Veli v Daikin Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Veli v Daikin Australia Pty Ltd [2024] NSWPIC 720
APPLICANT:	Hakan Veli
RESPONDENT:	Daikin Australia Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and lump sum compensation in respect of psychological injury; whether injury wholly or predominantly caused by reasonable action by or on behalf of the employer pursuant to s 11A(1) where clinical notes and applicant’s lay evidence indicated injury was due to multiple adverse interactions over several years; decompensation following informal meeting to discuss conduct issues; Held – respondent failed to establish injury wholly or predominantly caused by the meeting and subsequent events; section 11A(1) defence fails; no medical dispute regarding degree of permanent impairment; award for compensation pursuant to section 66; award for weekly compensation pursuant to section 38(6).
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline or provision of employment benefits to workers for the purposes of s 11A(1) of the Workers Compensation Act 1987. 2. The respondent to pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in the amount of $59,890 for 22% whole person impairment resulting from the psychological injury deemed to have occurred on 26 March 2021. 3. The respondent to pay the applicant weekly compensation from 14 February 2024 to date and continuing in accordance with s 38(6) of the Workers Compensation Act 1987 based on the agreed pre-injury average weekly earnings rate of $1,310, as periodically indexed.

STATEMENT OF REASONS

BACKGROUND

Mr Hakan Veli (the applicant) was employed by Daikin Australia Pty Limited (the respondent) as an accounts receivable clerk. It is not in dispute that the applicant sustained a psychological injury in the course of or arising out of his employment with the respondent.
The applicant made a claim for lump sum compensation in respect of the injury on 27 July 2023. In a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2023, the respondent’s insurer disputed liability to pay compensation in respect of the injury relying on a defence under s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant commenced the current proceedings by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 30 July 2024. The applicant sought lump sum compensation pursuant to s 66 of the 1987 Act and weekly compensation from 26 March 2021 on an ongoing basis.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline and/or provision of employment benefits pursuant to s 11A(1) of the 1987 Act;
(b) the extent and quantification of any entitlement to weekly benefits,and
(c) the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 31 October 2024 in Sydney. The applicant was represented by Mr Morgan of counsel. The respondent was represented by Mr Gaitanis of counsel.
During the conciliation conference, the Application to Resolve a Dispute was amended to commence the claim for weekly compensation on 14 February 2024.
The parties reached agreement that the applicable pre-injury average weekly earnings (PIAWE) rate as at 14 February 2024 was $1,310 and that the rate was subject to periodic indexation.
The parties further agreed that there was no medical dispute with regard to the degree of permanent impairment resulting from the injury as both parties’ independent medical examiners had made an assessment of 22% whole person impairment (WPI). Liability to pay compensation remained in dispute.
The applicant sought leave to put before the Commission some additional clinical notes from his treating psychologist. The applicant was directed to lodge those documents under cover of an Application to Admit Late Documents. A timetable was established for any supplementary written submissions addressing the additional notes to be lodged and served.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 25 October 2024, and
(d)    documents attached to an Application to Admit Late Documents lodged by the applicant on 4 November 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements dated 9 June 2021 and 4 July 2024.
The applicant’s first statement was prepared by an investigator procured by the respondent’s insurer.
The applicant denied any pre-existing medical conditions or drinking alcohol. The applicant did not believe there were any non-work related factors which could have contributed his injury.
The applicant commenced permanent employment with the respondent in October 2013 as a full-time accounts receivable officer. The applicant reported to Mr Vin Narasimhachar (Vin).
The applicant said he had never had any formal or informal performance management issues during the course of his employment with the respondent.
The applicant said that on 26 March 2021, he arrived at work at 8.10am for an 8.30am start. The applicant recalled that at 9.00am, Vin approached the applicant’s desk and told him to go into the meeting room. The applicant stated:
“I recall when we entered the meeting room he closed the door and we were both standing, this is when Vin aggressively questioned me why I came in early and whose permission I received to come in early, at this point he was waving his finger in my face like I was a child, and talking with a raised voice. I told him I was not having this conversation. I took a step forward and attempted to leave the room, Vin wouldn't move from standing in front of the door, I ended up reaching around him and opening the door.
Vin followed me out of the office and continued yelling me. He said he was going to go to Human Resources and I replied ‘please do’.”
The applicant said that when he returned to his desk several colleagues came and asked the applicant what had happened.
The applicant said that he had previously given Vin a letter from a cardiologist explaining that his child had an autoimmune disease which meant she had to be removed from the school learning environment. The applicant had asked for flexible working hours within the respondent’s general business hours of 8.00am and 5.00pm depending on his care obligations and his wife’s work commitments. The applicant knew that anything outside the respondent’s general business hours would require a request to be put through Human Resources. The request was put to Vin verbally as historically Vin never responded to emails or anything relating to flexible hours of work or leave.
The applicant said that he recalled Vin saying that it was not a problem. From that time onwards, the applicant varied his hours as necessary within business hours as agreed to by Vin.
The applicant said he did not know why Vin pulled him into a meeting room on 26 March 2021. Usually being pulled into a meeting room meant Vin was going to gossip and tell the applicant inappropriate things about other staff.
The next day, the applicant received an invitation to attend a meeting with Vin and Grant Young from Human Resources. Issues were raised with regard to the applicant’s start time, reporting, watching television on his phone whilst working and his attitude.
The applicant responded to the invitation indicating that he was not comfortable meeting with Vin because he felt intimidated by him as a result of their previous interaction. The applicant noted that Mr Young and Vin had worked together for 20 years. Mr Young replied saying he would conduct the meeting alone.
The applicant noted that he had asked Human Resources to investigate Vin’s treatment of staff members. The applicant presented Mr Young with a nine page letter setting out his history of adverse interactions with Vin over the course of the applicant’s employment. The letter was sent on the Saturday prior to the meeting.
During the meeting, the applicant and Mr Young went through Vin’s complaints about the applicant. The applicant denied that he had a bad attitude but explained that he was avoiding Vin because he did not want to be “earbashed” about other employees or demoralised. The applicant told Mr Young that the only time he had not done a report was when he was off sick or on leave.
The applicant gave Mr Young a letter from his daughter’s cardiologist and explained that he had asked Vin for permission to start earlier. The applicant explained that he was only asking for flexibility within business hours. The applicant was not asking to work from home. There had not previously been a set start and finish time. The applicant did not see why he was being asked why he had started early.
The applicant denied watching movies on his phone and explained that he did listen to TED talks or music through YouTube on his phone with earphones while working. This helped the applicant concentrate and he had been doing it for three or four years without it ever being raised as an issue. Other staff members also wore earphones when working.
The applicant said that two other members of his team also had issues with Vin. Their reporting lines were changed. The applicant asked Mr Young for his reporting line to be changed. The applicant emailed Mr Young over the following three weeks asking for an update but did not receive a reply. During this time, the applicant took time off work as sick leave.
Upon returning to work, the applicant’s team members were going in for their performance review meetings with Vin. When they were done, Vin walked out and gave the applicant the dirtiest look he had ever seen. The applicant felt he could not continue and walked out and went home. The applicant made an excuse that he was needed at home for his child. The applicant’s wife suggested he speak to the doctor.
The applicant attended a consultation with Dr Lieng. The applicant was in tears during the consultation and was issued with a worker’s compensation certificate and referred to a psychologist. The applicant was prescribed mirtazapine although the prescription had later been changed.
The applicant described Vin as “hot and cold” and said he would whinge about other staff members. The applicant said he would never know what kind of mood Vin would be in. It was difficult feeling unsupported.
The applicant described an issue during the COVID-19 lockdown in April 2020. Everyone was given a laptop to take home but the applicant was given a desktop computer. The applicant had to set the computer on his dining table in order to be close to a data cable. This caused a hazard and disrupted his family. The applicant reported this to Vin but his complaints were ignored.
Following the return to the office, the applicant was alternating weeks in the office and working from home. The applicant was taking the desktop computer home on a weekly basis. This was difficult and so the applicant started to use his personal laptop. The ability to do this had previously been demonstrated by a senior manager, Michael Chad.
The following week, while the applicant was working from home, Vin emailed the applicant asking for the asset number of the computer that had been left in the office. The applicant replied that he was working from his own laptop. Vin asked the applicant whose permission he obtained to use his own laptop.
The applicant said he was not invited to participate in the accounts receivable monthly team meetings. The applicant was not advised of the meeting outcomes or able to raise issues or learn of any changes. This left the applicant feeling isolated and concerned that Vin was discrediting him to the accounts team in the same manner that he discredited others to the applicant.
The applicant described a key change in procedures in June 2019 that had not been discussed with the applicant. The applicant said this was another example of exclusion and isolation by Vin.
During the COVID-19 lockdown, the applicant realised the impact of Vin’s treatment of him and the way he interacted with him. While working from home, the applicant was not stressed as his interactions with Vin had decreased. The applicant said he believed Vin was deliberately tormenting him so that he would resign under stress.
The applicant said he had been afraid to report Vin’s actions as he and the service general manager continuously commented about their tight connection with each other.
In his supplementary statement, the applicant said he was subjected to bullying, harassment, intimidation and inappropriate behaviour primarily perpetrated by Vin during the course of his employment.
The applicant said he had been cornered by Vin on multiple occasions over the years and taken to a meeting room where Vin would complain about people in his team and other managers with whom he was having issues. The applicant found this inappropriate and felt he was being provided with information that he should not know and did not want to hear. The applicant felt intimidated and forced to listen to Vin because if he did not he would lose his job. Vin would make degrading and disparaging remarks about his co-workers.
Due to this behaviour, the applicant would try to avoid Vin. When Vin noted this, he became vindictive in his approach to the applicant. This left the applicant feeling stressed, isolated and concerned that he would lose his job.
The applicant said he was unfairly excluded from work meetings and not provided with opportunities for training and development. Vin never provided the applicant with positive feedback and his comments made the applicant feel worthless and degraded. His unfair comments were constant and demoralising. The applicant felt unsupported and as though he was not provided with adequate training for his role.
The applicant said that on 26 March 2021, he arrived in the office at 8.10am for an 8.30am start. When he arrived, Vin asked him to come into a meeting room. Vin was aggressive, asking who gave the applicant permission to come in early. The applicant explained that he had come in within core working hours. Vin began raising his voice aggressively, saying the applicant did not have permission to come in early. The applicant felt threatened and got up to leave the meeting room. Vin was standing with his back towards the meeting room door and would not move from the door, blocking the applicant’s access. The applicant reached over Vin to open the door. Vin stood at the door and yelled across the office so that others could hear to get back into the meeting room. Vin threatened publicly that he would take the applicant to Human Resources. The applicant said this was the catalyst for his mental breakdown.
The applicant noted that his claim had been denied on the basis that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and/or discipline. The applicant said that he believed his injury was due to being subjected to repeated bullying and harassment for the period of his employment between October 2013 and 26 March 2021. The applicant expressed the opinion that none of the actions he was subjected to which had caused the injury were reasonable.
The applicant gave evidence of a previous workers compensation claim due to racial bullying in around 2007 when the applicant was employed by Medicare. The applicant said the incident occurred some time ago and he could not recall specific details. The applicant said he experienced difficulties with his memory due to his current poor mental state. The applicant recalled attending four counselling sessions after which he felt he had recovered. The applicant did not recall being prescribed any medication. The applicant was able to make a full recovery and returned to employment of a normal life.

Sandra Veli’s evidence

The applicant relies on a written statement prepared by his wife, Sandra Veli, on 23 July 2024. Mrs Veli’s statement generally corroborates the applicant’s evidence and describes numerous adverse interactions between the applicant and his manager.

Email to Grant Young

Attached to the Application to Resolve a Dispute is an email from the applicant to Grant Young dated 27 March 2021 in which the applicant complained of bullying, harassment, intimidation and inappropriate behaviour towards himself by his manager, Mr Narasimhachar. The email states:
“Over the years of working at Daikin Vin has cornered me on multiple occasions to engage in inappropriate behaviour. Vin calls me into a meeting room, not to have a meeting, but to complain about people in his team and other managers when he is having issues. Sometimes he keeps me in a meeting room for up to 2 hours complaining and telling me information about situations and people that is inappropriate and that I should not know and do not want to hear, however, I feel intimidated and forced by Vin to listen because if I don’t he will turn on me and it is I who will likely lose my job. I have seen this behaviour inflicted on other various staff members who used to report to him and no longer do, and also to other staff members who are no longer in the business and left Daikin because of his behaviour towards them.
My behaviour towards Vin is avoidance and I try not to engage with him. When Vin has noticed that I am avoiding him physically he becomes vindictive in his approach towards me. This leaves me feeling very stressed, isolated and concerned that I will lose my job. On a number of occasions I feel that Vin has threatened me by telling me that he has such a great relationship with you, and that it was you who brought Vin to Daikin and that you will believe Vin and not others making complaints about him. I feel like he says this to me to make sure I do not divulge the information he is telling me or the way he behaves to you because you wouldn’t believe me anyway. I do not like conflict and I try to avoid these situations myself. I have not felt comfortable in the past to raise these issues, and I have tried to deal with them myself by avoiding Vin.”
The email goes on to describe in detail, various examples of this type of behaviour.

Other records

A pre-employment medical form signed by the applicant on 12 March 2013 asked the applicant if he had ever had any health conditions. The applicant indicated that he had not previously experienced stress at work or depression/anxiety.
A text message to Mr Narasimhachar sent on 26 March 2021 at 9.09am stated,
“Hey
staff are questioning why
Hakan watches movies all day at his desk.
This has been going on for a while”

Mr Narasimhachar responded that he would have a chat with the applicant very shortly.
A letter dated 26 March 2021 from Mr Young addressed to the applicant gave him formal notice of a meeting on 29 March 2021 to discuss matters including start and finish times, watching movies during working hours, weekly reports and attitude. The applicant was advised of his ability to bring a support person of his choice. The purpose of the meeting was to gain a better understanding of the issues and discuss opportunities to resolve them.

Respondent’s witness evidence

Venkatesh Narasimhachar

The respondent relies on written statements prepared by Mr Venkatesh Narasimhachar and signed on 8 June 2021 and 5 September 2024.
Mr Narasimhachar agreed with the applicant’s statement that he did not have any difficulties performing his duties although Mr Narasimhachar did have to pull the applicant up for numerous issues. These included ignoring Mr Narasimhachar’s emails. The applicant had to be chased for reports because they had not been completed on time or done at all.
Mr Narasimhachar said he had meeting records dating back to 8 October 2019 where the applicant was not reporting when he was not coming in to work or not completing leave applications as required. Mr Narasimhachar recalled a period when the applicant was taking excessive leave.
Prior to 26 March 2021, the applicant had been coming to work sporadically each day. Mr Narasimhachar asked the applicant to stick to a standard start and finish time of 8.30am to 4.30pm. Mr Narasimhachar denied telling the applicant he could have flexible start and finish times.
Mr Narasimhachar recalled a previous conflict when the applicant had requested a flexible working arrangement as he was going to foster child.
Mr Narasimhachar said he had received feedback from some of the service managers that the applicant had not been chasing payment from customers for jobs. The applicant’s reception of such things varied depending on his mood. Sometimes he would swear and other times he would be okay.
Mr Narasimhachar confirmed that he asked the applicant to the meeting room for an informal discussion on 26 March 2021. Mr Narasimhachar received a text message at 9.09am from the National Service Operations Manager advising that staff had made complaints about the applicant watching videos on his phone. About 20 minutes later, Mr Narasimhachar asked the applicant to meet with him.
Mr Narasimhachar described the meeting as follows:
“I walked up to the Claimant and asked if I could have a word with him. The meeting was held in a boardroom with a large conference table. My normal routine when I walk into the room is to turn the air-conditioner and the lights on and walk to the far end of the table away from the dor. I deny that I blocked the door. He was sitting at the other end of the table closest to the door.
I was conscious of not being abrupt and stated that I had noticed that he had come to work early again. I recall he got defensive and said ‘c'mon, I came early so that I did not get caught in traffic. I’m here now what else am I meant to do’. I recall he said he would finish at 4.30pm. He said he was not going to have this conversation and walked out.
I can recall I told the Claimant I had other things to talk to him about and he said he is not talking to me. I recall I walked to the door stood there and said to the Claimant can you come back I have some things I want to discuss. He said no and I said I will take up with HR. I recall the Claimant said ‘whatever’. I deny yelling at him. I deny standing over him. I deny speaking to him aggressively. I don't see how anyone could say that I stood over them to intimidate them. I am 56 years old and if I was to have a fight with someone, they would punch me once and I would fall down. I am in fact intimidated by the Claimant.”
Following the applicant’s refusal to speak with him, Mr Narasimhachar called Grant Young to discuss what had happened. Mr Young said he would arrange a further meeting.
Mr Narasimhachar said he had several conversations with the applicant instructing him to start at 8.30am and work until 4.30pm each day. Mr Narasimhachar said he had never refused a request for the applicant to attend appointments for his daughter’s medical condition. Mr Narasimhachar denied ever receiving a formal request for flexible hours from the claimant or having a verbal conversation about flexible start finishing times.
Mr Narasimhachar denied that he did not respond to emails.
Mr Narasimhachar confirmed that he completed reviews with his team other than the applicant. Mr Narasimhachar said he had a lot on his mind that day and did not know what dirty look the applicant was referring to.
Mr Narasimhachar said that during the first COVID-19 lockdown there was a shortage of laptops. Mr Narasimhachar recalled the applicant saying he had a nice office at home set up and the desktop computer would be no problem. Mr Narasimhachar denied that the applicant complained about the desktop computer.
Mr Narasimhachar said he had noticed that the applicant’s desktop computer was on his desk in the office while he was working from home. Mr Narasimhachar called the applicant to enquire how he was getting his work done without the desktop computer. The applicant told him that he was using his personal laptop. The applicant had not previously advised that he was going to start using his own laptop.
Mr Narasimhachar said there had not been accounts meetings for years. The applicant was given a high degree of freedom in his role. Mr Narasimhachar denied isolating or excluding the applicant. Mr Narasimhachar noted that the applicant had never made a formal
complaint with Human Resources or advised him of any issues formally or informally. Mr Narasimhachar denied ever calling the applicant into meetings to badmouth staff.
In his supplementary statement, Mr Narasimhachar said he was not aware of any complaints being made about him until the applicant walked out of the meeting in March 2021. Mr Narasimhachar said he could not understand how the applicant could say he was bullied. Their working relationship up until the incident in March 2021 was very good.

Reshmi Sharma

The applicant’s colleague, Reshmi Sharma, prepared written statements, signed on 8 June 2021 and 5 September 2024.
Ms Sharma confirmed she had witnessed a conversation between the applicant and Mr Narasimhachar on 26 March 2021. Ms Sharma recalled the applicant and Mr Narasimhachar going into the meeting room next to her desk. Ms Sharma recalled the applicant coming out of the meeting room:
“I recall Vin was asking the Claimant to come back into the meeting room. I recall Vin said to the Claimant and ‘I am still talking’. I recall the Claimant replied with words to the effect he ‘was not talking about this stupid thing anymore’. I can recall Vin continued to ask the Claimant to come back to the office and he continued to refuse.
I recall Vin said he will go to HR and my recollection is the Claimant responded by saying ‘you can do what you like’. I recall Vin then left the office on his own.”
Ms Sharma said the conversation between the applicant and Mr Narasimhachar was not loud. She could not hear anything that was happening in the meeting room. When they came out of the room they were not yelling but speaking in normal tones.
Ms Sharma denied ever having any negative interactions with Mr Narasimhachar. Ms Sharma observed that everyone in the office interacted well with Mr Narasimhachar and she had not observed anything to make her believe that he was difficult to work with.
In her further statement, Ms Sharma said she sat at the desk next to the applicant and had never witnessed any issues between Mr Narasimhachar and the applicant.

Grant Young

Human Resources Manager, Grant Young, signed a written statement on 4 June 2021.
Mr Young confirmed that the applicant had given him a letter from a doctor providing details of his daughter’s medical condition. This was presented to Mr Young for the first time in the meeting on 29 March 2021. Mr Young offered the applicant the option of having a support person for the meeting. The applicant said he did not want Mr Narasimhachar in the meeting because he was intimidated by him. Mr Young said Mr Narasimhachar had previously said he felt intimidated by the applicant.
Mr Young said the meeting on 29 March 2021 was formal however no disciplinary action could have resulted from the meeting. Mr Narasimhachar’s initial discussion with the applicant was informal and normal practice if an issue had been raised and required further investigation. The purpose of the meeting on 29 March 2021 was to discuss the applicant’s start and finish times, completion of weekly reports, watching movies whilst working and his attitude.
Mr Young said the applicant admitted that he was not meeting reporting requirements. The applicant wanted start and finish times that suited him rather than the needs of the business. No formal request for flexible working arrangements had been received apart from one occasion in 2019.
Mr Young denied that the applicant’s complaints about Mr Narasimhachar were not
acted upon. Mr Young said he had never received complaints from anyone about Mr Narasimhachar other than complaints relating to reasonable action to ensure employees were meeting the needs of the business of performing the duties as required. Mr Young denied any particular friendship with Mr Narasimhachar. From his own observations, Mr Narasimhachar considered everyone a friend.
Mr Young indicated that Mr Narasimhachar’s biggest problem was that he was inconsistent due to trying to be friends with everyone and keeping everyone happy. One employee might ask to finish early on a particular day for a particular reason which he would approve. Then another employee might ask the same only to have the request declined.
Mr Young signed a further statement on 23 June 2022 providing further detail around the meeting on 29 March 2021 and subsequent events.

Treating evidence

Clinical notes recorded by general practitioner, Dr Raymond Yean, include a consultation on 14 August 2019 which recorded:
“stressed and depressed
exhausted from work
unpleasant supervisor at work”
On 9 March 2021, Dr Yean noted:
“feeling workplace discrination
working on desktop instead of laptop
manager mistreat patient”
On 14 April 2021, Dr Yean recorded:
“patient reports symptoms of anxiety over the last few years which worsened in the last 2 months since returning to workplace after COVID restrictions lifted
patient reports bullying and belittling at workplace by boss- Vin
patient reports multiple occasions of bullying from his boss Vin and his boss Vin excluding patient at workplace to make him feel belittled”
On 19 April 2021 Dr Yean recorded:
“workplace abuse for the last 8 years mutiple incidents of bullying by patient’s reporting manager Vin listed in attached report
patient tried to acoomodate his reporting manager Vin over the last few years but the workplace bullyng worsend in the last 2 years
patient reached out to HR for support but the case was dismissed without any appropriate support or communication provided
29th march 2021
Patient's reporting manager Vin inappropriately belittled patient in publicly in front of his colleagues causing patient severe anxiety and panic attacks resulting in you having to leave work. Patient also reports multiple other private incidents where his reporting manager Vin has belittled patient and engage in inappropriate discussions where Vin is telling patient confidential workplace information about other staff members making Patient feel awkward and anxious [sic]”
Clinical notes from another general practitioner, Dr Tom Lieng include a consultation recorded on 21 April 2021 as follows:
“works for Daikin for 8 years
Account receivable
having problem with Vin (manager of Warranty - in charge of 6 people)
treated poorly for 8 years working at Daikin
Vin treat staff poorly, screaming at staff, degrading staff, erratic, Exclusion Hakan from team meeting and his presence
Other employees has similar issues. 2 earlier staff has to change reporting line due to isues
No performance isues.
Informed HR regarding above problem March 2021
HR did reply but no response. no action
suggested to HR that he could report to another manager. responded and said they will change reopriting line
Havent ben back to work since 25/3/2201.
came to work at 8.10am. got reprimanded for going to work early. Finger pointing and threatening gesture. Attempted to walk out of a hostile situation but Vin continued chasing and pursing him for for some 5 minutes. Threatned by Vin to take issue to HR.
In March 2021, requested Vin to be flexible in starting time to care for his daughter. Vin agreed.
Doesnt feel that he could work with Vin.
Doesnt fel that he could work iwth Daikin anymore due to culture issue.
No precious psych history
previous psych claim with previous employer 10 years ago with Comcare. Resolve after 8 months Moved on to another industry.[sic]”
The applicant was referred to a psychologist and given a State Insurance Regulatory Authority (SIRA) Certificate of Capacity.
On 27 April 2021, Dr Lieng prepared a report for the respondent’s insurer. Dr Lieng diagnosed anxiety and depression in the following context:
“Mr Veli reported multiple stressful incident at work associated with his manager/supervisor whereby he was verbally and emotionally mishandled causing emotional distress. He reported that ongoing issues occurred for 8 years.”
The applicant’s psychologist, Song Nguyen, prepared a report for the insurer on 30 August 2021. Ms Nguyen reported:
“Hakan reported that he had been working at Daikin for 8 years. Throughout those years, Hakan reported experiencing workplace bullying and harassment by his manager where he described their relationship as ‘up and down’. Stated manager would talk unprofessionally to him, is demeaning and would also ostracise him. Stated manager was also unreasonable and would make it difficult for him to do his job. Hakan stated he had received complaints for unreasonable things such as coming into work early. As a result of the above workplace issues, Hakan has been off work due to the effect on his mental health.”
Consultant psychiatrist, Dr Blagoje Kuljic, prepared a report for Dr Lieng on 19 November 2021 in which he noted:
“Mr Veli reported quite complex psychiatric history, which according to him started eight years ago triggered by problems related to work. He believes that caused gradual onset of mood instability, irritability and depression. The situation escalated March this year. At that time, he had significant clash with his manager. He believes since that time his mental state deteriorated to the level he was unable to work and his compensation claim was started.”
In response to a further series of questions on 11 June 2022, Dr Lieng commented:
“Hakan first saw me on 21/4/2021 with symptoms of anxiety/depression secondary to conflict with his supervisor at Daikin. His symptoms were gradual over the years but seem to have escalated in March 2021 due to further conflicts making him feel that he could not continue under the working environment.”
Handwritten records from MacPsych Counselling Services (MacPsych), lodged after the arbitration hearing, record consultations up until 10 September 2024. In the most recent consultation the applicant was recorded to have reported that his mental health had gone backwards. The applicant could not answer the phone and avoided speaking on it, had no motivation to have showers, did not have patience for people and struggled to celebrate Father’s Day. The applicant was experiencing indecisiveness, reading into stories to find threats and had disturbed sleep.

A/Prof Michael Roberston

The applicant relies on a medicolegal report prepared by consultant psychiatrist, Associate Professor Michael Robertson, dated 28 June 2023.
A/Prof Roberston noted that the applicant had a previous work-related psychological injury. This was likely a mild adjustment disorder in the context of racist vilification by an employer who was later terminated for that behaviour. The incident did not lead to persisting psychopathological disturbance or psychosocial morbidity.
A/Prof Robertson took a history of the injury and said that the applicant had developed a significant mood disorder over the course of these difficulties culminating in a serious overdose of antidepressant medication in 2021 necessitating urgent care at Campbelltown Hospital. The applicant remained under the care of Dr Bisht and his treating psychologist Ms Leong.
A/Prof Robertson diagnosed a chronic major depressive disorder with anxious distress.
The applicant was assessed to be totally and permanently unfit for employment in his pre-injury occupation. The applicant’s future capacity for work appeared to be significantly reduced given the chronicity of his depressive symptoms. The constellation of difficulties related to the applicant’s chronic depressive illness was incompatible with remunerative employment for the foreseeable future.
A/Prof Robertson found that the behaviour of Mr Narasimhachar was the substantial and main contracting factor to the chronic depressive illness.
A/Prof Robertson made an assessment of 22% WPI resulting from the injury with no deductible proportion.

Dr Abhishek Nagesh

The respondent relies on medicolegal reports prepared by psychiatrist, Dr Abhishek Nagesh, dated 11 June 2022 and 24 November 2023.
In his first report, Dr Nagesh took a history of the applicant being bullied, harassed, demeaned and gossiped about by his manager. The applicant also alleged he was locked up in a room by the manager and verbally abused. The applicant said the bullying started eight years earlier but could not provide any previous examples.
Dr Nagesh referred to the respondent’s witness evidence and noted that the applicant’s colleagues had refuted the allegations of bullying and harassment.
Dr Nagesh expressed the view that on the balance of probabilities, the conflict and alleged bullying with Mr Narasimhachar were the predominant cause of the applicant’s psychological injury.
In his supplementary report, Dr Nagesh said the applicant had continued with treatment with his psychologist and psychiatrist on a regular basis. The applicant’s antidepressant medication had been augmented with lithium.
Dr Nagesh noted that during the previous assessment the applicant had denied a history of mental illness although the documents revealed a previous claim in 2007.
Dr Nagesh noted:
“I note from the documentation provided to me that his colleagues have refuted the allegations of bullying and harassment. His colleagues have alleged that the manager, Vin Narasimhachar, was not verbally abusive or shouting. The manager against whom the accusations have been levelled has also denied the allegations of bullying and harassment. His manager and his other work colleagues have alleged that a change in working times requested by Mr Veli was declined and in this context, he has left the workplace. His employer's representatives have also implied that Mr Veli was watching movies during work hours, during weekly reports and had attitude. On 26 March 2021, Mr Veli received a notice of meeting to discuss these issues and the following day, Mr Veli made a formal complaint of bullying and harassment.”
Dr Nagesh said there was a pre-existing major depressive disorder and the injury involved in aggravation, acceleration or exacerbation of that condition.
Asked whether the injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the employer with respect to discipline and/or the provision of employment benefits, Dr Nagesh responded:
“The employer's representatives have stated that there were conduct issues with the claimant, where he was watching movies during work hours, weekly reports and had attitude. On 26 March 2021 the employer's representatives provided a notice of a meeting to discuss these issues and the claimant made a formal complaint in relation to bullying and harassment the following day. Also, there were issues with regards to a change in working time, which the claimant, when denied, perceived as being bullied and harassed. My rationale is that up until 26 March 2021, when the claimant was given notice of the meeting, the claimant was able to work at full capacity. He has made a formal complaint of bullying once he was invited to discuss the conduct issues and hence on the balance of probabilities, his injury arose in the context of the action taken by or proposed to be taken by or on behalf of the employer with respect to discipline and the provision of employment benefits to workers, having regard to the fact that the claimant was invited to a meeting to discuss conduct issues on 26 March 2021.”

Dr Nagesh also made an assessment of 22% WPI with no deduction for the pre-existing condition.

2007 injury

Medicolegal reports prepared in connection with the applicant’s 2007 injury by Dr Janelle Miller and Dr Klaas Akkerman, described an onset of psychological symptoms in the context of difficulties with a manager.
Dr Miller recorded that since the workplace problems the applicant had been drinking three to four stubbies a night.
Dr Akkerman’s report dated 31 March 2008 noted that the applicant had given up alcohol six weeks ago but had been drinking up to 12 schooners per day between April 2007 and February 2008.

Respondent’s submissions

The respondent noted that the injury had been described in alternative ways as either a disease or an aggravation of a disease in the Application to Resolve a Dispute.
The respondent noted that evidence had been provided of a previous psychological injury caused by conflict with a former employer. In his employment application for the respondent, the applicant had denied any prior psychological issues. There was also a prior history of alcohol abuse. In the current proceedings, the applicant had denied drinking. The respondent submitted that these circumstances raised questions as to the applicant’s credit and whether his evidence ought to be accepted.
The applicant’s evidence was noted to be distinctly at odds with that of the respondent’s witnesses.
The respondent also submitted that the applicant’s treating practitioners were not privy to his prior psychological history.
The respondent submitted that there was a temporal connection between the meeting on 26 March 2021 and the onset of symptoms although there was a factual dispute as to what occurred at the meeting. Given the credit issues, the respondent’s evidence ought to be preferred over the applicant’s evidence.
The respondent submitted that the evidence from the applicant’s wife would be given little weight. The applicant’s wife lacked first-hand knowledge of the relevant events and her account was based on what the applicant had told her. It could be inferred from the form and language used in her statement that it had been prepared by a solicitor.
The respondent submitted that the evidence from Mr Narasimhachar demonstrated that there was a valid basis for the meeting on 26 March 2021. Complaints had been made about the applicant’s performance at work. That meeting generated the applicant’s complaint of symptoms to his doctor. The applicant’s complaints of bullying and harassment were made for the first time after being advised of the formal meeting with Mr Young. Temporally and qualitatively, the meeting was significant in considering the “whole or predominant cause” test.
The respondent acknowledged that the applicant had reported psychological symptoms in 2019 and on 9 March 2021 to his doctors. The events which were the subject of those complaints were, however, remote to the subject decompensation and qualitatively unimportant.
The respondent observed that the clinical notes prior to the meeting recorded stress but there had not been any diagnosis of a psychological condition. There were no complaints to the employer. This suggested that the applicant was well until he was asked to perform his work in the meeting on 26 March 2021.
The respondent’s witnesses had given evidence that when legitimate matters were raised with the applicant, he took offence and complained. The injury in 2007 was said to have occurred in similar circumstances.
The respondent submitted that while the applicant took offence to the employer’s actions, those actions were objectively reasonable. The Commission would be satisfied that Mr Narasimhachar did not act inappropriately. The evidence from Mr Narasimhachar was that he tried to speak to the applicant about a complaint he had received from another worker. The applicant got defensive. Mr Narasimhachar gave evidence denying that he was aggressive in his demeanour.
That evidence was supported by the evidence from Ms Sharma. Ms Sharma said the conversation was not loud and she had never witnessed any issues between the applicant and Mr Narasimhachar.
The evidence from Mr Young confirmed that there were issues with the applicant’s performance.
The applicant’s version of events was inconsistent with regard to how long he had been at work before he was asked to go to the meeting room. The applicant’s evidence was embellished and exaggerated.
Mr Narasimhachar gave evidence that he had had to pull the applicant up about numerous issues including excessive leave and not following due process. Mr Narasimhachar denied that he had agreed to flexible start and finish times.
The respondent submitted that it was reasonable for Mr Narasimhachar to call a private meeting in a meeting room. The exchange was typical of exchanges in the workplace. It was reasonable to have a conversation in the circumstances.
The applicant referred to the President’s decision in Van Vliet v Landscape Enterprises Pty Ltd,[1]. The respondent’s actions did not need to be flawless for a defence under s 11A(1) of the 1987 Act to be established.
[1] [2022] NSWPICPD 49.
The respondent submitted that the employer’s actions fell within the category of discipline taking a broad view of that term, or alternatively, performance appraisal.
Turning to the medical evidence, the respondent submitted that Dr Kuljic’s evidence of an escalation in March 2021 was consistent with the meeting being the whole or predominant cause of the injury. The history of eight years of mistreatment was not correct.
The applicant had denied a prior psychological history in his first examination with Dr Nagesh. This was a matter going to the applicant’s credibility.
Dr Nagesh’s opinion on the whole or predominant cause would be preferred over the opinion of A/Prof Robertson. Dr Nagesh’s reports were thorough, contemplated all of the evidence and, in the latter report, dealt with the question of whole or predominant cause of the injury. The report was even-handed. On the evidence, he found that the events on 26 March 2021 were the whole or predominant cause.
A/Prof Robertson’s evidence was expressed in general terms, was barely responsive to the questions asked, contained bare assertions and contained no opinion about the whole or predominant cause of the applicant’s injury.
The respondent submitted that the Commission would accept Dr Nagesh’s opinion on the whole or predominant cause of the injury. Those events constituted action with respect to discipline or performance appraisal and those actions were reasonable in all the circumstances.

Applicant’s submissions

The applicant referred to the decision of Wood DP in Webb v State of New South Wales[2] with regard to what constitutes “discipline” or “performance appraisal”. The fact that there was potential for relevant action was not sufficient to give rise to a s 11A(1) defence.
[2] [2019] NSWWCCPD 50 at [96] onwards.
The applicant observed that the respondent bore the onus of demonstrating that Mr Narasimhachar’s actions were with respect to discipline or performance appraisal. Even if the respondent was successful in discharging that onus, the applicant submitted that the actions were not reasonable. Furthermore, the respondent had failed to address the contemporaneous evidence of a long history of difficulties for the purposes of demonstrating that relevant action was the whole or predominant cause of the injury.
The applicant noted that the respondent’s insurer had paid weekly compensation in respect of the injury for a period of two and a half years before denying the claim in December 2023. Although the employer’s evidence identified issues with the applicant’s performance, there was no concrete evidence or substance to the complaints to justify the employer’s approach.
Noting the respondent’s submissions regarding the applicant’s credit, the applicant observed that no medical opinion had been provided to suggest that the prior alcohol history was relevant. The applicant described the respondent’s submissions as to credibility as “pot shots”.
The applicant submitted that the basis for the meeting on 26 March 2021 was a text message about the applicant watching videos. Mr Narasimhachar did not take any steps regarding the complaint other than to drag the applicant into a meeting and berate him about his start times. The meeting had nothing to do with watching movies. No investigation or inquiries were conducted with respect to the complaint.
The evidence did not suggest that the meeting was conducted in a cordial manner. It
was to be expected that Mr Narasimhachar would deny any aggression. Aspects of Mr Narasimhachar’s evidence confirmed that the applicant’s evidence was credible.
Ms Sharma also remained employed by the company. In any event, her evidence about the meeting on 26 March 2021 was consistent with the applicant being hectored or harassed by Mr Narasimhachar.
Mr Young’s evidence contained a tacit concession that Mr Narasimhachar was prone to treating workers differently.
The applicant submitted that there was no evidence that the applicant had been subject to performance appraisal or a formal disciplinary process regarding his use of his phone or his start times prior to the meeting in March 2021. The meeting was convened on the background of a single complaint.
The applicant submitted that his statement evidence was consistent with the history given to his doctors. The applicant made a complaint about Mr Narasimhachar to Human Resources. The applicant’s wife had described her own observations of her husband’s experience of the work environment.
Turning to the medical case, the applicant observed that A/Prof Roberston was not asked to address the question of whole or predominant cause. A/Prof Roberston was asked what caused the condition and expressed the opinion that it was caused by the combination of events over a period of time. The psychological injury was caused by inappropriate and hectoring behaviour from the applicant’s manager.
The applicant observed that Dr Nagesh not been provided with clinical material from the applicant’s treating practitioners. Dr Nagesh’s report contained an inaccurate representation of the respondent’s witness evidence.
The applicant referred to the entries in the clinical records of Dr Lieng, including his response to the insurer’s questions indicating that symptoms occurred gradually over the years.
Ms Nguyen also took a history of the applicant experiencing workplace bullying and harassment by his manager throughout the years of his employment.
Dr Kuljic recorded a history of gradual onset of symptoms starting eight years earlier.
Dr Yean’s records noted anxiety over the past few years from multiple occasions of bullying and exclusion from his boss. A clinical note recorded on 9 March 2021 described workplace discrimination in relation to the laptop issue. Two weeks prior to the meeting on 26 March 2021 the applicant was telling his general practitioner that he felt ostracised by his employer. Complaints about stress and depression from work and an unpleasant supervisor were recorded notes made on 14 August 2019. Dr Yean recorded a history workplace abuse for the last 8 years and multiple incidents of bullying.
The applicant submitted that the treating evidence was inconsistent with the meeting on 26 March 2021 being the whole or predominant cause of the injury. There was a wealth of evidence to suggest that the applicant had a long-standing problem with Mr Narasimhachar.
In the alternative, the events on 26 March 2021 were not appropriately characterised as action with respect to discipline or performance appraisal. Nor was the action reasonable.
The applicant submitted that all of the clinical material indicated that the applicant was totally incapacitated by the workplace injury.
The applicant’s presentation since the injury had been unchanging. The medico-legal and treating evidence was consistent with there being total incapacity. There was no suggestion of any change in the applicant’s circumstances. The more recent treating evidence from MacPsych showed that the applicant continued to present with significant challenges. There had been no improvement in the applicant’s condition.

Respondent’s submissions in reply

The respondent noted that the most recent treating evidence from MacPsych was in handwritten form. No certificates of capacity had been supplied. The Commission was being asked to rely on handwritten notes to find that the applicant was totally incapacitated, which was said to be unsatisfactory.
The respondent noted that s 11A(1) of the 1987 Act referred to action or “proposed” action. The respondent’s evidence identified a number of performance issues. There was a clear dichotomy in the evidence from Mr Narasimhachar and the applicant.
The applicant’s submissions were expressed in hyperbolic language. Similarly, the applicant’s evidence embellished minor events. The applicant’s evidence could be contrasted with the evidence from Ms Sharma. Ms Sharma’s evidence was relevant to the question of reasonableness.
The respondent submitted that most of the treating evidence referred to by the applicant post-dated the injury. The doctors were simply reciting a version of events given by the applicant. The events reported in 2019 and 9 March 2021 were not causative the psychological injury.
The injury occurred because of what happened on 26 March 2021.
With regard to the question of the reasonableness of that action, the respondent submitted that the Commission would not accept the hyperbolic version of events provided by the applicant. The applicant’s credibility was in issue.
The applicant’s email to Mr Young about Mr Narasimhachar was also prepared after the event on 26 March 2021. There were never any complaints about Mr Narasimhachar’s conduct previously.
Although the applicant alleged that he had experienced mistreatment for eight years, there was minimal medical evidence of those events causing the psychological injury. The injury happened on 26 March 2021.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4     Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration 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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Sub-section 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[3]
[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
The test of reasonableness in s 11A(1) is an objective one.[4] In Commissioner of Police v Minahan[5] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[6]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[4] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[5] [2003] NSWCA 239.
[6] (unreported 18 June 1998).
In the decision of Van Vliet v Landscape Enterprises Pty Ltd,[7] Phillips P observed:
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
…
The Member found that the termination was imperfect, but in the circumstances reasonable.^[132] In terms of the Member’s fact finding, there is no error in this approach. The Member correctly considered all of the circumstances of the case, as the authorities require, in reaching a view about the reasonableness of the process adopted by the respondent. The member quite correctly noted the flexibility of the content of the obligation pertaining to procedural fairness,^[133] which stood in contradistinction to the inflexible approach urged upon the member by the appellant. In so doing the Member was involved in no error.”
[7] [2022] NSWPICPD 49.
There is no dispute between the parties that the applicant sustained a psychological injury arising out of or in the course of his employment with the respondent. The primary dispute between the parties is whether that injury is compensable under the 1987 Act having regard to s 11A(1) of the 1987 Act.
For the respondent to succeed in establishing its s 11A(1) defence, it is necessary for it to establish that reasonable action with respect to discipline, performance appraisal or the provision of employment benefits was the whole or predominant cause of the applicant’s injury.
In Hamad v Q Catering Ltd,[8] Snell DP noted the significance of medical evidence in determining the whole or predominant cause of an injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[8] [2017] NSWWCCPD 6.
The respondent relies on the supplementary report from Dr Nagesh, in which an opinion was given that the events on 26 March 2021 were the whole or predominant cause of the applicant’s psychological injury, to establish a defence under s 11A(1).

In giving that opinion, Dr Nagesh noted the respondent’s witness evidence that there were conduct issues and issues around a change in working time. Dr Nagesh noted that on 26 March 2021, the respondent provided the applicant with notice of a meeting to discuss those issues. The applicant made a formal complaint in relation to bullying and harassment the following day. Prior to the events on 26 March 2021, when the applicant was given notice of the meeting, he was able to work at full capacity. On this basis, Dr Nagesh was satisfied on the balance of probabilities, that the injury arose in the context of the meeting to discuss conduct issues.
Dr Nagesh’s report suggests that it was the invitation to attend a formal meeting with Mr Young which was the whole or predominant cause of the applicant’s injury, although his opinion does tend to conflate that event with the informal discussion with Mr Narasimhachar which preceded that invitation.
Dr Nagesh’s opinion is the only clear medical opinion on the whole or predominant cause of the injury. As noted by the respondent’s submissions, A/Prof Robertson was not asked for an opinion on that question nor did he volunteer an opinion on the hierarchy of causative events.
The applicant has submitted that in giving his opinion, Dr Nagesh failed to have proper regard to the treating evidence and gave undue weight to the respondent’s witness evidence.
At the commencement of his supplementary report, Dr Nagesh did indicate that he had before him a body of treating evidence including reports from the applicant’s general practitioner, Dr Lieng, as well as his psychologist, Ms Nguyen and psychiatrist, Dr Kuljic. Dr Nagesh did not, however, engage with the treating evidence in expressing his opinion on the whole or predominant cause.
Dr Nagesh did acknowledge the applicant’s claims of being bullied, harassed, belittled and verbally abused by his manager while working for the respondent. Dr Nagesh noted, however, that the applicant’s colleagues had refuted the allegations of bullying and harassment. Without explicitly saying so, Dr Nagesh appears to have accepted the respondent’s witness evidence.
The Commission is tasked with considering the totality of the evidence before it.
The applicant’s evidence and that of his wife is that he experienced a number of difficult interactions with his manager, Mr Narasimhachar, over the course of several years, which caused him to feel stressed, intimidated, isolated, worthless and unsupported.
The applicant’s evidence placed particular emphasis on the interaction with Mr Narasimhachar on the morning of 26 March 2021, although he also described problematic events relating to the use of a desktop computer during the first COVID-19 lockdown, conversations with Mr Narasimhachar in which he would complain about the applicant’s co-workers, being excluded from work meetings and opportunities for training and development, and negative comments which made him feel degraded.
Mr Narasimhachar’s evidence confirms that several of those events, including the interaction on 26 March 2021 and the computer issue, were real and occurred, albeit in a different manner to that perceived by the applicant. Although Mr Narasimhachar denied disparaging co-workers in conversations with the applicant, treating the applicant unfairly or excluding him, the contemporaneous medical evidence and the evidence from Mrs Veli confirms that interactions with Mr Narasimhachar prior to 26 March 2021 had a detrimental impact on the applicant’s mental health.
In particular, the applicant sought medical assistance for symptoms of stress, depression and exhaustion in the context of an “unpleasant supervisor at work” in August 2019. The applicant reported feeling that he was being mistreated by his manager and discriminated against in relation to the desktop computer issue in a consultation with Dr Yean on 9 March 2021.
Although the respondent has submitted that these records are temporally and qualitatively distinct from the events which caused the subject decompensation, they are in fact entirely consistent with the applicant’s complaint to Mr Young on 27 March 2021 and the history of injury provided to the treating and medicolegal practitioners after 26 March 2021.
It is significant that the letter to Mr Young on 27 March 2021 made little reference to the events on 26 March 2021. The letter did, however, provide a detailed description of numerous events over the course of several years which the applicant said made him feel intimidated, stressed, isolated and concerned that he would lose his job. The applicant said those events were affecting his mental health. Returning to work after the COVID-19 lockdown, the applicant said he felt anxious about the behaviour of Mr Narasimhachar. The applicant said he had taken a week off work and seen his doctor several weeks earlier due to the effect of the bullying, harassment and intimidation from Mr Narasimhachar on his mental health.
Although Mr Narasimhachar and Mr Young both denied that the applicant had previously made any complaints with regard to Mr Narasimhachar’s conduct, the applicant has explained that he felt unable to report the behaviour as he feared Mr Narasimhachar would turn on him and he would lose his job.
The respondent also observed that Ms Sharma denied ever witnessing any issues between the applicant and Mr Narasimhachar. The issues described by the applicant in his statement evidence and in the letter to Mr Young are not, with the exception of the event on 26 March 2021, the type of event Ms Sharma may have been in a position to witness. Rather they were interactions which occurred in private in meeting rooms, over the telephone or email, and acts of isolation or exclusion which would not have been obvious to an outsider.
The first accounts of the injury recorded by Dr Yean and Dr Lieng referred to psychological symptoms occurring over the last few years. On 14 and 19 April 2021, Dr Yean recorded that symptoms had worsened in the previous two months since returning to the workplace after the COVID restrictions were lifted. The applicant reported multiple incidents of bullying, belittling and exclusion including inappropriate discussions with Mr Narasimhachar about other staff members and confidential workplace information.
A similar account was recorded by Dr Lieng around the same time. The applicant reported that he had been treated poorly for eight years. Although the particular event on 26 March 2021 was described, it is clear from his responses to the insurer’s questions, that Dr Lieng considered that the injury had been caused by multiple stressful incidents at work associated with Mr Narasimhachar.
The applicant’s psychologist, Ms Nguyen, associated the applicant’s psychological symptoms with multiple interactions involving Mr Narasimhachar including unprofessional conversations, demeaning comments and being ostracised.
Dr Kuljic similarly described a complex psychiatric history starting eight years ago triggered by problems related to work. The applicant reported a gradual onset of mood instability, irritability and depression which had escalated in March 2021 with a significant clash with the manager.
There is, therefore, a large degree of consistency between the applicant’s evidence, the evidence from his wife, the complaint to Mr Young and the treating evidence both prior to the events on 26 March 2021 and after that event.
The respondent has submitted that the applicant’s evidence and the accounts of what he told his treating practitioners would not be accepted due to issues with his credit. Those issues primarily related to his failure to disclose a previous psychological injury and a prior history of alcohol abuse as well as the discrepancies between the applicant’s evidence and that of the respondent’s witnesses.
The previous psychological injury was, however, disclosed to Dr Lieng as it is recorded in the clinical note of 21 April 2021. It was also disclosed to A/Prof Robertson. The only evidence of an alcohol misuse problem is that appearing in the medicolegal reports of Dr Miller and Dr Akkerman around the time of the 2007 injury. The applicant’s evidence was that the previous injury had resolved and he had been able to return to full employment. This is consistent with the opinion expressed by A/Prof Roberston as well as both experts’ assessments of permanent impairment, which made no deduction for pre-existing condition. There is no suggestion that the applicant misused alcohol outside the context of the 2007 injury.
As indicated above, the applicant’s accounts of his working relationship with Mr Narasimhachar and the particular events on 26 March 2021 are different to Mr Narasimhachar’s and Ms Sharma’s recollections. While there may be a degree of embellishment or exaggeration in the applicant’s retelling of those events, I am not satisfied that his evidence is lacking in credibility and should not be accepted.
As noted above, many aspects of the applicant’s evidence are corroborated by the evidence from Mr Narasimhachar, Mr Young and Ms Sharma. The applicant’s evidence is also consistent with his wife’s evidence and the contemporaneous medical evidence. It is not necessary for me to find that the applicant’s perception of those events was objectively accurate or reasonable. It is also not necessary for me to find that those interactions constituted bullying, harassment or intimidation. It is enough that the applicant perceived those interactions as hostile and that they contributed to the injury.
In these circumstances, it is my view that Dr Nagesh has failed to give proper consideration to the history of multiple adverse interactions and psychological symptoms occurring over a period of several years prior to the events on 26 March 2021, and the opinions of the applicant’s treating practitioners that those events were causative of the applicant’s psychological injury, in expressing his own opinion on the whole or predominant cause of the applicant’s injury. In the absence of such consideration, I am not satisfied that Dr Nagesh’s opinion is reliable.
While the applicant’s own evidence suggested that the interaction with Mr Narasimhachar on 26 March 2021 and the letter inviting the applicant to a formal meeting with Mr Young contributed significantly to his injury, and in particular his incapacity for work, I am not satisfied after consideration of all the evidence that those events were the whole or predominant cause of the injury.
In view of these findings, is not necessary to determine whether the respondent’s actions on 26 March 2021 are appropriately characterised as action with respect to discipline, performance appraisal or the provision of employment benefits. It is also not necessary for me to determine whether such actions were objectively reasonable. The s 11A(1) defence fails on the question of the whole or predominant cause.
It follows that the applicant’s psychological injury is compensable.
As there is no medical dispute as to the degree of permanent impairment resulting from the injury, and relying on the consistent assessments made by A/Prof Robertson and Dr Nagesh, I determine that the injury has resulted in 22% WPI. There will be an award for lump sum compensation pursuant to s 66 of the 1987 Act accordingly.
The applicant has also claimed weekly compensation pursuant to s 38 of the 1987 Act from 14 February 2024 to date and continuing.
The applicant has already received in excess of 130 weeks of weekly benefits. After the second entitlement period, s 38 of the 1987 Act provides:
“38    Weekly payments after second entitlement period (after week 130)
(1)     A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)     An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8)     A worker’s entitlement to compensation under this section may be reassessed at any time.”
There is no evidence that the applicant has returned to work for a period of not less than 15 hours per week for the purposes of s 38(3) of the 1987 Act. There is also no evidence before me that the applicant applied to the insurer in writing for continuation of benefits within the relevant time period. As a result, weekly compensation is only payable under s 38 if the applicant has at all relevant times had no current work capacity and is likely to continue indefinitely to have no current work capacity.
Although there are no recent certificates of capacity from the applicant’s nominated treating doctor in evidence before me, the medico-legal evidence and the more recent treating evidence from the applicant’s psychologist is uniformly consistent with a finding that the applicant has had, and is likely to continue indefinitely to have, no current work capacity. No indication has been given of any increase in the applicant’s capacity for work or any imminent prospect of such. Having regard to that evidence, as well as the duration and ongoing severity of the applicant’s symptoms, I am satisfied that the requirements of s 38(2) are met
I find that the applicant is entitled to weekly compensation in accordance with s 38(6) at the rate of 80% of the indexed PIAWE.

[2024] NSWPIC 720

20 December 2024