Buttenshaw v CASPA Services Ltd [2021] NSWPIC 182 (11 June 2021)

Last Updated: 24 June 2021

STATEMENT OF REASONS

BACKGROUND

1. Chiana Buttenshaw (the applicant) alleges she suffered a psychological injury owing to bullying, unfair treatment and adverse workplace reactions in the course of her employment with Casper Services Ltd (the respondent), with a deemed date of injury of 20 August 2020.

2. The applicant claims weekly benefits from 20 August 2020 to 7 May 2021 at the rate of $1,534.84 per week.

3. The respondent denies liability and says the applicant did not suffer a workplace injury, and in the alternative if the applicant did suffer a workplace injury it was wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline and dismissal.

ISSUES FOR DETERMINATION

4. The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered a workplace psychological injury (section 4 and 4(b) of the Workers Compensation Act 1987 (the 1987 Act)); and

(b) if the answer to (a) above is in the affirmative, whether the applicant's injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to either discipline and/or dismissal (section 11A of the Workers Compensation Act 1987 (the 1987 Act)).

5. At the hearing, the applicant amended the pleaded date of injury without objection to 20 August 2020, and the claim for weekly benefits to a closed period between 20 August 2020 and 7 May 2021. Additionally, the parties agreed the applicant's pre-injury average weekly earnings (PIAWE) total $1,534.84 per week. There was no issue in relation to incapacity for the period claimed.

PROCEDURE BEFORE THE COMMISSION

6. 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.

7. At the hearing, Ms E Grotte of counsel instructed by Mr G Staninovski appeared for the applicant, whilst Mr T Grimes of counsel instructed by Mr D Walkins appeared for the respondent.

EVIDENCE



Documentary evidence

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

(a) Applciation to Resolve a Dispute the Application) and attached documents;

(b) Reply and attached documents;

(c) applicant’s Application to Admit Late Documents (AALD) dated 19 February 2021;

(d) respondent's AALD dated 21 April 2021;

(e) applicant's AALD dated 22 April 2021;

(f) applicant's AALD dated 4 May 2021;

(g) respondent's calculations with respect to the applicant's PIAWE admitted without objection and marked Exhibit 1, and

(h) email screenshot dated 8 February 2020 admitted without objection and marked Exhibit A.

9. Exhibit 1 will not be relied upon by the Commission, as the parties reached agreement in relation to the applicant's PIAWE at the hearing.

Oral evidence

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

FINDINGS AND REASONS



Whether the applicant suffered a workplace injury

11. To establish that a worker has suffered a psychological injury, it is not enough that they endure frustration or emotional upset, even to a high degree. Rather, it is necessary there be a physiological effect and not a mere emotional impulse, sufficient to ground a finding of the presence of a recognisable psychological or psychiatric disorder: see for example Yates v South Kirkby Collieries Ltd [1910] UKLawRpKQB 123; [1910] 2 K.B. 538 and Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3.

12. In this matter, the respondent alleges the applicant did not suffer a recognisable psychological injury as a result of any workplace issues. The applicant bares the onus of proving she has suffered such an injury. Given she alleges her injury was in the nature of a disease process brought about by being bullied, treated unfairly and subject to other adverse workplace interactions, the applicant must show her employment was the main contributing factor to the disease process (section 4(b) of the 1987 Act).

13. The respondent relies on the report of Dr McDonald, psychiatrist Independent Medical Examiner (IME) dated 2 October 2020 which is found at page 84 of the Application. Dr McDonald took a history from the applicant of excessive workload, bullying and being targeted by middle management. The applicant told Dr McDonald the work environment had been stressful as she worked with very high needs children.

14. Having outlined a series of events which the applicant alleges caused the onset of her condition, Dr McDonald noted the applicant had experienced anxiety, sleep disturbance and low energy. He indicated she was functioning "remarkably well in a very busy lifestyle" and concluded on the balance of probabilities that the applicant’s stress symptoms do not reach the threshold for a medical illness. Dr McDonald further stated:

"Ms Buttenshaw has a history of severe developmental trauma, which may have caused a lifelong interpersonal sensitivity and distrust of others. She may have features of borderline personality on axis II however I have insufficient evidence to make this diagnosis with any certainty."

15. Dr McDonald indicated the applicant was suffering significant stress and anxiety but opined these symptoms did not reach the threshold of any medical diagnosis.

16. Mr Grimes submitted there was significance to the clinical records from Lismore Medical Centre making no reference to any complaints surrounding psychological injury or bullying until the period immediately surrounding her last workday. I reject that submission, as it stands in contrast to the decision of Roche DP in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 (Baker). In that matter, the Deputy President made it clear that the absence of complaints to a treating practitioner is not itself the sole factor in determining whether an applicant had suffered a psychological injury. The Deputy President noted:

"80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept the worker's assertion that certain events occurred and that they affected the worker in certain way.

81. However, on its own, the absence of such a complaint to Mr Baker's general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the Arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, but Mr Baker had complained to the respondent's representatives of bullying and harassment from as early as July 2012.

82. Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work,... and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.

83. The arbitrator's conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.

84. Moreover, as Beazley JA (as Her Honour then was) (Campbell and Macfarlane JJA agreeing). He explained in 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 (that is, to have understood or believe his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person suffering symptoms, which properly diagnosed, constitute an illness."

17. At [85] in Baker, the Deputy President did, however, note that absence of complaint to a general practitioner may be entitled to significant weight if a worker fails to complain of bullying and harassment for several months after they ceased work, however, that is not what happened to Mr Baker's case.

18. In this matter, there is no issue the applicant consulted her general practitioner Dr Cunha on 17 August 2020, at which time her doctor indicated she displayed symptoms and signs consistent with an acute stress reaction. Dr Cunha noted:

"My first impression at that time was that she was displaying symptoms and signs consistent with acute stress reaction. Ms Buttenshaw presented with insomnia, anxiety, depressed mood and significant weight loss (greater than 5% of her body weight). These symptoms started insidiously during the year of 2019 as a result of psychological injury over the course of her employment as a caseworker and reached their full clinical expression in the eight weeks preceding our first consultation. I have noticed Ms Buttenshaw absence of any prior health diagnosis which makes the cause of this presentation clear and related to the cause of her employment."

19. On the same date, Dr Cunha advised the applicant to take time off work for her mental health and to engage with a clinical psychologist.

20. Mr Grimes also noted that when the applicant consulted her general practitioner via phone on 3 August 2020, after a meeting at work concerning an incident involving interaction with the police, the applicant made no mention of that meeting as a cause of her problems. In my opinion, the absence of reference to the meeting in the context of the applicant talking about work-related stress is instructive. In my view, it stands contrary to the respondent's submissions, in that the applicant did not mention the work meeting in relation to the police as a catalyst for the onset of her problems.

21. The relevant clinical entry for the telephone consulted on 3 August 2020 provides:

"Patient works as a case manager.

Is very stress [sic] with work.

Asking about advise [sic].

She is due to speak with her supervisor regarding current work arrangements.

Her work requires a lot of interactions and long days on call.

At first it was very good and she was coping fine, but recently it offers too much and thinks that she need [sic] to have a break and have some help.

I have suggested a face-to-face appointment to discuss after meeting with her supervisor.

May have to have a MHTP [Mental Health Treatment Plan] and referral to psychologist."

22. An entry of a face-to-face visit on 17 August 2020 is headed "burnout” in reference to symptoms since January 2020. Under testing by her general practitioner on that occasion, the applicant scored high for stress and moderately for anxiety and depression.

23. On 20 August 2020, the applicant again attended her doctor at which point she described the trigger for her symptoms dating back to December 2019, involving "targeted bullying from work colleagues regarding an ethical matter which she has since filed a formal complaint about in March." On that occasion, the diagnosis was acute stress reaction. The applicant was placed on antianxiety medication.

24. On balance, I find the applicant suffered a work-related psychological injury. In so finding, I prefer the views of her general practitioner Dr Cunha, treating clinical psychologist Sue Ellen Taylor and applicant's IME Dr Chow. Each of these practitioners made a finding of psychological injury. Absent evidence which would suggest the histories obtained by them are inaccurate, I accept the views of the treating practitioners as having substantial weight. The findings of Ms Taylor, clinical psychologist are broadly consistent with those of IME Dr Chow, who both diagnosed an adjustment type disorder, which is plainly a recognisable psychological condition. Dr McDonald’s view that the applicant did not suffer a psychological condition stands alone and is contrary to the prescription of anti-depressant and anti-anxiety medication to the applicant by her treating practitioners.

25. Accordingly, I find the applicant suffered a psychological injury to which her employment was the main contributing factor.
    
    

Defence under section 11A

26. The respondent raises a defence pursuant to section 11A of the 1987 Act. The defence is raised in the alternative to the primary submission that the applicant did not suffer a psychological injury. Having found such an injury took place, I now turn to the respondent’s defence that the whole or predominant cause of that injury was the reasonable actions of the respondent with respect to discipline and social dismissal.

27. 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 v Sinclair [2005] NSWCA 465.

28. "Wholly" and "predominantly" are separate concepts, and defining of one or the other needs to be considered. In Smith v Roads and Traffic Authority New South Wales [2008] NSWWCCPD 130 an Arbitrator made a finding that the subject injury was wholly or predominantly caused by actions taken by the respondent employer. Snell ADP (as he then was) said at [62] that the concepts "wholly" and "predominantly" are different and if such findings were to be made “it needed to be one or the other".

29. The phrase "wholly or predominantly caused" has been held to "mainly or principally caused". It says that causation to be applied is that set out Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.

30. The basis of the defence under section 11A in this matter is the respondent says its actions concerning discipline and/ or dismissal were the predominant cause of the applicant's injury, rather than the whole cause. Consistent with the reasoning in Hamad v Q Catering Ltd [2017] NSWWCCPD 6, the respondent has provided an opinion from Dr McDonald as to the predominant cause of the applicant's injury.

31. The medical basis for the defence is set out in the second report of Dr McDonald dated 17 March 2021 and found at page 1 of the respondent's AALD. In that report, Dr McDonald was specifically asked whether the employer’s actions in relation to discipline and/or proposed termination were the predominant cause of the symptoms, and replied as follows:

"Yes.

When I interviewed Ms Buttenshaw, she stated that her memory of the events around the proposed termination was that she saw her general practitioner and submitted a Workers Compensation claim prior to becoming aware of any threatened termination from work.

The information you have provided suggests that Ms Buttenshaw was made aware that her job was in jeopardy on about 31 July 2020, and this was related to an incident between police and Ms Buttenshaw with her partner in which police determined that she was not a fit person to be supporting young people in police stations or to enter sensitive areas of police stations.

The information you have provided indicated that Ms Buttenshaw made her Workers Compensation claim on the same day that she was to be terminated.

Whether the proposal could terminate Ms Buttenshaw's employment was appropriate or not is an industrial issue, not a psychiatric issue.

However, in my opinion on the balance of probabilities, Ms Buttenshaw's anxiety and stress escalated on the day she was to be terminated, as indicated by the fact that she saw her GP and made a Workers Compensation claim that day, and thus it seems reasonable to deduce that the employer's actions in relation to discipline were a predominant cause of her symptoms."

32. Even accepting Dr McDonald's observation that the applicant's anxiety and stress escalated on the day she was to be terminated, that does not obviate a finding that the applicant’s injury had already manifested itself before that time and that its causes were multi-factorial.

33. In this matter, I am not satisfied on the balance of probabilities that the respondent's actions with respect to discipline and/or dismissal were the predominant cause of the applicant’s injury. The evidence of the applicant's treating general practitioner and psychologist in my view refutes the contention that the disciplinary action taken against the applicant was the predominant cause of her injury.

34. The applicant sets out in detail the difficulties which she had in her interpersonal relationships with her colleagues, and issues relating to the stressful nature of her work. Moreover, both the general practitioner and treating psychologist take a history from the applicant of issues stretching back many months concerning problems in the workplace. Those problems predate the question of disciplinary action against the applicant. Indeed, as Ms Grotte submitted, Exhibit A which is an email from a supervisor of the applicant demonstrates that in early 2020 she was given an increase in pay in recognition of her efforts and as a reward for them. Notwithstanding this measure of appreciation on the part of the respondent to the applicant, she noted that she was experiencing ongoing issues both before and after that email was written to her in February 2020.

35. Whilst it is the case the applicant was placed on a performance improvement plan, contemporaneous evidence surrounding the formulation and implementation of that document reveals the applicant having expressed to her supervisors and colleagues issues which she was having in the course of her employment. At page 63 of the applicant's AALD filed 4 May 2021, there is a record of interview in relation to a matter from 10 March 2020. In that interview, the applicant noted that she had difficulty with two senior staff members who were employed in the residential care side of the respondent's business. The document recording that interview, which was generated by the respondent, noted:

"It is also confirmed that Chiana Buttenshaw has had a difficult relationship with some key staff members and has reported these difficulties to her manager in real time."

In other words, the applicant had expressed difficulties with co-workers before the factors relating to discipline and/or proposed termination. Indeed, the respondent’s own document supports the view that the applicant's difficulties with other staff members were well known.

36. The applicant expressed to her co-workers a view that she was overworked. They did not agree that this was the case. Nevertheless, this is further evidence that the applicant's work was having a deleterious effect on her. That aspect of the applicant's employment is not a matter which relates to either discipline or to proposed dismissal and as such does not fall within a category relied upon in the defence under section 11A. Further documentation in the AALD from pages 87 to 90 also demonstrate other issues in the workplace which predate disciplinary questions surrounding the applicant and relate to interpersonal difficulties with the applicant and her co-workers.

37. In an AALD dated 19 February 2021, the applicant attached at page 105 and following the notes of Peter Freer concerning an interview which he undertook with the applicant concerning her interaction with police and incident which gave rise to one of the matters which the respondent relies upon concerning discipline and termination. The relevance of this document is, in my view, that the notes make no mention of the applicant being advised that her employment was potentially in jeopardy. This is significant because in his second report dated 17 March 2021, Dr McDonald relied upon the fact the applicant was aware her employment might be terminated as being a causative element of her condition. Indeed, Dr McDonald makes it clear that on his view the applicant's anxiety and stress "escalated on the day she was to be terminated". That date was, according to Dr McDonald 31 July 2020, being the date of the interview between the applicant, Mr Freer, Ms Gordon and Mr Rich (who was present as the applicant’s support person). No mention is made in Mr Freer’s contemporaneous notes that the applicant's employment being in jeopardy. This being so, it is difficult to see how the interview on 31 July 2020 forms a sufficient basis for the views of Dr McDonald that questions of dismissal were the predominant cause of the escalation of the applicant’s condition at that time.

38. In a further statement attached to her AALD of 19 February 2021, the applicant noted there had been a formal mediation between her and her colleagues Mr Fraser and Ms Radford at the beginning of 2020. The applicant submits, and I accept that such meetings together with her having reported alleged misconduct of other staff members in or about December 2019 is evidence of the applicant experiencing conflict in the workplace which has plainly caused her emotional distress.

39. On balance, I am not satisfied that the predominant cause of the applicant's injury was the actions of the respondent with respect to either discipline and/or dismissal. In my view, the causes of the applicant’s injury are multi-factorial and accordingly, I find she suffered a work related injury in the cause of her employment with the respondent, with a deemed date of injury of 20 August 2020 (as amended without objection at the hearing).

40. I am also not satisfied that the respondent's actions with respect to both discipline and dismissal were reasonable in all the circumstances. As noted in the long line of authority of matters such as Irwin v Director General of Education NSWCC 14068/97, 18 June 1998 and Ivanisevic v Laudet Pty Ltd (unreported, trust CCJ 24 November 1998), it is necessary to examine the question of reasonable as one of fact, weighing all relevant factors. In doing so, the decision-maker is required to have regard not only to the end result but to the manner in which it was effected. Those decisions were cited with approval by the Court of Appeal Commissioner of Police v Minahan [2003] NSWCA 239.

41. The test of reasonableness is an objective one in which the consequences of the respondent’s conduct must be weighed against the reasons given for that conduct (see Ritchie v Department of Community Services [1998] NSWCC 40; [1998] 16 NSW CCR 727, per Armitage J).
42. In this matter, I am not satisfied on balance that the respondent's actions with regards to both discipline and proposed dismissal were reasonable in the circumstances. The difficulties which the applicant had in her relationships with her co-workers were noted and reported as early as March 2020. Indeed, documents contained within the AALD dated 4 May 2021 show that management very likely approached issuing the performance improvement plan on the applicant from an unreasonable point of view.

43. In an email dated 14 August 2020, Mr Fraser sends to Ms Gordon an email in which he attached the performance improvement plan. That email also sets out that the applicant had flagged potential workplace health issues with Mr Fraser, to which his response was it would be best for the applicant and everyone if she could simply do the performance improvement plan. That attitude is, in my opinion, dismissive of the applicant's concerns regarding her health which were expressed on his own evidence to Mr Fraser, but which were not seemingly taken into account by management. In my view, the email suggests the respondent paid lip service to the applicant’s concerns raised in the meeting but was set on its course of action regardless of any matters raised. That inflexibility is not, in my opinion, reasonable in the circumstances of this case.

44. The email also concludes with the following "you might have found this overly soft – I know! I think it was the right thing to do and want her to have no excuses to get things back on track."

45. In my view, this correspondence is illustrative of an approach by management to the applicant which was not always in good faith. Therefore, having regard to the motivation behind the issuing of the performance improvement plan and the disciplinary action taken against the applicant surrounding it, I am not satisfied that the respondent acted reasonably in its conduct with respect to either discipline or proposed dismissal of the applicant.

46. For these reasons, the defence pursuant to section 11A will fail.

Payment of weekly compensation

47. At the hearing, the applicant amended her claim to a closed period between 20 August 2020 and 7 May 2021. The parties agree the PIAWE was $1,534.84. As previously noted, there is also no issue the applicant was totally incapacitated for employment during the period of that claim. The respondent has not relied upon any evidence to the contrary.

48. It therefore follows in light of my findings on the questions of injury and section 11A that the applicant will be entitled for the first 13 weeks of the period claimed to be paid weekly benefits pursuant to section 36 of 1987 Act at the rate of 95% of her PIAWE. Thereafter, for the balance of the period claimed the applicant is entitled to weekly benefits pursuant to section 37 of 1987 Act at the rate of 80% of her PIAWE. The calculations of the benefits to be paid to the applicant by the respondent are set out on page 1 of this Certificate of Determination and the Commission will make findings and orders accordingly.