Williams v Dendy Cinemas Newtown

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williams v Dendy Cinemas Newtown [2023] NSWPIC 675
APPLICANT:	Steven Williams
RESPONDENT:	Dendy Cinemas Newtown
MEMBER:	John Turner
DATE OF DECISION:	14 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant received a negative reaction to a public post which he made on Facebook; the negative reaction included public Facebook posts that were viewed by co-workers; those making negative comments included a current manager employed by the respondent and a former employee of the respondent; the Facebook posts were not related to the applicant’s employment with the respondent; the applicant was at home when the posts were made and not in the course of his employment; the applicant sustained injury whilst at home and prior to attending his schedule work shift with the respondent; the applicant alleged that he sustained psychological due to his anxiety and concern as to the impact of his Facebook post and the response he received to the post on his work relationships and work environment as well as his ability to perform his work duties as a manager; issues included sections 4 ‘arising out of or in the course of employment’; section 9A ‘substantial contributing factor’; Smith v Australian Woollen Mills, Tarry v Warringah Shire Council, South Maitland Railways Pty Ltd v James, Craske v Wigan, Qantas Airways Ltd v Watson, Nunan v Cockatoo Island Docks & Engineering Co Ltd, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Zinc Corporation Ltd and another v Scarce, Dayton v Coles Supermarkets Pty Ltd, McMahon v Lagana, Rootsey v Tiger Nominees Pty Ltd, and Mercer v ANZ Banking Corporation considered and applied; Held – applicant’s psychological injury did not arise out of or in the course of his employment as required by section 4; applicant has not sustained an “injury” as defined by section 4; applicant’s employment with the respondent was not a substantial contributing factor to his psychological injury as required by section 9A.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant’s psychological injury did not arise out of or in the course of his employment as required by s 4 of the Workers Compensation Act 1987. 2. That the applicant has not sustained an “injury” as defined by s 4 of the Workers Compensation Act 1987. 3. That the applicant’s employment with the respondent was not a substantial contributing factor to his psychological injury as required by s 9A of the Workers Compensation Act 1987. The Commission orders: 4. There is an award for the respondent in respect to the applicant’s claim.

STATEMENT OF REASONS

BACKGROUND

Steven Williams, the applicant, was at all relevant times employed by Dendy Cinemas Newtown, the respondent, as a Duty Manager.

The applicant alleges that he suffered a psychological injury on 6 February 2023 due to being bullied and harassed by management.
The applicant seeks weekly compensation for the period from 6 February 2023 to 4 April 2023 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act). The applicant had sought weekly benefits compensation from 6 February 2023 and ongoing but closed the period for which weekly benefits is claimed in the arbitration hearing as the applicant was certified fit for pre-injury duties from 5 April 2023.
On 6 February 2023 the applicant posted publicly on Facebook that he had taken his brother to see a show by a comedian as well as posting a photo. The applicant received some negative responses to his Facebook post. The people who responded negatively included a former employee of the respondent as well as a current employee of the respondent. It is not in dispute that the applicant attended the performance by the comedian on his own time and was not in the course of his employment at the time he placed the post on Facebook. There is no evidence that any of the persons who responded to the applicant’s Facebook post were at work at that the time that responded.
The applicant was rostered to work for the respondent on the afternoon of 6 February 2023 but alleges that due to his anxiety over how his work colleagues would react to him in the workplace following his Facebook post and subsequent critical response he suffered a panic attack and psychological injury and was unable to attend work.
The respondent:
(a) disputes that the alleged psychological injury is covered by workers compensation as required by s 4 of the 1987 Act;
(b) disputes that employment was a substantial contributing factor to the alleged psychological injury as required by s 9A of the 1987 Act, and
(c) disputes that the applicant is entitled to weekly payments of compensation because he does not have an incapacity for work resulting from an injury.

ISSUES FOR DETERMINATION

The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $918.54.

The following issues remain in dispute:
(a) whether the alleged psychological injury is covered by workers compensation as required by s 4 of the 1987 Act;
(b) whether the applicant’s employment was a substantial contributing factor to the alleged psychological injury as required by s 9A of the 1987 Act, and
(c) whether the applicant has suffered an incapacity for work as a result of the alleged psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 23 November 2023. Mr Craig Tanner, counsel, instructed by Mr Thomas Schembri, appeared for the applicant, who was present. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Ms Hannah Whiting. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

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

Oral evidence

Neither party sought leave to adduce oral evidence.

Evidence

A brief summary of the evidence follows.

Applicant’s statement evidence

It is the applicant’s evidence that on 5 February 2023 in his own time he saw a show by the comedian Dave Chappelle. At around 11am on 6 February 2023 he posted publicly on Facebook that he had taken his brother to see the show as well as posting a photo.[1]
[1] ARD p 2.
Not long after making the post on Facebook he received a comment from a Facebook friend, Harley Wilson, who was also a former manager with the respondent and with whom the applicant had worked for at least two years. Mr Wilson had left the respondent’s employment in late December 2022.
It is the applicant’s evidence that Mr Wilson commented that he had seen the same comedian and the comedian had called him the “’F’ word.” According to the applicant Mr Wilson also posted words to the following effect “I hope all your LGBTQI friends and people of colour see this and cringe because this is absolutely disgusting.”[2]
[2] ARD p 3.
It is the applicant’s evidence that he did not know what had happened to Mr Wilson and responded publicly to him on Facebook with words to the following effect "I am sorry that this happened to you Harley. That's horrible. Just because I saw him doesn't mean that I agree with everything he says and every perspective he has.” It is the applicant’s evidence that he tried to keep the exchange “concise and civil” and thinks that he also commented to Mr Wilson "If you want to talk about it privately you can message me."[3]
[3] ARD p 3.
It is the applicant’s evidence that the exchange “spiralled out of control quite quickly and publicly”. That whilst the applicant attempted to diffuse the situation or ask Mr Wilson to message him privately, Mr Wilson “would essentially double down on his stance” that the applicant was supporting this comedian.[4]
[4] ARD p 3.
It is the applicant’s evidence that Mr Wilson made about five comments throughout the afternoon before Mr Wilson’s roommate Ms Ellen Harvey joined in publicly which made things “worse” for the applicant. Ms Harvey is also employed by the respondent as a Duty Manager. For the applicant the fact that Ms Harvey joined publicly made things worse as it was now “two against one” and the fact that Ms Harvey also worked for the respondent further complicated things for the applicant.[5]
[5] ARD p 4.
It is the applicant’s evidence that 15 comments followed, and that there was in total about 20 comments, mainly from Mr Wilson but also from Ms Harvey. The applicant could also see that other workers had "liked" some of the things said by Mr Harvey. The applicant knew that other people from work had seen the posts.[6]
[6] ARD p 4.
The applicant states that during the course of the exchange he messaged Ms Harvey personally that he didn't think her joining in publicly was the right thing to do and that he was trying to diffuse the situation before it got worse. Ms Harvey essentially responded that if the applicant didn’t want to talk about it publicly, he should not have put a public post on Facebook. The applicant states that Ms Harvey was not accepting of his “apology and was steadfast and mad and did not want to continue the conversation.”[7]
[7] ARD p 5.
It is the applicant’s evidence that he thought that if anyone had an issue, especially his friends like Ms Harvey, that they could talk to him in a more friendly manner in person, or message him privately, rather than joining in publicly. It is the applicant’s evidence that he was surprised that Ms Harvey had taken such a stance as she was usually “quite aware of these types of things.” It is the applicant’s evidence that if the conversation had been private between him and Ms Harvey, he could have dealt with that, but the fact that Ms Harvey publicly joined in “made the thing a whole lot more complicated and it became a work thing.”[8]
[8] ARD p 5.
On 6 February 2023 Mr Harvey was rostered on to work at 1pm and the applicant was rostered on to work at 4pm. The applicant knew that they would be at work together. Just before he was to go to work, whilst still at home, the applicant had a panic attack. The applicant contacted the respondent’s Matthew Sherbon and advised that he could not come into work.[9]
[9] ARD p 6.
It is the applicant’s evidence that he could deal with the difference of opinion, but once he had an anxiety attack it became much harder for him to deal with. He spent the remainder of the afternoon trying to calm down and relax which didn't “really help because there was a lot of stress to deal with all this stuff.” The applicant was not only thinking about the present, but also about the future and how the incident was going to affect his relationships at work as a manager, how it was going to work not only with Ms Harvey but the two other managers, what Ms Harvey may say to them or not, as well as the fact that he was “not able to have this nuance discussion.” He kept thinking about “how out of control this thing could get” he “catastrophised things, thinking about the worst case scenarios.”[10]
[10] ARD p 6.
It is the applicant’s evidence that he takes matters like this very seriously, not only the accusations, but getting on with people as a manager on a personal level. That as a manager with the respondent he worked with a lot of people. He also socialised with his co-workers outside of work. It is the applicant’s evidence that work life and friends outside of work is all linked and that incidents such as what had occurred on Facebook could affect the social aspect of life as well.[11]
[11] ARD p 6.
It is the applicant’s evidence that on 6 February 2023 he booked a doctor’s appointment at MyHealth Enfield and had his first appointment following the subject incident two or three days later.[12]
[12] ARD p 7.
It is the applicant’s evidence that he has previously suffered with anxiety and that he had been suffering from anxiety and depression on and off from March 2022. He tries to keep his health issues private but because the incident on 6 February 2023 had happened publicly, and he knew “everyone” had seen it, it was something that was almost impossible to ignore and hide. The applicant thinks that this is what triggered his anxiety attack. “The fact that it's unavoidable and not being able to go into work and talk about it and the anxiety with talking about it made it all the more stressful and it feeds itself.”[13]
[13] ARD p 8.
It is the applicant’s evidence that following 6 February 2023 he felt “quite bad for the first couple of days as I did not know what was happening at work.” He kept thinking about and re-playing in his mind what had happened which exhausted him even more and then he had low energy.[14]
[14] ARD p 9.
It is the applicant’s evidence that the Facebook exchange made him feel unsafe in a “workplace environment.” He felt it was unsafe to go to work and it triggered an anxiety attack that led him to be physically and mentally unable to talk about this situation in the appropriate way and thus unable to defend himself, let alone talk about it with Ms Harvey. Being left unable to work and unable to deal with the root of his anxiety made things worse and forced him to take time off work because Ms Harvey had made it known that she does not approve of who the applicant is as a person or as a colleague and since they are both managers working for the respondent, it was a conflict that was impossible to avoid.[15]
[15] ARD p 10.
The Facebook posts in question are not in evidence.

Statement evidence of Ms Ellen Harvey

It is the evidence of Ms Harvey that she is employed by the respondent as a Duty Manager. Because of their shifts she does not often work with the applicant but would interact with him once or twice a week. Ms Harvey confirmed that Mr Wilson is a former employee of the respondent and her housemate.[16]
[16] Reply p 17.
Ms Harvey confirmed that on 6 February 2023 the applicant posted a picture on social media of him attending the Dave Chappelle show to which Mr Wilson responded. Mr Wilson and the applicant then proceeded to have an exchange on Facebook. Mr Wilson’s words were harsh. Ms Harvey stepped in as she could see that Mr Wilson was “escalating” and communicated to the applicant words to the effect: "If you are going to see Dave Chappelle at least listen to the parties he harms."
The applicant and Mr Wilson continued to argue, with the applicant asserting that he didn't agree with everything the comedian had said. Ms Harvey asked the applicant what jokes he thought were funny or what he agreed with in the performance. The applicant messaged Ms Harvey privately asking her to stop posting publicly considering they work together. Ms Harvey responded with words to the following effect: "You posted something on a public format so I don't really know what you mean."[17] However, Ms Harvey advised the applicant that out of respect for their relationship she would no longer post publicly.
[17] Reply p 18.
It is Ms Harvey’s evidence that whilst she did not think that it was a work matter she reported it to the respondent’s Mr Sherbon when she attended work on the afternoon of 6 February 2023 as she felt that it was going to affect the “working space” and she was not sure how the applicant was going to act on shift.[18]
[18] Reply p 19.

Statement evidence of Killane Beunard

It is Ms Beunard’s evidence that she is employed by the respondent as a Circuit Operations Manager as well as General Manager of Dendy, Newtown. The applicant reports to Ms Beunard.
On 6 February 2023 the applicant reported to Ms Beunard what had happened on social media and that he was quite impacted due to a prior mental health issue. The applicant reported that he felt unhappy with Ms Harvey agreeing with Mr Wilson on the post, he felt he was being judged by one of his peers. The applicant informed Ms Beunard know that it was too much for him and that he was sick with anxiety.[19]
[19] Reply p 3.

Statement evidence of Leanne Brett

It is the evidence of Ms Brett that she is employed by the respondent as its Chief Financial Officer. Ms Brett does not know the applicant personally.[20]
[20] Reply p 7.
In emails after the incident on 6 February 2023 the applicant advised that he suffered from previous mental health issues and anxiety. He was feeling overwhelmed and was not feeling well enough to come to work and was worried about the situation. The applicant had not lodged an incident report or formal grievance.[21]
[21] Reply p 8.

Statement evidence of Matthew Sherbon

It is the evidence of Mr Sherbon that he is employed by the respondent as the Cinema Manager of Dendy, Newtown.[22] On 6 February 2023 Mr Sherbon received a phone call from the applicant who was quite upset but which provided little information. Shortly after the phone call Mr Sherbon received a short email from the applicant explaining why the applicant would miss his shift that afternoon. The email advised that something had happened outside of work and that he did not feel comfortable coming in. The applicant did not go into detail about what had happened, just that it was concerning some other staff and that he was unable to attend his shift.[23]
[22] Reply p 12.
[23] Reply pp 12-13.

Medical evidence

The clinical notes from MyHealth Enfield record that on 29 October 2014 the applicant had some anxiety at times,[24] on 19 September 2022 that the applicant is a “sufferer of anxiety”,[25] on 8 February 2023 that the applicant had attended after being advised by the respondent to have his work capacity assessed,[26] on 10 February 2023 a history of the incident involving the Facebook posts and that the applicant was suffering from “anxiety attacks”[27] and on 24 February 2023 that the applicant had a meeting with his boss who seemed supportive.[28]
[24] ARD p 67.
[25] ARD p 71.
[26] ARD p 72.
[27] ARD p 72
[28] ARD p 72.
A certificate of capacity from MyHealth Enfield dated 10 February 2023 records a diagnosis of generalised anxiety disorder due to conflicts between co-workers with a date of injury of 6 February 2023. The certificate records that negative comments about the applicant had been posted online and that there was a dispute between co-workers. The applicant was certified with no current work capacity from 6 February 2023 to 24 February 2023.[29]
[29] ARD pp 27-28.
On 24 February 2023 the applicant was certified with capacity for some type of employment five hours per day, three days per week between 2 March and 5 April 2023 with the only restriction being to minimise crossover with Ms Harvey.
On 18 March 2023 the applicant’s treating psychologist, Jenny Bekiaris, reported to Dr Ji Eun Hwang noting that the applicant had attended a session on 14 March 2023. Ms Bekiaris records that the applicant reported significant distress resulting from an online dispute with colleagues about a post he made. This had resulted in a deterioration of workplace relationships and the applicant had experienced a number of panic attacks which had prevented him from attending work. The applicant reported that he had recently returned to work but had not worked with the colleague involved in the conflict but had noticed that other colleagues had been ‘cold’ towards him.
The applicant reported to Ms Bekiaris that he had been psychologically impacted and was experiencing disturbed sleep, low mood and a loss of motivation. In assessing the applicant, Ms Bekiaris found the applicant to be experiencing significant symptoms of depression, anxiety and stress. [30]
[30] ARD p 63.

A clinical note from MyHealth Enfield dated 22 March 2023 notes that the applicant was back at work and a clinical note from 5 April 2023 records that the applicant was doing his pre-injury duties.[31]
[31] ARD p 73.
The applicant was certified fit for pre-injury duties from 5 April 2023.
Dr Kumagaya, psychiatrist, provided a forensic medical report to the applicant dated 24 August 2023 which records a history of the incident on 6 February 2023 and that the applicant returned to work in March 2023.[32]
[32] ARD p 51.
The applicant reported to Dr Kumagaya having attended his general practitioner (GP) on one occasion for stress during October 2022. Otherwise, the applicant denied any psychiatric background.[33] The applicant reported that prior to his work-related injuries, his mental state was stable and he was not experiencing any mental health difficulties.[34]
[33] ARD p 52.
[34] ARD p 54.
Dr Kumagaya diagnosed an adjustment disorder with mixed anxiety and depressed mood, “sustained as a result of his employment with the respondent.”[35] Dr Kumagaya was of the opinion that the applicant’s employment with the respondent was a substantial contributing factor to the psychological condition. In the opinion of Dr Kumagaya, the applicant’s employment has caused a disease process.[36]
[35] ARD p 55.
[36] ARD p 56.
In the opinion of Dr Kumagaya, the applicant presented with the requisite vocational capacity to be able to reprise his pre-injury employment, both as a manager and staff member.[37]
[37] ARD p 57.
Dr Kumagaya provided a further forensic medical report to the applicant on 15 September 2023 following a review of additional documents. Dr Kumagaya is of the opinion that whilst the incident on 6 February 2023 did not occur during work hours, employment was the main contributing factor to the development of a psychiatric disease injury, namely an adjustment disorder with mixed anxiety and depressed mood.[38]
[38] ARD p 60.
In support of his opinion the doctor observed that the subject incident on 6 February 2023 involved both a current and ex-work colleague. The applicant noted how the Facebook comments posted by his current and ex-work colleague were readily visible to other work colleagues. The applicant described that a particular focus of his depression and anxiety was in and around having to work with the work colleague in question on an ongoing basis, in addition to the impact this incident would have on his working relationships with his other work colleagues. The applicant explained how both he and his colleague had managerial responsibilities at work, and that the incident had a very real potential of impacting
[39] ARD p 61.
his professional relationships with others during the course of his employment. In Dr Kumagaya’s opinion, whilst the incident in question may have occurred outside of immediate work hours, the incident involved colleagues, both current and past, and was visible to his current workmates. Dr Kumagaya also noted that the incident resulted in significant depressive and anxious cognitions in the context of concerns regarding having to continue to work with this colleague, and the impact that this incident would have on his workplace relationships.[39]

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

The applicant claims that he suffered a psychological injury on 6 February 2023 as a result of the criticism which he received in response to a public post that he placed on Facebook in respect to attending a performance by a comedian. Mr Tanner confirmed in submissions that the applicant alleges that he has sustained a personal injury under s 4(a) of the 1987 Act and that it is not alleged that the applicant sustained a “disease injury” as defined by s 4(b) of the 1987 Act.
The applicant was rostered by the respondent to commence a work shift during the afternoon of 6 February 2023. The applicant alleges that he sustained the alleged psychological injury at home prior to the time that his work shift was scheduled to commence and that as a result of having sustained the said psychological injury he was unable to attend work.

Psychological condition

Mr Tanner submits on behalf of the applicant that the applicant suffered an anxiety attack and suffered psychological injury on 6 February 2023 prior to having to commence his shift with the respondent and that the opinions of the psychiatrist, Dr Kumagaya, and the treating psychologist, Ms Bekiaris, should be accepted.
In summary Mr Tanner submits that the applicant suffered the alleged psychological injury as a result of his concerns and anxiety in respect to the impact that his Facebook post and the response thereto would have on his relationship with his colleagues at work, his working environment and his ability to perform his work duties, in particular his managerial duties, as a result of the effects on his work relationships. That the applicant was not just concerned about those who had actively participated in the exchange, such as Ms Harvey, but also those who had simply witnessed the exchange or posted “likes” in respect to the comments made publicly on Facebook.
Mr Stiles submitted on behalf of the respondent that there is no real factual dispute that the applicant’s claim relates to the incident that occurred on 6 February 2023 as a result of the applicant posting content on Facebook and the response thereto. However, Mr Stiles submits that as the actual Facebook posts are not in evidence, that apart from Mr Wilson and Ms Harvey, it is not known who commented, how many comments were made and what comments were made by others. It is also not known what Mr Harvey is purported to have posted. Mr Stiles submits that this lack of information makes it difficult to accept that the psychological condition was caused by the applicant’s concerns about attending the workplace and interacting with his work colleagues.
In support of his submission, and by way of an alternative explanation for the alleged psychological condition, Mr Stiles observed that it is the applicant’s evidence that it “got to a point where I stopped reading the comments because it was very frustrating and stressful and not helpful.” Mr Stiles also noted that in a GP Mental Health Care Plan which was completed on 22 March 2023 it was observed that the applicant was “quite sensitive to what other people thinks [sic] of him and can get quite reactive to their comments.”
The applicant bears the onus of proof to establish that he has suffered a psychological injury.
There is no dispute that on 6 February 2023 an exchange occurred which included posts which were critical of the applicant did occur publicly on Facebook following a public post on Facebook by the applicant in respect to his attendance at a performance by a comedian. There is also no dispute on the evidence that the applicant had private communication(s) with Ms Harvey about his Facebook post and the reaction to it.
The Facebook posts themselves are not in evidence. It is the applicant’s evidence that Mr Wilson, a former employee of the respondent, was the most hostile in his response to the applicant’s post. The evidence of Ms Harvey supports that Mr Wilson’s response to the applicant was hostile it being her evidence that Mr Wilson’s words were “harsh” and that she stepped in as she could see that Mr Harvey was “escalating”.
It is the applicant’s evidence that Ms Harvey joining in the argument being publicly conducted via Facebook made things worse for him as there were now “two against one”, which would indicate that there were no other participants at least at that stage, and because, like the applicant Ms Harvey worked for the respondent. It is also the applicant’s evidence that he could see that co-workers had “liked” some of the comments made by Mr Wilson.
It is the applicant’s evidence that “there was a lot of stress to deal with all this stuff.” That he was not only thinking about the present moment, but also about how it was going to affect his work relationships. That he takes matters like this very seriously, not only the accusations, but getting on with people on a personal level as a manager whilst observing that he also socialised with his co-workers and that what had occurred on Facebook could affect his social life as well as his work life.
It is the applicant’s evidence that as the incident on 6 February 2023 happened so publicly it was almost impossible to ignore and hide and he thinks that this is what triggered his anxiety attack, “The fact that it’s unavoidable and not being able to go into work and talk about it and the anxiety with talking about it made it all the more stressful and it feeds itself.” It is also the applicant’s evidence that he felt that it was unsafe to go to work and this triggered the anxiety attack. That Ms Harvey had made it known that she did not approve of him as a person or as a colleague and since they were both managers it was a conflict which was impossible to avoid.
The evidence of Ms Harvey supports that the exchange between the applicant and herself was of such a nature as to be potentially perceived as damaging to her relationship with the applicant with Ms Harvey reporting the incident to the respondent’s Mr Sherbon when she attended work on the afternoon of 6 February 2023 as she felt that it was going to affect the “working space”.
It is the evidence of Ms Beunard that the applicant reported to her on 6 February 2023 what had happened on social media and that he felt unhappy with Ms Harvey posting her agreement with Mr Wilson and that he felt that he was being judged by “one” of his peers. The applicant let Ms Beunard know that it was too much for him and that he was sick with anxiety.
In my view the applicant’s evidence and that of Ms Beunard does not support that the applicant’s psychological condition has resulted solely as a result of the anxiety he felt about his work relationships, the workplace environment and his ability to effectively perform his work duties. In my view the applicant’s evidence supports that whilst he had concerns about the potential negative impact of the Facebook incident on his work relationships, his workplace environment and his ability to effectively perform his work duties there was multiple other stressors as a result of the incident including:
(a)    the nature of the exchange – it is the applicant’s evidence that as the incident on 6 February 2023 happened so publicly it was almost impossible to ignore and hide and he thinks that this is what triggered his anxiety attack. It is the applicant’s evidence that Ms Harvey joining the argument between him, and Mr Wilson made things worse for him not only because he worked with Ms Harvey but because it made it two against one.
(b)    The nature of the criticism direct toward him – it is the applicant’s evidence that he takes matters like this very seriously and that it “got to a point where I stopped reading the comments because it was very frustrating and stressful and not helpful.”
(c)    The applicant’s concerns about what others thought about him – it is the evidence of Ms Beunard that the applicant reported to her on 6 February 2023 that he felt that he was being judged by “one” of his peers (Ms Harvey). It is the applicant’s evidence that Ms Harvey had made it known that she did not approve of him as a person or as a colleague and since they were both managers it was a conflict which was impossible to avoid.
(d)    The potential impact on his social life – it is the applicant’s evidence that he and his co-workers socialised together and that he was concerned that what had occurred on Facebook could affect his social life as well as work life.
It also needs to be noted that the applicant’s main and most hostile critique in the exchange was Mr Wilson, a former employee of the respondent and a person who the applicant no longer worked with.
Whilst I am of the view that there were multiple stressors as a result of the subject Facebook incident that does not mean that each stressor contributed to the development of the psychological injury or contributed equally, and I now turn to the medical evidence.
It is submitted on behalf of the applicant that the opinions of the psychiatrist, Dr Kumagaya, and the treating psychologist, Ms Bekiaris, should be accepted.
The opinion of Ms Bekiaris is however of no assistance in determining the cause of the applicant’s psychological condition apart from that it had resulted from the dispute related to the applicant’s post on Facebook. The only history that Ms Bekiaris records in her report of 18 March 2023 is that the applicant reported “significant distress resulting from an online dispute with colleagues about a post he made. This has related in a deterioration of workplace relationships and Steven has experienced a number of panic attacks which have prevented him from attending work.” Ms Bekiaris goes on to note that whilst the applicant had reported that he had not worked with the conflict colleague, presumably Ms Harvey, since he had returned to work he had noticed that other colleagues had been “cold” towards him.
The applicant sustained the psychological injury following the response to his Facebook post and prior to him attending the workplace. Therefore, at the time of injury the applicant may have been concerned about how the incident was going to affect his working relationship with his co-workers, however he had not in fact been exposed to the work environment and his concerns had therefore not yet been tested.
Ms Bekiaris does not therefore provide any useful opinion or insight into the stressor(s) which arose out of the Facebook incident and their relative significance and contribution to the psychological injury.
Dr Kumagaya in his initial report dated 24 August 2023 records a history of the incident on 6 February 2023 and that the applicant experienced a panic attack prior to attending work that afternoon but takes no history or opinion as to what the stressors were that arose from the incident and their relative contribution to the psychological injury.
Dr Kumagaya in his further report of 15 September 2023 explores the connection between the applicant’s employment and the Facebook incident which occurred outside of work hours concluding that employment was the main contributing factor to the development of the psychological injury.
Significantly Dr Kumagaya records that the focus of the applicant’s depression and anxiety was in and around having to work with the:
“…colleague in question on an ongoing basis, in addition to the impact that this incident would have on his working relationships with his other colleagues. Mr Williams explained how both he and his colleague assumed managerial responsibilities in their work, and that the incident had a very real potential of impacting on his professional relationships with others during the course of his employment.”
Dr Kumagaya went on to observe that such concerns had subsequently been validated with the applicant subsequently noting a change in his co-workers’ demeanour towards him.
Dr Kumagaya diagnosed an adjustment disorder with mixed anxiety and depressed mood.
I accept the opinion of Dr Kumagaya that the applicant sustained a psychological injury on 6 February 2023 as a result of the response that he received to his Facebook post. Whilst I am of the view that the applicant was impacted by other stressors as a result of the response to his Facebook post I accept the opinion of Dr Kumagaya that the focus for the applicant’s psychological injury was the potential effect on his working relationships. In accepting the opinion of Dr Kumagaya I observe that there is no other medical opinion.
I do not accept the respondent’s submission that as the Facebook posts themselves are not in evidence there is insufficient information that the psychological condition was caused by the applicant’s concerns about attending the workplace and interacting with his work colleagues. The applicant has provided a detailed statement in respect to what occurred. The two main protagonists in the incident were Mr Wilson and Ms Harvey. There is a statement from Ms Harvey which confirms the applicant’s evidence that Mr Wilson was hostile and also confirms much of the applicant’s evidence in respect to his interaction with Ms Harvey during the debate / dispute over the applicant’s Facebook post. Whilst the applicant does appear to have been concerned about his co-workers reaction to the online exchange he appears to have been particularly concerned about his relationship with Ms Harvey. There is medical opinion from Dr Kumagaya who does appear to have had copies of at least some, if not all of the Facebook posts.

“arising out of or in the course of employment”

In order for the applicant to have an entitlement to compensation he needs to prove that the psychological injury arose out of or in the course of employment. The applicant bears the onus of proof.
Section 9 of the 1987 Act states:
“(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 4 of the 1987 Act defines “injury” to mean “personal injury arising out of or in the course of employment” and includes a disease injury. The applicant expressly denied any reliance upon a disease injury.
In very general terms, the phrase “arising out of the employment” denotes a causal relationship, while the phrase “arising in the course of employment” denotes a temporal relationship: Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] ALR 129 (Smith). In Smith’s case, Starke J said at CLR 518; ALR 133 that:
“An injury which arises directly out of circumstances encountered, because to encounter them falls within the scope of employment, is an injury arising out of employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from the questions of his own misconducts he at once associates the injury with his employment.”
The applicant does not submit that he sustained psychological injury in the course of his employment with the respondent. Rather it is submitted that the alleged psychological injury “arises out of” the applicant’s employment with respondent.
The test for “arising out of” employment is whether the injury had its origin, in the sense of an unbroken causal connection, in the employment: Tarry v Warringah Shire Council [1974] WCR(NSW) 1 (CA); South Maitland Railways Pty Ltd v James (1943) 67 CLR 496.
In Smith Starke J at 517 stated:
“The expression ‘arising out of ‘imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do – out of his service (Stewart v Metropolitan Water, Sewerage and Drainage Board, and the cases there cited).”
It is not enough for a worker to say that the accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place: Craske v Wigan [1909] 2 KB 635 at 638; Qantas Airways Ltd v Watson (No 2) [2010] NSWWCCPD 38 (Watson).
In Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) SR(NSW) 119 (Nunan) Jordan CJ and Roper J in a joint judgment delivered by Jordan CJ with which Nicholas CJ in Eq agreed stated at 124:
“As the law now stands, I am of the opinion that when a worker has proved an incapacitating personal injury, then if it appears (1) that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury, and also (2) that the injury was sustained whilst he was doing the job which he was employed to do or something incidental to it, he is prima facie entitled to compensation; and it is for the employer to show if he can that there is something which disentitles him to compensation, or to full compensation.”

In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) Allsop P, Beazley JA and McColl JA stated at [73]:
“The meaning of ‘arising out of … employment’ is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element.” (Citations omitted)
Roche DP in Watson at [76] referring to the decision Badawi observed that the meaning of “arising out of …employment” is settled adopting a “commonsense approach to the application of the phrase, noting that it involved a causative element”. Roche DP went on to state at [77]:
“Whether the particular injury arose out of employment is a matter to be inferred from the facts as a matter of common sense (Badawi at [76], citing Nunan). Clarke JA expressed a similar view in Zinc Corporation Ltd and another v Scarce (1995) 12 NSWCCR 566 (‘Scarce’), where is Honour said at 570-571:
‘It is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E & HM Stramare Pty Ltd [1991] 171 CLR 506. What needs to be established is that the event which is sought to be linked with the injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it’. (See Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see March at 15). In my opinion, there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question, my preferred view is that the test laid down by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 124 – that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury – should be applied. At the very least, the test requires that the employment was a contributing factor to the injury…’”
Roche DP in Watson rejected the “but for” test as the test for causation stating at [85]:
“The ‘but for’ test is not the correct test of causation in workers’ compensation cases (see Nunan and Scarce).”
In summary it was submitted on behalf of the applicant that the applicant suffered the alleged psychological injury as a result of his concerns and anxiety in respect to the impact that his Facebook post and the response thereto would have on his relationship with his colleagues at work, his working environment and his ability to perform his work duties, in particular his managerial duties, as a result of the effects on his work relationships. That the applicant was not just concerned about those who had actively participated in the exchange, such as Ms Harvey, but also those who had simply witnessed the exchange or posted “likes” in respect to the comments made publicly on Facebook.
In the applicant’s submission, as a matter of logic, the anxiety which the applicant experienced was materially related to the workplace. If he had not been an employee of the respondent and therefore was not required to attend work, he would not have experienced the anxiety attack and suffered the injury. That but for his employment with the respondent the applicant would not have sustained the alleged psychological injury.
I do not accept the applicant’s submissions and do not find that the psychological injury sustained by the applicant arose out of his employment with the respondent for the following reasons.
The applicant’s attendance at the performance by the comedian which was the subject of his initial Facebook post was in no way connected to his employment with the respondent. The applicant at the time of making the post on Facebook was not at work or undertaking any employment duties. The Facebook post which the applicant made was not in any way related to his employment with the respondent. Mr Wilson, the main protagonist in the negative response that followed the applicant’s Facebook post, was not a current employee of the respondent. Ms Harvey who is an employee of the respondent was not at work or engaged in work duties at the time that she responded to the applicant’s Facebook post. The psychological injury occurred prior to the applicant attending work on 6 February 2023.
It is the critical response which the applicant receives to his Facebook post that leads to him being concerned about his workplace relationships with his co-workers and the impacts on his work environment. As observed above the attendance on the comedian, the making of the Facebook post by the applicant, the responses to the applicant’s Facebook post were all unrelated to the applicant’s employment.
The applicant sustains the psychological injury prior to attending work following the response to his Facebook post. He is not at any time prior to the subject injury in fact exposed to a hostile working environment, it is rather that the applicant is anxious that his workplace environment may become hostile as a result of an incident that had no relationship to employment. That anxiety and concern does not have its origin in the workplace but rather in the negative response that he received to his Facebook post. The injury does not have its origin in anything that occurred in the workplace or as a result of the applicant’s employment with the respondent. There is no unbroken causal connection between the injury and the applicant’s employment with the respondent.
It is not enough for the applicant to simply say that he would not have sustained injury if he had not been employed by the respondent, he needs to prove that the injury arises out of his employment and that there is unbroken causal connection. It was submitted on behalf of the applicant that but for his employment he would not have sustained injury. The “but for” test is not the correct test for causation in workers compensation cases.
Applying a commonsense approach to the application of the phrase, noting the causative element I find that the applicant’s psychological injury did not arise out of his employment with the respondent.

Substantial contributing factor

In case I am wrong in respect to the applicant’s psychological injury not arising out of his employment with the respondent I will now turn to whether the applicant’s employment was a substantial contributing factor to his psychological injury.
Section 9A of the 1987 Act relevantly states:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.”
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29] (Dayton); McMahon v Lagana [2004] NSWCA 164 (McMahon) at [32]) to be decided after a consideration of all the evidence.
It is the employment that must be a substantial contributing factor to the injury: Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48; (2002) 23 NSWCCR 725. The word “employment” does not mean being employed, but the actual work that the worker was required to carry out in the course of their employment: Mercer v ANZ Banking Corporation [2000] NSWCA 138; (2000) 20 NSWCCR 70 (Mercer).
For employment to be a substantial contributing factor to the injury the causal connection must be real and of substance. Section 9A requires an analysis of the causal factors which resulted in the injury and an evaluation of the importance of the employment factors relative to any other factors.
In respect to the matters that appear in s 9A(2) Mr Tanner submitted on behalf of the applicant that:
(a)    in respect to the time and place of injury – that the injury occurred only a matter of hours before the applicant was due to attend work. That the time and place of the injury needs to be considered in the temporal context of the criticism to which the applicant had been subjected and the imminent need to attend a workplace where those responsible for the criticism would be present and with whom the applicant would be required to interact.
(b)    In respect to the nature of the work performed and the particular tasks of that work – the applicant is a manager, and that a fellow manager, Ms Harvey, was one of those who had criticised him, and the applicant needed to have a working relationship with Ms Harvey and the employees he was required to manage and those relationships would be undermined by the abuse commentary and his capacity to perform his work would be impaired.
(c)    In respect to the probability that the injury or similar would have happened anyway, at about the same time or at the same stage of the worker’s life, if he had not been at work or had not worked in that employment – in the applicant’s submission does not apply as the injury occurred at that time because a fellow manager and fellow workers engaged in the public humiliation of the applicant.
(d)    In respect to the worker’s state of health before the injury and the existence of hereditary risks – there is nothing in the worker’s state of health which would explain his condition. His anxiety and panic attacks were driven by his experience at the hands of his co-workers and his concerns about his capacity to discharge his work duties with those co-workers.
(e)    In respect to the worker’s lifestyle – it was submitted that is not a relevant factor.
I do not accept the applicant’s submission that the applicant’s employment was a substantial contributing factor to the psychological injury for the following reasons. In respect to the matters that appear in s 9A(2):
(a)    time and place of injury – the applicant was at home and not working when he sustained the injury. The injury was sustained prior to the time that he was to commence his shift for that day. The events leading to the injury being sustained being the critical response to the applicant’s Facebook post were, as previously discussed, unrelated to the applicant’s employment.
(b)    The nature of the work performed and the particular tasks of that work – the applicant was not at work and was not performing work tasks at the time that the injury was sustained. The anxiety that he suffered was not due to his work tasks but was related to his concerns about the potential impact of his Facebook post and the critical response that he had received to that post on his work relationships.
(c)    The duration of the applicant’s employment – not relevant to the current matter.
(d)    The probability that the injury or similar would have happened anyway, at about the same time or at the same stage of the worker’s life, if he had not been at work or had not worked in that employment – I accept that applicant’s submission that this matter is not relevant to the case in issue.
(e)    In respect to the worker’s state of health before the injury and the existence of hereditary risks – whilst the applicant had previously suffered from anxiety there is nothing to indicate that he would have suffered the psychological injury if he had not received the critical response to his Facebook post.
(f)    In respect to the worker’s lifestyle – I accept the applicant’s submission that this matter is not of relevance to the case in issue.

SUMMARY

I find that:
(a) the applicant’s psychological injury did not arise out of or in the course of his employment as required by s 4 of the 1987 Act;
(b) the applicant has not sustained an “injury” as defined by s 4 of the 1987 Act, and
(c) the applicant’s employment with the respondent was not a substantial contributing factor to his psychological injury as required by s 9A of the 1987 Act .

[2023] NSWPIC 675

14 December 2023