Wright v Brickworks Limited
[2021] NSWPIC 301
•23 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wright v Brickworks Limited [2021] NSWPIC 301 |
| APPLICANT: | Stewart Glenn Wright |
| RESPONDENT: | Brickworks Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 23 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; severe PTSD; prior PTSD history; separate insurer making voluntary payments regarding earlier work-related PTSD injury; applicant’s perception of events regarding safety issues; specific event where applicant threatened contractor; Held – medical evidence and applicant’s statement supports causation, corroborated by fellow worker; section 11A defence not established because respondent’s disciplinary process not reasonable; Cordina, Holmes, Doudie, K& El-Achi considered. |
| DETERMINATIONS MADE: | 1. Award in favour of the applicant against the respondent pursuant to section 36 of the Workers Compensation Act 1987 in the sum of $1,944.22 from 23 September 2019 to 23 December 2019. 2. Award in favour of the applicant against the respondent pursuant to section 37 of the Workers Compensation Act 1987 in the sum of $1,637.24 from 24 December 2019 to date and continuing. 3. It is noted that the applicant concedes that he has received compensation from another source, namely from Employers Mutual Ltd, for various periods as identified in a schedule prepared by the applicant’s solicitor. |
STATEMENT OF REASONS
BACKGROUND
Stewart Glenn Wright (the applicant) is a 45 year old man who was employed by Brickworks Ltd (the respondent) as a full time truck driver.
Although within an Application to Admit Late Documents there is mention of the applicant commencing employment on 13 March 2017, a statement from the applicant dated 24 December 2020 maintains that he commenced working for “Austral-Brickworks” on or around 13 January 2013.[1] It has been suggested during submissions that the applicant’s employment may have been formally transferred to a subsidiary company in 2017, but for present purposes it is sufficient to note that the respondent offers no evidence to cavil with the assertion that the applicant commenced employment on 13 January 2013.
[1] Applicant’s statement dated 24 December 2020 [20] at page 24
The applicant relies upon a deemed date of injury of 16 August 2019. The applicant was at that time a union delegate and says that in the time up to 16 August 2019 he raised safety and compliance issues and as a result was bullied and marginalised by the respondent. The applicant claims a deemed date of injury of 16 August 2019 and relies on section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Psychological injury is alleged in the nature of severe post-traumatic stress disorder (PTSD) which had existed in the past but was aggravated, accelerated, exacerbated or deteriorated (“aggravated etc”) by his employment.
The prior PTSD, the parties appear to agree, was a result of a traumatic motor vehicle accident that the applicant sustained in the course of his employment with a prior employer in 2008.
The applicant claims weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act from 23 September 2019 and continuing.
ISSUES FOR DETERMINATION
The principal issue is whether the applicant is entitled to an award for weekly payments in the amount alleged, or at all. The respondent raises a number of issues including that Employers Mutual Limited, the insurer in respect of the 2008 injury, has been making weekly payments of compensation to the applicant since 23 September 2019 so that the applicant cannot recover the percentages of pre-injury average weekly earnings identified by sections 36 and 37 of the 1987 Act; additionally the applicant’s general practitioner’s certificates attribute the applicant’s injury to the 4 April 2008 motor vehicle accident; further that the applicant’s employment in 2019 cannot be the “main contributing factor” within the section 4(b)(ii) definition and in terms of section 11A of the 1987 Act the applicant was clearly guilty of misconduct on 16 August 2019 in the words he used and threats he made. The respondent claims that it was entitled to discipline the applicant in accordance with its various policies and section 33 of the 1987 Act is not satisfied because the cause of the applicant’s incapacity is the 2008 incident and/or psychosocial factors including the applicant’s breakdown of marriage and use of marijuana.
PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing in this Commission by telephone on 12 August 2021. Mr P Stockley of counsel instructed by Mr B Corcoran, solicitor, appeared for and with the applicant. Mr A Combe of counsel instructed by Ms B Walsh, solicitor, appeared for the respondent and Ms A Heap attended for the insurer.
The matter proceeded to conciliation but regrettably was not capable of resolution. I am satisfied that I used my best endeavours to attempt to effect settlement, to no avail. In those circumstances the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
Documentary evidence consisted of:
(a) Application to Resolve a Dispute and attachments filed 19 May 2021 (Application);
(b) Reply and attachments filed 9 June 2021 (Reply);
(c) Application to Admit Late Documents filed by the applicant on 6 August 2021 and attachments (AALD1);
(d) Application to Admit Late Documents filed by the respondent on 9 August 2021 and attachments (AALD2), and
(e) Application to Admit Late Documents filed by the respondent on 11 August 2021 and attachments (AALD3).
All documents the subject of (c), (d) and (e) above were admitted into evidence without objection. It was noted that the schedule prepared by the applicant’s solicitor identified various payments of weekly compensation having been made by Employers Mutual Ltd concerning the applicant’s injury in 2008.
SUBMISSIONS
Both Counsel made oral submissions. These submissions were sound-recorded and I do not propose to set them out in detail, but will endeavour to address them in the Reasons which follow.
DISCUSSION
The effect of the 2008 injury weekly payment
Initially Mr Combe made the point that because of section 22(7) of the 1987 Act. It was not appropriate for any apportionment of liability to be made as between the current respondent and the previous employer. Mr Stockley agreed that no section 22 order was sought. Discussion turned in submissions to the effect of the decision of Roche DP in Cordina[2]. It seems to me tolerably clear that Cordina established the following:
(a)Ince[3] is authority that in some circumstances a worker’s partial incapacity with a first employer and subsequent further partial incapacity with a second employer can mean that two awards for weekly benefits for partial incapacity may be made, one against each employer,
(b)Holmes[4] was consistent with Ince and confirms that more than one award for partial incapacity may be made, but the maximum weekly payment cannot be exceeded when one adds together the two separate awards;
(c)Doudie[5] is authority for the view that an initial partial incapacity can be the subject of an award in addition to a different total incapacity provided that there are two separate and distinct incapacities and the discretion (which was in existence in section 11(1) of the 1926 Act and section 40(1) of the 1987 Act, both now repealed) was applied;
(d)the second episode of incapacity/award can be a partial deemed total incapacity such as was available under section 11(2) of the Workers Compensation Act 1926 and section 38 (as it then was) of the 1987 Act and
(e)the main point is that in the aggregate, the payments must not exceed the applicant’s probable weekly earnings.
[2] Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125
[3] Sydney City Council v Ince (1989) 16 NSWLR 690
[4] Holmes v Civil & Civic Pty Limited (1970) 72 SR (NSW) 583
[5] Doudie v Kinneil Cannel & Coking Coal Company Limited [1947] AC 377 at 384
When dealing with sections 36 and 37, however, whilst the discretion is removed so that the factors just mentioned cannot always be achieved, the sections specify how precisely the weekly amount payable is to be determined. Additionally, schedule 3 clause 6(1) means that in calculating the applicant’s earnings:
“(1) The “earnings” received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week…”
The points to be made are as follows:
(a) the payments made by Employers Mutual Ltd are not “earnings” so do not fall within the definition contained in section 35 of the 1987 Act. It follows that the payments do not form part of the entitlement calculations relating to “AWE” which follow in sections 36 and 37 of the 1987 Act;
(b) the current matter is not dealing with either a question as to entitlement to two awards or a question as to section 22 because the first employer has not been joined as a respondent and the applicant does not allege the existence of two separate incapacities;
(c) the evidence demonstrates (as discussed below) that after returning to work in 2013 to before August 2019 the applicant was capable generally of full usual duties without restriction, so that any view of incapacity for work during that period is displaced by the applicant’s actual ability to work without mental disability. The medical evidence generally accepts that the applicant’s incapacity after events leading up to and during August 2019 were the trigger for resurrection of the applicant’s PTSD and hence the applicant’s incapacity “results from” that aggravation, and
(d) the principles recorded by Cordina are unnecessary to consider in view of the evidence supporting a single incapacity from August 2019.
Section 4(b)(ii)
The applicant’s statement of 29 January 2019[6] details the PTSD subsequent to the 2008 accident and the applicant’s recovery is also confirmed by Dr Bisht in a report of 8 November 2013 where Dr Bisht notes the applicant had a high level of motivation to continue in work and his condition was “in remission”.
[6] Application page 24 at [13]-[19]
The applicant worked without any mental handicap from 2013 until 2019, a period of about six years.
The applicant’s AALD1 contains a statement from a fellow worker, Mr P Soares, taken 4 August 2021[7]. Mr Soares was a senior project manager with the respondent and gives evidence that the two managers Mr Hardaker and Mr Balfour left the business in 2017 and were replaced by two managers who were not as skilled as the previous managers.
Mr Soares confirms that with the departure of those managers, his experience was that work quality declined, labour turnover increased and safe work practices began to be compromised. He also confirms[8] that the applicant was always bringing up safety issues which were brushed aside by management.[7] AALD1 at page 1
[8] Statement at [11]
It was Mr Soares who, following a coincidental encounter with the applicant on 30 August 2019, agreed to be the applicant’s support person in a meeting held on that date.
The medical evidence dealing with the question of aggravation (etc) of the applicant’s PTSD is almost unanimous. Dr Rastogi in her report of 22 July 2020 refers to the applicant’s resumption of work in 2013 and then a “relapse” of PTSD in 2019.[9] The applicant’s treating psychiatrist, Dr Malik in reports dated 10 January 2020 and 12 March 2020 refers to the applicant’s PTSD having been “retriggered” and in his report of 3 April 2020[10] refers to the current trigger for the applicant’s condition to be workplace bullying. Dr G Ilawala treated the applicant at St. John of God Hospital. Dr Ilawala notes that the applicant resumed work in 2013 and that the cessation of his work in 2019 was caused by bullying and harassment in the workplace.
[9] Application at page 46
[10] Ibid at page 58
I have considered Mr Combe’s reference to the medical certificates generated by the applicant’s general practitioner in 2019 which refer to injury in 2008, but ultimately which injury is truly causative or materially contributes is a legal issue in respect of which the whole of the evidence must be considered.
Dr Roberts, psychiatrist, provided an independent medical opinion commissioned by the respondent. His reports had been provided dated 15 July 2021 and 17 July 2021.[11]
Dr Roberts thought it “reasonable to accept” that the applicant suffered personal injury arising out of employment with the respondent but he thought[12] that the 2008 incident was the substantial factor so that “were it not for the 2008 incident, the likelihood of any disproportionate response to perceptions of difficulties at Brickworks would not have occurred”.[13][11] AALD3 from page 61
[12] AALD2 at page 76
[13] Ibid
Dr Roberts again adopts the language of “perceptions” in his report of 17 July 2021.[14] To that extent, his opinion supports the applicant because it supports a perception of real events in line with the decision in K.[15] Dr Roberts in dealing with the question of aggravation (etc) appears to conclude that if the applicant’s concerns regarding safety in the workplace were valid, his workplace did constitute an aggravation (etc) of his pre-existing condition. Because the applicant and Mr Soares are consistent concerning the problems regarding safety and because the respondent produces no evidence to counter those allegations, it is clear that
Dr Roberts’ opinion in fact supports the applicant in that regard.[14] AALD2 at page 79
[15] Attorney General’s Department v K [2010] NSWWCCPD 76.
The other aspect of Dr Roberts’ opinion in the applicant’s favour is the “egg shell skull psyche”[16]. The medical evidence including Dr Roberts’ opinion supports that the applicant in the events up to and including August 2019 carried an underlying susceptibility to have his mental condition deteriorate because of such events.
[16] See State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 per Spigelman CJ
Section 11A
The respondent’s medical evidence is deficient in dealing with section 11A for the following reasons. There is no medical evidence to support the view that the applicant’s aggravation was wholly or predominately caused by any reasonable action which may have been taken.[17] The respondent concedes that its evidence does not meet the test in Hamad to the extent required but makes the point that the applicant clearly used threatening words towards an outside contractor onsite on 6 August 2019, that the words were sufficient to cause the respondent to conclude that assault or misconduct had occurred, sufficient to cause the respondent to investigate through its HR department. The respondent says that the applicant’s assertion that he had an entitlement to be heard and an entitlement to have the matter investigated by obtaining statements by persons such as Mr Pritchard are somewhat “disingenuous”. The argument continues that the respondent did not terminate the applicant’s employment “on the spot”. The applicant was told to attend an anger management course and given a warning and this is entirely consistent with the respondent’s discipline guidelines.
[17] Hamad v Q Catering Limited [2017] NSWWCCPD 6
I am mindful that El-Achi has held that where experts do not address the ultimate legal question requiring consideration, it is not the end of the analysis and the Commission is required to determine the issue of injury (at least) using an evaluative process and having regard to all of the evidence[18]. This is, as I understand, the approach that Mr Combe urges the Commission to take in determining whether the respondent’s actions were reasonable, because the applicant concedes that he used certain words and the respondent’s action in response must be regarded as reasonable.
[18] State Transit Authority of New South Wales v El-Achi, [2015] NSWWCCPD 71.
I return to the statement of Mr Soares of 5 August 2021.[19] Mr Soares was the applicant’s support person at the 30 August 2019 meeting. Mr Soares states that in relation to that meeting:
[19] AALD1 at page 1
(a)a HR representative was not in attendance,
(b)the meeting was poorly organised and poorly run,
(c)no minutes were taken and it was “a very tense meeting”[20];
(d)one of the two managers claimed that “an exhaustive investigation” had been carried out “and as a result we have formed the view that Andrew Elston’s allegations have been substantiated”[21],
(e)the applicant asked whether the management had spoken to Josh or Steve from BBC and was advised “no, but we have reviewed the CCTV footage”[22], and
(f)the applicant asked to see the CCTV footage and the statements taken, with no apparent response.[23]
Mr Soares’ evidence corroborates the applicant’s position in that the penalty imposed on the applicant was done so against the background of the above matters.
[20] AALD1 at page 3
[21] Ibid at page 4
[22] Ibid
[23] Ibid
In this matter the alleged CCTV footage has not been produced by the respondent for consideration by this Commission. In terms of the 6 August 2019 incident, Mr Pritchard[24] was present and explains his account of the exchange between the applicant and Mr Elston. He saw the exchange and thought it “pretty tame”[25] and by no means threatening. It is clear that the respondent did not seek out Mr Pritchard’s account before making a decision about whether the applicant had threatened Mr Elston to the extent alleged.
[24] Application at page 38
[25] Mr Pritchard’s statement at [10]
Mr Combe has submitted that the applicant concedes in his statement words to the effect “if I took you out the front and tapped you out”. Mr Pritchard recalls the words to be “if things were different and we were out the front”. The point to be made is the respondent did not have the benefit of Mr Pritchard’s view of the words used. Regardless of the words used, it was incumbent upon the respondent, in exercising reasonable discipline, to take reasonable action and that in my view includes fairly retrieving by investigation all relevant information, pre-warning the applicant concerning the nature of the meeting, providing the applicant with an opportunity to explain any behaviour he concedes and not making any predetermined decision until those processes have been followed. I therefore come to the view that if the applicant’s aggravation (etc) was caused wholly or predominately by action taken on the part of the respondent, that action was not reasonable action within the meaning of section 11A.
FINDINGS AND ORDERS
Award in favour of the applicant against the respondent pursuant to section 36 of the 1987 Act in the sum of $1,944.22 from 23 September 2019 to 23 December 2019.
Award in favour of the applicant against the respondent pursuant to section 37 of the 1987 Act in the sum of $1,637.24 from 24 December 2019 to date and continuing.
It is noted that the applicant concedes that he has received compensation from another source, namely from Employers Mutual Ltd, for various periods as identified in a schedule prepared by the applicant’s solicitor.
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