor and limited.
With respect to past psychiatric history, Dr Rastogi noted that the applicant had a relationship of separation in 2013 and was commenced on Sertraline and resumed full-time work and was monitored by her GP. It was noted that the applicant reported functioning well and achieved six awards of excellence in performance.
Dr Rastogi noted that the applicant said she continued medication till February 2020 and denied any relapses or any functional impairments. She said she received three EAP sessions in 2013.
Dr Rastogi noted premorbid functioning was reported as enjoyment of socialising, riding pushbike, attendance at competitive dancing with both daughters, going to the beach and social outings.
Dr Rastogi reviewed the notes of the applicant’s psychologist with entries in February 2020, July 2020 and September 2020.
Dr Rastogi diagnosed major depressive disorder with anxiety and social anxiety disorder. Dr Rastogi was of the opinion that
“Ms Thomas was belittled, criticised, intimidated and not provided adequate support as well as given excessive work load whilst working in payment department and having no experience in that area. She was denigrated, humiliated and negative comments were passed by her acting manager who dismissed her and was demeaning towards her. This eroded her self-confidence and her self-esteem plummeted. The last straw was been given discretionary notice and way the meeting was conducted where she was targeted and not offered a support person.”
Dr Rastogi was of the opinion that the applicant’s current psychological injury and impairments are directly attributed to her employment with the respondent in the absence of any other stressors. Dr Rastogi was of the opinion that the applicant’s employment with the respondent is a substantial consuming factor to her injuries.
Dr Rastogi was also of the opinion that the applicant did not have a pre-existing condition at the time of the injury.
Dr Rastogi was of the opinion that the applicant had no capacity to work in any duties currently and would not be able to return to work in her preinjury role with her employer.
In her supplementary report dated 2 May 2021, Dr Rastogi was asked by the applicant’s solicitors to consider that the applicant had some difficulty with her partner arising from problems with his children, but she was still with her partner and it seems this was a temporary issue. Dr Rastogi was also asked to consider that the applicant underwent some testing for breast cancer in and around the same periods and the results were ultimately clear.
Dr Rastogi noted the presence of personal stressors related to her health and relationships, however Dr Rastogi was of the opinion that the stressors had resolved and do not contribute to her current psychological impairments.
Dr Rastogi was of the opinion that “there may have been transient magnification of anxiety and distress however that would have settled following resolution of these stressors.”
Dr Rastogi confirmed her opinion that the applicant’s current psychological condition is directly attributed to work-related accumulated experiences over a period of time predating her personal stressors and manifesting with anxiety and 2019 from work-related issues.

Report of Dr Clayton Smith

Dr Smith, psychiatrist, was qualified by the workers compensation insurer and provided a report dated 25 June 2020.
Dr Smith recorded that his “sources of information” were the “factual investigation by MJM Corporate Risk Services dated 8 June 2020” and the “WorkCover certificate of capacity dated 4 June 2020”. I note that Dr Smith did not otherwise identify the specific sources of information that were contained within the factual investigation report of MJM Corporate Risk Services dated 8 June 2020. However I infer that he read and had regard to the witness statements referred to above.
Dr Smith noted that the applicant is in a defacto relationship and last worked in March 2020. He noted that she commenced employment with the respondent on 26 November 2012 and was deployed to the payment operations team in July 2019.
Dr Smith recorded a history that the applicant worked in a high-pressure stressful environment with frequent procedural changes and a high workload. He noted a history that the applicant’s original team leader went on maternity leave as did her main support person, Michelle, who went on maternity leave in September 2019.
Dr Smith noted the history that the applicant said that two weeks before Michelle left in September 2019 the applicant was told that she would need to learn a new system in two weeks. The applicant said that after Michelle went on leave it was hard for her to get the support she needed and she was asked to cancel any unnecessary leave and she cancelled her leave which he had booked in January 2020. The applicant said that Tash, a new contract team leader, was employed in January 2020 and “from that point it was a downward spiral”.

From that point, Dr Smith recorded, the pressure and workload increased. Dr Smith noted that the applicant felt confused often and Tash told her that she was too slow and made too many errors. Dr Smith noted that the applicant began to feel isolated as if she was being targeted.
Dr Smith noted that the applicant said that Tash would stand behind her and questioned her about how many mistakes she had made. The applicant said that she felt worthless and she was unable to cope personally or professionally and she had headaches and was crying going to work and was unable to drive to work so her children dropped her off and picked her up.
It was noted by Dr Smith that the applicant saw her GP and took two weeks off work. She was taken off sertraline and switched to another medication which had terrible side effects and she was prescribed 1/3 antidepressant before returning to work. She was not doing well according to her team leader and the applicant said she was so confused and hurt that everything confused her. She questioned her own abilities and ended up taking more time off because she was not coping and she began seeing a psychologist in early February 2020.
The history taken by Dr Smith noted that she took a month off and she said Tash wanted to change her hours to limit the pressure and the workload. The applicant said that she was still being told she was too slow and making too many errors. She said she was constantly upset and unable to function.
Dr Smith noted the history that the applicant on her last day of work was pulled into an office at 4:45 PM for a quick chat with the team leader and manager and was told that she was placed on discretionary leave because she was not able to function in the role and by that time the applicant felt she had no self-respect and no self-worth.
Dr Smith also recorded that in early January 2020 she had an issue with her partner about her partner’s son’s behaviour, who did not want her in the house while he was dealing with his son. She was also in the process of building a house which she put on hold in February 2020 because she was unable to deal with the stress.
Dr Smith noted that the applicant said when she was seconded she had no performance issues. She found Tash to be too direct and assertive and she did not know how to deal with her. She said that she could not do what was expected of her.
Dr Smith referred to the factual investigation and noted that the employer denied allegations of bullying and that every effort was made to support the applicant. Dr Smith recorded that the employer noted that the applicant’s mental health was deteriorating and the applicant had attributed this to personal issues and her mental health had deteriorated precipitously after she separated from her partner and moved back into her parents’ house.
Dr Smith noted the symptoms reported by the applicant. He noted that the applicant becomes acutely anxious when exposed to reminders of the respondent and she is unable to even go into a branch or look at the uniform. He noted that the applicant said her sleep quality is poor and she had a sleep study last week. He noted that she said she is constantly thinking and ruminating about what she could have done differently and by this is happened and she had visions of Tash standing over her. Dr Smith noted that she has trouble driving and feels anxious about having to go out into the car and she tires quickly and develops a headache.
In relation to previous medical and psychiatric history, Dr Smith noted that the applicant said that she had started treatment for depression with sertraline seven years ago when her marriage broke down and her daughter was having mental health issues. Dr Smith noted that the applicant said she was awarded service medals after she was off work and she recovered with the help of her GP and a psychologist. The applicant said that it took five years to recover from the breakdown in her marriage and there was a period of deterioration in the behaviour of her son and her ex-husband put pressure on her and she has remained on antidepressants ever since.
Dr Smith was of the opinion that the applicant described “the onset of anxiety and depressive symptoms in the context of an overwhelming workload with a significant deterioration in her mental health from January 2020 when she alleges that she was placed under excessive scrutiny” by her team leader.
Dr Smith stated
“I note from the factual investigation that her performance deteriorated towards the second half of 2019 and continued to deteriorate until she was placed on discretionary leave in March 2020. Around the same period leading up to January 2020, Ms Thomas experienced non-work related stressors including conflict with her partner forcing her to move out and live with her parents. She was also building a house which was put on hold in February 2020.”
Dr Smith was of the opinion that the applicant had a pre-existing vulnerability including a history of depression since the end of her marriage in 2013 from which she recovered and returned to full personal and vocational function.
Dr Smith diagnosed a major depressive disorder. Dr Smith was of the opinion that the applicant’s coping capacity was overwhelmed
“by a combination of stressors including relationship problems and the pressures of building a house which coincided with increasing demands on her capacity in the workplace. Her condition deteriorated precipitously during the separation from her partner and relocation to her parents' house when she became clinically depressed. Her performance at work deteriorated due to her depressive illness and she interpreted efforts to remediate her errors as evidence that she was being targeted.”
Dr Smith was of the opinion that it was unlikely that the applicant would have developed a major depressive disorder in the absence of the personal stressors described.
Dr Smith opined that the applicant had recovered from the first episode of major depressive disorder before developing the current episode. Dr Smith was of the opinion that she became “symptomatic in the context of overwhelming life stressors, particularly the threatened breakdown in her relationship which was a similar trigger to her first episode”. In Dr Smith’s opinion, although her relationship with her partner has been repaired, financial stress and uncertainty about the future “superseded relationship issues in perpetuating her condition”.
At this point, I note that in my view Dr Smith’s description of “a similar trigger” above does not in my view mean that he was of the opinion that there was a pre-existing condition, as will be discussed below.
In Dr Smith’s opinion, any work-related component of the applicant’s psychological condition has arisen as a result of performance management. In my view, it is difficult to reconcile this part of Dr Smith’s opinion with his opinion that the applicant became symptomatic in the context of the described personal stressors, on the background of increasing demands on her capacity in the workplace. In my view, Dr Smith has conceded that there may be a work-related component of the applicant’s psychological condition, although the extent of the work-related component could not be found in Dr Smith’s opinion. Dr Smith earlier in his report specifically referred to the factual investigation report in noting that there were performance issues in the context of the personal stressors.
Dr Smith was of the opinion that the applicant had no capacity for work and was unlikely to return to suitable duties and preinjury duties for at least 12 months.

Dr Bhaskar and Ms Clarke and clinical records

Dr Bhaskar is the applicant’s treating GP.
In a letter to the respondent dated 25 February 2020, Dr Bhaskar diagnosed anxiety and depression. In response to a question as to whether the diagnosis was temporary or permanent, Dr Bhaskar stated “this is a temporary exacerbation of a chronic condition
(10 years)”.
In a “GP Mental Health Care Plan Patient Assessment” dated 5 February 2020 it was noted that the presenting issue was “worsening anxiety and depression” and the patient history was “multiple issues – financial, work, relationship and health. Is very down and depressed”. Under “any other relevant information” it was noted “low self esteem. Depressed mood. Anxious. Stress at work. Relationship problem. Financial problems…”
In a clinical note of a consultation on 5 February 2020, Dr Bhaskar noted a psychiatric history of “… Low self-esteem. Depressed mood. Anxious. Stress at work. Relationship problem. Financial problems…”
In a clinical note of a consultation on 14 February 2020, Dr Bhaskar noted that “dreading the thought of work… Even the sight of the Newcastle permanent uniform [sets] her anxiety off… Advised her to speak to the HR department to express her concerns and seek a resolution”.
In a clinical note of a consultation on 21 February 2020, Dr Bhaskar noted that “… Shaky and stated that she dreads the thought of putting her uniform on… Advised her to speak to HR but is fearful…”
A clinical note of a consultation on 12 March 2020 referred to no relationship problems and no stress at work and financial problems. In my view, this goes against the grain of the other clinical records and appears to me to be a typographical error or errors.
A clinical note of a consultation with Dr Bhaskar on 19 March 2020 recorded that “mentally is feeling better… Still is not happy at work… Has not been given any responsibilities… Feels that they are planning to ease her out”.
Ms Karen Clark is the applicant’s treating psychologist. Ms Clarke practices, or practised, at the Healthsure Medical Centre.
The handwritten clinical notes of the Healthsure Medical Centre, which I accept are those of Ms Karen Clark, made no reference to relationship issues on 18 February 2020, 4 March 2020 or 18 March 2020. The note for 4 March 2020 recorded that “… Anxious when look at work…” The note for 18 March 2020 recorded that “work – last week – F/time… Not met [with] any HR… Feel unwanted… Struggling [with] uniform… Feel like being treated like a child…”
In a short treating report dated 24 March 2020 to the treating GP, Ms Clarke noted an initial consultation with the applicant on 11 February 2020. Ms Clarke noted the applicant “presented with features consistent with a relapse of depression and anxiety” and she reported that “the symptoms arose in the context of relationship issues”.
In a clinical note of a consultation on 30 March 2020, Dr Bhaskar noted that “had a setback on Friday last week… Is mentally and emotionally drained… Is tensed and on the edge at work…”
In the clinical records of the Healthsure Medical Centre, which also contained the clinical notes of Ms Karen Clarke, there was a handwritten note dated 2 April 2020 which stated
“Dr Bhaskar has increased medication to 20 mg.
Friday was particularly difficult. I did drive which made me very anxious. I again felt I could not put uniform on.
Tash makes me feel intimidated and sits on my desk. I can not cope with that.
Feel nervous around Tash and under scrutiny all the time on [sic] unable to function. I know this is not intended just my state of mind.
Now on discretionary leave from work as out of personal leave…”
I accept that the handwritten note referred to in the previous paragraph was a note made by the applicant. It was in the clinical records in respect of the applicant and it was made in the first person with reference to treatment and perceived difficulties at work.
In a note dated 2 April 2010, Ms Clarke recorded that “… On discretionary leave – not functioning… Making too many mistakes… Told last week… Boss sat on edge of desk – felt intimidated… Feels over scrutinised… Feel being judged all time… Asked daily what mistakes have you made…”
In a clinical note of a consultation on 3 April 2020, Dr Bhaskar noted that “… Her self-confidence has worsened due to a recent meeting… Is being scrutinised at work… Feels like she is gradually being pushed out…” The reason for the visit was “anxiety/depression”.

Findings and reasons

I note that the respondent does not rely upon a defence pursuant to section 11A of the 1987 Act.
In summary, the respondent submitted that the applicant’s case was for a section 4(b)(ii) aggravation of disease and the applicant had not made out the causal element to the aggravation of the disease.
The respondent submitted that the applicant had a pre-existing condition which was not properly engaged with by Dr Rastogi. I do not accept this submission.
Dr Rastogi noted the prior history of relationship separation in 2013 and the commencement of sertraline. Dr Rastogi noted that the applicant had resumed full-time work and was monitored by her GP and reported functioning well and achieved six awards of excellence in performance and continued with medication until February 2020 and denied any relapses or functional impairments. Dr Rastogi concluded that the applicant did not have a pre-existing condition at the time of the injury.
Further, Dr Smith was of the opinion that the applicant had a pre-existing vulnerability including a history of depression since the end of her marriage in 2013 from which she recovered and returned to full personal and vocational function. He was of the opinion that the applicant had recovered from her first episode of major depressive disorder before developing the current episode. This in my view is not support for the contention that the applicant had a pre-existing condition.
Dr Bhaskar and Ms Clarke were of the opinion, at least initially, that the applicant’s condition was a temporary exacerbation of a chronic condition (Dr Bhaskar) and that it was a presentation with features consistent with a relapse of depression (Ms Clarke). Both of these opinions were given at an early stage, that is with respect to consultations in February 2020, while the difficulties at work were continuing. Those opinions also did not account for the factors that Dr Rastogi and Dr Smith considered, that is that following the relationship issues in 2013 there was a resumption of normal work with good functioning in work and life for a period of seven years. I prefer the opinion of Dr Rastogi, a qualified expert psychiatrist, on this issue.
In my view, the contention that the applicant had a pre-existing condition because she was taking anti-depressant medication must be founded on the other factual circumstances and supported by expert medical opinion if it is to be given weight. It was the applicant’s evidence that she continued to work on a full-time basis with the respondent from 2013 until 2020, that she had fully recovered from the earlier episode in 2013 and that she was working and functioning well. Dr Rastogi was of the opinion, taking into account the continuing antidepressant medication, that there was no pre-existing condition. Dr Smith’s opinion did not support the premise that there was a pre-existing condition. I have preferred the expert medical opinion of Dr Rastogi to those of the treating GP and psychologist.
I find that the applicant was not suffering from a pre-existing condition at the time that the issues at work arose and she commenced having difficulties in November 2019.
The other main area of contention for the respondent was said to be the personal stressors for the applicant that were unrelated to her employment. The respondent submitted that the opinion of Dr Smith should be preferred to that of Dr Rastogi, as Dr Smith took account of these issues whereas Dr Rastogi did not adequately engage with them.
I do not accept these submissions. Dr Smith had regard to the factual investigation report in considering a history of symptoms and difficulties arising from non-work-related issues. In my view, this was a flawed approach.
The history that Dr Smith took directly from the applicant in this regard was the issue in January 2020 that the applicant had with her partner in relation to his son and her partner did not want her in the house while he was sorting out his son. Dr Smith also noted that she was in the process of building a house which “she put on hold in February 2020 because she was unable to deal with that stress”. That was the extent of the history recorded directly from the applicant by Dr Smith. I note that there were no symptoms recorded by Dr Smith in relation to this history, other than the applicant putting the building of the house on hold, which in my view was ambiguous as to whether it was a stressor at all, at least on the direct history recorded by Dr Smith.
In my view, the clinical records of Dr Bhaskar and Ms Clarke on the whole do not support the submissions of the respondent and the conclusion of Dr Smith. On the evidence before me there were no consultations by the applicant for psychiatric treatment between July 2016 and May 2019, other than for a dosage review in August 2017. There was certainly no mention of relationship issues or financial pressures prior to February 2020. The only appearance made by relationship issues and financial problems were on 5 February 2020 with respect to the documents made by Dr Bhaskar (the mental health plan and the clinical note) which was noted alongside stress at work; and the report of Ms Clarke dated 24 March 2020, which post dated consultations which appeared to refer to work issues. Other than those documents of 5 February 2020 and 24 March 2020, there was no mention of relationship problems or financial problems. Further, these brief and otherwise unexplained references to personal and financial problems did not point to any continuing symptoms or psychiatric difficulties. In my view, the balance of the clinical records of Dr Bhaskar and Ms Clarke dealt with the issues that the applicant was having at work.
This then leaves the factual investigation report, to which reference is made by Dr Smith. Dr Smith recorded that
“I note from the factual investigation that Ms Thomas' employer denies allegations of bullying. Ms Thomas' employer asserts that every effort was made to support Ms Thomas. Her employer indicates that her performance was progressively deteriorating and she required remediation. They noted that her mental health was deteriorating and Ms Thomas attributed this to personal issues. Her mental health deteriorated precipitously after she separated from her partner and moved back into her parents' house.”
The source of this information that was relied upon by Dr Smith was the statement of Ms Tash Townsend and others. Mr Atkins also referred to this issue in his statement but it was only to the extent that he said that he was informed of the situation. The unsigned statement of Ms Hodge also referred to her conversation with Tash in relation to the applicant’s mental state. As noted above, I do not place any weight on the evidence of Ms Townsend, Mr Atkins or Ms Hodge in this regard.
In my view, the opinion of Dr Smith in relation to the non-work-related stressors is not adequately explained with reference to the history that he recorded. Dr Smith’s opinion in my view is also based upon material which is not probative or should not have been given any weight or consideration without careful and proper scrutiny. It might be said that Dr Smith’s final opinion was an expert confirmation of the observations made by Ms Townsend. This in my view is circular reasoning, at least without explanation by Dr Smith as to why he would accept such material and how such matters could be relied upon in his reasoning.
The respondent also submitted that Dr Rastogi’s opinion should not be accepted as she did not engage with the issues of non-work-related stressors. I do not accept this submission.
Dr Rastogi noted the presence of personal stressors related to health and relationships and was of the opinion that they had resolved and do not contribute to the applicant’s current psychological impairments. Dr Rastogi was of the opinion that there may have been transient magnification of anxiety and distress that would however have settled following resolution of these stressors.

When Dr Rastogi’s opinion is considered against the background of the clinical records referred to above, as well as the applicant’s statements, it is in my view the preferred opinion. In my view Dr Rastogi has aptly described any such personal stressors as “transient”, as the references to relationship issues, and financial issues, noted above in the clinical records of Dr Bhaskar and Ms Clark were indeed transient. Dr Bhaskar’s note and plan of 5 February 2020 was brief, with no further details and no references thereafter to relationship or financial issues. Ms Clarks report and notes were similar, with only mention of relationship issues with respect to a consultation on 11 February 2020. Thereafter, for Dr Bhaskar and Ms Clark all references were to work issues.
The respondent also criticised Dr Rastogi’s supplementary report for not taking a further history and not further consulting with the applicant. It was submitted that as a result the history she did rely on in her supplementary report was inaccurate or incorrect. I do not accept this submission. The foundation of this submission is that there was an acceptable standard of evidence to establish that personal stressors were causative factors.
In my view this was not established on the available evidence. The source was Ms Townsend’s view of the origins of the applicant’s psychological condition, which found its way into the opinion of Dr Smith, a matter upon which I have commented elsewhere in this decision. Also, as noted elsewhere in this decision, the weight of the clinical records and notes points to work issues following the initial unexplained references to relationship and financial issues by Dr Bhaskar and relationship issues by Ms Clarke. Further, Dr Rastogi noted that she was asked to comment in relation to relationship issues and asked to assume that this was a temporary issue. In my view, in these circumstances where the issue has arisen from the view taken by a team leader, that is Ms Townsend, it was appropriate for Dr Rastogi to assume that any relationship issue was temporary, if the evidence bears out the fact of that assumption. In my view, there is no evidence to suggest that if there was any relationship issue as a causative factor, or as a competing causative factor, it was anything more than transient. However, in my view the original report of Dr Rastogi is persuasive in any event as I have found that there was no pre-existing condition and I did not accept the evidence in relation to personal stressors from Ms Townsend and hence Dr Smith’s opinion.
I accept the reports and opinion of Dr Rastogi and prefer them to that of Dr Smith.
In relation to the statement evidence, I accept the applicant’s statements as to her difficulties at work.
In my view the evidence establishes that the applicant felt the pressure of work and of the workload, particularly from November 2019 when her “buddy” went on maternity leave, from which time her ability to cope with the work decreased. The applicant was asked to work in the new area without experience in that work. The applicant was not coping with that work environment and her mental state declined accordingly. The applicant felt the pressure increase with the commencement of the new team leader, Ms Townsend, who herself was placed in the role in the absence of a team leader on maternity leave. The statement of Mr Atkins confirmed in general terms that the team in which the applicant was placed was under pressure.
In my view, the evidence also establishes that the applicant was scrutinised in her work and for her mistakes and felt intimidated by Ms Townsend. Ms Townsend did not dispute that she scrutinised the applicant’s work but denied that she had singled out the applicant or that she made disparaging remarks to the applicant. Ms Townsend also did not dispute that she sat on the applicant’s desk but did so to have eye contact. The applicant did not see it that way. The sitting on the desk by Ms Townsend was also recorded in the clinical records and medical histories.
The evidence, in my view, also establishes that there was a meeting on or about 16 March 2020 when the applicant was asked to have a quick chat with Mr Atkins and Ms Townsend as she was about to leave work. The evidence from all three participants was that the meeting took place. Mr Atkins also noted that the applicant was “teary” and he conceded that performance issues were briefly discussed in the context of a meeting that took longer than he anticipated. It was also not disputed that the applicant was told to take discretionary leave. The applicant said that she felt shattered by the meeting and did not return to work after the meeting.
As noted above, I am not persuaded to accept the statement of Ms Townsend. As for the statement of Mr Atkins, with the exception of the final meeting, he did not witness the daily working environment of the applicant and the interactions that she had with Ms Townsend. The unsigned statements of Ms Hodge and Mr Chapman in my view do not assist and I place little weight on them, other than as noted with respect to Mr Chapman.
I find that the applicant from at least November 2019 worked with very little support and under pressure, and from that time she was not coping well with her work duties, a situation which spiralled, in the applicant’s words, from that time. I also find that the applicant was micromanaged and given comments which were critical and demeaning. I find that the applicant felt that she was unsupported and was intimidated and isolated. I also find that the final meeting on or about 16 March 2020 was a culmination of these work-related issues and the meeting itself dealt in part with work issues, as conceded by Mr Atkins.
I find that there was no pre-existing condition at the time the applicant commenced her “spiral”, that is from November 2019, when she started to have difficulties at work and was not coping well. I have accepted the applicant’s statement that she was functioning well and had worked well for a number of years with the respondent until that time. The clinical records do not disclose any psychological issues from 2016 with no consultations with the GP, other than a dosage review in 2017 and an attendance in May 2019 when it was noted “pressure at work” but no treatment was provided in that regard. The evidence discloses no psychological issues or treatment from 2016 until February 2020. Dr Rastogi was of the opinion that there was no pre-existing condition, that is prior to the circumstances that are the subject of these proceedings. I prefer the opinion of Dr Rastogi to that of Dr Smith, who in any event was of the opinion that the applicant had a pre-existing vulnerability including a history of depression since the end of her marriage in 2013 from which she recovered and returned to full personal and vocational function.
I find that the applicant sustained psychological injury, being major depressive disorder with anxiety and social anxiety disorder, pursuant to section 4(b)(i) of the 1987 Act as a result of excessive workload, inadequate support, conflict with her team leader, Ms Townsend, and the final meeting with Ms Townsend and Mr Atkins. In this case, the injury is in the form of a disease[1].
[1] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632, and Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 at 272.
The test of “main contributing factor” should be decided on the evidence overall and is not purely a medical question. It involves a broad evaluative consideration of potential competing causative factors[2]. The opinion of Dr Rastogi was that the applicant’s employment with the respondent was a substantial contributing factor to her psychological injury. Dr Rastogi was not asked for her opinion in relation to whether employment was the main contributing factor to the diagnosed condition. Dr Smith was not asked for his opinion as to whether employment was a substantial contributing factor or as to whether it was the main contributing factor to the diagnosed condition. Dr Smith was asked for his opinion as to whether non-work-related issues were the substantial contributing factor to the applicant’s presentation.
[2] AV v AW [2020] NSWWCCPD 9 at 70, reviewing (at [71]-[72]) decisions including State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
In my view, there are no competing causative factors. I have accepted Dr Rastogi’s opinion that there was no pre-existing condition and also that there were no other stressors of more than a transient nature. I also accept Dr Rastogi’s opinion that the applicant’s employment was a substantial contributing factor to her condition. As noted above, I prefer the opinion of Dr Rastogi to that of Dr Smith. I have accepted the applicant’s statement as to the onset of her condition in relation to the difficulties that she encountered at work. The references to personal and financial issues by Dr Bhaskar were brief and without further detail and were not repeated after the initial note and plan. Similarly, Ms Clarke’s initial reference to relationship problems was brief and without further detail. After the initial consultations with Dr Bhaskar and Ms Clarke in February 2020, their references were all to work issues. Accordingly, I find that the applicant’s employment with the respondent was the main contributing factor to her psychological injury.
I also find that the applicant had no current capacity for work for the periods 22 February 2020 to 8 March 2020 and 4 April 2020 to 30 April 2021. Both Dr Rastogi and Dr Smith were of the opinion that the applicant had no capacity for work. Dr Rastogi thought that the applicant would need ongoing treatment over six to nine months before vocational assessment for suitable work. Dr Smith thought that the applicant was unlikely to return to suitable duties and preinjury duties for at least 12 months. I find that the applicant was unable to return to work, either in her preinjury employment or in suitable employment, for the periods 22 February 2020 to 8 March 2020 and 4 April 2020 to 30 April 2021.
The weekly compensation claim was closed at 30 April 2021 following consideration by the applicant of a current certificate of capacity signed by Dr Bhaskar on 30 April 2021 with certification from 23 April 2021 of capacity for some type of employment (10 hours per day, 3 days per week) for commencement of work on a trial basis as a disability support worker. It is unclear when and if that trial of work commenced. On balance, I prefer the opinions of Dr Rastogi and Dr Smith as to having no capacity for work, at least until the date of the medical certificate of Dr Bhaskar of 30 April 2021. I make no finding as to capacity for work after that date, as in my view it remains to be seen as to how the applicant will cope with trial work.
I was not taken to evidence as to a date of injury that may be deemed other than as pleaded in the application, that is 4 November 2019. There did not appear to be an issue in this regard at the hearing of this matter. The ARD referred to “personal injury” but there was no reference to injury simpliciter or personal injury in the submissions. The respondent in disputing this matter did so on the basis of the section 4(b) disease provisions, although specifically with respect to section 4(b)(ii). However, the applicant has liberty to apply in this regard, if necessary.

[2021] NSWPIC 198

22 June 2021