Woodford v Westpac Group

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woodford v Westpac Group [2021] NSWPIC 461
APPLICANT:	Christine Woodford
RESPONDENT:	Westpac Group
MEMBER:	Cameron Burge
DATE OF DECISION:	16 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly and permanent impairment compensation and medical expenses regarding alleged psychological injury; applicant employed as customer service officer in bank and subjected to repeated interactions with aggressive and violent customer over 12 months, and other work-related problems; respondent denies injury and alleges if there was a work-related injury it was wholly or predominantly caused by its reasonable actions with respect to promotion of the applicant’s co-worker within the branch; Held - applicant suffered work-related psychological injury; the causes of the injury were multi-factorial, not wholly or predominantly the promotion of the applicant’s co-worker; respondent to pay the applicant weekly compensation as set out in the Certificate of Determination; claim for permanent impairment compensation remitted to President for referral to a Medical Assessor; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.
DETERMINATIONS MADE:	1. Leave is granted to the applicant to amend the Application to Resolve a Dispute to plead a claim for weekly benefits from 1 September 2021 to date and continuing. 2. The applicant suffered an injury in the course of her employment with the respondent, with a deemed date of injury of 31 May 2019. 3. The injury referred to in (2) above is not wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal or promotion. 4. At the date of injury, the applicant's preinjury average weekly earnings were $1,265.53 per week. 5. Since 1 September 2021, the applicant has been and remains totally incapacitated for employment. 6. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $1,012.26 per week. 7. The respondent is to pay the applicant’s reasonable and necessary medical and treatment expenses pursuant to section 60 to the Workers Compensation Act 1987. 8. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the whole person impairment arising from the following: Date of injury: 31 May 2019 (deemed). Body systems referred: psychological/psychiatric injury. Method of assessment: whole person impairment. 9. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondent's Application to Admit Late Documents dated 3 September 2021.

STATEMENT OF REASONS

BACKGROUND

Christine Woodford (the applicant) worked for Westpac Group (the respondent) under the St George brand as a customer service specialist, having started working with St George Building Society in 1984. She left that employment in or about 1990 and returned to employment with the Westpac Group in March 2004, working as a casual customer service officer based at Nelson Bay. She then became a part-time CSO before transitioning to full-time work in or about 2011.

The applicant seeks weekly compensation, payment of medical expenses and permanent impairment compensation in respect of an alleged psychological injury which took place in the course of her employment, to which she alleges her employment was the main contributing factor. For its part, the respondent disputes it has liability to pay the applicant on the basis she did not suffer a work-related injury, and that if she did, it was wholly or predominantly caused by its reasonable actions taken or proposed to be taken with respect to performance appraisal and/or promotion.

The respondent's dispute is principally grounded on the opinion of Dr Vickery, independent medical examiner (IME) psychiatrist. For her part, the applicant sets out a narrative of a series of work-related events which she alleges caused her injury. In making that allegation, she alleges the cause of her injury was multi-factorial rather than wholly or predominantly performance appraisal or promotion.

There is no issue that the applicant has no capacity for employment, nor is there any dispute as to her preinjury average weekly earnings (PIAWE).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered a work-related injury to which her employment was the main contributing factor, and
(b) if the answer to (a) above is in the affirmative, whether the applicant's injury was caused by the reasonable actions of the respondent taken or proposed to be taken with respect to performance appraisal and/or promotion.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 15 September 2021. On that occasion, Mr P Stockley of counsel instructed by Ms H Oldrich, solicitor, appeared for the applicant and Mr F Doak of counsel instructed by Ms J Tzaravis, solicitor appeared for the respondent. At the hearing, the parties entered into a lengthy period of conciliation, however, they were unable to resolve their differences. At the conclusion of the conciliation period, I advised the parties of my intention to determine the dispute without holding an arbitration hearing and made directions for the filing and service of written submissions.
On 22 September 2021, the applicant lodged her written submissions. On 1 October 2021, the respondent lodged its written submissions. On 6 October 2021, the applicant lodged her written submissions in reply. Each of these submissions have been taken into account in making this determination.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)   Application to Resolve a Dispute (the Application) and attached documents;
(b)   Reply and attached documents; and
(c)   respondent's Application to Admit Late Documents (AALD), dated 3 September 2021 and attached documents.

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work related injury

To establish a worker has suffered a psychological injury, it is not enough that they suffer frustration and upset, even of a high degree. It is necessarily there would be a physiological effect and not a mere emotional impulse.
In this instance, the applicant pleads her case as result of an ongoing process. The applicant bears the onus of demonstrating that her psychological condition, the presence of which is not in dispute, is work-related. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test was set out by Kirby P (as he then was) Kooragang Cement Pty Ltdv Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
"The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Where the incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of phrases 'results from', is now not accepted. By the same token, for me proof that certain events occurred which predisposed the worker to subsequent injury will not, of itself, be sufficient to establish that such incapacity 'results from' a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident, and subsequent incapacity or death, is not determinative of the entitlement to compensation." (At [810]).
The applicant's lay evidence consists of four statements contained within the Application. I do not propose to recite her evidence in detail, however, she presents a series of work‑related events which she alleges produced the psychological injury at issue.
As the respondent noted, the applicant has been taking antidepressant medication since 3 June 2019, when she suffered what she describes as a breakdown at work. In her statement material, the applicant notes a number of factors which she alleges gave rise to her psychological condition. They include:
(a)    conflict with her manager in or about 2016 in relation to her taking rostered days off;
(b)    interaction on repeated occasions with an aggressive and threatening customer for approximately 12 months up to and including mid-2018, which necessitated the respondent making use of a security guard at the branch;
(c)    feelings of disassociation from her workmates, and
(d)    stress associated with alleged security breaches by her being raised by her area manager.

The respondent relies on the opinion of Dr Vickery IME in disputing whether the applicant suffered a work related psychological injury. In his initial report dated 1 November 2019, Dr Vickery concluded that the applicant's adjustment disorder and major depressive disorder was "primarily constitutional in nature." Dr Vickery said:
"It is my opinion on the basis of all the information that Mrs Woodford's employment was not the main contributing factor to her psychiatric disorder as there was no evidence of harassment or victimisation as she has alleged and there are multiple inconsistencies in relation to the client incident of 2017/2018.”
"Mrs Woodford's pathologically disproportionate response giving rise to the condition of adjustment disorder has to be understood as arising from her personality traits and negative past experiences and past history of depression and in these circumstances, the resulting incapacity is not considered to be primarily due to the external triggering event."

Dr Vickery does not set out what the applicant's personality traits and negative past experiences which give rise to her psychological condition actually are.
Moreover, whilst Dr Vickery was of the view that "Mrs Woodford's pathologically disproportionate response giving rise to the condition of adjustment disorder has to be understood as arising from her personality traits and negative past experiences…", it must be remembered that employers take their employees as they find them (see State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 (Chemler) per Spiegelman CJ at [40]).
In Chemler, the Court of Appeal also noted that a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment and, if events which actually occurred in the workplace were perceived by a worker as creating an offensive or hostile working environment and a psychological injury follows, it is open to the Commission to conclude that causation is established. What is required, is that the events in the workplace are real, rather than imaginary. If that is the case, it does not matter that the events affected the worker's psyche because of the floored perception of events.
For the respondent, Mr Doak noted that there was a lack of corroboration as to the applicant suffering from a psychological injury owing to a set of circumstances in her workplace. He noted that there was a history of psychological issues, stretching back as far as 2014, however, there was no record in the clinical notes of there being a work-related cause.
It is established authority that care must be taken in relying upon the history taken by treating practitioners as a source of corroboration or to ground an assertion relating to a worker’s condition. Moreover, as was noted by Deputy President Roach in Baker vSouthern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 (Baker), the absence of a complaint as to work being the cause of an applicant's condition is not decisive of whether the events ultimately complained of caused a psychological injury. The deputy president noted that whether a worker suffered a psychological injury as a result of events at work complained of depends on assessment of all the evidence, including evidence of co-workers as to any issues in the workplace. The deputy president made it clear it is not appropriate to conclude a worker suffered no injury, simply because they did not complain of a specific work-related problem until after they had stopped work.
Moreover, as Beazley JA (as her Honour then was) (Campbell and McFarlane JJ agreeing) explained Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary or even a relevant consideration that a person must identify themselves as psychologically ill. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.
There is also a set of law that there is no requirement for corroboration of complaints in the civil case (Chanaa v Zarour [2011] NSWCA 119 at [86]). It would be of benefit to an applicant if there is such corroboration founding clinical records, however, the absence of those records should not, in my view, be used against her.
The matters complained of by the applicant in her statement as having given rise to her psychological condition are, for the most part, collaborated. There is no issue she had conflict with her manager in 2016 concerning taking leave in the form of rostered days off or that she had repeated interactions with an aggressive and threatening customer over the course of 12 months up to and including 2019, which required the respondent to install a security guard at the branch. The respondent argues that the statement evidence provided by each witness does not support the applicant's account that she was exhibiting signs of psychological stress due to her interactions with the aggressive customer. With respect, it is not necessary for there to be corroborative evidence but this is the case.
Finally, the actions of the customer towards the applicant were problematic. An employer does not go to the trouble of retaining a static security guard in a bank branch unless the behaviour of customer complained of was problematic.
I accept the respondent's submission that the promotion of the applicant's co-worker, Ms Kitt, was a causative factor in the development of the applicant's psychological condition.
In my view, the lay and medical evidence discloses that the applicant's employment was the main contributing factor for the development of her psychological injury. Each of the medical practitioners, treating and IME, except for Dr Vickery find a direct causal nexus between her psychiatric condition and her employment.
In finding that the applicant's employment was not the major cause of her psychological condition, Dr Vickery asserted the applicant suffered a pre-existing major depressive disorder. Whilst there was a clinical entry on 12 October 2015 where the applicant reported to her general practitioner symptoms of low mood, struggling with motivation and anhedonia against the history previously struggling with depression, the balance of the clinical notes from November 2000 up to that time contain no other reference to the pre-existing major depressive disorder. Rather, in my view, Dr Vickery has based his diagnosis upon an isolated and short-lived presentation by the applicant to her general practitioner. I reject Dr Vickery's assumption and diagnosis as to the existence of a pre-existing major depressive disorder, as in my view the records and lay evidence did not support it.
I also note that the applicant was working in her role for many years without exhibiting symptoms of any pre-existing major depressive episode. That much is asserted by the respondent’s own witnesses who provided opinion as to how the applicant appeared after interactions with the abusive customer Pearce. In my view, the respondent cannot have it both ways. It cannot on the one hand assert the applicant’s condition was a pre-existing one, yet also seek to rely on evidence to the effect she was displaying no signs of any psychological condition in the course of her employment.
For these reasons, I am of the view that the applicant has satisfied her onus in proving that she suffered a work-related psychological injury.

Section 11A

Having found in favour of the applicant on the question of injury, the question then arises as to whether her work-related condition was wholly or predominantly caused by the reasonable actions of her employer with respect to promotion. If this is the case, it will follow that the respondent will avoid liability owing to the operation of section 11A of the Workers Compensation Act 1987 (1987 Act). That section relevantly provides:
"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…promotion…".

An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training vSinclair [2005] NSWCA 465.

The terms "wholly" and "predominantly" are separate concepts, and a finding of one or the other needs to be considered: see Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In order to successfully raise a defence under section 11A, the respondent must not only show the requisite causal connection between its actions on the applicant's injury, it must also satisfy the Commission that its actions were reasonable. The meaning of reasonableness was discussed by his Honour Geraghty J in Erwin v Director-General of Education NSWCC 14068/97, 18 June 1990, where his Honour said:
"…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."

Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a reasonable action (see Burke J in Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454).
In this matter, the conduct relied upon by the respondent concerning its section 11A defence relates to the promotion of the applicant's co-worker, Ms Kitt. Having examined the lay and factual material provided in the matter, I am satisfied that the respondent's actions regarding the promotion of Ms Kitt were reasonable. Certainly, there is nothing to suggest otherwise.
However, I am not on balance satisfied that the promotion of Ms Kitt was wholly or predominantly responsible for the onset of the applicant's injury.
In my view, the causes of the applicant's injury were multifactorial. They include the promotion of Ms Kitt, but also have a background including the dispute between the applicant and her supervisor concerning the taking of leave and the applicant's repeated interactions with an abusive customer over the course of 12 months. Those causes are consistent with the statements of the applicant, which are not relevantly contradicted.

Whilst it may be the case that the respondent's witnesses are able to provide some evidence as to their observations of the applicant during the course of the period in which she was interacting with the abusive customer, they cannot relevantly know what she was feeling or what level of stress she was undergoing. To that extent, the applicant's evidence is uncontested.
The applicant’s evidence as to the factors which had an impact on the development of her condition and her ultimate decompensation is supported by, for example, her treating general practitioner Dr Bingham, who noted in her report dated 20 June 2019 that the applicant had "been experiencing symptoms consistent with major depression and PTSD related to workplace harassment and bullying over the past three years as well as assault by the client/customer of her employer."
Dr Selwyn Smith, treating psychiatrist provided a short letter to the respondent dated 5 July 2019 in which he requested the respondent pay for the applicant to attend his rooms for a further six to eight sessions of therapy. It follows from that request that Dr Smith's view was the applicant's employment had relevantly caused her injury.
Independent medical examiner (IME) Dr Oldtree Clark also supported the applicant's version of events and took a thorough history from the applicant as to her problems. He noted that the abusive customer, Pearce began stalking the applicant, necessitating the provision of a security guard. The customer also stalked the applicant outside the bank.
Dr Oldtree Clark diagnosed a major depressive disorder, however, he indicated that notwithstanding some non-work-related issues having taken place in the applicant's past, her employment was still the main contributing factor to her psychological injury.
The applicant having suffered a multifactorial psychological injury is also supported by the respondent's own psychologist, Mr O'Neill, who provided a report dated 26 August 2019. In that report, Mr O'Neill noted that ongoing counselling treatment was reasonably necessary as the applicant likely had post-traumatic stress disorder together with major depression.
In that report, Mr O'Neill noted that he had discussed the applicant's condition with treating counsel, Ms Bowditch who confirmed the following:
"Although there were workplace concerns in relation to manager and alleged bullying, the primary distress is associated with a life-threatening event involving a customer. She said this particular client is well-known to Westpac and has made repeated threats to the worker over a long period of time, including contacting management. At the last event, the bank allocated a security guard outside the premises for a period of five weeks and has also done so on previous occasions. Following this last incident, she said the symptoms worsened. She said that the worker fear that the client might find out where she lived and be of further significant threat to her. He had verbally intimidated and threatened her in the past. She had feared for her life recently. She said head office even expressed concerns for her safety and had put in place security on previous occasions.
Ms Woodford has on two occasions approached an employment system program counsellor and has reported thoughts of self-harm in the context of dealing with this customer. The level of self-harm is considered moderate, with ideation being frequent but no specific plans of high risk."

Having examined the applicant's treatment received by both Ms Bowditch and Dr Selwyn Smith, Dr O'Neill concluded that the intervention provided to the applicant is considered appropriate, evidence-based, and highly efficacious for most clients with PTSD. He recommended a further block of eight sessions of psychological treatment as reasonably necessary. Implicit in that recommendation is an opinion the applicant’s employment with the respondent was relevantly causative of her psychological condition.
In my view, the medical evidence clearly demonstrates on the balance of probabilities that the applicant suffered a multifactorial work-related injury. I am not satisfied on the balance of probabilities that the respondent's reasonable actions with respect to promotion were the whole or predominant cause of the applicant's injuries.
The treating medical evidence discloses the applicant was greatly affected by the very real abusive and frightening behaviour of the customer Pearce, by the difficulties with her supervisor over taking leave and by the actions taken by the respondent with regards to both performance appraisal and the promotion of her colleague Ms Kitt.
This being so, the respondent's defence under section 11A of the 1987 Act fails.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set forth on page 1 of the Certificate of Determination.

[2021] NSWPIC 461

16 November 2021