Strotz v NSW Trains

Background

1. Due to the basis on which I have reached my decision in this matter, the factual background to the Application can be set out relatively briefly.
2. Ms Strotz was employed by NSW Trains as a Passenger Services Supervisor. From 20 October 2019 she was unfit to work due to a psychological injury, which she stated was the culmination of harassment to which she had been subjected by certain employees of NSW Trains over the course of approximately five years. She brought a claim for workers compensation, liability for which was accepted.
3. On 27 July 2020, Ms Strotz's treating practitioner, Dr Luke Johnson, a general practitioner, signed a WorkCover NSW Certificate of Capacity, which imposed a restriction on her working with seven named individuals ("Identified Co-workers"). I observe that that certificate was not in evidence, but is referenced in NSW Trains' written submissions. As Ms Strotz did not challenge the existence, date or effect of the certificate, I take those matters to be uncontroversial.
4. On 4 September 2020 Ms Strotz underwent an assessment by Dr Himalee Abeya, a consultant psychiatrist. The assessment was conducted at the request of NSW Trains, and took place by video link. In a report dated 20 September 2020, Dr Abeya stated: "SUMMARY OF FINDINGS ... I note that I have recorded numerous allegations made by Ms Strotz about various individuals that she works with. I have included this in the report as part of her narrative only. I cannot comment on the veracity of any of these events and indeed it is not my role to ascertain the accuracy of events mentioned. Yet Ms Strotz's perceptions of her work environment become relevant in terms of her mental health and in organising a safe return to work. As stated Ms Strotz described her perceptions of ongoing harassment from seven different colleagues over the past five years and her view that this has not been dealt with. She described gradually worsening symptoms of anxiety which appeared to have ultimately led to her leaving work in October last year. I agree that the best description for these symptoms given that she has had significant emotional outcomes as a result of her perception of stress, would be an adjustment disorder with symptoms of anxiety. I believe the distress she has experienced in addition to the symptoms would be sufficient for this diagnosis rather than describing it as understandable emotional reaction. With time away from work whilst her distress appears to have settled and she is now functioning normally (though it had impacted her occupational functioning previously) if she were returned to a similar environment where she perceives stress she is at risk of exacerbation of the symptoms again. Prognostically therefore whilst she is likely to remain largely stable exposure to significant degrees of perceived stress could indeed leave her vulnerable to relapse in the future. From an employment perspective what needs to be considered is Ms Strotz's current mental state and therefore capacity as well as the risks related to potential relapse. Admittedly she has been away from work to close upon a year which may appear a very long duration of time but I believe one of the barriers to her returning to work has not been the illness itself so much but her perceptions of an adversarial work environment. Her current mental state being relatively stable would make her able to attend to the inherent tasks of her role per se. Yet a return to her previous work environment would involve being exposed to the seven people she has perceived harassment from. Whilst as stated before I cannot comment on the veracity of these events the fact that it appears to have an impact on her emotional health would make it necessary to consider this in any medical outcome. Therefore whilst she is essentially fit for her role I do not find her fit to return to her substantive work location or indeed fit to return to a place she is likely to have regular contact with the seven people named by her general practitioner. Such a restriction would need to be considered permanent given the deep-seated nature of her cognitions in this relation. I therefore find her permanently unfit for her substantive position but fit for a similar position provided it is away from her previous location and the seven people mentioned. RECOMMENDATIONS Therefore in relation to the above-named Ms Judith Strotz for NSW Trains, her fitness for work is as follows: • Ms Strotz is permanently unfit for her substantive work location and unfit to return to work if it involves contact with the seven people mentioned in her doctor's certificate. • She is fit for similar work and any work pursuant to her training and experience provided the following restrictions can be accommodated: 1. In a different work location away from the seven mentioned colleagues." (Emphasis in original)
5. NSW Trains submitted that on 26 February 2021 it informed Ms Strotz that it had "decided to proceed with the recommendation of Termination on Medical Advice (TOMA)" and that it subsequently had discussions with Ms Strotz "regarding NSW Trains initiating the TOMA Policy". Again, there was no evidence led by NSW Trains of these matters, but as they were not challenged by Ms Strotz I take them to be uncontroversial.
6. Ms Strotz's employment with NSW Trains was terminated on medical grounds with effect from 28 June 2021.
7. On 11 April 2022 Ms Strotz sent an email to Robert Blanch, the Area Manager Hunter & Regional North for NSW Trains, in which she stated in part: "Please find attached my final workcover [sic] certificate clearing me for pre injury duties. As it's within the two year time frame from my dismissal I am applying for reinstatement into my previously held position as Passenger Services Supervisor GFN."
8. While the evidence on the point is not entirely clear, it appears to have been common ground that the medical certificate to which Ms Strotz referred in her email was a WorkCover NSW Certificate of Capacity signed by Dr Johnson on 28 March 2022. In that certificate Dr Johnson has ticked the box which states that the patient "is fit for pre-injury duties".
9. NSW Trains did not reinstate Ms Strotz to the position of Passenger Services Supervisor in Grafton. Consequently, Ms Strotz filed the Application on 11 May 2022.

Relevant legislation and principles

1. Sections 241, 242 and 243 of the Act relevantly provide as follows: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. ... (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. ... (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being - (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). ...
2. The operation of these and related provisions, albeit in predecessor legislation that was in relevantly the same terms, was considered by the Full Bench in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355 ("Cansino"). The observations of the Full Bench was subsequently accepted in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 ("Riley"). The Full Bench recently confirmed that the analysis in Cansino is applicable to the Act: Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales (No 2) [2023] NSWIRComm 1026 ("Potter") at [28].
3. It is not necessary to traverse those cases at any length. It suffices to make three observations: 1. whether and to what extent an order under s 243(2) is made is a matter within the Commission's discretion: Cansino at 13; Potter at [60]; 2. the fitness of an employee for employment of a particular kind is a "gateway" to the Commission exercising that discretion: Potter at [55]; and 3. a determination of fitness for employment "must necessarily be made on the basis of medical evidence": Cansino at 13; Riley at [112].

The questions to be determined

1. NSW Trains accepted that: 1. Ms Strotz was an "injured worker" (as that term is defined in s 240 of the Act); 2. she was dismissed because she was not fit for employment as a result of the injury she had received; 3. she applied to NSW Trains for reinstatement to her position as a Passenger Services Supervisor, based at Grafton; 4. that application was supported by a medical certificate signed by Dr Johnson on 28 March 2022; and 5. NSW Trains did not immediately reinstate Ms Strotz to the employment for which she had applied.
2. The Application was made within two years of Ms Strotz's dismissal. As a result, s 242(3) has no bearing on the Application.
3. Having regard to the matters accepted by NSW Trains or otherwise not in controversy, the only matter which goes to the Commission's powers that must be determined is whether Ms Strotz is fit for the kind of employment for which she has applied, namely as a Passenger Services Supervisor, based at Grafton. The Commission's discretion under s 243(2) would only be enlivened if the answer to that question is yes.
4. Even then, it would not automatically follow that a reinstatement order must be made: Cansino at 13; Potter at [60]. The Commission would still need to be persuaded to exercise its discretion in the manner sought by Ms Strotz.
5. A matter that would have a material bearing on that consideration is Ms Strotz's evidence and submissions which were highly critical of the conduct of at least some of the Identified Co-workers, and by extension of NSW Trains. I formed the impression, from reading her evidence and observing her during the proceedings, that Ms Strotz bears some resentment towards the Identified Co-workers and NSW Trains for what she regards as her mistreatment during her employment and in the termination of that employment. This raises concerns as to whether the employment relationship could be restored so as to allow for a safe and durable return to work for Ms Strotz.
6. It is not necessary to reach a concluded view on that matter. For the reasons which follow, I find that Ms Strotz is not fit for employment as a Passenger Services Supervisor at NSW Trains.

Ms Strotz's fitness for employment

1. NSW Trains submitted that Ms Strotz was not fit for the kind of employment for which she has applied and that consequently the Commission's jurisdiction under s 243(2) was not enlivened. It submitted in the alternative that, even if Ms Strotz's lack of fitness for the position was not a bar to the Commission's jurisdiction, it would preclude the Commission from exercising its discretion in her favour.
2. NSW Trains relied on two medical report: that of Dr Abeya of 20 September 2022 referred to above, and one prepared by Dr Abhishek Nagesh, another consultant psychiatrist, dated 2 August 2022.
3. Dr Nagesh saw Ms Strotz at the request of NSW Trains. The consultation took place in person on 27 July 2022. Dr Nagesh's report included the following: "DIAGNOSIS AND OPINION Ms Judith Strotz has alleged to being bullied, harassed, and not supported by the management since 2013 till she went off work in 2019. Because of the above alleged bullying and harassment she has experienced the following symptoms, which include anger, anxiety, sleep disturbance, low mood, lack of appetite, poor energy levels, and unable to concentrate. Because of the above alleged symptoms, I am of the opinion Ms Judith Strotz has suffered from an episode of adjustment disorder with depressed and anxious mood. Ms Judith has seen her GP for the above alleged symptoms where she has been treated with antidepressant medications escitalopram and also has been referred to multiple psychologists through whom she has received supportive psychotherapy, has been taught relaxation exercises and cognitive behavioural therapy. With the treatment received so far, her symptoms have completely remitted and currently she is not experiencing any depressive and anxiety symptoms and her mental state remains stable. Based on Judith's current mental state and since her symptoms are in remission for the last eight months, I am of the opinion Judith has the capacity to undertake the inherent role of passenger services supervisor, however, if she were to come in contact with the alleged bullies, her risk of relapse would be high. Judith has the capacity to work in an alternative location as a passenger services supervisor without coming in contact with the alleged bullies as coming into contact with the alleged bullies would exacerbate her depressive and anxiety symptoms. ... SPECIFIC QUESTIONS I provide the following answers to the questions raised in your referral letter: 1. Does Ms Strotz suffer from any medical condition/s, if yes, please confirm diagnosis and prognosis in detail. Ms Strotz, because of the alleged bullying and harassment at work, has suffered from an episode of adjustment disorder with depressed and anxious mood. She has received reasonable treatment with which her symptoms have completely resolved and the prognosis appears good. 2. Has Ms Strotz recovered since ceasing employment with NSW Trains? If so what improvement in Ms Strotz's health, circumstances or treatment led to this recovery and is the recovery likely to be durable? Ms Strotz has recovered since ceasing employment with New South Wales Trains. Her symptoms have been in remission since October 2021. ...The recovery is likely to be durable as long as she does not come in contact with the alleged bullies at work. ... 4. Outline Ms Strotz's vulnerability to relapse, in particular the likely effect on her mental health if she resumes working at NSW Trains and/or the individuals that she was previously restricted from being in contact with. Ms Strotz's vulnerability to relapse would be high in particular, there would be a re-emergence of her depressive and anxiety symptoms, if she resumes working at New South Wales Trains particularly if she comes in contact with the individual[s] that she was previously restricted from being in contact with. 5. If the above risk is assessed as low, an explanation as to the clinical reasoning The above risk is assessed as high. 6. Is Ms Strotz fit to be re-employed and to sustain employment as a Passenger Service Supervisor and to be able to work with the individuals with whom she was previously restricted from being in contact with? Ms Strotz is fit to be re-employed as a Rail Services Passenger Supervisor but she is not to be able to work with individuals with whom she was previously restricted from being in contact with. ... 8. Is Ms Strotz fit to undertake Category 2 Rail Safety Work? Ms Strotz is fit to undertake Category 2 Rail Safety Work based on her mental state and also as her symptoms are in remission, however, with the restriction that she is not to come into contact with the alleged bullies who have bullied her in the past." (Emphasis in original)
4. It is significant that the opinions expressed by Dr Nagesh accord with those expressed by Dr Abeya in her report of 20 September 2020.
5. Ms Strotz submitted that I should give little, if any, weight to the opinions expressed by Drs Abeya and Nagesh. In a statement filed on 4 April 2023 Ms Strotz stated: "7. I did have an approximately 45-minute zoom consultation with Dr Abeya and a half hour appointment with Dr Nagesh who NSW Trains see 'no reasons their opinions expressed should be doubted'. I attended at first fortnightly, then monthly visits with Dr Johnson from October 2019 until March 2022 and twice monthly visits with Psychologist Lynn Howell for Fourteen months who both after an extensive period of time feel I am fit to return to work with no restrictions and I see no reason why their opinions should be doubted." (Sic)
6. Ms Strotz further contended that certain of the Identified Co-workers had created documents which had been provided to the Drs Abeya and Nagesh to enable them to provide their reports, that were misleading in material particulars. She argued that this misinformation so tainted the process of obtaining purportedly independent medical opinions as to render those opinions unable to be relied on.
7. It is sufficiently clear to me, from the passages from the reports of Drs Abeya and Nagesh reproduced above, that each has formed their opinions primarily from their observations of Ms Strotz and the information she provided to them. For his part, Dr Nagesh expressly stated that the opinion provided in his report was "based entirely upon the evaluation of objective findings identified on 27 July 2022", that is, the consultation with Ms Strotz. While I acknowledge that Dr Nagesh went on to say that he reviewed a number of documents, including "background meeting notes" which Ms Strotz described as "false", the evidence provides an insufficient basis on which to impugn the opinions Dr Nagesh expressed. I make the same finding in respect of Dr Abeya.
8. I observe that each of Dr Abeya and Dr Nagesh found Ms Strotz to be fit to work as a Passenger Services Supervisor. The caveats that each placed on her returning to that employment concerned the perceived risks of her interacting with any or all of the Identified Co-workers. The doctors were clearly influenced in that regard by the history that Ms Strotz provided. Having observed Ms Strotz during these proceedings, and noting the matters at [21] above, I have no difficulty accepting that Drs Abeya and Nagesh had concerns about returning her to a workplace that would require the re-establishment of interpersonal relationships between her and the Identified Co-workers.
9. Ms Strotz contended that she is fit to return to work at NSW Trains in her former position. In a statement filed on 14 February 2023, Ms Strotz stated: "5. I was cleared to return to work, to pre injury duties by Dr Johnson on 28 March 2022 with full agreeance of my Psychologist Dr Howell. I no longer receive any treatment or take any prescribed medications. I am fully recovered and my goal is to return to my previous employment."
10. Other than the WorkCover NSW Certificate of Capacity signed by Dr Johnson on 28 March 2022 to which I have already referred, Ms Strotz adduced no medical evidence to support these submissions. She stated that Mr Johnson is presently overseas and that no other doctor in the practice had been prepared to prepare a report in his stead. She stated further that she had been unable to secure an appointment to obtain a report from Ms Howell.
11. I appreciate that Ms Strotz may have experienced impediments to adducing more persuasive medical evidence. During the course of the proceedings I explored with the parties the possibility of the matter being referred to a medical assessor pursuant to s 245 of the WC Act. Based on the submissions advanced by the parties in respect of that possibility, I determined not to appoint a medical assessor. My reasons for making this determination were set out in a Statement which was issued to the parties on 25 November 2022.
12. In sum, the high point of Ms Strotz's medical evidence is the Certificate of Capacity dated 28 March 2022. It is a pro forma document, in which Dr Johnson has certified Ms Strotz as being fit for pre-injury duties. It does not contain, nor does the form permit, an exposition as to the basis on which Dr Johnson did so. This is to be contrasted with the detailed reports provided by Drs Abeya and Nagesh. Further, there is no evidence of Dr Johnson's qualifications or experience. In the absence of such evidence, and without any disrespect to Dr Johnson, I find the opinions expressed by two consultant psychiatrists to be more persuasive than a certification of fitness provided by a general practitioner.
13. I accept the opinions expressed by Drs Abeya and Nagesh: Ms Strotz is fit for employment as a Passenger Services Supervisor, provided that she does not come into contact with the Identified Co-workers.
14. That proviso creates difficulties for Ms Strotz. NSW Trains read a statement of Ellen Beggs, a Senior Manager, P&C Business Partnering for NSW Trains. Ms Beggs deposed that all but one of the Identified Co-workers remains employed with NSW Trains. She stated that with the management structure, operating system and rostering arrangements at NSW Trains, Ms Strotz would regularly come into contact with some or all of the Identified Co-workers were she to be reinstated as a Passenger Services Supervisor at Grafton.
15. Ms Strotz did not challenge Ms Beggs' evidence, and Ms Beggs was not required for cross-examination. In fact, Ms Strotz appeared to accept the evidence as accurate, stating that she would similarly be required to have contact with the Identified Co-workers even were she to be employed at a location other than Grafton, such as Albury or Dubbo. However, during the hearing Ms Strotz stated that she had no concerns about coming into contact with any of the Identified Co-workers. She would be, in her words, "happy to go on the normal roster".
16. I have no doubt that Ms Strotz genuinely holds those views, and considers herself fit and ready to resume her employment with NSW Trains. Ms Strotz's views do not, however, substitute for medical evidence.
17. The unchallenged evidence of Ms Beggs leads inevitably to the conclusion that Ms Strotz is unable to meet the condition attached by Drs Abeya and Nagesh to her return to work at NSW Trains, that is, that she not have contact with the Identified Co-workers. It follows, and I find, that on the available medical evidence Ms Strotz is not fit for the employment for which she has applied.
18. For completeness, and having regard to the terms of s 243(2) of the Act, there is no basis on which the Commission could consider reinstatement to "any other kind of employment that is no less advantageous to the worker". This is for two reasons.
19. First, Ms Strotz confirmed during the hearing that she only sought reinstatement to the Passenger Services Supervisor position at Grafton. She did not propose any alternatives in the event that the Commission found that she was not fit for that employment. There is no evidence before the Commission of "any other kind of employment" into which Ms Strotz might be employed.
20. Second, Ms Strotz stated even were she to be reinstated to a Passenger Services Supervisor position at another location, such as Albury or Dubbo, she would still have some contact with the Identified Co-workers. She conceded that were I to accept the medical opinions of Drs Abeya and Nagesh, which she strongly submitted I would not do, it would follow that she would be unfit to perform work as a Passenger Services Supervisor in those locations
21. For the reasons set out above, I find that the "gateway" to the exercise of the discretion in s 243(2) has not been passed. The evidence does not permit the Commission to be satisfied that Ms Strotz is fit for the employment for which she has applied. That is sufficient to determine the proceedings. Having made that finding, the only appropriate order is that the proceedings be dismissed.

Order

1. I order that the Application be dismissed. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023