To print this article, all you need is to be registered or login on Mondaq.com.
The Facts
Worker acquires psychological injury after being bullied by
employer
A worker was recruited by an employer following a history of
successful employment with multiple high-level companies. He was
employed by the employer as a Senior Director, Product Marketing
from December 2012 until July 2013.
During his employment, the worker alleged multiple difficulties
with his immediate superior. He said that she bullied him, had a
negative attitude towards him and criticised his work. She would
not provide him with information to assist with his work, was rude
to him in their conversations, and excluded him from conversations
with other management staff and from meetings.
This treatment resulted in psychological injury to the worker.
In January 2013, he began experiencing symptoms similar to vertigo,
even while he was merely sitting at his desk. He also suffered from
panic attacks and dizziness and would sometimes collapse.
On multiple occasions at work, he would struggle to get to the
bathroom, having to lean on walls to get there, and eventually
vomiting.
Worker has multiple jobs punctuated by periods of incapacity
for work
In July 2013, the worker finished his employment with the
employer.
He did not work again until March 2014, claiming that his
psychological injury made him incapable of working.
In March 2014 he started contract work with another
organisation, where he worked until July 2015, when his contract
was terminated.
The worker did not work between July 2015 and April 2016, again
claiming that his psychological injury made him incapable of
working.
In April 2016, he commenced employment with a third
organisation.
Worker lodges workers compensation claim
On 11 April 2016, the worker made a workers compensation claim,
alleging that he had suffered a psychological injury during the
course of his employment with the employer.
He sought weekly compensation benefits for the two periods
during which he could not work. Period 1was from 1 December 2013 to
2 March 2014. Period 2 was from 1 October 2015 to 18 April
2016.
The worker claimed that he was entitled to this compensation
under
section 33 of the NSW Workers Compensation Act 1987, on the
basis that he had suffered periodic total or partial incapacity for
work resulting from his psychological injury.
Employer disputes worker's claim and parties go to
arbitration
The employer's insurer accepted that the worker had
sustained a psychological injury during the course of his
employment.
However, the insurer did not accept that the worker had suffered
total or partial incapacity for work.
The parties therefore went before an arbitrator at the Workers
Compensation Commission to resolve this dispute.
case a - The case for the worker
case b - The case for the employer
In order to claim weekly compensation benefits for periods 1
and 2, the law requires that I establish that my workplace injury
resulted in an incapacity or partial incapacity to return to work
in suitable employment during those time periods. My medical
history clearly establishes this.
Although I suffered from vertigo prior to joining the employer,
it was many years ago and the incidents were isolated, with
complete recovery. The medical evidence in this case confirms that
the anxiety and depression I suffered at the employer's
workplace were a contributing factor to the vertigo I suffer from
now.
From the date I left the employer, through to March 2014
(period 1), I continued to be very sick, suffering episodic vertigo
and vomiting. My GP's consultation notes confirm that I also
suffered from a tight chest, headaches and increased heart rate. I
also went to numerous neurologist appointments and had a brain CT
scan in an attempt to pinpoint the reason for my symptoms.
I did contract work for a different employer from March 2014 to
October 2015, but while there, my injury continued to plague me. I
had panic attacks, vomiting and a sensation that the room was
spinning. Sometimes I would even collapse. There were numerous
times when other workers accompanied me to a cab to take me
home.
In July 2015, my contract was terminated because I was unable
to do my job properly due to my injury.
After that, I continued to experience vertigo attacks and
anxiety-related dizziness and was too ill to work during period 2.
I also had ruminations about the manager who had bullied me at the
employer. I saw a psychiatrist who diagnosed me with major
depressive disorder and I was prescribed antidepressants. I also
saw a neurologist who diagnosed me with psycho-physiological
dizziness syndrome.
Given that my injury at the employer resulted in an inability
to return to work in suitable employment during periods 1 and 2,
the arbitrator should grant my claim for weekly compensation
benefits.
We dispute that the worker had no capacity or a limited
capacity for work during periods 1 and 2.
Any incapacity to work alleged by the worker was not caused by
the injury he sustained in our employment. He already had bouts of
vertigo before he commenced work with us.
In March 2014, after leaving us, the worker found suitable
full-time employment. The fact that he was able to return to work
at that point demonstrates that he had capacity to work in suitable
employment, despite any ongoing symptoms.
Also, as a matter of common sense, if the worker was capable of
working full-time from March 2014, then he had at least a residual
capacity to work in suitable employment for some time prior to that
date (ie during period 1). Capacity to undertake work does not
change overnight from zero work capacity to current work capacity
on a full-time basis.
Further, contrary to any claims of deterioration, during period
1 the worker participated fully in recreational activities and
family life. An article in the Northern District Times dated 26
March 2014 shows that the worker had coached his daughter's
football team to victory in a local competition. In October 2014,
the worker received second place in the City of Ryde's Spring
Garden Competition.
In relation to period 2, the worker has given no satisfactory
explanation as to why his work capacity went from full-time in
September 2015 to zero in October 2015. He says that his contract
was terminated because he was not properly performing his job due
to his injury. However, the evidence does not support this claim.
In his performance review, his employer gave him a five out of five
for attendance and four out of five for contribution towards the
success of the project he was working on. The review noted that he
delivered to deadlines as required and was driven to deliver for
customers, the product and channel, and was a good fit for the
team.
The only medical record in evidence relating to any incapacity
during period 2 records that the worker's symptoms were
improving.
Finally, the worker has given no explanation as to why his
supposed inability to work is related to his original injury.
Period 2 occurred over three years after he ceased working for us,
and follows a full-time contract with a separate employer, for a
period of over one and a half years.
Given the evidence, the arbitrator must reject the worker's
claim for compensation in relations to periods 1 and 2.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
