CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Ng v MetLife Insurance Ltd [2021] NSWPIC 391 	
		
APPLICANT:	Yu Fan (Jack) Ng	
		
RESPONDENT:	MetLife Insurance Ltd	
		
Member:	Jacqueline Snell	
		
DATE OF DECISION:	5 October 2021	
		
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation, medical treatment expenses and permanent impairment compensation resulting from primary psychological injury sustained in the course of employment with the respondent; defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline, transfer and/or performance appraisal; Held – the applicant’s psychological injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline, transfer and/or performance appraisal; the applicant has an entitlement to weekly compensation payable under section 36 and s 37 of 1987 Act; the applicant has an entitlement to medical expenses payable under section 60 of the 1987 Act, and the applicant has an entitlement to permanent impairment compensation for 22% whole person impairment payable under section 66 of the 1987 Act.
	
determinations made:	1.	It is not disputed the applicant sustained a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 7 March 2018, and that the applicant’s employment with the respondent was the main contributing factor to his psychological injury.  

2.	The applicant’s employment with the respondent was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline, transfer and/or performance appraisal.

3.	It is not disputed the applicant has a total incapacity for working resulting from psychological injury sustained in the course of his employment with the respondent, with deemed date of injury of 7 March 2018. The applicant has an entitlement to weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 Act from 22 January 2019 to date and continuing in accordance with the Workers Compensation Act 1987.  It is agreed that any entitlement the applicant has to weekly compensation will be capped at the maximum amount payable for weekly compensation.

4.	It is not disputed the applicant has an entitlement to medical or related treatment resulting from psychological injury sustained in the course of his employment with the respondent, with a deemed date of injury of 7 March 2018. The applicant has an entitlement to compensation payable under s 60 of the Workers Compensation Act 1987, including past medical or related treatment particularised in the sum of $31,196.26.

5.	It is not disputed the applicant has sustained 22% whole person impairment resulting from psychological injury sustained in the course of his employment with the respondent, with a deemed date of injury of 7 March 2018. The applicant has an entitlement to permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 for 22% whole person impairment with a deemed date of injury of 7 March 2018.

STATEMENT OF REASONS

BACKGROUND

1.	At the time Yu Fan ‘Jack’ Ng (Mr Ng) sustained psychological injury he was employed by MetLife Insurance Ltd (MetLife), working as a valuation actuary.  He commenced working with MetLife in late 2010 but has not returned to work since 7 March 2018 after attending a meeting on 6 March 2018 with his direct manager, Peter Craig, Head of Actuarial Analysis and Insight and Wayne Brazel, Chief Actuary and Appointed Actuary.

2.	It is not disputed Mr Ng sustained psychological injury during the course of his employment with MetLife, with a deemed date of injury of 7 March 2018, and that his employment with MetLife was the main contributing factor to injury.

3.	Mr Ng’s claim for compensation that came before the Commission for determination involved the following:

(a)	weekly benefits payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 22 January 2019 to date and continuing;

(b)	past medical or treatment expenses (particularised at $31,196.26) and future medical or related treatment (including electroconvulsive therapy and consultations with his psychiatrist, psychologist, GP and the cost of his medications) payable under s 60 of the 1987 Act, and

(c)	permanent impairment compensation for 22% whole person impairment (WPI) payable under s 66 of the 1987 Act.

4.	Mr Ng’s claim for compensation is declined and he has been issued with notices dated 
22 November 2018, 9 January 2019, 15 October 2019 and 6 May 2021 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998.  Defence to Mr Ng’s claim is raised under s 11A (1) of the 1987 Act relevant to discipline, transfer and/or performance appraisal.

ISSUES FOR DETERMINATION

6.	The parties agreed the following issue is in dispute:

(a)	whether Mr Ng has an entitlement to compensation payable under the 1987 Act as MetLife has raised defence under s 11A of the 1987 Act relevant to discipline, transfer and performance appraisal.  

7.	The parties agreed the following issues are not disputed: 

(a)	Mr Ng has sustained primary psychological injury in the course of his employment with MetLife, with deemed date of injury of 7 March 2018, with his employment being the main contributing factor to injury;

(b)	Mr Ng has a total incapacity for work resulting from his injury and any entitlement he has to weekly compensation payable under the 1987 Act will be capped at the maximum amount payable for weekly compensation;

(c)	Mr Ng requires medical and related treatment for his injury, and

(d)	Mr Ng has sustained 22% WPI resulting from his injury.

PROCEDURE BEFORE THE COMMISSION

8.	Mr Ng’s claim for compensation came before the Commission for teleconference on 10 August 2021.  Ms Keane, solicitor, appeared for Mr Ng, and Ms Turnbull, solicitor, appeared for MetLife.  As Mr Ng’s claim did not resolve on this occasion, it was listed for conciliation/arbitration hearing before me on 2 September 2021.

9.	At the conciliation/arbitration hearing before me on 2 September 2021, Mr Hickey of counsel appeared for Mr Ng, instructed by Mr Drake, solicitor and Mr Grant of counsel appeared for MetLife, instructed by Ms Turnbull.  Ms O’Grady from EML was present, as was Mr Ng.

10.	Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.  

EVIDENCE

Documentary Evidence

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

(a)	ARD and attached documents, and

(b)	Reply and attached documents.

Oral Evidence

12.	Neither party sought leave to adduce oral evidence or cross-examine any witnesses.

FINDINGS AND REASONS 

Review of evidence

13.	A brief review of evidence follows.

Statement of Mr Ng

14.	Mr Ng provided a lengthy statement, which was dated 7 June 2018.  In his statement Mr Ng explained that as an actuary he was responsible for internal reporting, external data reporting, regulatory reporting, regional reporting and Corporate reporting.  He explained he was responsible for the evaluation of actuarial contingent liabilities and profit analysis (which were done on a monthly basis) as well as the annual Financial Condition Report and experience investigations.  Mr Ng said he worked Monday through to Friday, with an annual salary of $170,000 excluding bonuses.

15.	Mr Ng described his workplace environment in terms of “stressful, excruciating and bullying”.  He described working for continuous periods including during weekend days, without being provided with days off in lieu and specifically referred to working continuously for 19 days (which included “being forced to work on weekends”) between 12 February 2018 and 3 May 2018.  He said that during this period he mentioned to his manager that he felt “really exhausted” and “felt sick” but his manager “did not care” and Mr NG just had to keep working. 

16.	Despite his hard work and long hours, Mr Ng said he was subjected to complaint. He said 
Mr Brazel, tried to “force me out of the company” by threatening him and creating pressure and stress. 
 
17.	Mr Ng described receiving a meeting invitation from Mr Craig on 5 March 2018, and when he queried the purpose of the meeting, he was told “they had no idea”.  Mr Ng said that in the meeting occurring on 6 March 2018, Mr Brazel undermined him and told him he was not qualified for his position as actuary.  While Mr Brazel accepted Mr Ng was academically strong and was a great “process” person he described him as “not having business sense and insights”.  Mr Ng said he was shocked by Mr Brazel’s comments, particularly so as he is a qualified actuary of two actuarial accreditation bodies.  Mr Ng said he was provided three options by Mr Brazel in the meeting, which he said were provided in the following order:

“1. 	I shall reflect if I am suitable for this role; if not I should think about leaving the company;
 2. 	They will try to explore other opportunities for me within other internal teams but there’s no guarantee.  I have to leave the company if no roles can be found;
 3. 	Stay in the team but I will be ‘VERY CLOSELY’ performance managed.”

Mr Ng said the words “very closely” were intentionally emphasised and he said “the words and tone were full of intimidation”.  Mr Ng said the atmosphere in the meeting was “so intense and intimidating” and he felt “shocked, humiliated and undervalued”.

18.	Mr Ng said he was not the only person to be bullied at work and provided other examples of alleged bullying behaviour directed towards his work colleagues, Lee Choi, Michelle Hu and Selena Liang.  He said he felt very anxious and stressed to witness such bullying behaviour towards his colleagues.

Statement of Sandra Vrkic

19.	Ms Vrkic provided a statement, which was dated 12 June 2018.  Ms Vrkic is employed by MetLife in the role of Human Resources Business Partner and was aware of an application made by Mr Ng to the Fair Work Commission for an order to stop bullying as it was served on her by email on 21 March 2018.  While she was unaware of any grievance prior to service of this application, Mr Vrkic said she was aware that when Mr Brazel commenced working with MetLife an area of his focus was to lift the performance of his team, which included Mr Ng. She said there had been informal discussions between her, Mr Brazel and Mr Craig regarding performance levels.

Statement of Mr Craig

20.	Mr Craig provided a statement, which was dated 20 June 2018.  Mr Craig is employed by MetLife in the role of Head of Actuarial Analysis and Insight, reporting directly to Mr Brazel.  Mr Craig confirmed that he has known Mr Ng since Mr Craig commenced working with MetLife in early 2016 and confirmed that Mr Ng reported directly to him.  Mr Craig accepted that during February and March 2018 Mr Ng and his team did work longer than their standard hours “including some weekend work” as a consequence of agreed deadlines not having been met.  Mr Craig described this as not unusual for the industry and said of this particular need to work long hours:

“This situation was influence as a result of Jack, as the lead valuation actuary, not leading the team to meet earlier deadlines to produce the key Financial Condition Report to ensure on time submission to the Board.”

21.	Mr Craig said that during this particularly busy period, the team had been requested to track any overtime required and were told they should take leave in lieu after that period.

22.	Relevant to Mr Ng’s complaint Mr Brazel had tried to force Mr Ng out of the company by threatening him and creating lots of pressure and stresses, Mr Craig said he did not witness such alleged behaviour by Mr Brazel and said “I found Wayne to be supportive of improving Jack’s performance and willing to have an [sic] open and considerate discussions with him”.

23.	Relevant to the meeting on 6 March 2018, Mr Craig confirmed that on 5 March 2018 Mr Ng received an invitation to a discussion.  He described the purpose of the meeting as being for “end of year performance discussions”, which he said took place at the same time every year and in which Mr Ng had participated throughout his employment with MetLife.  Mr Craig confirmed that prior to the meeting Mr Ng had asked if he could bring anything to the meeting and was told “that was not necessary”.  Mr Craig confirmed Mr Brazel attended the meeting and said:

“In that meeting Wayne and I had an open and transparent discussion with Jack during which we informed him that, despite a number of previous discussions about his performance, it had still not improved and therefore his performance review reflected he was not meeting the role requirements.”

24.	Mr Craig confirmed the three options suggested to Mr Ng by Mr Brazel but said “[W]e placed no preference on any of these options and there was no pressure for Jack to leave the team or MetLife”.  He described the meeting as reasonable management action carried out due to repeated poor performance by Mr Ng.  He described the discussions as being delivered in a “calm and respectful manner”.

25.	Mr Craig accepted Mr Brazel’s management style was different to that of Mr Ng’s previous manager, David Hole, and accepted too that Mr Brazel had made changes that some team members, including Mr Ng, had not embraced.

Statement of Mr Brazel

26.	Mr Brazel provided a statement, which was dated 26 June 2018.  Mr Brazel is employed by MetLife in the role of Chief Actuary and Appointed Actuary, reporting directly to Regional Chief Actuary based in Hong Kong.  Mr Brazel confirmed Mr Ng has been a member of Mr Brazel’s broader actuarial team since Mr Brazel commenced working with MetLife in mid-July 2017.  Mr Brazel said that when he commenced working with MetLife he carried out a number of actions with his team so as “to provide clarity of my expectations of them, the Regional and Global initiatives and the characteristics of a highly valued Actuarial Team”.  

27.	Mr Brazel described in some detail the management approach taken specific to Mr Ng, which included an informal meeting as early as 8 August 2017 during which Mr Brazel spoke to 
Mr Ng about his concern about his performance and the “need to lift his performance both from MetLife’s perspective and benefit and for his own professional development”.  

28.	A number of subsequent meetings occurring during August and September 2018 where 
Mr Ng was in attendance appeared to do nothing to quell Mr Brazel’s concerns about 
Mr Ng’s performance.  With Mr Ng’s involvement in the preparation of the Financial Condition Report reportedly lacking “any sense of urgency” and requiring “significant rework and correction”  and peer feedback regarding Mr Ng being not particularly positive, Mr Brazel decided to initiate “more formal performance management” and attend the meeting scheduled with Mr Ng and Mr Craig for 6 March 2018.

29.	Mr Brazel relevantly said:

“In the meeting of 6 March 2018, almost 8 months to the day since my first discussion with Jack in respect to his need to step up, I explained again to Jack his performance was not up to the standard of a qualified Actuary.  I referred back to my earlier performance discussion with him and explained using a number of the examples above where his performance had been lacking, the opportunities we had provided to him to improve which he had not taken and reiterated the need for his performance to improve.  In that discussion I was clear that he couldn’t continue with his current performance and restated we were prepared to help him step up, but ultimately it relied on his effort and commitment.  I explained that if he was not able to lift his performance or felt the level of improvement was either beyond his capability or desire we could help him find a more suitable role within MetLife but failing that there would be no other option but to look for alternate employment outside of MetLife.”

30.	Mr Brazel described the meeting as being conducted in a totally professional manner, with voices that were not raised, appropriate language, and no intimidation or inappropriate behaviour.  He confirmed that in the meeting it was clearly expressed to Mr Ng that MetLife was prepared to support Mr Ng “to lift his performance”.  He confirmed that during the meeting Mr Ng showed no emotion and remained silent. Mr Brazel said:

“Due to the confronting nature of being placed on a performance improvement plan, 
I suggested Jack take some time, go for a walk to collect himself before returning to his desk”.

Factual report

31.	A factual report dated 20 July 2018 was prepared by Brooksight Investigations.  The report confirmed that both Mr Ng’s managers, Mr Craig and Mr Brazel, denied Mr Ng’s allegations of bullying and harassment.  Both say they attempted to assist Mr Ng in improving his work performance, Mr Craig over a 15 month period and Mr Brazel over an eight month period.  

32.	The investigator relevantly noted that prior to Mr Brazel’s appointment, Mr Ng’s manager was Mr Hole, who reportedly had a different management style to that of Mr Brazel.  Mr Hole reportedly “tended to fix problems or errors himself” rather than return them for corrections, whereas Mr Brazel “considered the highly qualified and well remunerated actuaries should be able to submit their final reports in a quality and timely manner”.

33.	The investigator also relevantly noted that during the meeting on 6 March 2018 Mr Ng was provided with the three options referred above, and after remaining silent during the meeting “without showing sign of emotion” he took up Mr Brazel’s offer to have a walk “to clear his head” and left work.

Treating medical evidence

Chatswood Medical and Dental Centre

34.	Dr Li is Mr Ng’s treating general practitioner and he practises out of Chatswood Medical and Dental Centre. In his report dated 5 November 2020 Dr Li confirmed Mr Ng had been his patient since March 2018.  Dr Li noted that at the time of reporting he had recently reviewed Mr Ng on 20 October 2020.  He reported a history of injury in the following terms:

“Mr Ng reported the symptoms of depression with anxiety since April 2016 due to “work pressure and work bullying”.  His symptoms including depressed and anxious mood, insomnia, agitation, social withdrawal, low energy and motivation, loss of interest, poor concentration and memory, reduced appetite and weight loss.

He reported of feeling fearful and worried about his future.  He sometimes doubts the meaning of existing with thoughts of self-harm by cutting.  He also has fleeting suicidal ideation which required Emergency Admission.

His symptoms worsening to the extent that he had to stop working since 7/03/2018.”

35.	The clinical records of the medical centre confirm Mr Ng has attended the medical centre since early 2010.  Of note is that Mr Ng consulted with Dr Lau on 6 March 2017 with Dr Lau recording the following history:

“S/S OF MILD ED, LIKELY PSYCHOLOGICAL WITH WORK STRESS AND LONG HOURS.”

36.	It is evident from the clinical records that Mr Ng had significant difficulty with sleep and appears to have first been prescribed with Stilnox medication on 22 May 2016.  On 7 August 2017 Dr Lau noted Mr Ng was to attend for sleep study, and on 22 September 2017 Dr Ho recorded the following notation relevant to Mr Ng’s sleeping difficulties:

“Takes Stilnox half tab prn.
3 – 4 times a month when work load is high
Script given.”

37.	Relevant to the meeting that Mr Ng attended on 6 March 2018, on 7 March 2018 Dr Ho wrote:

“Issues at work.
 New boss.
 Works at medlife.
 Has had complaints about him.
 Non specific complains.
 Now under performance review.
 Very upset.
 Ruminating.
 Refer danni Zhang.
 Stilnox.”

On this occasion Dr Ho certified Mr Ng as totally unfit for work and created a mental health plan.

38.	Mr Ng subsequently consulted with the general practitioners practising out of the medical centre on a number of occasions, with antidepressant medication introduced on 9 March 2018 at which time Dr Li’s notes relevantly included the following reference:

“adjustment disorder/work related stress
low mood, poor apetitie (sic) for months…”.

39.	By 14 March 2018 Mr Ng had been referred for psychological review and by 23 March 2018 he had been referred for psychiatric review.

New Vision Psychology 

40.	In her letter dated 1 May 2020, Hong (Helen) Qin is described as an Accredited Mental Health Social Worker/Clinical counsellor.  She confirmed Mr Ng’s initial appointment with her was on 14 March 2018, at which time the following was relevantly noted:

“The client reported that he has worked seven years at this company since he graduated form university. He loves his job and got promoted at the workplace promotion in 2017 with a pay rise at the same time.  He disclosed that his new manager asked him to resign or he needed a massive improvement to prove that he was suitable for the job.
The client disclosed that he felt the manager’s requirement was not objective, unreasonable and it was disrespectful and unfair to him…”

41.	Mr Ng continued to meet with Ms Qin and on 18 April 2018 Ms Qin noted further comment by Mr Ng relevant to his employment with MetLife:

“The client disclosed that he was forced to work 19 days consecutively before March 2020 [sic] with no weekends off and was verbally abused by his manager at that time.  He stated he has chronic headaches and the company did not seem to care about his health issues.
The client stated that he has been bullied since April 2016; he witnessed some of his colleagues being bullied too and he felt angry, sad and helpless; he tried to help them but found himself unable to change the situation at all…”

42.	Mr Ng’s last appointment with Ms Qin was on 20 July 2018, which is just prior to his first admission to the Northside Group St Leonards Clinic.

Dr Miao 

43.	Dr Li appeared to have first made contact with Dr Miao, psychiatrist, relevant to Mr Ng’s deteriorating mental health on 23 March 2018, and in his report dated 20 April 2018 
Dr Miao confirmed he first reviewed Mr Ng that day.

44.	Dr Miao reported a history of injury in the following terms:

“Jake reports the symptoms of depression with anxiety since April 2016 due to “work pressure and work bullying”. … The symptoms happened in the context of increasing job pressure and work bulling [sic] since April 2016, which has become worse recently to the extent that he had to stop working since the 7th of March.”

On this occasion Dr Miao provided diagnosis of Major depressive episode with anxiety symptoms.  He was significantly concerned about Mr Ng and suggested hospitalisation. He arranged review in one week.

45.	In a subsequent letter dated 12 August 2018, in response to specific questioning by “Braden” Dr Miao repeated the history of injury described above and accepted Mr Ng had sustained an injury arising out of or in the course of his employment with MetLife in the context of “work pressure and bullying”.  At the time of Dr Miao’s reporting, Mr Ng was an inpatient at Northside Group St Leonards Clinic. 

Northside Group St Leonards Clinic

46.	Mr Ng was first admitted to the Clinic under the care of Dr Miao on 24 July 2018 and discharged on 28 September 2018.  The confidential discharge summary described Mr Ng as being on indefinite sick leave from MetLife “due to alleged workplace bullying that has been ongoing for the past two years”.  Mr Ng is described as having no psychiatric history until March 2018 when it was noted he was referred to Dr Miao as “he was felt to be experiencing a major depressive episode that had evolved out of an adjustment disorder due to the workplace bullying and psychosocial stressors”.  Mr Ng is described as presenting at the Clinic with low mood, which Mr Ng believed had been gradually worsening over two years, with more rapid deterioration “over the past six months”.  Mr Ng explained that prior to coming under the care of Dr Miao “he used to see his GP or talk to his colleagues for support”. Complaint by Mr Ng on presentation included “nightmares about his workplace and being ‘forced to work’”.

47.	Mr Ng was subsequently admitted to the Clinic again under the care of Dr Miao on 4 January 2019 and discharged on 25 March 2019.  The confidential discharge summary relevant to this admission noted a deterioration in Mr Ng’s mental health since his discharge from the Clinic some three months earlier, with complaint again including nightmares “where he is forced to work”.  It was noted on this occasion that Mr Ng had “many psychosocial stressors” that contributed to his presentation, including work place bullying, and it was noted “[H]e was also informed that his work bulling [sic] claim was rejected while he was in hospital”.  On discharge, it was reported of Mr Ng that “his main problem is the difficulty in controlling his ruminating thoughts about work bullying which affects his mood significantly and causes anxiety from time to time”.

Royal North Shore Hospital

48.	Mr Ng attended Emergency during the evening of 13 December 2018. The Progress Notes described Mr Ng as presenting with a request for Diazepam for insomnia.  Mr Ng reportedly described having had a very difficult day, and while he explained “he has ongoing stress related to a severe workplace bullying which resulted in him having a ‘breakdown’ and being off work since March 2018”, he did not want to elaborate as “recalling details causes him great distress”. Following mental health assessment, which included discussion with Mr Ng’s wife, Mr Ng was discharged home into her care during the early hours of 14 December 2018 with review by Dr Miao on 22 December 2018.

Independent medical evidence

Dr Snowdon

49.	Mr Ng was initially assessed by Dr Snowdon in his capacity as Independent Medical Examiner on 3 October 2018, with Dr Snowdon reporting the same day.  Mr Ng had previously been scheduled for assessment on 30 July 2018 and Dr Snowdon noted Mr Ng had not attended as he was hospitalised at that time.  While it is evident Mr Ng presented as extremely depressed with an air of “emotional pain”, Dr Snowdon noted him to be “a very intelligent and reflective man”.

50.	Dr Snowdon reported a consistent history of Mr Ng reporting to Mr Craig, who in turn reported to Mr Brazel, and the meeting between the three of them that occurred on 6 March 2018 during which Mr Ng was provided with three choices relevant to his employment with MetLife, moving forward. Dr Snowdon reported a consistent history of Mr Ng seeking general medical review following this meeting and reported a consistent history of Mr Ng subsequently receiving psychological care from New Vision Psychology and psychiatric care from Dr Miao.

51.	Following interview, review of the papers forwarded to him and mental state examination, in response to specific questioning Dr Snowdon provided diagnosis in terms of a Major Depressive Order with Melancholic Features, which was sustained in the course of Mr Ng’s employment with MetLife, with his employment being the main contributing factor to injury.  

52.	Relevant to defence available under s 11A of the 1987 Act, Dr Snowdon said:

“Mr Ng’s condition has resulted from not only the meeting of 6 March 2018, but of the prior process of performance review, which began, to the best of my understanding, with the first series of meetings with Mr Brazel on 25, 26 and 27 July 2017.

It was those meetings, and then reinforced subsequently, that Mr Brazel had become aware of Mr Ng’s deficiencies in understanding his work, and therefore consequent performance, which do not appear to have been apparent, or possibly expected, by the prior Manager.

The logical conclusion, from what has occurred in the course of Mr Ng’s employment, is that his psychological condition has resulted from actions by the employer, in the form of Mr Craig, under the direction of Mr Brazel, which fall under Section 11A considerations under the Act, although I would leave to your legal department, and available experts in Human Resources, whether this is a reasonable conclusion, when the issues which had arisen for Mr Ng, had been the result of a significant change, rather than a self-initiated deterioration in performance, to the best of my understanding, related to the higher and more sophisticated expectations of Mr Brazel, over those previously of David.”

53.	In his supplementary report dated 29 October 2018, Dr Snowdon again canvassed his conclusion following review of the information available to him:

“that the workplace issue which arose for Mr Ng had been essentially the discovery of inadequate performance, upon becoming subject to the higher standards and sophisticated approach in general, by a new Senior Manager, Mr Wayne Brazel, who had commenced working with Mr Ng’s employer, MetLife, in July 2017.”

In response to specific questioning about s 11A considerations Dr Snowdon said:

“I feel that Mr Ng’s injury has been caused ‘wholly or predominantly’ by the actions of those within MetLife, but related to the performance appraisal process, culminating in the meeting of 6th March 2018, which, as I had discussed in my reports leads to the conclusion that section 11A considerations under the Act apply.

I had, however, as we had subsequently discussed, Mr Renel, suggested that final conclusions in this regard, because of Mr Ng’s performance issues having arisen, as a result of changes in expectations, rather than performance as such, be discussed with your legal department, particularly in view of Mr Ng having advised me of the proceedings which he initiated, before the Commission with Fair Work Australia.”

54.	Mr Ng was subsequently assessed by Dr Snowdon on 15 March 2021 with Dr Snowdon reporting on 19 March 2021. While he reported Mr Ng’s overall presentation had changed little since initial assessment some two and a half years previously, he noted Mr Ng now suffered chronic pain and “severe grinding and clenching of the teeth” for which he is receiving treatment.  Consequent on the latter, Mr Ng also suffered from sleep apnoea.

55.	Following interview, review of the further papers forwarded to him and mental state examination, Dr Snowdon said relevant to diagnosis that he continued “to feel that Mr Ng has developed what has long since become chronic Major Depressive Disorder with Melancholic Features” now aggravated by the development of chronic pain, a dental condition and sleep apnoea.  Relevant to assessment of permanent impairment resulting from the psychological injury Mr Ng sustained in the course of his employment with MetLife, Dr Snowdon assessed him with 22% WPI.

Dr Bertucen 

56.	Mr Ng was assessed on 17 June 2019 by Dr Bertucen in in his capacity as Independent Medical Examiner, with Dr Bertucen reporting the same day.  Dr Bertucen reported a consistent history of Mr Ng’s experiencing friction with Mr Brazel following his arrival in the workplace in mid-2017.  Dr Bertucen also reported a consistent history of Mr Ng meeting with Mr Brazel on 7 March 2018, a meeting “during which he was not allowed to bring a support person” and after which:

“Mr Ng emotionally decompensated and withdrew from work, consulted his GP, Dr Ping Li.  He was commenced on the antidepressant sertraline and referred to a psychologist (Helen Qing).”

Dr Bertucen noted too that Mr Ng had come under the psychiatric care of Dr Miao.

57.	Following interview, review of the papers forwarded to him and mental state examination, in response to specific questioning, not unlike Dr Snowdon during assessment some nine months earlier, Dr Bertucen provided diagnosis in terms of Major Depressive Disorder (melancholic type), which was sustained in the course of his employment with MetLife, with Mr Ng’s employment being the main contributing factor to injury.  However, Dr Bertucen said he did not completely share Dr Snowdon’s view as to the whole or predominant cause of 
Mr Ng’s injury, in that he said:

“I rather incline to the view that the substantial contributing factor to Mr Ng’s condition was the alleged accumulation of distressing and traumatic episodes of bullying and harassment which occurred over the course of some 18 months initially under the management of Mr Craig and subsequently under the management of Mr Brazel.  The meeting of 6 March 2018 would appear to have been the major “trigger” factor, which led to the final injury beyond which Mr Ng felt he was unable to exercise his function effectively.”

58.	Relevant to assessment of permanent impairment, Dr Bertucen assessed Mr Ng with 22% WPI resulting from the psychological injury he had sustained in the course of his employment with MetLife.

Submissions

59.	Both counsel made oral submissions which I have considered.  A copy of the recording of counsels’ submissions is available to the parties.  I am grateful to counsel for the assistance provided to me in this matter. 

Determination

Defence raised under s 11A(1) of the 1987 Act

60.	It is not disputed Mr Ng sustained psychological injury arising out of or in the course of his employment with MetLife and that his employment with MetLife was the main contributing factor to his injury.  MetLife has however raised defence under s 11A(1) of the 1987 Act relevant to discipline, transfer and/or performance appraisal. MetLife has the onus of establishing such defence (see Pirie v Franklins Ltd and Department of Education and Training v Sinclair ) and there are two aspects to such defence.

61.	Firstly, the injury must be “wholly or predominantly caused” by MetLife’s actions regarding one of the categories referred to in s 11A(1) and in Mr Ng’s case MetLife relied on “discipline”, “transfer” and/or “performance appraisal”. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited with comment medical evidence is required to determine this causation issue. It is accepted “wholly” and “predominately” are different concepts and it is accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation to be applied is that described in Kooragang Cement Ltd v Bates; Ponnan v George Weston Foods Ltd; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.

62.	Mr Ng commenced employment with MetLife in late 2010.  It is evident Mr Ng’s role with MetLife was demanding and he found his work environment stressful even before Mr Brazel commenced working with MetLife in July 2017, as there is reference by Dr Lau on 6 March 2017 to “work stress and long hours”.  However, despite concerns raised directly with Mr Ng by Mr Brazel about his work performance, which continued over a period of some months prior to the meeting on 6 March 2018, Mr Ng continued to work without complaint to his general practitioners, and it was only after the meeting on 6 March 2018 that he sought medical assistance, was certified totally incapacitated for work and referred for psychological and psychiatric review.

63.	In circumstances where both Dr Snowdon and Dr Bertucen have essentially provided opinion that the whole or predominant cause of Mr Ng’s injury was the action taken by MetLife (particularly so by Mr Brazel after he commenced working with MetLife) relevant to Mr Ng’s work performance, I accept the psychological injury Mr Ng has sustained was caused by the situation he found himself in after Mr Brazel commenced with MetLife with a focus on lifting the performance of his team, including Mr Ng, and which culminated in the meeting occurring 6 March 2018.

64.	I agree therefore with Mr Grant that the central issue in this matter is Mr Ng’s work performance.  Mr Ng’s work performance had evidently been under the scrutiny of Mr Brazel for some months prior to the meeting on 6 March 2018 without improvement, and when considering the medical opinion provided by Dr Snowdon and Dr Bertucen, the options offered to Mr Ng during the meeting occurring on 6 March 2018 and the defence raised by MetLife under s 11A(1) of the 1987 Act ,I accept Mr Ng’s psychological injury was “wholly or predominantly” caused by action proposed to be taken on behalf of MetLife with respect to “performance appraisal”.  While “performance appraisal” is not defined in the 1987 Act, I am mindful  that in Irwin v Director General of School Education Gerahty J referred to “performance appraisal” as being:

“… somewhat like an examination, not a continuing assessment.  Performance appraisal is more like a limited discrete process, with a recognised procedure through which the parties move in order to establish an employee’s efficacy and performance.”

65.	As I accept Mr Ng’s psychological injury was “wholly or predominantly” caused by MetLife’s proposed actions regarding “performance appraisal”, MetLife is required to establish MetLife’s proposed actions regarding performance appraisal were “reasonable”.  

66.	Considering the meaning of reasonableness, in  Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd; Melder v Ausbowl Pty Ltd ) and in Irwin Gerahty J said:

“… the question of reasonableness is one of fact, weighing all the relevant factors.  That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment.  Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

67.	In Northern New South Wales Local Health Network v Heggie  Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:

“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care.  The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”

68.	While it may be that certain steps taken by MetLife relevant to the proposed performance appraisal relevant to Mr Ng (particularly noting that as early as 8 August 2017 Mr Brazel spoke to Mr Ng of his concern about Mr Ng’s work performance, without reported improvement over subsequent months) may have been “reasonable”, it is evident Mr Ng was not adequately prepared for the meeting which occurred on 6 March 2018 during which he was essentially provided with an ultimatum regarding his role with MetLife moving forward.  It may be Mr Ng had some idea about the purpose of the meeting scheduled for 6 March 2018 as Mr Craig said “end of year performance discussions” took place at the same time every year and Mr Ng had participated in such meetings throughout his working life with MetLife, but on enquiry of Mr Craig beforehand as to whether he could bring anything to the meeting, he was told “that was not necessary”.  In circumstances where Mr Brazel (who it must be remembered is the Chief Actuary and Appointed Actuary) and Mr Craig met with Mr Ng with the purpose of discussing Mr Ng’s poor work performance and proposed alternate remedial actions (which in essence appeared to be (a) to be subjected to a performance improvement plan, (b) move to an alternate team within MetLife, or (c) cease working with MetLife altogether), it would be appropriate for Mr Ng to have been provided with the opportunity to thoroughly prepare for such a meeting and to have been provided with the opportunity to have a support person accompany him to a meeting of this nature.

69.	Mr Ng described the atmosphere in his meeting with Mr Brazel and Mr Craig as “so intense and intimidating” and of particular note is that Mr Brazel said in recognition of the “confronting nature of being placed on a performance improvement plan” that he invited Mr Ng “go for a walk to collect himself before returning to his desk”.  In circumstances where Mr Ng felt “shocked, humiliated and undervalued” as a result of his meeting with Mr Brazel and 
Mr Craig, so much so that he ceased work immediately after the meeting and sought medical assistance the following day, it would have been appropriate for Mr Ng to have been reminded at some stage during the meeting as to the availability of the Employee Assistance Program should he wish to access it for assistance.

70.	In all of the circumstances known to MetLife at the time of Mr Ng’s confronting meeting with Mr Brazel and Mr Craig on 6 March 2018, with particular reference to the lack of opportunity provided to Mr Ng to thoroughly prepare for the meeting, the lack of opportunity for Mr Ng to have a support person with him at the meeting, and the fact there appeared to be no reminder during the meeting as to the availability of the Employee Assistance Program should Mr Ng wish to access it for assistance, I do not accept the action proposed to be taken by MetLife with respect to Mr Ng’s performance appraisal was “reasonable”.

71.	For the reasons discussed above I am not satisfied MetLife has discharged the onus of proof required and as a consequence MetLife cannot rely on defence raised under s 11A(1) of the 1987 Act.

Capacity

72.	It is not disputed Mr Ng has a total incapacity for work resulting from psychological injury sustained in the course of his employment with MetLife, with deemed date of injury of 7 March 2018.  As I have determined MetLife cannot rely on defence raised under s 11A(1) of the 1987 Act, Mr Ng has an entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act from 22 January 2019 to date and continuing in accordance with the 1987 Act.  It is agreed between the parties that any entitlement Mr Ng has to weekly compensation will be capped at the maximum amount payable for weekly compensation.

Treatment
		
73.	It is not disputed Mr Ng has an entitlement to medical or related treatment resulting from psychological injury sustained in the course of his employment with MetLife, with a deemed date of injury of 7 March 2018, and as I have determined MetLife cannot rely on defence raised under s11A(1) of the 1987 Act, Mr Ng has an entitlement to compensation payable under s 60 of the 1987 Act, including past medical or related treatment particularised at $31,196.26.

Permanent impairment

74.	It is not disputed Mr Ng has sustained 22% WPI resulting from psychological injury sustained in the course of his employment with MetLife, with a deemed date of injury of 7 March 2018, and I have determined MetLife cannot rely on defence raised under s 11A(1) of the 1987 Act, Mr Ng has an entitlement to permanent impairment compensation payable under s 66 of the 1987 Act for 22% WPI with a deemed date of injury of 7 March 2018.

SUMMARY

75.	It is not disputed Mr Ng sustained a psychological injury in the course of his employment with MetLife with a deemed date of injury of 7 March 2018, with Mr Ng’s employment with MetLife being the main contributing factor to his psychological injury.  

76.	Mr Ng’s employment with MetLife was not wholly or predominately caused by reasonable action taken by MetLife with respect to discipline, transfer and/or performance appraisal.

77.	It is not disputed Mr Ng has a total incapacity for work resulting from psychological injury sustained in the course of his employment with MetLife, with deemed date of injury of 7 March 2018. Mr Ng has an entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act from 22 January 2019 to date and continuing in accordance with the 1987 Act.  It is agreed between the parties that any entitlement Mr Ng has to weekly compensation will be capped at the maximum amount payable for weekly compensation.

78.	It is not disputed Mr Ng has an entitlement to medical or related treatment resulting from psychological injury sustained in the course of his employment with MetLife, with a deemed date of injury of 7 March 2018. Mr Ng has an entitlement to compensation payable under s 60 of the 1987 Act, including past medical or related treatment particularised at $31,196.26.

79.	It is not disputed Mr Ng has sustained 22% WPI resulting from psychological injury sustained in the course of his employment with MetLife, with a deemed date of injury of 7 March 2018. Mr Ng has an entitlement to permanent impairment compensation payable under s 66 of the 1987 Act for 22% WPI with a deemed date of injury of 7 March 2018.