El-Tom v Downer EDI Engineering Power Pty Ltd [2021] NSWPIC 177 (9 June 2021)

Last Updated: 17 June 2021

STATEMENT OF REASONS

BACKGROUND

1. In 2015, Nicholas El-Tom (the applicant) changed duties in the course of his employment as an electrician with Downer EDI Engineering Power Pty Ltd (the respondent). As a result, he alleges he began working more often on underground projects and in enclosed spaces.

2. The applicant alleges that as a result of this change in duties, he suffered a psychological injury and claims weekly compensation from 5 September 2018 to date and continuing, together with reasonably necessary medical and treatment expenses.

3. On 7 August 2019 and 24 September 2020, the respondent issued dispute notices alleging the applicant’s condition did not arise out of his employment and that his employment was not the main contributing factor to any aggravation of an underlying psychological condition (sections 4 and 4(b) of the Workers Compensation Act 1987 (the 1987 Act)).

ISSUES FOR DETERMINATION

4. The parties agree the only issue in dispute is whether the applicant’s condition arose out of his employment (section 4) and whether his employment was the main contributing factor to his condition (section 4(b)).

5. There is no issue as to the applicant’s pre-injury average weekly earnings (PIAWE) or that he is totally incapacitated for employment.

6. The respondent also noted the applicant was paid weekly compensation in the past, and that on its reading the 130 week entitlement period pursuant to section 37 of the 1987 Act expired on 3 March 2021, based on the applicant’s pleaded case and dates of incapacity. In the event the applicant is successful on the liability issues in dispute, the parties will therefore be requested to provide in writing their calculations as to both the amount payable and the relevant period for which any weekly compensation should be paid.

PROCEDURE BEFORE THE COMMISSION

7. 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.

8. The parties attended a hearing before me on 10 May 2021. On that occasion, Mr J Hallion of counsel appeared for the applicant instructed by Ms M O’Halloran for the applicant. Mr D Saul of counsel appeared for the respondent, instructed by Mr T Murray, solicitor.

EVIDENCE



Documentary Evidence

9. 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;

(c) Respondent’s Application to Admit Late Documents (AALD) and attached documents dated 30 April 2021; and

(d) Applicant’s AALD and attached documents dated 4 May 2021.

Oral Evidence

10. There was no oral evidence called at the hearing.

FINDINGS AND REASONS



Whether the applicant suffered a workplace psychological injury

11. The respondent’s primary submission was that the applicant did not suffer a recognisable psychological condition. Alternatively if he did suffer from such a condition, the respondent asserted the clinical records provide evidence of the existence of it before 2015, and accordingly the applicant’s employment did not cause the injury.

12. In his statement, the applicant said at paragraph 17 that he had not been diagnosed with any anxiety disorder or claustrophobia before beginning to work in underground projects with the respondent in 2015. According to the applicant:

“I started experiencing anxiety and claustrophobia, sweating, short of breath, headaches and panic attacks. This started happening when I was working underground underneath the opera house running the switch and the cabling sub-mains. We were upgrading the wiring. This project happened about 3.5 years ago. This is when I started noticing that I had symptoms of anxiety.”

13. The applicant had been referred to a further project which he undertook approximately one year after the opera house job. He described a requirement of that project to go underground inside a tunnel, “I just could not bring myself to do it. I said to my foreman that I could not go through with going underground.”

14. The applicant described sweating profusely at around this time, and he spoke with a co-worker, who advised him to consult a doctor surrounding his problems at around the time of the carrying out of the Opera House project. The applicant states that his general practitioner at first thought he was suffering from acid reflux, however, overtime it became apparent that he had suffered a psychological injury.

15. The applicant noted that prior to 2015, he was mostly working above ground with wiring, deck work and cabling installation through large scale commercial properties. He stated at paragraph 27 that he had never previously been symptomatic with anxiety, including sweating, chest pains and panic attacks.

16. By contrast, Mr Saul took the Commission to a number of clinical entries before 2015. He referred to an entry in March 2008 where the applicant suffered lethargy and dizziness, and similar entries in August 2009, April 2010, November 2011, June 2012, October 2012 (times two), August 2013, February 2014, August 2014, November 2015 and in December 2015.

17. The respondent submitted that these entries demonstrated the applicant suffered from a psychological condition well before the changing employment duties in 2015.

18. I reject that submission for the following reasons. The entries before 2015 relating to symptoms of lethargy, dizziness and occasional chest tightness are not attributed to any psychological condition by Dr Sleiman, general practitioner. Additionally, several of the entries include references to other symptoms such as a sore throat, coughing and bronchitis. In the circumstances, it is impossible to attribute the symptoms of lethargy to which the respondent drew attention to a pre-existing psychological condition absent some expert opinion to support that contention.

19. None of the treating specialists or independent medical examiners (IMEs) retained in the case and who had access to the clinical records attribute the pre-2015 symptoms to any recognised psychological condition. In my view, absent medical opinion which provides an expert basis for those complaints being diagnosed as symptoms of a recognised psychological disorder pre-dating the change in the applicant’s employment, I am not in my view able to draw an inference that this is the case.

20. This is particularly the case when the respondent’s IME Dr Vickery had the benefit of the general practitioner clinical notes in compiling his second report dated 27 April 2021. Having had regard to that material together with a number of other medical reports, Dr Vickery diagnosed the applicant as suffering from panic disorder and social anxiety disorder, however, he did not attribute that condition to the applicant’s employment.

21. Having the benefit of the clinical notes, Dr Vickery made no comment to the effect that the symptoms exhibited by the applicant from 2008 onwards were attributable to any pre-existing psychological condition. Likewise, none of the applicant’s treating experts nor his IME, Associate Professor Robertson draw that link. That is also the case with Dr Sleiman herself, who provided a report dated 30 April 2019. She noted she had been the family practitioner for Mr El-Tom for more than 10 years, and made no link between the earlier presentations and any recognisable psychological condition. Rather, Dr Sleiman diagnosed the applicant with a generalised anxiety disorder, social anxiety and claustrophobia to which she said his employment was a direct cause.

22. That opinion is consistent with that of A/Prof Robertson, IME who also attributes the applicant’s psychological condition to his employment and to the change to working underground. Likewise, treating psychologist Robby Taouk noted the onset of symptoms once the applicant began working underground and accepted he suffered from claustrophobia and a generalised anxiety disorder against a background of changes to his work conditions. Dr Modem, treating psychiatrist also noted “on further exploration it was evident that Nicolas was experiencing symptoms of anxiety three years prior, this coincided with his work shifting underground/enclosed spaces.”

23. Dr Takyar, psychiatrist was retained to provide a report by Spotless Facility Services in Victoria. It is unclear whether that report was commissioned by the respondent’s insurer or by the applicant’s income protection insurer. In any event, Dr Takyar took a history from the applicant of the onset of anxiety in or about 2015 linked to increase working in confined and underground spaces. Dr Takyar diagnosed “an anxiety disorder in the context of his employment over time.”

24. It is apparent from an examination of the IME and treating medical material that the preponderance of medical opinion supports a finding that the applicant suffered a work related psychological condition. To the extent Dr Vickery initially indicated the applicant did not demonstrate the symptoms of a psychological condition, his opinion is on its own and I reject it given the overwhelming opinion of not only IME evidence but treating practitioners.

25. In his second report, Dr Vickery did find the applicant suffered from a psychological condition, however, he indicated it was not attributable to work. With respect to Dr Vickery,
    
    I reject that opinion as it is at odds with the overwhelming preponderance of the medical evidence in the case. Mr Saul submitted Dr Vickery’s opinion was supported by a GP clinical entry dated 19 February 2016 in which a history was recorded of the applicant having complained of claustrophobia “since a young age.” However, that entry is not supported by any clinical evidence to support the presence of a pre-existing condition. Additionally,
    
    Dr Vickery made no reference to this entry as suggestive of the presence of a pre-existing condition, just as no mention was made to the multiple GP clinical record entries to which Mr Saul referred in his submissions.
26. Absent expert opinion to support a finding the previous GP entries are evidence of a pre-existing condition, in my opinion it is not appropriate for the Commission to infer the presence of such a condition before one was diagnosed after the change in the applicant’s duties.

27. Mr Saul submitted the applicant’s version of events in having to work more often underground and in confined spaces was challenged by the lay evidence of his co-workers and supervisors which provided in statements attached to the Reply.

28. Whilst it is the case that each of Messrs Graham, Bavaro, Gerard, Derham and Georgopoulos have provided statements concerning the amount of time which the applicant had to spend underground and in confined spaces, that evidence goes only to the extent of that time rather than whether or not such work was required at all. Indeed, Mr Graham, who worked as a project manager for the respondent confirmed the change in duties. He stated:

“28.I understand that Nicholas was working on construction works, which was his

strength where he was onsite working in one spot for a couple years. However, Downer transitioned away from the major construction works in or around 2015. This involved moving away from what we were all familiar with to working on a lot smaller projects that lasted a shorter period of time.

29. It was still electrical Installation, the nature of the job role did not change, it

was just the scale of the job that changed. Majority of the jobs that Nicholas

was assigned to were within the Sydney CBD.

30. During these projects, Nicholas had to go underground such as the Opera

House project, works at Sydney University which was down in B2, and Hoyts

which was above ground however it was enclosed by the nature of being in a

cinema.”

29. In his statement, Mr Georgopoulos noted an incident during the Sydney University project on where the following took place:

“22. Last year or the year before, after the Opera House project, in or around 2017 we completed the Charles Perkins Building at Sydney University and I noticed that Nicholas started to stand Inside the lift with his eyes shut and seemed anxious in the lift. When he worked on this project he was level B1 below ground in office spaces and he seemed fine working a level or two underground, however I believe the lifts seemed to be a confined space for him.”

30. That evidence of Mr Georgopoulos is instructive, as he recalls a contemporaneous example of the applicant having issues with a confined space. Moreover, the lay evidence demonstrates the applicant having to work underground. While it may be the perception of his co-workers that these spaces were not particularly enclosed or restrictive, their statements on balance confirm the change in duties and the fact the applicant had to work from time to time either underground or in enclosed spaces.

31. As such, the applicant’s perception of how often he worked in confined spaces and/or underground is in my view a perception of real events and is therefore sufficient to ground an injury: See Attorney General’s Department v K [2010] NSWWCCPD 76 and State Transit Authority of NSW v Chemler [2007] NSWCA 249 (18 September 2007), in which Basten JA noted at [67] and following:

“The appellant’s contention that a missed perception, or indeed a perception, cannot give rise to an injury “arising out over in the course of employment”, must be a contention that the accepted psychological state of the respondent did not arise out over in the course of that employment. For there to be the relevant connection with the employment, it was argued that the events perceived must be “real” and not “imagined”.

68. No doubt a psychological state can be based upon a delusion but the question remains one of causation. The point was simply identified and addressed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 642:

Can the event to which the disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence of perhaps non-applicable. Yet it seems to me that the incident was precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a fact that to contributing to it.”

69. There must be an aspect of the employment which constitutes “a substantial contributing factor to the injury” for compensation to be payable: See section 9 A (1) of the 1987 Act. To focus on the concept of “perception” may obscure the real issue. Although the Arbitrator said that he accepted the statements from witnesses who denied that they had heard anybody referring to the respondent in a derogatory fashion because of his race or religion, he nevertheless accepted that “in this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that”. In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of rule. Nor it is necessary to determine whether the respondent’s response was a missed perception as to the intentional attitudes of his fellow workers. In contrast to discrimination rule, the proper focus in this context is the consequences of conduct on the claimant and not, even in the limits and sense, the motivation, intention or other mental state of the co-worker or supervisor. If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.” (My emphasis).

32. There is no question in this matter the applicant was required to work underground from time to time. The extent to which he did so is in dispute, however, the effect which working underground had upon him is plainly a reaction to real events rather than one which was not real and a product of the applicant’s imagination.

33. As such, I am of the view that the applicant suffered a psychological injury and the aetiology of such injury falls within authorities such as Chemler and Attorney General v K [2010] NSWWCCPD 76.

34. Adopting a common-sense approach to causation as required by a line of authorities beginning with the decision of the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), I am of the view that there is an unbroken causal chain between the change in work duties and the onset of the applicant’s injury.

35. Notwithstanding Mr Saul’s submissions concerning the earlier clinical entries, the best that might be said of them absent any expert opinion as to what they represent is they may show a vulnerability on the part of the applicant to the injury and condition which ultimately manifested itself. However, as Mr Hallion submitted and I have accepted, vulnerability does not constitute an identifiable injury. Moreover, as already stated, absent medical opinion which provides a basis for establishing the earlier entries are evidence of a pre-existing condition of any kind, I am not inclined to draw an inference that they are evidence of a pre-existing psychological condition.

36. In his second report, Dr Vickery noted it was significant that the onset of the applicant’s illness, anxiety and panic attacks was “reported as being in August 2018 associated with multiple somatic symptoms on returning from overseas and there was no mention of symptoms being work related.” That history does not, however, take into account the history taken by each of the other practitioners to the effect that the applicant symptoms manifested themselves in or about late 2015 after he had begun working underground. As a result, I do not accept to the premise upon which Dr Vickery bases his opinion in his second report, because it is apparent on the clinical records that the applicant presented with symptoms of a psychological injury some three years earlier than Dr Vickery describes the onset.

37. I also note that finding is supported by the GP clinical records which reveal an attendance on 11 November 2015 for work-related stress, and a medical certificate being issued on that occasion. That entry is consistent with the applicant’s evidence as to the onset of his symptoms.

38. For these reasons, I am of the view the applicant suffered a psychological injury in the course of his employment with the respondent.

SUMMARY

39. While the above findings, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination. The parties will be directed to provide calculations and submissions as to the precise period of entitlement which is an issue.