WORKERS COMPENSATION COMMISSION

CERTIFICATE OF DETERMINATION This certificate is issued pursuant to s.294 of the Workplace Injury Management and Workers

Compensation Act 1998 Matter Number: WCC4360-2002 Applicant: Roula Fahed Respondent: ADT Security Pty Ltd Insurer: Allianz Australia Workers Compensation Insurer Claim No: 991202107382 Date of Determination: 17 July 2003 The determination of the Commission in this matter is as follows:

1. That the Respondent pay the Applicant weekly compensation from 6

Nov 2002 to 15 July 2003 under s.37 of the Workers Compensation

Act 1987.

2. Such weekly payments to continue in accordance with the

provisions of the Act.

A brief statement of reasons for determination is attached. Jennifer Robichaud Manager Arbitral Services By delegation of the Registrar

WORKERS COMPENSATION COMMISSION

STATEMENT OF REASONS FOR DECISION

Determination of Claim for Weekly Compensation by Way of Income Support (Workers Compensation Act 1987, Part 3 Division 2)

BACKGROUND TO THE APPLICATION 1. On 19 Nov 2002 Roula Fahed (‘the Applicant’) lodged an ‘Application to

Resolve a Dispute’ (‘the application’) in the Workers Compensation

Commission (‘the Commission’). The Applicant’s employer at the

relevant time was ADT Security Pty Ltd (‘the Respondent’). The

Respondent’s workers compensation insurer at the relevant time was

Allianz Australia Worker’s Compensation (NSW) Limited (‘the Insurer’).

2. The basis of the Applicant’s claim is that she suffered a total incapacity

for work that arose out of and in the course of her employment with the

Respondent as a National Sales Coordinator.

3. The Applicant claims to have suffered a psychological injury, for which

medical expenses and weekly payments of compensation is payable.

That injury has been diagnosed by Dr Smith as an adjustment disorder

with depressed and anxious mood. The injury occurred in the period 25

February 2002, when the Applicant was promoted to the position of

National Sales Coordinator with the Respondent, to 12 March 2002

when she was removed from that position. The Applicant alleges that

she suffered the psychological injury because of the stress on her when

National Sales Coordinator, and as a consequence of her removal from

that position. She claims that this stress resulted from the unspecified

and changing nature of that position, the lack of management and

infrastructure support provided by her employer while she was in the

position, and the unreasonable actions of the employer in summarily

removing her from that position.

4. The Applicant notified the Respondent of the injury in March 2002.

5. On 23 May 2002, the Applicant lodged a claim with the Insurer for

weekly benefits and medical expenses. The insurer accepted this claim.

6. However, on 17 October 2002, the Insurer advised the Applicant that it

denied liability for the claim medical expenses incurred from 5 November

2002 onwards. On 22 October 2002, the Insurer advised the Applicant

that it denied liability for income support from 5 November 2002

onwards.

7. The Insurer paid medical expenses and weekly payments of

compensation until 5 November 2002, when they ceased.

ISSUES IN DISPUTE 8. It is important to understand that the Respondent was not disputing that

the Applicant suffered a psychological injury. The real issues in dispute

were:

• Whether the injury occurred in the course of her employment and

whether the Applicant’s employment was a substantial contributing

factor to her injury (WCA s 9A). In this regard, the Respondent

argued that the Applicants’ injury arose from her own misperceptions

about what occurred in the course of her employment, which cannot

be objectively sustained, and cannot be taken into account in relation

to the development of her psychiatric condition.

• Was the Applicant, from 5 November 2002, totally or partially

incapacitated for work because of her injury? (WCA s 33)

• For what period was the Applicant totally incapacitated? (WCA ss 36

and 37).

9. In issue at the commencement of the arbitration, but abandoned by the

Respondent during the arbitration hearing, was the question of whether

or not the Applicant’s 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 transfer, demotion, promotion, performance

appraisal, discipline’ (WCA s.11A(1)).

10. Similarly, the Applicant did not pursue the claim with respect to her back

during the hearing. The claim with respect to her skin condition is said to

be associated with her psychological injury, and was previously

accepted as such by the Respondent.

JURISDICTION 11. The Workers Compensation Commission is established by the

Workplace Injury Management and Workers Compensation Act 1998

(s 366) to exercise functions under the Workers Compensation Act 1987

or any other related legislation. Subject to certain limited exceptions the

Commission has exclusive jurisdiction to hear and determine all matters

arising under that Act and the Workers Compensation Act 1987 (s 105

WIMWCA). The Commission aims to provide an independent, fair,

timely, accessible and cost effective system for the resolution of disputes

under the Workers Compensation Acts (s 367 WIMWCA).

12. Chapter 7 of the Workplace Injury Management and Workers

Compensation Act 1998 creates a ‘New claims procedures’ for the

resolution of workers compensation claims made after 1 January 2002.

Any party to a dispute about a claim may refer the dispute to the

Commission for determination except for a dispute about lump sum

compensation where only the person making the claim may refer a

dispute to the Commission (s 288 WIMWCA). A dispute about a claim

for weekly benefits and/or medical expenses can only be referred to the

Commission where the person on whom the claim was made either

denies liability for the claim or has failed to make a decision on the claim

in the required time (s289 WIMWCA).

13. The Workplace Injury Management and Workers Compensation Act

1998 and the Interim Workers Compensation Commission Rules 2001

set out the practice and procedure in relation to disputes in the

Commission. The Registrar has directed that I, as Arbitrator, constitute

the Commission to hear these proceedings (s 375 (2) WIMWCA, Rule

28). This decision is final and binding on the parties and is subject to

appeal or review only in very limited circumstances

(s 350, s 352).

WORKERS COMPENSATION ACT 1987 14. The Workers Compensation Act 1987 establishes a comprehensive

scheme for the payment of compensation to workers who are injured in

the course of their employment. Part 3 of that Act provides for the

payment of compensation benefits by way of weekly benefits, medical

and related expenses, non-economic loss due to permanent impairment

and pain and suffering and damage to property. The Act sets out the

way in which compensation entitlements must be assessed and paid

including the calculation of weekly entitlements, indexation of benefits,

method of payment and the reduction of benefits where other

entitlements or alternative compensation is payable.

15. Section 9 provides:

A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act.

Injury is defined in s.4. Relevantly it provides:

4 In this Act

''injury'' (a) means personal injury arising out of or in the course of employment;

(b) includes (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor: and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and

(c) ...

16. In Pearce v Department of Community Services (Unreported,

Compensation Court of NSW, 36726 of 1998, 19 May 2000) Acting

Judge Bagnall found the hostility, criticism and lack of support from Ms

Pearce’s supervisors, which she alleged had impacted on her

psychological state were (at paragraph 57 and 58):

…not the facts but were misconceptions of the situation by the applicant. Townsend v Commissioner of Police NSWC Matter No 8061 of 1989 McGrath CJ 17 February 1992 unreported is authority for the proposition that a misperception by a worker of an otherwise innocuous matter which misrepresentation/misperception leads a worker to develop a psychiatric condition does not constitute injury arising out of or in the course of employment. On the authority of Townsend I am satisfied that the applicant's relation to the development of her psychiatric condition. It follows that in relation to the development of that psychiatric condition, the only work matter that the court can take into account is the generalised complaints of stress made by the applicant.

17. Section 9A provides:

(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment, (e) the worker’s state of health before the injury and the existence of any hereditary risks, (f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment, (b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.

The question of what is a ‘substantial contributing factor’ to an injury for

the purposes of s.9A WCA has been considered by the Court of Appeal

in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138 and more

recently by Deputy President Byron in Chubb Security Australia Pty Ltd v

Annette Treverrow [2003] NSWWCC PD 17.

18. Section 33 of the WCA provides:

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

The WCA goes on to make provision concerning the extent and

calculation of weekly payments. In this case the parties were in

agreement that during any period of total incapacity found after 5

November 2002 the Applicant was entitled to be paid the statutory rate

fixed under s.37 for a single person aged over 21 with no dependants.

EVIDENCE 19. The Workplace Injury Management and Workers Compensation Act

1998 requires an Arbitrator to use his best endeavours to bring the

parties to the dispute to a settlement acceptable to all of them. Where

this does not occur, the Arbitrator makes an award or otherwise

determines the dispute. Parties are not permitted to object to the making

of an award by an Arbitrator who has first tried to facilitate a settlement

to the dispute (s 355 WIMWCA).

20. In this matter the parties attended a conference on 3 April 2003. Ms

Fahed was represented by her legal advisor, Mrs McTegg. A legal

adviser, Ms Edwards, represented the Respondent. At that conference,

the parties, with the assistance of the Commission, engaged in an

informal conciliation process designed to facilitate an agreed settlement

of their dispute. The parties were unable to reach a resolution of the

dispute, but were able to agree on a number of issues, and to define the

issues in dispute between them.

21. Due to circumstances beyond the control of the Commission, the parties

and their legal representatives, the matter was unable to proceed to

arbitration on that day and was adjourned at the end of the two and a

half hour conference, for arbitration. I was and remain satisfied that the

parties had sufficient opportunity to explore settlement and that they

were unable to reach an agreed settlement of the dispute.

22. The matter was then listed for arbitration on Monday 12 May 2003 at

9:30am, when the parties’ respective legal representatives appeared.

Unfortunately, the Applicant was not in attendance having been admitted

to Hospital over the weekend. In those circumstances, the arbitration

could not proceed and was adjourned to 19 June 2003. On that day the

Applicant, the parties’ legal representatives and witnesses attended, and

the arbitration proceeded, commencing at 9:30am and concluding at

4:10pm.

23. The Commission is not bound by the rules of evidence and may inform

itself on any matter and in such matter as it thinks fit (s 354(2)

WIMWCA). To the extent that it was logically probative and relevant to

the facts and issues in dispute the following oral evidence, given on 19

June 2003 was taken into account in making this determination (WCC

Rule 38):

For the Applicant:

Sworn evidence of Roula Fahed, the Applicant.

For the Respondent:

Sworn evidence of Christian Dorau. Sworn evidence of Susie Kodjoghlanian. Sworn evidence of Carina Demiirjian.

24. The evidence of Corina Demiirjian was not the subject of a statement in

evidence in the proceedings, and therefore not generally admissible in

the proceeding: Rule 16(2) Interim Workers Compensation Commission

Rules 2001. On the application of the Respondent pursuant to Rule

19(3) I granted leave for her evidence to be given in the course of the

arbitration, as I was satisfied that due to special circumstances it would

constitute an injustice if her evidence were not admitted. The special

circumstances related to the fact that the Applicant had requested that

Ms Demiirjian be present for cross-examination, the particular relevance

of her evidence to the issues in dispute, and confusion on the part of the

Respondent’s solicitor as to the requirements of the rules in the

particular circumstances. The injustice was that which might flow to the

parties were I to make a determination of the issues in dispute not

having had the benefit of hearing the evidence of Ms Demiirjian, who

was the Applicant’s direct supervisor during her final days National Sales

Coordinator for the Respondent.

Documentary Evidence 25. The following documents were in evidence before the Commission and

taken into account in making this determination:

For the Applicant:

a. Statement of Roula Fahed dated 30 May 2002.

b. Undated physiotherapy plan prepared for the Applicant by Kamal

Melhem, Physiotherapist.

c. Reports of Ms Natalie Callanan, Psychologist dated 23 August 2002,

3 October 2002, 9 October 2002, 11 October 2002, 11 November

2001.

d. Letter from Dr Leo Agagiotis, the Applicant’s General Practitioner,

dated 13 Nov 2002 and addressed to whom it may concern.

e. Medical Reports of Dr Howard Studniberg, the Applicant’s

dermatologist dated 12 August 2002 and 30 October 2002.

f. Medical Reports of Dr Selwyn Smith, Psychiatrist dated 24

September 2002, 21 October 2002.

g. Medical Report of Dr David McDowell, the Applicant’s neurosurgeon

dated 30 October 2002.

h. Report of Dr J Lim, Radiologist dated 13 May 2002.

i. Report of Dr Jeffrey Kuan, Radiologist dated 17 June 2002.

j. Nerve conduction report of Dr Raymond Schwarz dated 19 June

2002.

k. Medical Certificates signed by Dr Leo Agagiotis certifying the

Applicant unfit for work as follows

Date For Period 13/3/2002 13/3/2002 to 3/4/2002 Undated 4/4/2002 to 19/4/2002

15/4/2002 15/4/2002 to 15/5/2002 13/5/2002 15/5/2002 to 15/6/2002 Undated 16/6/2002 to 16/7/2002

Unreadable 17/7/2002 to 20/8/2002 14/8/2002 21/8/2002 to 21/9/2002

Unreadable Unreadable l. Copy Centerlink treating doctors report completed by Dr Agagiotis

and dated 3 February 2003.

m. Copy Centerlink medical certificate signed by Dr Agagiotis and dated

8 May 2003.

n. Report from Dr Agagiotis dated 16 June 2003.

o. Paid account from Dr David McDowell dated 19 September 2002 in

the sum of $250.00.

p. Copy fax from the Insurer to the Administration Manager, St John of

God Hospital dated 20 May 2002, 22 May 2002, 27 June 2002, 26

July 2002, 17 September 2002, 17 October 2002, 18 October

2002,27 September 2002, 17 October 2002, 25 October 2002.

q. Letter from Robyn McDonald, Social Worker, St John of God Hospital

to the Insurer dated 18 October 2002.

r. Letters from the Insurer to the Applicant dated 22 October 2002.

s. Copy email re National Cordination (sic) Centre dated 28 February

2002 from Christian Dorau to Roula Fahed.

t. Copy email re DICOS – SALES LEADS dated 6 March 2002 from

Roula Fahed to Susie Kodjoghlanian.

u. Copy email re Reports of Leads for this week… dated 8 March 2002

from Christian Dorau to Roula Fahed.

v. Copy email re Call Ticket Number is 00045929 dated 8 March 2002

from Christian Dorau to system support.

w. Tyco International Screen Dump dated 26 August 2002 setting out

Ms Fahed’s leave entitlements and leave taken.

For the Respondent:

a. Statement of Roula Fahed dated 30 May 2002.

b. Statement of Christian Dorau dated 22 August 2002.

c. Statement of Susie Kodjoghlanian dated 3 July 2002.

d. Statement of Felicity Lockyer (undated and unsigned)

e. Psychological assessment from Ms Jill Farrelly, the Respondent’s

Clinical Psychologist dated 25 March 2003.

f. Medical Report from Dr Janelle Miller, the Respondent’s Psychiatrist

dated 20 June and 18 July 2002.

g. Copy St John of God Hospital records and notes relating to Ms

Fahed’s admissions.

h. Copy Dr Agogiotis’ treating notes.

26. The Applicant’s documents numbered l, m and n and s to w, and the

Respondents documents numbered g and h, are late documents, which I

allowed into evidence having exercised my discretion pursuant to rules

16(3) and 27(3) of the Interim Workers Compensation Rules 2001 to

avoid injustice. Of these:

1. the Respondent’s documents numbered g and h were relevant

medical records produced under Directions to Produce;

2. the Applicant’s documents numbered l, m and n were relevant

documents prepared by the Applicant’s treating doctor since the

application was filed, and necessary to the assessment of the

Applicant’s medical condition since the proceeding was commenced;

and,

3. the Applicant’s documents numbered s to w were documents

produced by the Applicant in rebuttal to allegations made by the

Respondent.

The circumstances surrounding the injury and nature of the claim 27. The Applicant is a 29 year old single woman with no dependents.

28. She commenced employment with the Respondent on 29 October 2001

as a temporary support operator in Technical Services. She became a

permanent employee on 21 January 2002. Ms Kodjoghlanian said that

during her probationary period Ms Fahed proved to be a ‘competent

worker’, although she was advanced sick leave because she had not

accumulated sufficient leave credits.

29. On 8 February 2002 Ms Fahed was interviewed for the role of National

Lead Sales Coordinator, in the ADT Call Centre. Ms Demiirjian

conducted the interview. Ms Demiirjian was herself very newly

employed as the Respondent’s Customer Services Operations Manager,

and was still settling into the organisation. Ms Fahed was successful in

her application for the position and was appointed National Lead Sales

Coordinator. Ms Fahed said that she understood from the job

description that she would be working independently, by herself, in this

role. She said it was to be, ‘a one person show doing sales leads only’.

Ms Fahed commenced work as National Lead Sales Coordinator on 25

February 2002. I note that no wage rise automatically accompanied this

‘promotion’, and that Ms Fahed later requested an increase in her

remuneration, which was approved but never eventuated.

30. The evidence disclosed that the role of National Lead Sales Coordinator

was a new one. It was the nascent idea of Mr Dorau, the Learning and

Performance Manager of Tyco Security (of which the Respondent is a

subsidiary). The nature and duties of the National Lead Sales

Coordinator, and of the new Lead Sales Department, were in

development rather than settled. Indeed the systems, size, role and

functions of the Lead Sales Department were not fixed, but were under

development as the department was established. Ms Fahed said in

cross-examination that she only discovered that the role, size and

functions of the Department were in development and not fixed, when Mr

Dorau arrived to help set up the Department, during its first week of

operation. In her evidence, Ms Kodjoghlanian said that she had

originally understood that the role of the National Lead Sales

Coordinator was to coordinate sales leads only, and that the role

changed when Mr Dorau came in.

31. Mr Dorau was present during the first week of the Lead Sales

Department’s operation. Ms Fahed said Ms Kodjoghlanian was not in

the office during that week. Ms Fahed said that after she commenced

work establishing the Department with Mr Dorau the nature of her role

changed. First, she was told she would be co-ordinating old sales leads

as well as new sales leads, and later Mr Dorau added relocations and

disconnections to the role, as these gave rise to potential sales leads.

For the first time she was alerted to the fact that she was likely to have

employees working under her. She said that she had no experience

managing people, and no real desire to do so.

32. In his statement Mr Dorau explained:

I identified the need for one central point to handle customer

enquiries for new business, relocations of existing products, product

upgrades and disconnections. The idea was that calls would come

into Ms Fahed’s area and she, or someone working with her, would

take whatever details were needed, log that information and then

forward the inquiries to the appropriate area within the company for

follow up action. These inquiries were to be monitored by Ms

Fahed’s department and a satisfactory conclusion was expected

within about four hours. That is, the client would be contacted and

dealt with by the appropriate section within that time,

In cross-examination, Mr Dorau agreed that Ms Fahed’s role was an

evolving role. He said that it had always been intended to deal with both

new and old sales leads, but that extra functions were added after Ms

Fahed started the job. Mr Dorau said that he took no part in Ms Fahed’s

selection for the job. He had been told by Ms Kodjoghlanian that Ms

Fahed was a person with, ‘a passion to get things done’.

33. Ms Fahed said that in the first week of the Department’s operation she

had worked extremely long hours trying to get things established, while

Mr Dorau directed her and evolved the nature of the Department’s role.

She said it was chaos. There was a bevy of problems that confronted

her. These included:

problems with the lack of suitable software. Ms Fahed said that Ms

Kodjoghlanian had refused Mr Dorau permission to buy the

software he wished to use, saying that the software need could be

developed internally. This proved impossible, resulting in Mr Dorau

personally purchasing the software he had originally wanted (ACT

2000) with his AMEX card towards the end of the week.

the absence of suitable software meant that leads had to be

recorded manually.

ignorance within other Departments of the role of Lead Sales

Department, and resistance to the requirements the new system

placed on them. She said she was constantly liaising with other

Departments. Ms Fahed said that the requirement that other

Departments and contractors report back to the Lead Sales

Department, within four hours, was a cause of resentment. She

said she had assumed that other Departments would be advised of

the coordinating function of the Lead Sales Department, but found

this was not the case.

the phone lines were not organised for calls to be directed to the

Department. Optus had to change the dialling prompts. Because

of this the Department only received a small number of calls in the

first week, from NSW only. In the next week, this was fixed. Ms

Fahed denied that calls were deliberately diverted away from the

Department in the first week.

Ms Kodjoghlanian had not assisted by refusing her permission to

buy a desk that was needed to store files on.

Computer facilities were not available for new Departmental staff.

34. Mr Dorau said that during the first week:

Ms Fahed and he had started tracking calls and configuring

necessary manpower.

Ms Fahed was engaged in looking at and designing procedures,

surveying other areas by phone, designing forms, reviewing logging

procedures and may have had to take two or three trips per day to

other departments.

He had purchased new software with his AMEX card. He denied

that Ms Kodjoghlanian had refused him permission to buy this

software saying that, “I may have asked Susie Kodjoghlanian, and

she might have pointed me towards Brian Piper.” Brian Piper is an

IT person employed by the Respondent.

He provided Ms Fahed with a copy of the email he sent to other

departments regarding the National Coordination Centre

(Applicant’s document s) He was not sure when the email was

generally distributed.

Efforts were underway to get the phone prompts changed so that

sales leads came to the new Department.

Mr Dorau agreed that there was general resistance to the changes

throughout the organisation.

35. At the end of the first week, Mr Dorau left the Department and spent the

next week at a conference at Uluru. He said that before he left he told

Ms Fahed that she was to continue to report to him, and that she was to

look to Ms Demiirjian and Ms Kodjoghlanian for assistance. It was

arranged that Felicity Lockyer would join the Department to assist Ms

Fahed in its second week.

36. In his statement, Mr Dorau said that during that first week Ms Fahed did

not appear to handle her stress well and became angry and expressed

her frustrations verbally.

37. Ms Fahed said that during the second week she continued to work

extremely long hours. Felicity Lockyer started, but had no allocated

computer to work on. The week was just as frantic as the last. She

worked long hours and continued to experience difficulty in getting the

role of the Department accepted.

38. Ms Kodjoghlanian said that after Mr Dorau left, Ms Fahed was to report

to Ms Demiirjian. Ms Demiirjian on the other hand said that when Mr

Dorau was in Uluru, she had a role in providing assistance to Ms Fahed.

She said that she had little input into the initial set up of the Department,

which was in Mr Dorau’s hands. She said that she noticed Ms Fahed

becoming more stressed and aggressive. Ms Demiirjian said that it was

not until the third week that it was decided by Ms Kodjoghlanian that Ms

Fahed should report to her.

39. In her statement, which was not contested, Ms Lockyer said:

a. When I transferred to NSL Carina Demiirjian … told

me that I would be on the same job level as Roula

Fahed but that Roula would be in charge because she

had been working with Christian Dorau developing

and setting up NSL and knew what was going on.

b. Roula spent a lot of time on the phone speaking to Mr

Dorau and also liaising with the various department

heads. She was rarely at her desk.

c. I found that the work was building up and I was the

only person doing it. During the first week in NSL I

found I had to come back to work to try to clear up the

backlog of paper work.

d. I thought Roula was stressed out during my first week

in NSL. She used to say things like. “I’m pulling my

hair out trying to get this working.” She would tell me

she was putting in a lot of time, having restless night

and taking work home. I also took work home and

went home crying most night (sic) because of the

backlog of work.

e. I went to see Carina and Susie to complain about my

workload and the number of personal calls that Roula

was making and not helping me with any of the work.

I also complained that her language on some of her

personal calls was very bad.

f. About 12th March 2002, I went to a meeting with Susie

Kodjoghlanian, Carina Demiirjian and Roula. At that

meeting we were told that we were no longer to report

to Mr Dorau but to Susie and Carina. I was only in the

meeting a short time and left.

g. Roula went on Sick Leave the following day and David

Coles was put in control of NSL. …

40. Mr Dorau said that while at Uluru he kept in regular contact with Ms

Fahed. He would ring her at least once a day, and she would ring him.

He said that towards the end of that second week she was leaving

messages and then speaking to him two to three times a day. He said

that she would complain that things were not being done and when he

checked with the Call Centre management, he would find that they were

in progress. He thought that throughout the first two weeks of the

Department’s operation Ms Fahed had shown both passion and

frustration. He said that she reacted to difficulties negatively, and tended

to display anger towards people and systems.

41. On 6 March 2002, Mr Dorau had his personal assistant circulate another

email instructing staff to direct disconnection requests to the Sales

Leads Department (Applicant’s document t). This email is expressed to

be, further to an email dated 1 March 2002 re National Coordination

Centre. It would appear likely that this was the general email containing

the text set out in the Applicant’s document s. On Friday 8 March 2002

Mr Dorau emailed Ms Fahed (Applicant’s document u) as follows:

Thank you for your report. Looks like your very busy. I appreciate the hard work and have a great weekend.

42. Ms Fahed said that she attempted to install the ACT 2000 software but

ran into difficulties. Eventually Ms Demiirjian took on this task. This

gave rise to an incident that led to further tensions, although it is not

clear whether it occurred in the second or third week. When Ms

Demiirjian attempted to install the software, she could not find the

installation manual. Ms Fahed had locked it in her personal drawer.

When Ms Demiirjian realised this she approached Ms Kodjoghlanian

who gave her permission to open Ms Fahed’s personal drawer in the

company of a staff member from administration. This she did and

retrieved the manual. Neither Ms Kodjoghlanian nor Ms Demiirjian

contacted Ms Fahed to seek her permission to do so, or to verify that the

manual was in fact in the drawer. They agreed that they did have her

mobile number and could have done so.

43. Ms Fahed said that she received a phone call from a friend at work who

told her that management were going through her locked drawer. She

was upset about this. The next day she demanded a meeting to discuss

the issue with Ms Demiirjian and Ms Kodjoghlanian. Ms Fahed said that

Ms Demiirjian remained silent during this meeting, and Ms

Kodjoghlanian dismissed her complaints about her personal space being

violated, saying that she should not have left the manual in the drawer.

Ms Kodjoghlanian said that agreed that this was the case, saying that

she could not understand why Ms Fahed was so upset, and commenting

that she had told Ms Fahed that people were free to go into her office

when she was not there. Ms Kodjoghlanian commented that from then

on Ms Fahed began walking around with her handbag with her all the

time, because her personal space had been invaded.

44. It is perhaps worth noting that Ms Demiirjian said that the ACT 2000 was

never successfully installed and attempts to use it were abandoned after

Ms Fahed left.

45. Ms Fahed said that many of her concerns remained unaddressed at the

commencement of the third week, when she was told that she was now

to report to Ms Demiirjian. Ms Kodjoghlanian had told other staff not to

worry about the four-hour turn around, in direct opposition to Mr Dorau’s

direction. Ms Kodjoghlanian denied this, but said in cross-examination

that she was unaware that Ms Fahed had been instructed to follow up

staff that did not report back within that four-hour period. She agreed

that staff were unclear about Ms Fahed’s role.

46. On Tuesday 12 March 2002 at 2:45pm, Ms Fahed received an email

asking her to attend a meeting with Ms Kodjoghlanian at 3:15pm that

day. At that meeting were Ms Kodjoghlanian, Ms Demiirjian and Ms

Fahed. The purpose of the meeting was to remove Ms Fahed from the

position of National Sales Lead Coordinator. The next day Ms

Kodjoghlanian made a written record of that meeting which reads:

A performance discussion was held with Roula Fahed on 12 March

2002; present at the meeting was Roula Fahed, Carina Demiirjian

and myself. The purpose of the meeting was to advise Roula that

she was unsuitable for the position of Sales Lead Coordinator Team

Leader. Roula held the position from 25/02/02 top 12/03/02. Roula

was given the option to remain in the Leads coordination team, not

as team leader, but as a team member or to return to her original

role as customer support officer in TSG. Roula advised that she

wished to return to TSG.

Roula also asked that she be provided in writing the reasons she

was unsuitable. As advised by Mark Rigney, I informed Roula that

the reasons were provided verbally in our discussion and there was

no written advice as this was not a disciplinary meeting. However I

offered to review her voice tapes with her to review her

performance. Roula did not respond to this offer.

The reasons Roula was unsuitable for this role include:

Unprofessional behaviour of swearing loudly and repeatedly

on the phone while on personal calls, prompting a formal

complaint from her fellow team member

Prompting staff from other departments to write complain

emails to CCC management to complain about CCC

processes

Not taking calls for extended periods of time, leaving all the

work to the one team member

Taking numerous and long breaks away from her work station

Making many lengthy personal calls

Not providing any guidance, assistance or encouragement to

the team member, causing team member to break down

crying on several occasions during the week

Verbal complaints to several staff members in the CCC

advising she was unhappy with her role lack of support, the

role being different to what she was promised, being

underpaid and communicated that she was unhappy with the

role.

Complaint received from relocations staff about inefficiency

from Roula

Review of tapes uncovered that when Roula was asked by a

customer with whom they (sic) were speaking she provided

the false name ‘Joanna”

47. Ms Fahed said that following this incident she went home and had been

so stressed by what occurred that she had not returned to work. She

became ill. She agreed that she had sworn during personal phone calls

in front of Ms Lockyer. She also agreed that she had complained to

other staff about the lack of support from Call Centre management, and

volunteered that she had told a colleague that Ms Kodjoghlanian was a,

“fucking bitch”.

48. Mr Dorau said that he had nothing to do with the decision to fire Ms

Fahed. Ms Kodjoghlanian said that the decision was made to demote

Ms Fahed because she had ‘a behavioural and attitudinal problem’. She

herself had observed Ms Fahed crying and she was still carrying her

handbag about with her. I asked Ms Kodjoghlanian why there had been

no attempts to counsel Ms Fahed and warn her before she was removed

from her position. Ms Kodjoghlanian said that it had needed immediate

action. Ms Demiirjian said that at the time of this meeting Ms Fahed was

not managing her work. Her perception of her role was different to what

it was evolving to be.

49. Ms Fahed has not worked since she left work on 12 March 2003.

Payments from her employer ceased and she subsequently made a

workers compensation claim for medical expenses and weekly

compensation for a psychological injury. That claim was accepted, but

ongoing liability has been denied from 5 November 2002 onward. When

liability was denied, Ms Fahed was being treated as an inpatient at St

John of God Hospital. As a result of the insurer’s decision to stop paying

for her medical expenses she was discharged. She is now in receipt of

sickness benefits.

The Applicant’s Medical Treatment and Investigations 50. The Applicant was treated by her General Practitioner Dr Agagiotis, Ms

Natalie Callanan, a Psychologist, and Dr Selwyn Smith, a Psychiatrist. It

should be noted that Dr Smith originally examined Ms Fahed for the

purpose of preparing a medico-legal assessment for the Respondent.

He later treated her when she was admitted to St John of God Hospital.

She has been diagnosed as suffering an adjustment disorder with

depressed anxious mood.

51. Ms Fahed was treated with medication and underwent a cognitive

behavioural intervention program conducted by Ms Natalie Callanan,

psychologist from August to October 2002. On 18 September 2002, she

was admitted to St John of God Hospital. There she was treated by Dr

Smith who varied her medications.

52. In Ms Callanan’s report of 23 August 2002 she reported that at her initial

interview with Ms Fahed, Ms Fahed, “appeared nervous, teary and

uneasy when recalling the events the events in the workplace …”. On

the Beck Anxiety Inventory Ms Fahed’s score placed her, ‘in the severe

range of intensity for self-reported symptoms related to anxiety’. On the

Beck Depression Inventory her score placed her, ‘in the severe range of

intensity for self-reported symptoms related to depression’. In Ms

Callanan’s opinion:

Ms Fahed is experiencing stress related symptoms which are in

response to the reported workplace incident. Ms Fahed stated that

she is undergoing physiotherapy and the care of her GP, which

appears to be treatment for her stress related condition. Ms Fahed

did not appear to be malingering during any of the consultations.

Ms Callanan recommended and commenced Ms Fahed on a course of

Cognitive Behaviour Therapy.

53. On 3 October 2002, after Ms Fahed’s hospital admission, Ms Callanan

wrote to Dr Smith and noted that Ms Fahed was still experiencing

‘severe symptoms’ and having difficulty working through her feelings.

On 11 October 2002, Ms Callanan wrote to the insurer stating that:

Ms. Fahed continues to present in the severe range of anxiety and

depression. She is under the care of Dr. Selwyn Smith

(Psychiatrist) at St John of God Hospital, Burwood as a result of

suicidal tendencies. … Ms. Fahed's medication is under Dr. Smith's

review and she attends various appointments with other

professionals for stress-related symptoms.

Ms. Fahed is attempting to resolve the issues that have led to her

current emotional state. She completes tasks between sessions to

reframe her negative thinking patterns that have been in response

to the stress-related events in her workplace. Ms, Fahed stated

during the review consultation that she fears for her future and is

having difficulty coping with her situation, At this time, she appears

motivated to resolve these issues in order to move forward from

this situation and to re-join the workforce.

As a result of the consultations held to date with Ms. Fahed, I am of

the opinion that she is continuing to experience stress related

symptoms, which are in response to her workplace situation.

Further sessions of the Cognitive Behavioural Intervention Program

are recommended to address the severe levels of stress-related

anxiety and depression symptoms Ms. Fahed continues to

experience. During these sessions, we will also continue to address

the issue of returning to work. …

54. Since being discharged from Hospital Ms Fahed has been under the

care of Dr Agagiotis and Ms Callinan. In his report of 16 June 2003, Dr

Agagiotis conveniently sets out the history of Ms Fahed’s treatment and

his view of her present condition.

I have been looking after this lady as her family practitioner since

19 December 1998, and know her medically and psychologically

well.

Ms Fahed is a twenty-nine year old woman whose current

problems began from the commencement of her promotion from

Technical Support Operator at ADT Security to National Sales Lead

Coordinator. At the time she was apparently working extremely

long hours up to 17 hour days prior to the onset of her current

problems. This placed her under extremely high levels of stress

and inappropriate treatment from her manager at the time. The

impact of this stress resulted in physical as well as psychological

illness. After attempts to resolve the issue with her manager

directly, failed, she notified senior management. Ms Fahed stated

that her complaints were not addressed and whilst on leave for her

physical conditions, payments from her employer were ceased.

She subsequently contacted WorkCover to help her in her situation.

Ms Fahed was then assessed by a psychiatrist assigned by

WorkCover and later by another independent psychiatrist. Her

wages were subsequently reinstated and she was placed on a

rehabilitation program. After her Depression and anxiety condition

quite rapidly and severely deteriorated she expressed suicidal

thoughts and intention and was subsequently admitted to St John

of God hospital under the care of Dr Selwyn Smith. Under his care

she had begun to make sound good progress but her condition

once again took a dramatic turn for the worse when she was quite

abruptly discharged from the hospital after Allianz Workers

Compensation Ltd, decided to cease all cover of Mrs Fahed on the

5 November 2002. On the 19 December, she presented to Auburn

Hospital and subsequently transferred to Bankstown Hospital after

taking an overdose of Valium. She has continued to see her

psychologist and myself.

I believe her current condition to be 100% related to her work

stresses.

Ms Fahed is currently not able to perform any work because of her

psychological and physical state.

In December 1999, Ms Fahed developed Depression and suicidal

thoughts and admitted herself into South Pacific Private Hospital

under the care of Dr Joe Fleigner for treatment. This in my opinion

was not in any way related to her current situation. This was

obviously a situation caused by the series of events outlined above

which resulted in Ms Fahed's current condition. Ms Fahed's

previous psychological state was not a factor on this condition.

Whether a patient has had a prior psychological condition or not,

that does not in any way stop them from getting ill in the same way,

and it does not in any way mean that the prior condition caused or

was in any way related to the current mental state.

I am confident as to Ms Fahed's honesty and am of the opinion that

she is genuine and in no way malingering.

Other Psychological Problems and Treatment 55. In cross-examination, Ms Fahed was challenged concerning her

statements to both the Commission and those treating her that she had

no history of psychological problems. As can be seen from the excerpt

from Dr Agagiotis’ report above this is not the case. She agreed that in

December 1999 she had felt down and did not want to be alive, and had

booked herself into the South Pacific Hospital for a week, in response to

an advertisement. She said it had been like a retreat with lots of walks

on the beach and positive affirmation. She had seen Dr Fleigner twice in

the week and had not been prescribed any medication.

56. Ms Fahed agreed that she had spoken to Dr Agagiotis about stress on

two occasions in 2001. She explained that in early 2001 there had been

a lot of stress in the family due to her mothers illness, and that she was

not well herself. In June that year, she was upset having been sexually

harassed at work. Dr Agagiotis had suggested she try St John’s wort,

which she had taken for a week. She denied that she was depressed at

these times, stating that she now knows what depression is, and what

she felt then was not depression.

57. Ms Edwards also asked Ms Fahed about notes taken while she was at

St John of God hospital concerning the lack of support she felt from her

family. Ms Fahed agreed that she did fell a lack of support and

explained that at the time her families’ attention was focussed on her

sister’s upcoming wedding.

Medico-Legal Assessments 58. The first medico-legal assessment was Dr Smith’s. He again reported on

24 September 2002 after Ms Fahed had been admitted to St John of

God Hospital. His conclusion was, consistent with his original opinion,

that:

Ms Fahed demonstrates significant and overwhelming anxiety and

indeed displays diagnostic criteria for an Adjustment Disorder with

Depressed and Anxious Mood in response to a significant

occupational problem.

In his letter of 21 October 2002 Dr Smith said that Ms Fahed’s

‘psychological decompensation’ followed a work related conflict

associated with her difficulties with Ms Kodjoghlanian. He observed that,

“Ms Fahed continues to harbour significant anger and resentment

towards Ms Kodjoghlanian and the manner in which she was treated”.

59. The Respondent relied on two reports from Dr Janelle Miller. The first

dated 20 June 2002 reported:

OPINION Diagnosis There is a mixed symptoms presentation, with an angry dysphoria

combined with panic attacks. The onset, course and resolution of

her symptoms suggests that the most likely diagnosis is Adjustment

Disorder with Mixed Depressed Mood and Anxiety, although she

may also qualify for the diagnosis of Panic Disorder with

Agoraphobia.

Relationship of the Psychological Condition to Employment

Ms Fahed has a past history of some depressive symptoms in the

context of grief, but she did not indicate any significant emotional

difficulties prior to the workplace incidents.

There appears to be an association between the workplace

problems and the onset of her psychological symptoms, which she

dates to the incident where- her locker was entered without her.

Authorisation. However, the panic attacks became pronounced

and she developed overt physical illness, including pneumonia and

shingles. She may have been becoming unwell in the weeks

before. Her symptoms appeared to improve once there was

acknowledgement of her workplace difficulties by management, but

this also coincides with improvement in her physical condition.

These factors suggest that the workplace events probably were a

substantial contributing factor to her psychological condition, even if

they were not the main or sole cause. Ms Fahed maintains the

tasks she was expected to perform were impossible in the

circumstances Further, she believes she was harassed and

victimised by her immediate supervisor.

Dr Miller considered that the issue of whether Ms Fahed’s work was a

substantial contributing factor to Ms Fahed’s condition required an

assessment of the reasonableness of her treatment by the Respondent.

She concludes that the leave Ms Fahed had taken appeared reasonable

in the circumstances and that, “… she is now probably fit for her pre-

injury duties, provided the difficulties with her co-workers can be

resolved.”

60. In her second report, dated18 July 2002, written after viewing the

statements obtained from Ms Fahed co-workers, Dr Miller considered

that Ms Fahed’s promotion to a position, the duties of which were

uncertain, might not have been reasonable. She concluded, however,

that she would only expect ‘temporary incapacitating emotional

symptoms’ form such an incident, lasting 1 – 2 weeks.

61. The Respondent also relies on a report, dated 25 March 2003, from Ms

Jill Farrelly, a Psychologist. Ms Farrelly noted that since her discharge

from St John of God Hospital, Ms Fahed had felt suicidal in December

2002 and was admitted to Auburn Hospital and then to Banks House

where she remained for two days. She had also developed a gambling

problem. Ms Farrelly administered a Minnesota Multipsych Personality

Inventory – 2 and noted that Ms Fahed had a markedly high score on the

hysteria scale (89) and a moderately high score on the depressive scale

(79). She concluded:

Ms. Fahed has claimed work related-stress based on a roughly two week period in March 2002. She has said that in this period she was largely unsupported in the development and implementation of her new job description which took her into unchartered waters (not her term). There are factual issues Involved here, but regardless of these, Ms Fahed became increasingly psychologically incapacitated following cessation of work on 13.2.02, against expectations, as she should have psychologically improved following removal from the alleged source of stress. She continued to go downhill psychologically, again, against expectations, and stated that she derived only some benefit (with regard to panic attacks) as a result of psychiatric hospitalisation at St. John of God Hospital, and virtually no benefit from an extended course of psychological intervention. During the course of this psychological intervention she expressed suicidal ideas and was admitted to hospital. She had also developed Panic Disorder since she ceased work, according to her.

Not long after her discharge from St John of God Hospital she took an overdose of Valium. How large this overdose was, i.e. how serious a suicide attempt it was I do not know, but after being taken to Auburn Hospital she was admitted to Banks House, a psychiatric hospital, for two days. The suicide attempt is likely to have been regarded as genuine. After this, Ms. Fahed developed a gambling problem which is currently under treatment At this stage, it probably does not represent pathological gambling, and it is likely to be a symptom of depression. It would appear likely that the depression which developed, in her admission to St John of God Hospital, represented a Major Depressive Episode. This depressive disorder, worsening with time instead of improving, makes it most unlikely that it was precipitated by a work situation now so far In the past. Major depression is of biochemical origin, having its cause in genetic makeup. With regard to Panic Disorder, Ms Fahed is in the age-range in which it most typically presents. Again, there is a genetic contribution to the development of Panic Disorder. From the point of view of personality functioning Ms. Fahed appears to have “a hysteriod adjustment to life and may experience periods of exacerbated symptom development under stress. Some individuals with this profile develop patters of "invalidism" in which they become incapacitated and dependent an others.” Depression is still present but appears to have improved. She is still taking antidepressant medication and is still seeing a psychologist: two in fact; one for the gambling problem. I have to conclude that the worsening symptom picture as manifested by Ms Fahed was not attributable to the two week period in which she believed she was not getting the support she needed in a new position with a poorly established structure. This, if true, would be a probable cause of stress (i.e. resulting in an Adjustment Disorder with Mixed and Depressed Mood) but such an adjustment disorder should have abated with removal from the source of stress.

Medical Expenses 62. The only account produced by the Applicant is from Dr David McDowell

and relates to her back. This was not pursued in the course of the

arbitration and I make no finding with respect to it.

SUBMISSIONS 63. Both parties made oral submissions at the conclusion of the hearing.

Those submissions principally went to the facts. The Respondent did

make a submission, based Pearce v Department of Community

Services, that Ms Fahed’s complaints regarding her treatment at work

were misperceptions of her own, which led her to develop a psychiatric

condition. Ms Edwards submitted that the injury therefore did not arise

out of or in the course of Ms Fahed’s employment, nor was it one to

which Ms Fahed’s employment was a substantial contributing factor.

FINDINGS AND REASONS 64. I am unable to accept the Respondent’s submission based on Pearce v

Department of Community Services. The evidence before me points to

Ms Fahed’s perceptions of the events surrounding her appointment to,

terms as, and demotion from the position of Lead Sales Coordinator, as

being substantially accurate.

65. The evidence clearly demonstrates that no one, including Mr Dorau, had

a clear understanding of the role at the time Ms Fahed applied and was

selected for the position. There is no doubt that the role of Lead Sales

Coordinator, as it evolved, was substantially different from that which Ms

Fahed applied for. This was conceded by the Respondent’s witnesses,

most notably by Ms Dremiirjian who interviewed Ms Fahed for the

position. I accept that Ms Fahed applied for an individual position as of

Lead Sales Coordinator in the expectation that it would be a solitary role,

supported within the call centre.

66. When she commenced work, she found that the role and the Lead Sales

Department was being invented as it went. The precise functions of her

new role was still a work in progress, as were the practices, procedures

and software she was to use. The requirement that she report to Mr

Dorau, who was not a regular part of the administrative structure of the

Call Centre, took her outside her normal boundaries and beyond the

normal management structure in which she would be expected to

operate. She was expected to deal with organizational resistance to the

changes being implemented, while finding herself in a role she had not

expected and did not necessarily want.

67. I agree with Dr Miller’s assessment that promoting Ms Fahed to this new

position was not a reasonable action by the Respondent. It is clear that

she did not have the understanding of the administrative structures and

lines of accountability within the call centre, which were required of her

new role. Mr Dorau noted that she would complain to him that things

were not being done, but when he made inquires he would find that they

were in progress. He, of course, could negotiate those structures.

68. I accept that the Respondent provided inadequate equipment for Ms

Fahed’s new Department to fulfil its role. The absence of required

working software and of a computer for Miss Lockyer is evidence of this.

I accept that throughout this time Ms Fahed was working extremely long

hours.

69. I find that there was clear evidence available to Mr Dorau, Ms Demiirjian

and Ms Kodjoghlanian, that Ms Fahed was stressed by the demands

placed on her by her new position. Mr Dorau observed that she did not

handle her stress well and was angry. Ms Demiirjian did not think she

was coping well and noted that she was aggressive. Ms Lockyer

observed that she was ‘stressed out’. Ms Kodjoghlanian after the locked

draw incident, on her own evidence, had reason to question how Ms

Fahed was coping.

70. I am puzzled that nothing was done to address the difficulties that Ms

Fahed was facing, nor the complaints which Ms Kodjoghlanian alleges

were made about her. It strikes me as a very radical and entirely

unreasonable step to remove Ms Fahed from her new position, in her

third week, without warning or notice. The reason given for her

demotion in Ms Kodjoghlanian’s notes of the meeting of 12 March 2002

have certainly not all been proven before me, and do not appear to

justify her summary dismissal without warning or counselling. Indeed, I

am not persuaded that I have been told the whole truth concerning the

reasons for that decision, because what I have been told appears so

manifestly unreasonable. What evidence I do have presents a picture in

which Ms Fahed was removed from the position of Lead Sales

Coordinator in a harsh and unfair manner. It is also to be noted that this

occurred within days of Ms Fahed being advised that she should now

report to Ms Demiirjian, and in apparent disregard of the positive

comments made by Mr Dorau at the end off the previous week

concerning Ms Fahed’s performance. It is perfectly understandable that

being summarily demoted in such circumstances would have an adverse

reaction on Ms Fahed, who everyone agrees was already showing signs

of stress.

71. There is no dispute that Ms Fahed suffered a psychological injury

diagnosed as Adjustment Disorder with Depressed and Anxious Mood. I

am satisfied that injury arose out of or in the course of her employment

with the Respondent, and that her employment was a substantial

contributing factor to that injury.

72. There is evidence that Ms Fahed did not disclosed a prior period of

hospitalisation when she was psychologically vulnerable, and that she

had made prior complaints to Dr Agagiotis that she was suffering stress.

In the absence of any evidence to the contrary, I accept Ms Fahed’s

explanation of her 1999 hospitalisation, and note that there is no

evidence that Ms Fahed was suffering for a psychiatric condition at that

time. I also note that in Dr Agagiotis’ view there is no relationship

between that earlier period of hospitalisation and her present injury.

With respect to the complaints of stress Ms Fahed made over time to Dr

Agagiotis, these impress me as no more than a reflection of the ordinary

incidents of life, and there is no evidence that they have any relationship

to Ms Fahed’s present injury. They do not lead me to doubt that Ms

Fahed’s employment was a substantial contributing factor to her injury.

73. The issue that then arises for consideration concerns the length of

incapacity Ms Fahed has suffered because of that injury. In this regard

the Respondent urged me to accept Dr Miller’s opinion that the trauma

Ms Fahed suffered at work led her to develop an Adjustment Disorder,

which should only have incapacitated her for a period of two weeks, and

Ms Farrelley’s view that Ms Fahed is now fit for work. Against that view

are those of Dr Smith, Ms Callanan and Dr Agagiotis. Dr Smith’s last

report is dated October 2002. At that time he certainly was of the view

that Ms Fahed’s Adjustment Disorder continued to incapacitate her,

seven months after she had stopped working. Ms Callanan’s last report

is also dated October 2002. She expresses similar views to Dr Smith.

Dr Agagiotis’ report of June 2003 is the only recent report provided by

the Applicant. The reasons for that are principally due to the unexpected

delays in concluding these proceedings. Dr Agagiotis is firmly of the

view that Ms Fahed remains incapacitated and that the incapacity is

directly related to the events surrounding her employment with the

Respondent.

74. In resolving the differences between these opinions, I have been

strongly influenced by the fact that Dr Smith, Ms Callanan and Dr

Agagiotis have all been treating Ms Fahed (albeit Dr Smith initially

provided a medico-legal report for the Respondent), and have had the

advantage of assessing her over time, yet are all of substantially the

same view. I have also been influenced by the fact that Dr Miller

appears to have changed her position with respect to the duration of Ms

Fahed’s incapacity between her first and second reports. In her first

report dated 20 June 2002, Dr Miller said that Ms Fahed was probably

then fit for her pre-injury duties, yet in her second report she said that Ms

Fahed should have been out of work for no more than two weeks. No

explanation is given for this apparent change, nor is the view

reconcilable with that of those treating Ms Fahed. Ms Farrelley in her

report, dated March 2003, said that Ms Fahed is capable of returning to

her duties, ‘as they were before she was promoted into the new

position’. She made no comment on Dr Miller’s view that Ms Fahed

should have been incapacitated for one to two weeks. She was of the

view that when Ms Fahed was admitted to St John of God Hospital, she

was undergoing a major depressive episode unrelated to her work. I

cannot reconcile this with the opinions of Ms Callanan and Dr Smith,

who were in contact with Ms Fahed both before and during that

admission, and have both expressed the view that Ms Fahed continued

to suffer from an adjustment disorder at that time. On balance, I prefer

the views advanced by Dr Smith, Ms Callanan and Dr Agagiotis, who

had the advantage of observing and treating Ms Fahed at the time these

events occurred and accept that, as a consequence of her Adjustment

Disorder, Ms Fahed was totally incapacitated from the day she ceased

work until now and continuing.

75. In terms of the matters to be decided in this claim, this means that Ms

Fahed is entitled to be paid weekly compensation at the statutory rate for

a single adult person without dependants from 6 November 2002

onwards.

SUMMARY 76. In summary the resolution of the issues in dispute is as follows:

• Between 25 February 2002 and 12 March 2002, Ms Fahed suffered a

psychological injury diagnosed as an Adjustment Disorder with

Depressed and Anxious Mood arising out of or in the course of her

employment as a Sales Lead Coordinator with ADT Security Pty Ltd.

• Ms Fahed’s employment was a substantial contributing factor to her

injury.

• Ms Fahed was totally incapacitated for work as a result of her injuries

from 13 March 2002 to date and continuing.

• Ms Fahed has already been paid weekly compensation and

compensation for medical expenses up to and including 5 November

2002.

DECISION 77. For the reasons set out in this statement the decision in this matter is:

1. That the Respondent pay the Applicant weekly compensation from 6

Nov 2002 to 15 July 2003 under s.37 of the Workers Compensation

Act 1987.

2. Such weekly payments to continue in accordance with the provisions

of the Act.

P. H. Molony Arbitrator

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF P MOLONY, ARBITRATOR, WORKERS COMPENSATION COMMISSION.

REGISTRAR