Tippins v Tetris Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tippins v Tetris Group Pty Ltd [2021] NSWPIC 205
APPLICANT:	Daniel Tippins
RESPONDENT:	Tetris Group Pty Ltd
MEMBER:	Philip Young
DATE OF DECISION:	24 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; applicant’s credibility; causation, medical evidence and perception of real events; Attorney General v K considered; several lay witnesses dispute applicant’s claims of injurious events; relevance of applicant’s ‘egg shell skull psyche’; consideration of section 4(b)(ii) and section 11A; causation and section 11A; perception causation established but economic incapacity beyond 26 November 2019 insufficient evidence; some awards for applicant and section 66 remittal but otherwise award respondent re ongoing weekly payments claim.
DETERMINATIONS MADE:	1. In respect of the claim for weekly payments of compensation awards in favour of the applicant as follows: - (a) 25 July 2017 to 15 September 2017: $1,990.68 x 95%=$1,891.15 per week (section 36 (1)); (b) 16 September 2017 to 24 October 2017: ($1,990.68 x 95%) - (16 hours x $40 per hour) =$1,350.68 per week (section 36 (2)); (c) 25 October 2017 to 26 November 2017: ($1,990.68 x 80%) – (16 hours x 40) = $952.54 per week (section 37(3)); (d) 27 November 2017 to 31 December 2017: $1,990.68 x 80% = $1,592.45 per week (section 37 (1); (e) 1 January 2018 to 20 April 2018: ($1,990.68 x 80%) – (16 hours x 40) = $952.54 per week (section 37 (3)); (f) 21 April 2018 to 20 May 2018: $1,592.45 per week (as in (d) above); (g) 21 May 2018 to 26 November 2019: $952.54 per week (as in (e) above). 2. Award in favour of the respondent in respect of the applicant’s claim for weekly payments from 27 November 2019. 3. There is a general order in favour of the applicant in respect of section 60 expenses. 4. The matter is remitted to the President for referral to a Medical Assessor (psychiatrist) to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 25 July 2017. 5. The President’s delegate is requested to place before the Medical Assessor a copy of the Application and annexures, a copy of the Reply and annexures and copies of both Applications to Admit Late documents and annexures as well as a copy of these Reasons for Decision.

STATEMENT OF REASONS

BACKGROUND

Daniel Tippins (the applicant) is a 42 year old man who was employed by Tetris Group Pty Ltd (the respondent) as a boilermaker/ site supervisor.
The applicant commenced work with the respondent on 10 July 2013. He alleges psychological injury with a deemed date of injury 25 July 2017. He claims weekly compensation from 25 July 2017 to 25 January 2020. In addition, the applicant claims section 60 expenses and a lump sum whole person impairment payment under section 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant continued working for the respondent for four years until ceasing work on 25 July 2017.
The respondent’s case includes that any psychological injury suffered by the applicant was wholly or predominately caused by reasonable action taken by the respondent with respect to the applicant being disciplined for inappropriately claiming overtime. The respondent also seeks to cast doubt on the applicant’s credibility in terms of the allegations of injury generally.

ISSUES FOR DETERMINATION

The issues include whether the applicant’s condition, if any, results from his work; second, if so whether the respondent has discharged its onus under section 11A of the 1987 Act and third, if not, what incapacity, if any, was suffered by the applicant during the period claimed. Finally, if incapacity resulting from injury is established, what is the extent of any such incapacity in terms of economic loss?

PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION

This matter came for conciliation and arbitration hearing in the Commission by telephone on 17 May 2021. Mr R Stanton of counsel appeared for the applicant instructed by Ms N Butcher. The applicant was present. Mr D Toohey of counsel appeared for the respondent, instructed by Ms R Petrolo.

The following documents were before the Commission:
(a)    Application to Resolve a Dispute filed 24 February 2021 and attachments (Application);
(b)    Reply filed 18 March 2021 and attachments (Reply);
(c)    Application to Admit Late Documents and attachments filed by the respondent’s solicitors on 6 May 2021, and
(d)    Application to Admit Late Documents and attachments filed by the applicant’s solicitors on 10 May 2021.

SUBMISSIONS

The following written submissions were received.
(a)    From the respondent’s counsel dated 24 May 2021;
(b)    From the applicant’s counsel dated 28 May 2021, and
(c)    From the respondent’s counsel dated 7 June 2021.
The respondent made first submissions because the primary issues were matters which the respondent had the onus to prove.
Because the submissions were written I do not propose to set them out in detail. I do propose to make reference to them where they are relevant to this decision.

DISCUSSION AND REASONS

The respondent has referred to a number of events which it says cast doubt upon the applicant’s credibility. These are the subject of the applicant’s statements and the various medical histories and police records.
In matters where credibility is challenged, a detailed consideration of the matters asserted is required. These assertions are then subsequently referenced to the facts determined by the Court or Tribunal, depending on the answer to each assertion[1] .
[1] See, for example, Bugg v Day (1949) 79 CLR 442
The statements and documentary records will therefore be considered in this context.

Applicant’s first statement dated 3 October 2017

The applicant refers to injury to a finger on his right hand whilst previously employed and a claim for workers compensation.[2] He told Dr Panjratan on 16 August 2005 that he broke the same finger playing football.[3] Beyond those two seemingly inconsistent positions there is no evidence.
[2] Applicant’s statement at [16]
[3] Final page Dr Ng’s notes
The applicant had two prior workers compensation claims but did not disclose the finger injury and only disclosed a left shoulder injury in his application for employment.[4]
[4] Application at page 157
At paragraph 12 of his 3 October 2017 statement the applicant denies any prior psychological conditions and at paragraphs 29 and 30 denies any work performance issues.
Despite the applicant at paragraph 35[5] referring to a “torrent of abusive emails” no emails were produced and many of the allegations of abusive conversation are alleged by the respondent to be generic in nature and do not quote any direct speech.[6] That is not, however, entirely correct because throughout his statements the applicant does quote what he says were words spoken by Mr Draper.
[5] Statement of 3 October 2017
[6] Respondent’s submissions at [17]-[19]
Despite the applicant saying that he underwent a hernia operation in September 2015[7] there is no medical information concerning this operation in 2015, only a hernia repair in 2006/07.[8] However, his superior Mr Draper does not cavil with the allegation that the respondent paid for the applicant’s hernia operation.
[7] Ibid at [20]
[8] Ibid
The applicant does not produce any evidence of any reports of injury or psychological treatment for what he says was consistent abuse between 2013 and 2017.[9]
[9] Ibid [22]
Although the applicant in his statement denied past psychological history, documents from Nepean Hospital[10] detail child sexual assault and other traumas suffered by him between the ages of 10 and 21. His mother was physically abusive and his stepfather sexually and physically abused him.
[10] AALD 6 May 2021 at pp. 318ff
The applicant claims that he was accused of stealing from the workshop in March 2016[11] and was accused by Mr Draper of stealing an in-car navigation device.[12] The applicant’s suggestion is that these incidents of abuse by Mr Draper and others were witnessed by co-workers. However, in late 2018[13] the applicant was charged with “stalk and intimidate” offences and issued with an apprehended personal violence order. This was because the applicant had allegedly threatened Mr Draper and his daughter Caitlin, telling them that they must approach witnesses to have their statements changed.
[11] Applicant’s statement of 3 October 2017 at [50]
[12] Ibid at [52]
[13] Respondent’s AALD at pp. 204ff
Mr Draper as the owner of the business had provided the applicant with a company utility, allowing him to drive to and from work.[14] The applicant had his license cancelled for five years and Mr Draper arranged for an apprentice boilermaker to drive the utility and take the applicant to and from work for three years.[15] Mr Draper supported the applicant’s retention of his job notwithstanding that the applicant had falsified overtime claims.[16] On or about 25 July 2017 the applicant was made aware that he would be facing allegations because he did not return to work from that date. Mr Draper and another employee attended the applicant’s home to collect the company utility on 28 July 2017.[17]
[14] Respondent’s submissions at [36]
[15] Ibid
[16] Ibid
[17] Application at page 141 and Mr Cherry’s statement at [39]
Notwithstanding the applicant’s claim that he has not worked since 25 July 2017, a number of entries suggest otherwise:
(a)    Clinical notes of Care First Specialist Centre include a report from Dr H Pandapalan dated 27 November 2019 reporting that the applicant complains about shoulder pain “while at work and at nighttime”.
(b)    Searches by investigators note the applicant obtained a forklift licence on 2 April 2020 and a white card.
(c)    An ASIC search revealed the applicant’s registration of a business “Winking Lizard Australia” on 25 June 2020. This business currently sells products through websites[18] and the applicant appears in advertising of these sites.[19]
(d)    The applicant’s general practitioner Dr Padmanabhan records on 17 March 2020[20] that the applicant had undergone an MRI of his right shoulder demonstrating a rotator cuff tear for which he was awaiting surgery. The note continues “…having pain now works as forklift driver wants to take leave”.
[18] Reply pp. 78ff
[19] Ibid at page 107
[20] Application at page 436

Applicant’s second statement 2 December 2019

In this statement the applicant seeks to explain his attempted contact of witnesses and his false overtime claim. The applicant concedes that he made the contact but suggests that he was innocently attempting to gain support for the truth. He confirms that he agreed with
[21] Applicant’s statement of 2 December 2019 at [13]
Mr Draper to reduce his hours claimed from 12 to 6.[21] The applicant then describes a visit with his co-workers to a brothel and strip club and suggests that his co-workers may have had sex with prostitutes. That evidence in my view is entirely irrelevant to the claim in this Commission in the absence of evidence of malice or ulterior motive relevant to the applicant’s claim.
The applicant submits that closing off the weekly payments claim at 25 January 2020 was because of the expiration of the section 37 (130 week) period. The respondent notes that the work as a forklift driver and the registration of the business by the applicant were both after that date[22] but do nonetheless affect credibility. The respondent suggests that apart from saying he continues to see a psychologist (as at 2 December 2019)[23] and says he is “always angry”,[24] there is scant reference concerning the applicant’s ongoing psychological condition. The applicant’s explanation concerning expiration of the section 37 period does not, however, address the 27 November 2019 consultation note regarding him working.
[22] Respondent’s submissions at [52]
[23] Applicant’s statement of 2 December 2019 at [86]
[24] Ibid at [93]

Statement of Tania Tippins dated 19 December 2019

This statement from the applicant’s wife recalls the applicant coming home in an upset state complaining that Mr Draper threatened and pushed him. It also suggests that the applicant told her some things about what Mr Draper had said to the applicant. To my thinking this allegation should be given little weight because it lacks probative value in the hearsay connection in which it is given.

Statement of Paul Draper dated 18 August 2017

Mr Draper is the Manager Director of the respondent and confirmed that the applicant was employed for about four years.[25] The applicant reported to Mr N Cherry who then reported to Mr P Pariato.[26] Mr Draper would see the applicant on average once per week, usually at weekly meetings.[27] None of these meetings concerned the applicant’s own personal performance.[28]
[25] Mr Draper’s statement at [9]
[26] Ibid at [11]
[27] [14]
[28] [16]
Mr Draper says that he was never aware of any allegations of bullying or harassment by himself or any other employee.[29] He denied any allegation that he was responsible for any bullying or harassment.[30] Mr Draper confirms that he attended the applicant’s residence to collect the respondent’s motor vehicle together with Mr N Cherry.[31] Mr Draper remained in the vehicle and the applicant came out and got into the vehicle.[32]
[29] [21]
[30] Ibid
[31] [22]-[23]
[32] [28]
Certain management wanted to dismiss the applicant’s employment but Mr Draper did not agree because the applicant had been a loyal employee. Mr Draper denies using obscene language towards the applicant and in fact says that he has had occasion to verbally reprimand the applicant about the applicant’s use of obscene language.[33] Mr Draper denies that he has ever threatened the applicant, nor pushed him.[34] He confirms that on 5 May 2016 the applicant had worked on a job and it was poor and unacceptable work requiring him to address the applicant about the quality.[35] Mr Draper says that the applicant became quite aggressive about his work and confronted Mr Draper. The applicant at one point raised his fist at another worker, Mr Morrissey, who had tried to intervene.[36] Within five minutes thereafter the applicant approached Mr Draper and apologised.[37]
[33] [34]
[34] [36]-[37]
[35] [39]-[40]
[36] [44]-[45]
[37] [46]
In terms of the applicant’s false overtime claims, Mr Draper was overseas at the time but intervened and stopped the applicant’s dismissal.[38] The removal of the motor vehicle was an “operational decision” based on the fact that the applicant’s duties were on-site jobs (not at the workshop) and there were additional unnecessary labour costs in driving the applicant to these sites (because the applicant had lost his license).[39] Mr Draper denies any abusive or threatening emails.[40]
[38] [52]-[55]
[39] [56]
[40] [62]-[63]

Statement of Paul Pariato dated 22 August 2017

Mr Pariato is the General Manager of the respondent. He refers to an incident where the applicant would play his radio at a high volume and prevent Mr Pariato from making telephone calls. Mr Pariato denies any bullying and harassing behaviours by Mr Draper and it was he who was informed that the applicant had left the workshop for five hours during a Saturday shift.[41] The applicant had told Mr Pariato that he left the workshop for two hours as per his arrangement with Mr Draper to assist in coaching his child’s team.[42] Mr Pariato’s subsequent inspection of CCTV footage revealed that the applicant had left the workshop for five hours.[43]
[41] Pariato statement at [3]
[42] Ibid at [35]
[43] [36]
On 25 July 2017 Mr Pariato and Mr Draper met with the applicant[44] and during this meeting Mr Draper decided that the timesheet should be altered but the applicant’s employment would not be terminated.[45] The applicant did not return to work the following day, remained on sick leave and lodged this worker compensation claim when the sick leave was exhausted.[46]
[44] [43]
[45] [44]-[45]
[46] [48]

Statement of Steven Friell dated 22 August 2017

Mr Friell is the respondent’s Electrical and Service Manager. He states that on two separate occasions he noticed the applicant arriving at work drinking alcohol.[47] He confirms that
[47] Friell’s statement at [17]-[18]
[48] Ibid at [23]
[49] [29]
[50] [34]-[35]
[51] [36]
Mr Draper broadcast an email concerning allowing the applicant to coach for two hours between 9 am and 11 am on Saturdays.[48] Mr Friell confirms that the applicant’s position was to be changed from an onsite position to a position in the workshop because of “operational reasons” concerning the applicant not holding a driver’s license.[49] Mr Friell confirms that he had not seen Mr Draper bully or harass the applicant nor use abusive language[50] and to his observation it is the applicant who is aggressive and intimidating.[51]

Statement of Barton Morrissey dated 22 August 2017

Mr Morrissey is the respondent’s Workshop Supervisor. He confirms the weekly meetings referred to by Mr Draper.[52] He confirms Mr Draper is professional and never directs personal comments towards attendees.[53] He confirms that he has never heard Mr Draper use the word “cxxt” towards any employee and says that this word is one that the applicant tends to use on a regular basis in general conversation at work.[54]
[52] Morrissey statement at [11]-[13]
[53] Ibid at [14]
[54] [17]
Mr Morrissey provides a history consistent with Mr Draper concerning Mr Draper’s arrangement of an apprentice to drive the applicant and also a consistent history given by
[55] [20]-[21]
[56] [25]-[26]
[57] [27]
[58] [28]
[59] [36]
Mr Draper concerning the applicant’s work on a container on 5 May 2016.[55] He says that when Mr Draper spoke to the applicant about the container the applicant told Mr Draper to repair it himself and confirms he saw the applicant clench his right fist.[56] Believing that the applicant was going to punch Mr Draper, Mr Morrissey intervened but the applicant raised his right fist in Mr Morrissey’s direction and stated “I will smack you out”.[57] About 30 minutes later he saw the applicant go to the office area and apologise to Mr Draper.[58] Mr Morrissey confirms that at no stage did he see Mr Draper treat the applicant any differently to any other employee.[59]

Statement of Nathan Cherry dated 22 August 2017

Mr Cherry is the respondent’s full time Works Manager and is the direct supervisor of the applicant. He confirms the applicant’s license suspension and Mr Draper’s arrangements to assist the applicant.[60] He also corroborates the site container incident on 5 May 2016, the applicant’s anger and words spoken to Mr Draper and Mr Morrissey stepping in front of the applicant.[61] He confirms the applicant entering Mr Draper’s office and apologising[62] and his attendance at the applicant’s home with Mr Draper on 28 July 2017. He gives a consistent history concerning collection of the works motor vehicle and says that he and Mr Draper had intended to take the applicant for a cup of coffee and breakfast to discuss the applicant’s work.[63]
[60] Cherry’s statement at [19]-[22]
[61] Ibid at [23]-[27]
[62] [28]
[63] [48]
Mr Cherry also confirms that he has never seen Mr Draper display any bullying or harassing behaviour towards the applicant or any other employees of the respondent, nor has he ever heard Mr Draper use the abusive language alleged or any form of physical confrontation with any person.[64]
[64] [50]

Statement of Timothy Lalor dated 22 August 2017

Mr Lalor is employed with the respondent as a Site Manager. Mr Lalor had worked with the applicant at two previous employers, namely Macarthur Engineering Pty Ltd and The Turnkey Group.[65] Mr Lalor confirms Mr Draper’s arrangement for the applicant to be driven to and from home and his worksites[66] and also says that he has never witnessed Mr Draper bully or harass the applicant, nor swear at the applicant, nor physically confront the applicant.[67]
[65] Lalor’s statement at [10]
[66] Ibid at [15]
[67] [17]

Mr Lalor confirms the weekly meetings and their contents and the special arrangement which Mr Draper made to accommodate the applicant’s Saturday coaching.[68]
[68] [19]-[22]

Unsigned statement of Michael McNevan

This statement is unsigned and accordingly in my view has little probative value and of no weight.

Unsigned statement of Daryl Hughes

This statement is unsigned and accordingly in my view has little probative value and of no weight.

Professional review first warning

The applicant received a warning concerning his performance which was said to be related to quoted jobs overrun, unfinished jobs and quality issues dated 19 January 2015.[69] There are several other notations including file note by Mr Cherry,[70] alleged false/ misleading job sheets[71] and further issues recorded by Mr Cherry on 28 March 2017[72] as well as a file note concerning the applicant’s drinking of alcohol at work recorded by Mr Morrissey.[73]
[69] Application at page 163
[70] Ibid at page 165
[71] Page 169
[72] Page 172
[73] Page 174

Alleged threatening behaviours by Mr Draper

The applicant has alleged a series of abusive and/ or threatening behaviour on the part of
Mr Draper.[74] The substance of these allegations on each occasion has been denied or challenged by Mr Draper, Mr Cherry, Mr Morrissey and Mr Lalor. One allegation was that
Mr M Cremona witnessed an event but the event occurred about two years before
[74] Pp. 185ff
Mr Cremona commenced employment with the respondent. This must raise some concern about the applicant’s understanding of events.
The applicant alleges that Mr Draper verbally abused him via telephone on 1 October 2014. Mr Draper denies that this occurred. The applicant alleges that on 24 March 2015 Mr Draper threatened him, that the applicant would have to pay for the cost of a job called the Parker job,[75] which Mr Draper denies. The applicant’s allegation that Mr Draper threw some money in the air during the meeting is confirmed by Mr Draper but he denies abusive language.[76] Further incidents are also denied by Mr Draper and Mr Cherry corroborates Mr Draper’s version of a meeting with an outside organization called “M power”.
[75] Page 192
[76] Page 239, Draper statement at [31]
The applicant alleges a hernia operation which Mr Draper paid for and Mr Draper confirms that this occurred, that the applicant’s wages were paid as well as the medical expenses for the operation.[77] Mr Draper denies allegations of abusive behaviour on 4 February 2016 and 17 March 2016[78] and there are several allegations concerning the applicant stealing items which Mr Draper confirms the applicant freely admitted to taking these items. But the allegation of stealing in-car navigation devices has no substance because the respondent does not have any.[79]
[77] Page 198
[78] Page 200
[79] Page 201
There are a series of allegations of threatening behaviours by Mr Draper but all are either denied, or explained in the context in which they occurred.[80]
[80] Pp. 200ff

Further statements

Further signed statements appear from Mr Draper (6 October 2017), Mr Cherry (16 October 2017), Mr Morrissey (16 October 2017) and Mr Lalor (16 October 2017). In addition, there are statements from Mr S Hadfield, Mr M Pisani, Mr M Cremona, Mr B Davidson,
Mr S Roberts, Mr J Pierce, Mr R Polshleb and Mr Daryl Hughes.

Further statement of the applicant dated 22 September 2017

In this statement the applicant reveals his previous hernia and finger injuries.[81] He repeats that he was subjected to unreasonable and intimidating behaviour by Mr Draper, Mr Pariato and Mr Friell.[82] These workplace behaviours were mostly by Draper and commenced in early 2014.[83] The applicant gives specific accounts of problems with missing steel ramps and being berated in the presence of Mr Cremona.[84] Later in 2014 he says he was told by
Mr Draper that Mr Draper would sack him if Morrissey “did not like me”.[85] Mr Morrissey is
[81] Applicant’s statement of 22 September 2017 at [15]-[16]
[82] Ibid at [31]
[83] [32]-[33]
[84] [35]
[85] [36]
[86] [37]
Mr Draper’s son in-law.[86]
The applicant’s statement of 3 October 2017 continues with a series of allegations of statements and threats made by Mr Draper towards him[87] and then Mr Draper physically pushing him, causing him to stumble backwards.[88]
[87] [39]-[54]
[88] [55]
The matter appears to have come to a head when Mr Draper telephoned the applicant on 27 June 2017. Mr Draper told the applicant that the applicant could no longer coach his son in football or he would not have a job.[89] The applicant says that because of this statement his “current psychological injury flared up again”.[90] The applicant saw this as Mr Draper “trying to control my personal life as well as my work life and it was a tactic to control me”.[91]
[89] [92]
[90] Ibid
[91] [92]
The applicant’s statement of 3 October 2017 just referred to is followed by the following statement at paragraph [93]:
“93. As a result of the behaviour of Paul Draper and staff, I felt bullied, harassed, intimidated, abused and always scared of Paul Draper and scared of losing my job over nothing. My anxiety and depression had developed to the point where I could no longer function. It was really bad after the last altercation with Paul about coaching football but this was the culmination of Paul Draper’s behaviour over my time working for the insured”.

It is clear from [93] above in the context of the applicant’s historical statement that
Mr Draper’s advice to the applicant concerning coaching football was “the culmination of Paul Draper’s behaviour” so it was the final factor which triggered his anxiety and depression (in his own mind) to the point where he “could no longer function”.
The applicant’s statement of 3 October 2017 then proceeds from paragraphs 94ff to describe medical attendances, effects on personal and social relationships, hypervigilance and lack of engagement in employment and voluntary, community or charity work.[92] Apart from the applicant coaching his son in football before 27 June 2017 there does not appear to be any evidence of the applicant’s involvement in other “community or charity work” before his injury.
[92] Applicant’s statement 3 October 2017 at [94] ff

Further signed statement of Mr P Draper dated 6 October 2017

Mr Draper confirms that aluminum ramps went missing and it was established that the applicant had taken them.[93] They were subsequently recovered and the applicant was counselled because they had become destroyed.[94] Mr Draper denies telling the applicant that the applicant would have to pay for them.[95]
[93] Mr Draper’s statement of 13 October 2017 at [13]
[94] Ibid at [15]
[95] [16]
Mr Draper denies abusing the applicant in relation to Mr Morrissey not liking him.[96] He also denies threatening the applicant regarding the cost of a re-work for the Parker job.[97] In his further statement Mr Draper essentially denies the majority, if not all, of the applicant’s allegations except that he confirms he paid for the applicant’s hernia operation as opposed to lodging a workers compensation claim.[98]
[96] [20]
[97] [21]-[23]
[98] [47]

Further signed statement of Mr N Cherry dated 9 October 2017

Mr Cherry confirms that Mr Draper took money out of his wallet at a meeting in May 2015 and threw it in the air.[99] He adds that Mr Draper stated that errors which had occurred causing losses could not continue.[100] He confirms that he did not hear Mr Draper use the word “cxxts” nor threaten to sack anyone.[101] In relation to the M power incident where the applicant had incurred overruns he confirms that at no time did Mr Draper threaten or verbally abuse the applicant at the subsequent meeting.[102] Mr Draper became frustrated and walked out of the meeting but no individual was singled out.[103] After that meeting Mr Cherry counselled the applicant concerning proper procedures when clients request variations.[104]
[99] Cherry’s statement of 9 October 2017 at [11]
[100] Ibid at [14]
[101] [15]
[102] [23]
[103] [24]
[104] [26]

Further statement of Mr B Morrissey dated 16 October 2017

Apart from confirming that he has never seen Mr Draper verbally abuse or threaten the applicant, the statement adds little.

Further statement of Mr T Lalor dated 16 October 2017

Mr Lalor was on the same shift as the applicant on 2 July 2017 and confirms that the applicant made no complaint to him that he had been threatened that if he did not work on that date his employment would be terminated.[105]
[105] Lalor’s statement of 16 October 2017 at [13]

Statement of Mr S Hadfield dated 6 October 2017

Mr Hadfield is an Operations Manager employed by the respondent. He recalls attending the meeting of 12 May 2015 where Mr Draper threw cash notes in the air but confirms that at no time did Mr Draper single out any employee.[106] Mr Hadfield states that the applicant uses the word “cunt” on a regular basis in his communications with other employees.[107]
[106] Hafield statement of 6 October 2017 at [11]-[14]
[107] Ibid at [14]
Hadfield in his statement goes on to say the following:
“16. I am aware the applicant is alleging on Tuesday 28 March 2017, I was present at a Managers/ Supervisors meeting in the boardroom at the offices of EMU Plains NSW 2750, when during this meeting the insured’s Managing Director, Paul Draper has stated,
“Danny, you fxcxed-the Steve Watts job”.
Draper then swore at the applicant and called him names.
17. I do recall a meeting, I am not sure of the date, where the Steve Watts job was addressed by Draper.
18. The Steve Watts job was not run well and lost money for the insured. There were several of the insured’s Management and Supervisory Team who were responsible for the running of the job, which including the applicant, who was one (1) of several Site Supervisors on the job.
19. When addressing the issues in relation to the job, Draper did not single out any one person as being responsible for the insured’s loss but a collective blame was attributed to all the insured’s Managers and Supervisors who were responsible for the job”.

Further signed statement of Mr M Pisani dated 6 October 2017

Mr Pisani has no recollection of the money throwing incident[108] and claims that the word “cxxt” is not a word Mr Draper would use[109] because he has three daughters employed in the office area.
[108] Pisani’s statement dated 6 October 2017 at [11]-[12]
[109] Ibid at [13]
In terms of the 28 March 2017 meeting, Mr Pisani says he has no recollection of Mr Draper making those statements and swearing.[110] He says in relation to the Steve Watts job
[110] [14]-[15]
[111] [16]
Mr Draper did not single out any person as being responsible for the insured loss[111] .

Statement of Mr M Cremona dated 6 October 2017

Mr Cremona is a boilermaker with the respondent and worked alongside the applicant at several jobs on site.[112] He refers to the applicant’s allegation that on 21 February 2014 he witnessed the applicant being subjected to an abusive telephone call from Mr Draper. He confirms that he was not present at the time because he did not commence employment with the respondent until 20 April 2016.[113]
[112] Mr Cremona statement of 6 October 2017 at [10]
[113] Ibid at [13]
Mr Cremona during his time at the workplace on no occasion saw or heard Mr Draper be verbally or physically abusive or threatening towards the applicant.[114]
[114] [14]

Statement of Mr B Davidson dated 10 October 2017

Mr Davidson was employed by the respondent as a labourer. In relation to the applicant’s allegation that on 4 February 2016 at the workshop Mr Draper threatened to make the applicant pay for damage to a mobile crane, Mr Davidson has no recollection of that event.[115] Mr Davidson has also never witnessed Mr Draper display any bullying, harassing or threatening behaviours towards the applicant.[116]
[115] Davidson statement of 10 October 2017 at [12]
[116] Ibid at [14]

Statement of Mr S Roberts dated 6 October 2017

Mr Roberts was employed by the respondent as a plumber in 2016. He did not witness
[117] Ibid
[118] [14]-[16]
[119] [16]
Mr Draper calling the applicant “fat”.[117] He adds, however, that Mr Draper has called him (Roberts) “fat” and confirms that he and Mr Draper would often joke and banter with each other.[118] Mr Roberts thought the comment simply a joke.[119]
Mr Roberts during his employment on no occasion saw Mr Draper be verbally or physically abusive or threatening towards the applicant.[120]
[120] [18]

Statement of Mr J Pierce dated 10 October 2017

Mr Pierce was employed at the time of his statement with the respondent for three years. He acknowledges the applicant’s allegation that Mr Draper called the applicant “fat” but says he has no such recollection of Mr Draper calling the applicant or anyone else “fat” on 5 April 2016 or at any other time.[121] Mr Pierce also has never witnessed Mr Draper bully, harass or threaten the applicant or employees.[122]
[121] Pierce statement dated 10 October 2017 at [11]
[122] Ibid at [11]-[12]

Statement of Mr R Polchelb dated 6 October 2017

Mr Polchelb was employed by the respondent as a boilermaker for three and a half years as at the time of his statement. In response to the allegation that he was present when
[123] Polchelb statement dated 6 October 2017 at [12]
[124] Ibid at [13]
Mr Draper accused the applicant of being “fat”, he has no recollection of this whether on 5 April 2016 or at any other time.[123] Similarly, he has never seen Mr Draper display any bullying, harassing or other abusive behaviours towards the applicant.[124]

Statement of Mr D Hughes dated 11 October 2017

Mr Hughes is a boilermaker employed by the respondent for three years as at the date of his statement. He also never witnessed the “fat” allegation nor any bullying or harassing behaviour by Mr Draper against the applicant.[125] He adds that Mr Draper is never personal, bullying, harassing or threatening.[126] Mr Hughes says that the applicant is a tall and large man who attempts to intimidate people with his physical size and that he frequently swears in conversations in the workplace.[127]
[125] Hughes statement dated 11 October 2017 at [12]-[13]
[126] Ibid at [15]
[127] [15]-[16]

The written warning of 19 January 2015

A letter under hand of Mr Cherry itemises performance issues in relation to the applicant and is dated 19 January 2015. It is described as a “first warning” and concerns budget overruns on quoted jobs, unfinished jobs, quality issues and delivery dates continually being missed.[128]
[128] Application at page 295

Email dated 27 June 2017

This email was sent by the applicant to his superiors and sets out the applicant’s position in response to being told that people were complaining about the applicant not working weekends.[129] In particular, the applicant points out his concerted efforts in performing a good job and being committed to weekend work and illustrates that he has made a commitment to coach his son’s team.[130]
[129] Ibid at page 298
[130] Ibid

Timesheet 2 July 2017

This timesheet is five days after the email sent by the applicant.[131] It claims that on Sunday 2 July 2017 the applicant worked 20.5 hours.
[131] Page 299

Surveillance

The insurer commissioned surveillance of the applicant and this is the subject of a report dated 26 September 2017.[132] The surveillance report spans 58 pages and contains nothing or any moment in my view relevant to the applicant’s capacity. I viewed the film. The applicant is on the days surveilled “out and about” on some occasions but I do not see any significant inconsistency between those outings and his claimed medical condition.

Dispute notices issued by the insurer

[132] Page 300

The dispute notices

The portal copy of the Section 74 notice issued by QBE 17 October 2017 is illegible but it is sufficient to observe that none of the written submissions make any specific reference to it. The next section 74 notice issued by GIO disputes any psychological injury (section 4), that employment is a substantial contributing factor (section 9A), any aggravation (etc) of a disease or contraction of a disease (section 4B) and whether the employment was a main contributing factor. This notice also raises section 11A, section 33 and sections 59 and 60 of the 1987 Act.
The next dispute notice issued by GIO is dated 30 September 2020.[133] It is a decision based upon section 11A of the 1987 Act in that it states that the applicant’s psychological injury was wholly or predominately caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal, discipline or dismissal of workers.[134]
[133] Page 365
[134] Page 366
On 15 December 2020 GIO issued a review notice pursuant to section 287A of the 1998 Act.[135] The insurer makes reference to investigation reports of 30 August 2017 and 17 October 2017 from which the statements earlier mentioned in these Reasons arise. The insurer notes that during the meeting on 25 July 2017 a number of matters were raised with you (the applicant) and the applicant was informed that termination of employment was an option but that Mr Draper supported the applicant retaining his employment. The point was made that neither Dr Dwyer nor Dr Padmanabhan had seen the factual investigation reports (and hence the various statements).[136] The decision was made that liability would be disputed because the applicant’s injury was wholly or predominately caused by reasonable action taken by the respondent with respect to discipline and/ or dismissal.
[135] Page 787
[136] Page 788

Summary of the dispute

From the beginning of the events outlined in the section 74 notice issued by QBE and dated 17 October 2017, the applicant has been aware of notified matters in dispute concerning section 4, section 9A, section 11A, section 33, section 59 and section 60 of the 1987 Act. The respondent’s primary submissions deal first with issues concerning credibility and then medical issues concerning diagnosis and capacity before finally advancing the section 11A defence and concluding with submissions on capacity.
The applicant’s submissions approach firstly diagnosis, then the relevant pre-injury average weekly earnings, the question of existence of injury by reason of bullying or harassment, corroboration of the applicant’s account of events to which he was exposed and then finally whether the respondent has discharged the section 11A onus having regard to even the respondent’s evidence of Dr Bisht concerning causation.[137] The applicant then deals with reasonableness by pointing out that the processes to which the applicant was exposed are deficient in terms of absence of clear policy, absence of fair written notice, insufficient time to respond, a non-pressured environment and the opportunity to have a support person and decision making performed only after due consideration and reflection.[138]

THE MEDICAL EVIDENCE

[137] Applicant’s submissions at [4.4]-[4.6]

[138] Ibid at [4.8]-[4.9]

Clinical notes

The clinical notes of Plains Access and Like Mind Mental Health comprise 40 pages.[139] Those notes commence with progress notes of 3 May 2018,[140] then 2 May 2018, 21 April 2018. This involved a stint at that establishment with a discharge date of 2 May 2018. A notation of 22 April 2018[141] records that the applicant was hoping to “resume sessions through VOC” which I assume could be a reference to Victims of Crime. A note by social worker on 21 April 2018[142] records a presentation “on the context of depressed mood, fleeting suicidal ideation and complaints of hearing voices”. Further notes appear earlier on 8 February 2018 and on 6 December 2017 there is an admission note in the following terms:[143]

“Daniel reports deterioration in mental state since July when he was put on stress leave from work (site manager). Describes his boss as demanding and threatening toward staff. Staff were also made to work long hours for poor payment. Daniel reports that his bosses [sic] behaviour has brought up trauma background of CSA and psychical [sic] assault from stepfather.”

[139] Application at pp. 923ff
[140] Ibid at page 923
[141] Page 928
[142] Page 930
[143] Page 933

The notation just mentioned goes on to record that the applicant was teaching his sons
Aus tag team sport which involvement would finish “this Thursday”.
On 24 January 2018 the applicant was reviewed by Dr Mah and he gave a history that whilst overall his mood had improved, his HR manager had contacted him and wants to fire him if he does not return to work “because they don’t believe he is unwell”.[144] On 17 January 2018 it is noted by Dr Mah[145] that the applicant was “still having nightmares – work related, or about mother”. A similar history of nightmares about work was given to Dr Mah on 11 January 2018.[146]
[144] Page 940
[145] Page 942
[146] Page 943
The next set of clinical notes are from Health Smart Medical Centre. Some of these relate to gallstones and hepatosplenomegaly under care of Dr Padmanabhan.[147] Within these notes is a reference to a right arm biceps long head tendon rupture following injury “whilst playing on 31/7/19”.[148] The ultra sound of 14 August 2019 confirmed this rupture.[149]
[147] Page 968
[148] page 987
[149] Page 988
Dr Padmanabhan prepared a mental health plan for the applicant on 1 October 2019.[150] On 1 October 2019 he referred the applicant to Dr J Bollinger of Southern Cross Psychology.[151] A number of other GP management plans were implemented in November and December 2017.[152] A further plan was adopted in June 2018[153] as well as on 5 March 2019.[154]
[150] Page 998
[151] Page 999
[152] Pp 1025-1029
[153] Pp 1030-1033
[154] Page 1036
On 14 December 2017 the applicant was referred for psychological counselling to Wentworth Health Care (Nepean Blue Mountains).[155] This was in the context of depression, anxiety and suicidal ideation.
[155] Page 1051

Dr Alice Dwyer, consultant psychiatrist, dated 31 January 2018

Dr Dwyer diagnosed a “recently improved major depressive disorder with anxious distress”.[156] The applicant reported a deteriorating mental state over several years due to alleged mistreatment by Mr Draper and associated management.[157] The applicant reported seeing a psychologist and psychiatrist every other week[158] and said he felt always pressured to work longer hours.
[156] Page 1060
[157] Page 1061
[158] Page 1062
Dr Dwyer noted progress notes indicating the applicant advised his general practitioner of workplace issues and bullying on 25 July 2017 and 2 August 2017 and the development of anger towards his employer on 25 September 2017.[159] Dr Dwyer noted that the applicant had not disclosed to her (Dr Dwyer) on assessment childhood sexual assault and physical abuse, his history of borderline personality disorder and his previous suicide attempt approximately 10 years ago. She thought that the applicant was not being deceitful, but rather struggles to discuss the past trauma and these pre-existing features may have heightened the applicant’s sensitivities to his manager’s behaviours.[160]
[159] Page 1064
[160] Page 1066
Dr Dwyer identifies a number of pre-existing matters, apart from the childhood abuse. The applicant’s mother when he was a child was critical and verbally aggressive towards him.[161] He was distressed and received counselling following the still birth of his daughter in 2006,[162] he overdosed on medications with suicidal intent about 10 years ago previously.[163] About nine years previously he cut off from his family of origin.[164] Dr Dwyer was asked to assume that the applicant had a true perception of real events which took place at his workplace and concludes that “within the limits of this assumption…(the applicant) formed (that) view…”.[165] She also notes that personal vulnerabilities or possible general personality disorder would have been present before the applicant was employed with the respondent. In her opinion the applicant was totally unfit for work.[166]
[161] Page 1067
[162] Page 1068
[163] Ibid
[164] Ibid
[165] Page 1071
[166] Page 1072
Dr Dwyer was asked about the diagnosis provided by Dr Bisht in his report of 30 August 2017. She makes the point that Dr Bisht did not have all the past psychological history.[167]
[167] Page 1074
[168] Page 1076
Dr Dwyer also notes a history of alcohol use disorder within a group of personality vulnerabilities which pre-disposed the applicant to “difficulties in managing and processing the experiences” at work.[168]
A problem with Dr Dwyer’s opinion in my view is her reliance upon the (then) solicitor for the applicant asking her to make assumptions concerning the facts in accordance with documentation supplied to her.[169] Dr Dwyer was asked to comment on Dr Bisht’s opinion.[170] She noted that Dr Bisht had information that Mr Draper had “denied all allegations”[171]. It is tolerably clear, however, that Dr Dwyer did not have before her
[169] Page 803
[170] Pp 818-820
[171] Application page 819
Mr Draper’s statement nor any of the further lay witness statements. To my mind her presumption concerning the applicant’s perception of real events must affect to some extent the strength of her opinion on the causation issue.

Workcover medical certificates

A Workcover medical certificate is annexed to the Application.[172] It details a diagnosis of depression and anxiety with panic attacks as early as 7 August 2017.
[172] Pp. 1093ff

Ms Jenna Bollinger (psychologist) patient notes

The applicant told Ms Bollinger on 11 October 2017 that he was “struggling with everything that has happened at work”.[173] He saw her again on 18 October 2017 and 25 October 2017[174] and was upset on the latter date after reading statements from co-workers who he said were “lying” about the workplace.
[173] Page 1228
[174] Pp. 1230-1231
The applicant re-attended Ms Bollinger on 1 November 2017[175]. He reported what she regarded as paranoid thoughts on 16 November 2017.[176] On 22 November 2017 the applicant reported intense suicidal thoughts to Ms Bollinger and told her that he had not fully disclosed his childhood experiences, nor another experience where he witnessed his neighbour setting himself on fire.[177] The consultation of 24 November 2017 concerned the applicant’s childhood experiences[178] and ongoing suicidal thoughts at consultation on 27 November 2017.[179]
[175] Page 1231
[176] Page 1232
[177] Page 1233
[178] Page 1234
[179] Page 1235
The applicant attended for further consultation on 7 and 15 December 2017 and 22 December 2017.[180] On 10 January 2018 the applicant reported to Ms Bollinger that the police had caught him driving to the shops despite his licence having been suspended.[181] The applicant saw Ms Bollinger again on 16 January 2018 and it would seem that by 18 January 2018 his court matter had concluded with a custodial sentence of two years and non-parole period of 12 months.[182] It was noted on 23 January 2018 that an appeal was planned[183] and the appeal was to be heard on 15 February 2018.[184] Subsequently there was mention of a community service order.
[180] Pp. 1236-1238
[181] Page 1239
[182] Page 1242
[183] Ibid
[184] Page 1243

Reports of Dr Y Bisht dated 30 August 2017 and 3 October 2017

Dr Bisht saw the applicant at the request of QBE insurance. The doctor had before him a certificate of capacity, the worker’s injury claim form, a statement made by Mr Draper dated 18 August 2017 and some diary entries from the respondent.[185] The “diary entries” are said to be from QBE’s “client related to stressful workplace related experiences”.[186] It is unclear, therefore, whether the diary entries are from the applicant or the respondent because
[185] Application at page 72
[186] Ibid at page 73
[187] Ibid
Dr Bisht[187] says that he asked “your client to elaborate on his psychological symptoms”.
The applicant gave Dr Bisht a history consistent with abusive/ threatening behaviour and being made to work excessive hours together with threats of losing his job if he did not work the long hours.[188]
[188] Ibid
The applicant denied to Dr Bisht having ever abused illicit substances.[189] No past history is recorded nor any previous developed mental health disorders.[190]
[189] Ibid
[190] Ibid
The applicant described to Dr Bisht a difficult childhood but did not, it seems, provide any significant detail.[191] Dr Bisht diagnosed adjustment disorder with anxious mood which he thought was consistent with the history provided. He noted no history of any pre-existing injury or psychiatric injury.[192] Because Mr Draper denied in his statement all allegations of bullying, Dr Bisht concluded that work was not a substantial contributing factor to the applicant’s condition.[193]
[191] Page 75
[192] Page 76
[193] Page 77
QBE sent a request for a supplementary report and this was provided by Dr Bisht dated 3 October 2017.[194] On this occasion Dr Bisht had the applicant’s statement dated 22 September 2017 and a surveillance report dated 26 September 2017. Dr Bisht concluded that the finding of the surveillance footage indicated that the applicant’s symptoms were not impacting his function to the extent that he claimed, so that he would conclude that the applicant suffered only a “normal emotional response”.[195]
[194] Page 79
[195] Page 80
In a more recent report of 11 March 2021 Dr Bisht concludes that the applicant, apart from a few months after July 2017, has been fit to work four hours per day, four days per week in selective employment.[196]
[196] Reply at page 196

Discussion

Both Dr Bisht and Dr Dwyer received a history that the applicant was required to work excessive hours. There is evidence that the applicant did work long hours, namely from the applicant’s wife,[197] Mr P Parlato[198] and Mr Draper’s email referred in Mr Friell’s statement.[199] There is, accordingly, support for the factual position that the applicant was required to work long hours.
[197] Application at page 29
[198] Ibid at page 118 at [44]
[199] Ibid at page 125 at [23]
There are some other factual matters concerning the various communications between the applicant and Mr Draper which support events described by the applicant to Dr Bisht and
[200] Ibid at page 22 at [19]
[201] Ibid at page 737
[202] Ibid at page 124 at [17]
[203] Ibid at page 139 at [47]
Dr Dwyer. First, the applicant stated that he got to the point where he had to self-medicate with alcohol before attending work.[200] This history was also given to Dr Dwyer[201] and was the subject of corroboration by witness Mr Friell.[202] Second, both Mr Draper and Mr Cherry confirm they visited the applicant’s home in late July 2017 and Mr Cherry confirms the applicant’s account that Mr Draper said the respondent had greater capacity than the applicant to pay legal costs if a dispute arose. [203] This comment to the applicant clearly conveyed, in my view, a threat towards the applicant and explains to some extent why the applicant perceived that he was being targeted.
Third, the applicant’s wife confirms that the applicant’s mental health gradually become worse and that she discussed it with him in 2017.[204]
[204] Ibid at page 30 at [23]
Four, the opinions of Dr Dwyer and Dr Bisht establish that the applicant had underlying personality vulnerabilities (mentioned above) which predisposed the applicant (in the words of Dr Dwyer) to becoming unwell under workplace stress.[205] Dr Bisht took a history that the applicant had being experiencing symptoms since July 2017[206] but because of Mr Draper’s denial the doctor was not satisfied that work was the substantial contributing factor.
[205] Page 828
[206] Page 71
It is necessary in this matter to acknowledge that Dr Dwyer’s opinion is a little deficient for lack of access to the numerous statements. Dr Dwyer’s opinion is based on acceptance of the applicant’s account without being aware of potentially countervailing factual matters stated by Mr Draper and many others. Dr Bisht’s opinion is deficient because he did not have access to the pre-existing history of the applicant’s mental state. But having made these observations, there are some parts of the reports which remain adequate to assist in explaining the applicant’s state of mind.
In considering all of the relevant circumstances including the applicant’s background mental health history and the fact the applicant was able to perform his employment in a satisfactory manner until 25 July 2017, I am comfortably satisfied that the applicant in the words of
Dr Dwyer had an underlying propensity to personality disorder and that at the least the exposure of him to various events in his interchanges with management created a perception in his mind that he was being unfairly targeted and the subject of threats in relation to his employment.
After extensively reviewing the authorities, Roche DP in K[207]outlined the following key principles (at [52]): -
“The following conclusions can be drawn from the above authorities:
(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”.

[207] Attorney General’s Department v K [2010] NSWWCCPD 76

The evidence details the applicant’s exposure to a very sad upbringing and also to very traumatic events, a propensity at one stage to attempt suicide and struggling with grief. In my view the applicant presented to work with the respondent with an “egg shell skull” psyche such that he was susceptible to a perception that any criticism to which he was generally exposed would be taken highly personally and this is the point alluded to by Dr Dwyer .[208] Viewed objectively, the several lay witness statements including those of Mr Draper cast considerable doubt upon whether they are capable of constituting “bullying and/or harassment”. But that is not the test and nowhere in the workers compensation legislation are those words employed. There is ample evidence from lay witnesses that many of the events referred to by the applicant in fact occurred and in my view the various medical opinion supports the view that the applicant’s reaction was sufficient to amount to psychological injury as a result of those events, regardless of the fact that the respondent’s management clearly on the evidence did not intend that to happen.
[208] See paragraph 87 above in these reasons.
It follows that in my view it is appropriate to find that the applicant in the course of his employment with the respondent suffered psychological injury in the sense contemplated by section 4 (b) (ii) of the 1987 Act.

Main contributing factor

Section 4 (b) (ii) of the 1987 Act provides as follows: -
“ ‘injury’ –
(a) means personal injury arising out of or in the course of employment,
(b) includes a
"disease injury", which means—…
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
Dr Bisht expresses the view that the applicant’s psychological injury was “predominately caused by” action taken by the respondent[209]. This is not exactly the test in my view for “main contributing factor” and indeed Dr Bisht[210] regards the applicant’s employment not to be a substantial contributing factor (presumably a reflection on the test in section 9A of the 1987 Act). Unlike the comments by Dr Dwyer concerning perception, Dr Bisht (possibly because he did not have the applicant’s complete psychological history) does not address the question of the perceptions of the applicant by reason of his past mental state.
[209] Application page 379
[210] Application page 77
A more precise consideration in my view of section 4 (b) (ii) is that the applicant’s employment must be the main contributing factor “to the aggravation (etc)… of the disease”. The section does not require that the employment be the main contributing factor to the applicant’s mental state. The question resolves to whether the events which have earlier been described were the main contributing factor to the aggravation (etc) of the applicant’s mental state.
The applicant was able to perform all his usual duties, albeit with periods of sick leave, up until 25 July 2017. Having regard to his psychological history as eventually uncovered and discussed by Dr Dwyer, the applicant’s susceptibility to perceive events as adverse to him was heightened. There are no other events of moment referred to in the evidence concerning other reasons for aggravation of the applicant’s mental state during his employment with the respondent. I conclude that the applicant’s perception of real events in his employment was the main contributing factor to the aggravation of his psychological condition.

Section 11A defence

The onus is on the respondent to prove that the applicant’s psychological injury has been wholly or predominately caused by reasonable action (in this case) taken by the respondent with respect to the applicant being disciplined for inappropriately claiming overtime. There are some difficulties with the respondent’s argument in this regard.
There are a number of matters which make up a tapestry of events to which the applicant was subjected. First, there is his perception of real events over a number of years up until 2017 which K[211] would regard as sufficient. Second, the applicant perceived that Mr Draper’s advising him concerning football coaching was an attack levelled at him. Third, before 2 July 2017 and again on 23 July 2017 the applicant says Mr Friell threatened to sack him if he did not work. Four, there is not a lot of detail concerning the 25 July 2017 disciplinary meeting except to say that on Mr Draper’s own evidence, he intervened to prevent the applicant’s employment being terminated.[212] Mr Parlato[213] confirmed that Mr Draper intervened and that Mr Parlato as a result reassured the applicant there was no agenda against him.
[211] Op cit
[212] Application at page 113 at [55]
[213] Ibid at pp. 121-121
The respondent submits that the relevant events were the overtime meeting of 25 July 2017 and subsequent recovery of the applicant’s work vehicle.[214] Yet in terms of each of these events, the evidence is clear that the respondent had no clearly recorded policy, had not given advanced written notice of matters of concern, had not allowed the applicant time to prepare, had not advised the entitlement to have a support person present and did not embark on a considered decision-making process. The respondent delivered a decision “on the spot”. That, in the Commission’s view, cannot be regarded as fair and hence is not a reasonable action taken in respect of discipline. It is fair to say that the respondent’s decision was ultimately fair to the applicant in the circumstances, but what is important to note is that the failure to follow a fair process can be regarded as unfair and hence not reasonable.
[214] Respondent’s submission at [126]

The defence under section 11A is not made out for three broad reasons. First, the respondent produces no medical evidence that the applicant’s psychological injury was wholly or predominately caused by any action taken and to the extent that it does (Dr Bisht) the doctor’s opinion relies on an objective analysis having regard to Mr Draper’s statement. Second, there is ample evidence of other interchanges between the applicant and the respondent’s managers in the years leading up to July 2017 which the applicant in his vulnerable personality state perceived to be critical of him and hence there is ample evidence that the cause was not just the overtime meeting and the car retrieval, but rather many events to which the applicant reacted. Importantly, the applicant states that the inability to coach his son’s team any more was causative of his mental anguish. Third, the medical evidence of Dr Bisht supports the view that “most of the incidents which the worker found distressing were related to performance management”[215] but does not specifically say that the whole or predominate cause was disciplinary matters associated with claiming overtime. Four, if I am incorrect about this and the two events referred to by the respondent (claiming excessive overtime meeting and car retrieval meeting) were wholly or predominately the cause of the applicant’s injury, then in both cases I have come to the view that the respondent’s action was not reasonable for reasons associated with procedural fairness mentioned in the preceding paragraph.
[215] Application at page 376
In the result, the respondent has not discharged its onus under section 11A of the 1987 Act.

Capacity

There is no serious suggestion by the respondent that the applicant has no incapacity or only partial incapacity for work within the meaning of section 33 of the 1987 Act at times since 25 July 2017. In submissions in reply, however, the respondent points to the applicant’s Victims Compensation Tribunal claim (victims) from early 2018 resulting in counselling being provided by Ms J Bollinger.[216] The implication I infer is that this claim affected the applicant’s psychological state. The respondent also in its primary submissions makes reference to evidence concerning other matters impacting on the applicant’s capacity such as left knee from “an old footy injury”, bilateral leg pain, epigastric pain for six months, gallstones, dislocated right shoulder and surgeries[217].
[216] Respondent’s Reply submissions at [3]-[4]
[217] Respondent’s primary submissions at [135]
I have earlier referred to the applicant’s various consultations with Ms Bollinger. In the histories given, although the consultations were for victims’ compensation purposes, there is still mention of the effects of work. It follows therefore that whilst I recognise this to be a non-work factor in the applicant’s presentation, it does not dispel the continuing work-related causation in terms of the applicant’s economic loss.
The period claimed by the applicant for weekly payments of compensation is 25 July 2017 to 25 January 2020. Medical certificates from the general practitioner, Dr Padmanabhan, certify no capacity for work from 25 July 2017 to 31 January 2018. As earlier mentioned, however, the surveillance report of September 2017 according to Dr Bisht suggested that apart from a few months after 25 July 2017 the applicant could work four hours per day four days per week. In view of the film (which I have viewed) I consider this to be a fair assessment of the applicant’s capacity through that time.
The applicant on 27 November 2017 was admitted to Nepean Hospital for psychological reasons.[218] Between 27 November 2017 and early January 2018 and again in April and May 2018 the applicant received inpatient treatment as mentioned in these reasons above.
[218] Application pp 714-717
Clinical notes of Care First Specialist Centre of 27 November 2019 (mentioned above) make reference to the applicant “working”. No detail is provided in this regard and in the absence of disclosure or denial by the applicant in that regard it is not appropriate in my view that any award for weekly payments be made in favour of the applicant beyond that date.
The applicant has conceded[219] that from 1 January 2018 the applicant has had an ability to earn of $480 per week. That assessment is based upon a capacity to earn of 16 hours per week at $30 per hour.
[219] Applicant’s submissions at {2.10} (c)
As to the applicant’s pre-injury average weekly earnings (PIAWE), the parties are not entirely in agreement because the respondent asserts $1,990.68 in its Wages schedule[220] and the applicant[221] seeks to adopt that figure but assumes it is actually 95% of PIAWE, not PIAWE itself. In the absence of evidence other than this assumption, that submission cannot be accepted. The relevant PIAWE is $1,990.68.
[220] Respondent’s AALD p189
[221] Applicant’s submissions 2.4
That then leads to an assessment of the applicant’s capacity. It is necessary in the absence of precise mathematical evidence to provide general conclusions on the balance of probabilities. Based on the evidence mentioned above, the findings are: -
(a)    25 July 2017 to 15 September 2017: no capacity for work.
(b)    16 September 2017 to 26 November 2017: capacity for some work.
(c)    27 November 2017 to 31 December 2017: no capacity for work.
(d)    1 January 2018 to 20 April 2018: capacity for some work.
(e)    21 April 2018 to 20 May 2018: no capacity for work.
(f)    21 May 2018 to 26 November 2019: capacity for some work.
(g)    27 November 2019 to date: see below.

In respect of the period in [124] (g) above, it is the clinical note of Care First Specialist Centre dated 27 November 2019 which is problematic for the applicant in terms of the absence of any evidence proffered concerning where the applicant has been working, the nature of his duties and importantly the wages he has received. The Commission in my view cannot speculate about those matters. The applicant does not discharge the onus and there must be an award in favour of the respondent in respect of that period of the claim.
In respect of the determination of the applicant’s capacity for work during periods I have identified above, the applicant submits[222] that the applicant’s average weekly earnings were $2,095 per week. That figure divided by a 40 hour week is $52.38 per hour. If it relates to a 50 hour week the hourly rate is $41.90 per hour. Given these calculations it is not unreasonable to conclude in my view that the appropriate hourly rate which the applicant could receive, having regard to his capacity, skills and experience, is at least the sum of $40 per hour during the periods mentioned.
[222] Applicant submissions at 2.3
In respect of the periods which I have concluded above the applicant had some capacity for work, I have earlier said that I accept Dr Bisht’s assessment of the applicant’s capacity after he saw the surveillance film of September 2017.
In relation to the appropriate awards, in my view they are as follows: -
(a)    In respect of the claim for weekly payments of compensation awards in favour of the applicant as follows: -
(I)25 July 2017 to 15 September 2017: $1,990.68 x 95%=$1,891.15 per week (section 36 (1));
(II)16 September 2017 to 24 October 2017: ($1,990.68 x 95%) - (16 hours x 40) =$1,350.68 per week (section 36 (2));
(III)25 October 2017 to 26 November 2017: ($1,990.68 x 80%) – (16 hours x 40) = $952.54 per week (section 37(3));
(IV)27 November 2017 to 31 December 2017: $1,990.68 x 80% = $1,592.45 per week (section 37 (1));
(V)1 January 2018 to 20 April 2018: ($1,990.68 x 80%) – (16 hours x 40) = $952.54 per week (section 37 (3));
(VI)21 April 2018 to 20 May 2018: $1,592.45 per week (as in (d) above);
(VII)May 2018 to 26 November 2019: $952.54 per week (as in (e) above).
(b)    Award in favour of the respondent in respect of the applicant’s claim for weekly payments from 27 November 2019.
(c)    There is a general order in favour of the applicant in respect of section 60 expenses
(d)    The matter is remitted to the President for referral to a Medical Assessor (psychiatrist) to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 25 July 2017.
(e)    The President’s delegate is requested to place before the Medical Assessor a copy of the Application and annexures, a copy of the Reply and annexures and copies of both Applications to Admit Late documents and annexures as well as a copy of these Reasons for Decision.

[2021] NSWPIC 205

24 June 2021