Amity Group Pty Ltd v Yusuf
[2009] NSWWCCPD 152
•01 December 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152 | |||||
| APPELLANT: | Amity Group Pty Ltd | |||||
| RESPONDENT: | Fadumo Mahomed Yusuf | |||||
| INSURER: | Employers Mutual NSW Limited | |||||
| FILE NUMBER: | A1-2872/09 | |||||
| ARBITRATOR: | Mr J McDermott | |||||
| DATE OF ARBITRATOR’S DECISION: | 30 July 2009 | |||||
| DATE OF APPEAL HEARING: | 26 November 2009 | |||||
| DATE OF APPEAL DECISION: | 01 December 2009 | |||||
| SUBJECT MATTER OF DECISION: | Incapacity; section 40 of the Workers Compensation Act 1987; secondary psychological condition; assessment of evidence; application of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr T Wardell, solicitor, Edwards Michael Lawyers | ||||
| Respondent: | Ms L Goodman, instructed by PK Simpson & Co | |||||
| ORDERS MADE ON APPEAL: | Paragraph two of the Arbitrator’s determination of 30 July 2009 is revoked and the following order made in its place: “2. The respondent employer is to pay the applicant worker weekly compensation under section 40 of the Workers Compensation Act 1987 in the sum of $135.00 per week from 9 December 2008 to date and continuing.” Paragraphs one, three and four of the determination of 30 July 2009, including the Arbitrator’s “Costs Decision” are confirmed. | |||||
BACKGROUND
The worker, Ms Yusuf, started work in May 2007 as a nursing assistant at a nursing home owned by Amity Group Pty Ltd (‘Amity’). She alleges that she sustained multiple injuries when she slipped and fell in the course of her employment with Amity in or about January 2008. In addition, she alleges that she sustained further injuries on 11 April 2008 when a table thrown by a patient struck her back. She ceased work on 11 April 2008 and, apart from an unsuccessful attempt to return to work on light duties for four days in about June 2008, has not returned since.
Her claim was initially accepted and voluntary compensation payments made until December 2008. The insurer, Employers Mutual NSW Limited, disputed liability in a section 74 notice dated 19 December 2008. The notice disputes incapacity, injury, and the worker’s entitlement to hospital and medical expenses.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 April 2009, Ms Yusuf sought weekly compensation in the sum of $900.00 per week from 11 April 2008 to date and continuing together with hospital and medical expenses said to total $7,500.00. The Application relied on both the fall in January 2008 and the incident on 11 April 2008. It was alleged that Ms Yusuf injured her “neck, left arm, right arm, back, left leg, right leg, bowels, bladder” in the first incident and injured her “back, left leg, right leg, neck, right arm, left arm, bowels, anxiety and/or depression, bladder” in the second.
In a Reply filed on 5 May 2009, Amity disputed liability on the basis set out in the section 74 notice referred to above.
The Commission listed the matter for conciliation and arbitration on 16 July 2009. The Arbitrator heard lengthy submissions from each of the parties, but neither party called any oral evidence. In a reserved decision delivered on 30 July 2009, the Arbitrator found in favour of Ms Yusuf in respect of the alleged injury to her back and her alleged psychological condition, but found in favour of Amity in respect of the alleged injury to her neck and right shoulder. He also found that Ms Yusuf injured her right calf in the second incident but that the effect of that injury resolved within six months of 11 April 2008.
The Commission issued a Certificate of Determination on 30 July 2009 in which the Arbitrator’s formal determination is recorded as follows:
“The Commission determines:
1.The matter is to be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the Applicant’s whole person impairment relating to her lumbar spine and attributable to the injuries during January 2008 and 11 April 2008.
2.The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act at the rate of $210.00 per week from 8 December 2008 to date and ongoing.
3.The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act as regards psychological treatment, her back and the injury to her right calf (limited as regards the calf to the period ending 11 October 2008) upon production of accounts and/or receipts.
4. The Respondent to pay the Applicant’s costs as agreed or assessed.
COSTS DECISION
I determine this to be a complex matter as most cases involving psychological injury tend to be. In this matter, there is also a lengthy and complex history as regards physical injuries and the Applicant’s overall physical health. There were, further, six successful Applications to Admit Late Documents.
Both parties are entitled to a 20% uplift.”
In an appeal filed on 24 August 2009, Amity seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352 of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Amity seeks to tender, as fresh evidence or additional evidence on appeal, the Medical Assessment Certificate (‘MAC’) from Dr Middleton, Approved Medical Specialist (‘AMS’), dated 20 August 2009. It submits that the MAC constitutes new evidence that was not available at the time of the arbitration and because it is relevant to the substantial merits of the case, it should be admitted on appeal.
Ms Yusuf has made no submissions in respect of the Application to rely upon the MAC on appeal.
As the MAC was not available at the time of the arbitration and as it relates to matters in issue on appeal, I believe it is in the interests of justice to admit it as fresh or additional evidence on appeal and that is the course I propose to adopt.
THE EVIDENCE
Ms Yusuf’s evidence
Ms Yusuf relies on two statements. The first is undated and unsigned and the second, consisting of only nine paragraphs, is signed and dated 22 June 2009. Ms Yusuf states that she was born in Somalia in 1968. This evidence conflicts with other evidence that suggests she was born in 1978. She immigrated to New Zealand on a date not identified in the evidence and ultimately came to Australia in December 2003. In mid 2004 she obtained employment as a process worker in Melbourne and she moved to Sydney in mid 2005. In the second half of 2005, she developed health problems related to ovarian cysts and problems with her kidneys and bladder, which caused her to suffer pelvic pain. As a result of that pain, she was referred in 2006 for an ultrasound of her kidneys and bladder and for a CT scan of her lumbar spine. That scan revealed mild generalised bulging at L4/5 “but the nerve roots escape satisfactorily”. The radiologist considered the scan to be a “Normal CT lumbar spine”.
Ms Yusuf started work for Amity as a nursing assistant in approximately May 2007. She says in her first statement that she injured her neck, left arm, right arm, back, left leg, right leg, bowels and bladder as a result of slipping and falling in January 2008. She could not recall the precise date of the accident, but claims she reported it to her supervisor, Eileen. In respect of her second accident, she states that she hurt her neck, left arm, right arm, back, left leg, right leg, bowels and bladder as a result of a patient hitting her on her back with a table whilst she was distributing meals. She reported her injury to her supervisor, but did not name that supervisor. She states that she completed claim forms and provided medical certificates. She says that she continues to suffer from symptoms and restrictions because of her injuries and that she has ongoing discomfort and pain that limits the length of time she can work without a break and the type of work she can perform.
She continues to suffer symptoms in her neck, left arm, right arm, back, left leg, right leg, bowels and bladder. However, her statements have not properly identified the nature of her symptoms, when they started, or how they have affected her, other than to say that the injuries have restricted her enjoyment of life and reduced her capacity to participate in normal employment, social, domestic and recreational activities.
Her injuries have also affected her psychological outlook and she suffers discomfort and pain which is distressing and affects her mood. She has found it hard to adjust to the discomfort, pain and restrictions as a result of her injuries.
In view of the inadequacies in Ms Yusuf’s statements, it has been necessary to attempt to piece together her history from the documentary evidence.
On the afternoon of her accident on 11 April 2008, Ms Yusuf attended on Dr Virk, general practitioner at Advanced Medical Centre at Auburn Road, Auburn. The doctor recorded that she had fallen over at work at 1.00 pm on that day while serving a patient. Whilst the doctor’s notes are quite difficult to decipher, there is a clear reference to right knee and back. On examination, Ms Yusuf was limping and her right knee was tender and swollen. Dr Virk issued a medical certificate dated 28 April 2008 declaring Ms Yusuf to be unfit from 11 to 16 April 2008 because of “back claim [sic] and (R) knee pain”.
On 16 April 2008, Ms Yusuf attended at the Parramatta community health facility and was certified unfit for her normal occupational duties from 16 to 22 April 2008.
Dr Lee Zhu, general practitioner at the City West Family Medical Centre at Civic Road, Auburn, recorded on 17 April 2008:
“(1) On 11 Apr 08 at work
a psychotic patient through [sic]
a table towards her.
Then she felt pain in (R) calf.
Then she saw a GP & given a note.
(2) About a month ago she
slipped on wet floor at work
and hurt her back (landed on
buttocks).Still c/o daily pain
(sickness cert from clinic 16-22/4)”
On 18 April 2008, Ms Yusuf underwent a lumbar CT scan which revealed minor postero-central disc bulging at the L4/5 and L5/S1 levels but without significant compression on the thecal sac and no canal stenosis. An x-ray of the lumbar spine taken on the same day demonstrated no abnormality other than mild mid lumbar scoliosis convex.
On 21 April 2008, Dr Al-Shelh, general practitioner at Liverpool, issued a medical certificate declaring Ms Yusuf to be unfit from 21 April until 23 April 2008 because of a “medical condition”.
On 24 April 2008, Dr Li, a general practitioner at the City West Family Medical Centre with Dr Lee Zhu, issued a medical certificate for Ms Yusuf declaring her to be unfit until 28 April 2008 because of back pain.
Ms Yusuf again attended on Dr Lee Zhu on 24 April 2008. The notes for that attendance record:
“(1) Pimples
(2) Still c/o LBP
? due to work related incident
I pressed on her head, pt stood & c/o back pain.”
The doctor appears to have prescribed Celebrex.
Ms Yusuf again attended on Dr Virk on 28 April 2008 complaining of backache and right knee pain.
On 28 April 2008, Dr Al-Shelh referred Ms Yusuf to a Dr Kuo. The referral letter refers to Ms Yusuf suffering strong low back pain radiating to both legs posteriorly and to her upper back and neck.
Also on 28 April 2008, Dr Al-Shelh issued a certificate declaring Mr Yusuf to be unfit from 28 April until 9 May 2008 because of a “medical condition”.
Dr Al-Shelh issued the first WorkCover medical certificate on 5 May 2008. That certificate referred to her having suffered a back injury on 11 April 2008 and declared her unfit for work from that date until 11 June 2008. It described her diagnosis as “unknown”.
On 13 May 2008, Dr Al-Shelh certified Ms Yusuf to be fit for suitable duties from 19 May until 8 June 2008. He repeated that certification in a further certificate on 16 June 2008 when he extended her period of fitness for suitable duties until 15 July 2008.
On 18 June 2008, Ms Yusuf attended at Bankstown Hospital complaining of low back pain since an injury she received two months earlier. The hospital’s discharge summary reads, “a direct trauma to the lower back caused lumbar disc bulging in L4/L5 and L5/S1 area. No fractures. She is not co-oping [sic] with the pain”. On examination, there were no neurological deficits and Ms Yusuf was discharged home with a diagnosis of “lower back pain – soft tissue injury”. Her medication included valium and panadeine forte. X-rays of the lumbar spine revealed minimal scoliosis convex to the left with minimal grade 1 anterolisthesis at the L4/5 level.
On 27 June 2008, Dr Virk certified Ms Yusuf to be unfit for work from 27 June until 3 August 2008. He diagnosed a back strain and noted that Ms Yusuf was depressed. He repeated his diagnosis in his next certificate and continued to certify Ms Yusuf to be unfit for work until 15 August 2008.
In an undated certificate from Dr Virk, he declared Ms Yusuf to be fit for suitable duties from 18 to 22 August 2008 because of “backache”.
Dr Virk issued further certificates on 22 August 2008, 1 September 2008, 7 November 2008 and 23 November 2008 all referring to backache and depression.
Ms Yusuf attended on Dr Virk on 17 October 2008 complaining of acute chronic backache. She was in tears and said she was in extreme pain. Her spinal movements were nil. The doctor recorded in his notes “depressed +++”.
Ms Yusuf again presented at the hospital emergency department on 20 October 2008 complaining of ongoing back pain with a history of having fallen at work. Low back x-rays revealed a slight straightening of the normal lumbar lordosis which may have been due to muscular spasm. There was also evidence of constipation.
Lumbar x-rays on “24 October 2007 [sic, 2008]” revealed moderate narrowing at the L4/5 disc space.
Ms Yusuf again attended on Dr Virk on 7 November 2008 in tears complaining of back pain. The doctor prescribed voltaren, an anti-inflammatory, and zoloft, an anti-depressant. Ms Yusuf saw Dr Virk again on 23 November 2008 when her backache was unchanged and the doctor again noted that she was depressed.
On referral from Dr Li, Ms Yusuf attended on Dr McKechnie, neurosurgeon, on 27 November 2008. He took a history that a patient assaulted her on 11 April 2008 and that since that time she had complained of severe back pain with intermittent radiation through the left buttock and leg. She complained of intense pain and was mobilising with the aid of two crutches. Apart from a markedly reduced range of movement of the spine, there were no objective neurological deficits. He noted the radiologist’s report on the CT scan, which revealed small L4/5 and L5/S1 disc protrusions, though he did not have the opportunity to view the scans. He referred Ms Yusuf for an MRI scan.
In preparation for the MRI scan, Ms Yusuf completed a questionnaire on 29 November 2008 in which she described her symptoms as pain, numbness, and weakness in her lower back and left leg. The MRI scan could not proceed because of Ms Yusuf’s claustrophobia.
Ms Yusuf attended at Westmead Hospital emergency department on 17 December 2008 complaining of pain in her right arm that started about eight months previously when she fell onto it. The pain had worsened over the previous two days. An ultrasound had not revealed any rotator cuff tear. On examination, there was no obvious deformity or swelling and no palpable bony tenderness. An x-ray of the right shoulder was normal. Ms Yusuf’s medications on discharge included panadeine forte, and diclofenac. She was given a broad-arm sling and advised to “mobilise as tolerated”. The attendance at Westmead Hospital came about as a result of a referral from Ms Yusuf’s new general practitioner, Dr Stenning.
On 14 January 2009, Ms Yusuf attended at Bankstown Hospital complaining of right neck, shoulder and arm pain for the last few months with low back pain. That evening her shoulder and arm pain had increased and caused her distress. Examination revealed her to be “distressed by pain”. Pain limited her neck and right shoulder movements. Her pain subsided with oral endone.
Ms Yusuf again attended at Bankstown Hospital on 16 January 2009 complaining of right neck, shoulder and arm pain. Her pain subsided with analgesics and she was discharged home for follow up with her general practitioner. A cervical CT scan was performed, but the radiologist’s report was not available.
A further lumbar CT scan on 21 January 2009 revealed a minor diffuse disc bulge and associated spondylosis at L4/5 and L5/S1. There was also minor left-sided facet joint degeneration at L4/5 and mild bilateral facet joint degeneration at L5/S1.
On 11 February 2009, Dr Matalani, consultant occupational physician, examined and reported on Ms Yusuf for medico-legal purposes at the request of her solicitors. He took a history that Ms Yusuf developed low back pain when she fell at work in January 2008 and landed on her buttocks. He recorded that she went off work for two days and saw her doctor at Auburn and was prescribed painkillers. In respect of the 11 April 2008 incident, the doctor recorded that one of the residents hit her in the back with a table and she fell to the floor and developed severe pain in her lower back, and injured her right arm and shoulder. She attended on Dr Virk who prescribed medication. She developed pain and weakness in her left leg about two weeks after her fall. Her pain persisted and became intense in June 2008.
Ms Yusuf complained to Dr Matalani of constant low back pain which radiated into the left buttock and down the left leg. She also had numbness in her toes and pain radiating upwards towards the thoraco-lumbar level and left side of the neck together with pain in her right arm. She complained that she was unable to walk for longer than five to ten minutes and had to use a crutch as she felt her left leg was weak. Standing for longer than five to ten minutes caused pain, as did sitting for longer than 15 minutes. Because of her neck and back pain she was unable to do any vacuuming or any work that required bending of her back. She required assistance for dressing and undressing. She stated that her neck, back, arms and legs were asymptomatic prior to her injuries with Amity.
On examination, Dr Matalani observed that the active range of motion of Ms Yusuf’s neck was reduced to approximately 40 per cent of normal on lateral flexion and rotation to the left and 60 per cent of normal for lateral flexion and rotation to the right. Extension was reduced to approximately 50 per cent of normal. In respect of the back, forward flexion was approximately 40 per cent of normal and extension was restricted to less than 30 per cent of normal. Ms Yusuf was unable to stand on her toes or to squat because of pain and weakness in her left leg and because of low back pain. Straight leg raising was 20 degrees on the left and 40 degrees on the right. There was no muscle wasting in the lower limbs. There was weakness of the extensors of the left foot and left big toe. Her knee jerks were depressed bilaterally but her ankle jerks were present and equal bilaterally. There was a global type of weakness affecting the left leg accompanied by pain in the left buttock and thigh. Movements of the right arm were significantly restricted and Ms Yusuf held that arm close to her body in a protective manner. Ms Yusuf also complained of constipation which she related to the effects of her medication.
Under “Diagnosis”, Dr Matalani concluded:
“Mrs Yusuf suffered a soft tissue injury and chronic musculo-ligamentous strain of the neck and back. She has disc lesions in the lumbo-sacral spine and symptoms consistent with nerve root irritation affecting the left leg. However, the appearance on CT scan does not indicate significant nerve root compression…
She may have also suffered a soft tissue injury to her right arm and shoulder.”
Dr Matalani was satisfied that Ms Yusuf’s employment had been a substantial contributing factor “in the development of her current disabilities.” He thought she was unfit for any employment and that she had developed a chronic pain syndrome.
The last medical certificate in evidence is the certificate dated 19 February 2009 from Dr Stenning, general practitioner at Wentworthville, in which Ms Yusuf was certified unfit for work from 19 February until 19 April 2009 because of “back pain”.
On 2 March 2009, Ms Yusuf attended on Dr Newlyn, consultant family and child psychiatrist, for a medico-legal assessment. In his report of 30 March 2009, Dr Newlyn recorded Ms Yusuf to have the following symptoms:
(a)because of her problems, she was depressed and nervous. She cried a lot and was sad every day because of her injury;
(b)she was not interested in things;
(c)sometimes she forgot to eat and she had lost 10 kilograms in weight;
(d)she was restless and slowed down;
(e)she felt tired all the time;
(f)her husband had left her, as she was no good;
(g)she had a hard time concentrating, and
(h)she had thought of killing herself but had not attempted to do so.
In terms of Ms Yusuf’s physical status, Dr Newlyn recorded her active problems to be pain in her buttocks that goes into her left leg. She described the pain as being like a “needle in my buttock”. She also had neck pain and pain in her right shoulder.
Dr Newlyn stated that the history he obtained was reliable and consistent with his psychiatric mental status examination. For the purpose of preparing his report, Dr Newlyn had clinical notes from Dr Al-Shelh, Dr Lee Zhu and from the Advanced Medical Centre (presumably Dr Virk). Dr Newlyn diagnosed Ms Yusuf to be suffering from a major depressive disorder, which she developed because of her pain after she was injured at work. He based his opinion on:
“… the combination of history, background material provided and Mrs Yusuf’s psychiatric mental status examination. Mrs Yusuf meets DSM-IV diagnostic criteria for the principal diagnosis of major depressive disorder.
This disorder began as a result of her workplace injury.” (at page 9)
Under “attitude”, Dr Newlyn recorded that Ms Yusuf said she was not better because she could not walk or sit and that her back was her “big problem”. From a psychiatric perspective, Ms Yusuf could not resume normal duties as a nursing assistant, but could work in a non-stressful job for less than 20 hours a week (page 15). Dr Newlyn considered Ms Yusuf’s employment with Amity to be “the cause of the major depressive disorder” (page 15) and that employment was a substantial contributing factor (page 16). He considered that her disorder was likely to improve over time if she received appropriate treatment.
Ms Yusuf again attended at Bankstown Hospital on 6 March 2009 complaining of lower back pain radiating into her left leg. The notes record that she had multiple chronic pain issues including abdominal pain, right arm pain, and lower back pain. On the day of her presentation, she had an exacerbation of her back pain that sounded like sciatica. She had taken panadeine forte without relief. Examination was difficult due to her severe pain but tone and power were intact. Reflexes, however, were difficult to elicit. She was given endone and ibuprofen with some improvement in her pain.
On 24 March 2009, Ms Yusuf attended at Westmead Hospital. The discharge summary describes Ms Yusuf as having presented with “generalised limb pain.” It added that she had a background history of chronic pain in [her] back and upper limbs post fall at work 1 year ago”. The pain in her legs and shoulders worsened the previous night. In a note to Ms Yusuf’s local medical officer, it was requested that she be referred to the outpatient mental health team for investigation of post-traumatic stress disorder and depression that “may well be contributing to her chronic pain status”. An MRI scan of the cervical spine and lumbar spine had been booked for the following month.
Ms Yusuf again attended at Westmead Hospital on 27 March 2009 when she presented with a two-day history of bilateral flank and back pain radiating to the groin (more painful on the right than on the left). She also complained of abdominal pain and vomiting for two days.
Amity’s evidence
Amity relies on reports from Dr Assem, injury management consultant, Dr Stephen, orthopaedic surgeon, Dr Saunders, sports physician, and Dr Lee, consultant medico-legal psychiatrist.
Dr Assem examined and reported on Ms Yusuf on 22 May 2008. He took a history that Ms Yusuf’s symptoms were worsening and that she complained of severe pain in her lower back that she rated at 10/10. There was also associated pain in her right buttock. On examination, lumbar movements were practically non-existent and there was diffuse tenderness to light superficial palpation. Neurological examination of the lower limbs was normal apart from a symmetrical reduction of knee and ankle jerk reflexes. After referring to the 18 April 2008 CT scan, Dr Assem stated that the radiological imaging was “unremarkable except for minor age related degenerative changes that were not clinically significant.” The Waddell signs for non-organic pain were globally positive and Dr Assem felt that the claim that Ms Yusuf’s condition was deteriorating was more a reflection of abnormal illness behaviour. He thought there were significant psychosocial “yellow flags” identified as she catastrophised her complaints and had a heightened perception of pain and disability. He felt it was in her interests to commence a graded return to work program on suitable duties with a restriction on lifting no more than five kilograms and with no repetitive bending or prolonged static back flexion or prolonged sitting or standing. Dr Assem liaised with Dr Al-Shelh who felt Ms Yusuf had mechanical low back pain with some psychological overlay. He agreed with a graded return to work program performing suitable duties.
Dr Assem reported on 16 June 2008 that he had again liaised with Dr Al-Shelh and explained that Ms Yusuf sustained a minor soft tissue injury. Dr Al-Shelh apparently stated that he did not believe there was any organic basis for Ms Yusuf’s physical complaints and that he felt she was malingering and was difficult to manage.
In his report of 15 August 2008, Dr Assem recorded that he had contacted Dr Virk who had been under the impression that Ms Yusuf had sustained a fracture in her lower back. Dr Virk was concerned about Ms Yusuf’s psychological state as she was teary and appeared to be depressed and was having difficulty with her interpersonal relationships. He felt that psychological management was necessary to facilitate re-integration into the workforce.
Dr Saunders treated Ms Yusuf on referral from Dr Lee Zhu, though exactly when is unclear. Ms Yusuf’s main complaints were of bilateral buttock and low back pain with referred pain into the left leg to the foot. Dr Saunders curtailed the examination because of Ms Yusuf’s condition. She was crying excessively and unable to assist with the examination. Dr Saunders diagnosed a sacroiliac joint sprain. She also noted the CT scan which showed that Ms Yusuf “may have some nerve root compression from discal injury” which Dr Saunders thought was “entirely possible.” Dr Saunders added:
“Regrettably, her problem seems to be a complete decompensation regarding her psychological status. I note you already have [her] on zoloft however she probably needs some form of psychiatric intervention in the first place to assist her.”
If Ms Yusuf’s psychiatric status could be controlled, Dr Saunders suggested a SPECT CT scan which would confirm the sacroiliac joint injury.
Dr Stephen examined Ms Yusuf on 12 May 2009 and reported on 14 May 2009. He recorded that she had discarded her crutches in favour of a wheelchair because the crutches caused pain in her right arm and shoulder. Physical examination was very limited. All neck movements were markedly restricted on formal examination, but were free when she was describing her symptoms and talking to the interpreter. Active shoulder elevation was limited to about 20 to 30 degrees with a complaint of shoulder and back pain. Subsequently, however, when sitting and delving into her bag to show the doctor some medication, she elevated each shoulder to 90 degrees without any significant pain. Active thoraco-lumbar movements were voluntarily restricted to “very little”. Though Dr Stephen did not examine the upper or lower limbs neurologically, he noted that reflexes were sluggish.
Dr Stephen examined the CT scan of 21 January 2009, which he described as normal. He did not agree with the radiologist’s report of multi-level diffuse disc bulging. His diagnosis was unchanged. He could find nothing physically wrong with Ms Yusuf and he felt that her widespread complaints were “on a non-organic basis” the nature of which was outside his field of expertise.
Dr Lee assessed and reported on Ms Yusuf on 17 June 2009. Ms Yusuf said that she was actually 28 years old and that the date of birth on her driver’s licence, December 1968, was incorrect. She presented for the assessment in a wheelchair saying, “I’m a bit all right, but I have very bad sleep, too much headache, I’m dizzy and my body’s very hot with fevers and I have pain in my shoulder blades down my right arm.” She also complained of pins and needles in her left shoulder and pain in the left side of her back and in her pelvis. She also complained of a “big sharp pain like nerves” down her leg. She complained of having depression because of the pain and of always screaming and being angry because she can’t sleep. She reported that she had no problems before her work related accidents.
Under “mental state examination”, Dr Lee recorded that Ms Yusuf displayed no objective evidence of a depressed mood. Despite reporting severe pain, she moved rapidly on several occasions, showing the doctor where her pain was. She was not tearful and there was no “guilty ideation”. He felt her presentation was consistent with abnormal illness behaviour.
Dr Lee reviewed clinical notes said to be from a “Dr Oner [sic]”. Those notes referred to Ms Yusuf having experienced pelvic pain, a cough and mild chest tightness, problems with an IUD apparently causing nausea, low abdominal and iliac fossa pain prior to her work injuries. In March 2006, she presented after a fight with her son’s auntie seven weeks previously in the street when she hurt her left middle finger. On 8 February 2006, she presented with a superficial laceration to her palm and was treated with steri-strips and a dressing. Dr Lee commented that these notes suggested significant social disturbance with possible psychosomatic pain.
Dr Lee extensively reviewed the medical evidence. In respect of Dr Newlyn’s report, he noted that Dr Newlyn did not raise the differential diagnosis of somatisation disorder, factitious disorder or malingering, and dismissed the implications of her pre-existing psychosocial stressors.
Dr Lee diagnosed a somatisation disorder unrelated to the work-related injuries, or feigning. In answer to the question of whether he believed the claimant’s employment was a substantial contributing factor to the injury alleged, Dr Lee said:
“I have to firstly express concern about this lady’s uncertain documents.
As I am provided [with] strong evidence that there is no organic basis to her report of pain, and given the pre-existing evidence of social adversity, I believe it is more likely than not that her employment was not a substantial contributing factor to this condition.”
Dr Lee was asked for his opinion as to the relevance of any pre-existing or subsequent injuries or conditions. He responded that there was clear evidence of psychosocial stress and unexplained pain prior to the injury.
In answer to a question about the claimant’s capacity and fitness for work, Dr Lee said that there was a great deal of abnormal illness behaviour. It was unclear that she had a psychiatric condition that would make her unable to work. The medico-legal context of the case made prognosis difficult. He did not believe there was strong evidence that she required treatment due to the extent of her abnormal illness behaviour.
THE ARBITRATOR’S REASONS
In an Amended Statement of Reasons (‘Reasons’) delivered on 30 July 2009, the Arbitrator made the following observations and findings:
(a)Dr Matalani recorded that prolonged sitting for Ms Yusuf became very uncomfortable after 15 minutes and she needed to change her posture. However, the Arbitrator observed the Applicant for about three hours during the course of the arbitration and did not observe her to be uncomfortable or to make any obvious move to change her posture;
(b)any genuine neck pain reported by Ms Yusuf to Amity was connected with the cause of her complaint of neck pain to Dr Virk in April 2007 rather than being connected with her employment or either injury the subject of the arbitration (Reasons at [36]);
(c)there was no adequate explanation for Ms Yusuf’s right shoulder pain and, more probably than not, it did not flow from her employment or from either injury (Reasons at [37]);
(d)Ms Yusuf’s assertion in her undated statement – that she hurt her neck, left arm, right arm, back, left leg, right leg, back, bowels and bladder as a result of a patient hitting her on her back with a table – was not consistent with the weight of the evidence (Reasons at [38]);
(e)Ms Yusuf did not suffer an injury to her neck or right shoulder which was related to her employment or substantially contributed to by it (Reasons at [39]);
(f)the injury to Ms Yusuf’s right calf had a pathological effect limited to a period not greater than six months from 11 April 2008 (Reasons at [41]);
(g)the matter should be remitted to the Registrar for referral to an AMS for assessment of Ms Yusuf’s whole person impairment relating to the injury to her lumbar spine;
(h)both Dr Stephen and Dr Saunders appear to support Dr Newlyn’s view that Ms Yusuf was suffering a psychological injury which arose from her employment and was substantially contributed to by it (Reasons at [46]);
(i)Dr Newlyn’s report appeared to be the more thorough and professional, compared to Dr Lee’s. There was support from Drs Saunders and Stephen (for Dr Newlyn’s opinions) although not in the same branch of the medical profession (Reasons at [50]);
(j)Dr Newlyn’s diagnosis appeared to be a confident one. In contrast, Dr Lee had some difficulty in weighing the evidence before him and he ultimately decided that it was “more likely than not” that Ms Yusuf’s employment was a substantial contributing factor to her psychological condition (Reasons at [51]);
(k)in all the circumstances, the report of Dr Newlyn was to be preferred and, on this basis, Ms Yusuf had a psychological condition which was related to her employment which was a substantial contributing factor to it (Reasons at [53]);
(l)Ms Yusuf’s back problem was not of great significance (Reasons at [61]);
(m)Dr Matalani did not connect the findings on CT scan and x-ray with either work injury (Reasons at [63]);
(n)there was insufficient evidence to suggest that Ms Yusuf’s incapacity was, because of her physical condition, greater than as indicated by Dr Newlyn (Reasons at [64]);
(o)Ms Yusuf was partially incapacitated for employment (Reasons at [67]), and
(p)probable earnings but for the injury were $385.00 per week. Having to concentrate on her treatment and, possibly on her English studies, were likely to impact on her finding employment in the short term (Reasons at [68ii]). Ms Yusuf’s earning capacity was $175.00 per week. The difference ($210.00 per week) was awarded as compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 8 December 2008 to date and continuing.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that any injury to the worker’s back continued to cause symptoms and produce incapacity after 8 December 2008 (‘incapacity as a result of the back injury’);
(b)finding a primary or secondary psychological injury resulting from the injuries received in January 2008 and on 11 April 2008 (‘psychological injury’);
(c)relying on the opinions of Drs Stephen and Saunders to support the finding of psychological injury resulting from the incidents relied upon (‘evidence from Drs Stephen and Saunders’);
(d)misreading or misquoting the opinion of Dr Lee (‘psychological injury’);
(e)assessing the worker’s entitlements under section 40 of the 1987 Act on the basis of incapacity resulting from the psychological injury when such a conclusion was not open to him or was against the weight of the evidence (‘incapacity’), and
(f)failing to properly exercise the discretion in section 40(1) of the 1987 Act (‘incapacity’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Incapacity as a result of the back injury
While no challenge is made to the finding that Ms Yusuf suffered injury to her back in the two incidents relied upon, it is argued that there is insufficient evidence to support a finding that the effect of the injury continued as at 8 December 2008 and that it was continuing to cause incapacity. It is submitted that the Arbitrator failed to give any or any adequate reasons in relation to his finding of continuing incapacity as a result of the back injury, save that he accepted that the position in relation to the back injury remained “somewhat unclear” (Reasons at [59]), that the back problem was not “of great significance” (Reasons at [61]) and that it did not seem to the Arbitrator that there was sufficient evidence to suggest that Ms Yusuf’s incapacity was, because of her physical condition, greater than as indicated by Dr Newlyn (Reasons at [64]).
It is argued that, in expressing these views, the Arbitrator failed to clarify the basis upon which he considered Ms Yusuf’s back symptoms to be continuing. To accept that Ms Yusuf suffers the continuing effects of a musculo-ligamentous or soft tissue injury, as diagnosed by Dr Matalani, requires, so it is argued, an unqualified acceptance of her complaints of pain. However, it is contended that her “abnormal illness behaviour” renders such an acceptance impossible. It is therefore submitted that the “correct view” is that Ms Yusuf has failed to discharge the onus of establishing any ongoing incapacity as a result of her back injury. That is the conclusion Dr Stephen reached and that conclusion finds further support in the MAC from Dr Middleton in which Ms Yusuf was assessed to have a nil whole person impairment as a result of her back injury.
Ms Yusuf submits that there is an abundance of evidence of the effects of the back injury. That evidence includes:
(a)evidence from Dr Saunders that Ms Yusuf suffered a sacro-iliac joint sprain when she fell at work;
(b)Dr Virk’s WorkCover medical certificates from 23 November 2008;
(c)Dr McKechnie who found on 27 November 2008 that Ms Yusuf had a markedly reduced range of movement in her spine;
(d)Dr Matalani’s evidence in his report of 11 February 2009;
(e)Dr Stenning’s WorkCover certificate dated 19 February 2009 declaring Ms Yusuf unfit because of back pain;
(f)Ms Yusuf attended at Westmead Hospital on 6 and 24 March 2009 complaining of back pain, and
(g)Dr Stephen has not explained how he concluded that Ms Yusuf had recovered from the effects of the injury.
Whilst I agree that the Arbitrator failed to give adequate reasons in relation to his finding of continuing incapacity as a result of the back injury, and this part of the claim must therefore be re-determined, I do not accept that for Ms Yusuf to succeed on this issue requires an “unqualified” acceptance of her complaints of pain. What is required is an assessment of the whole of the evidence and a determination based on that evidence.
The evidence in respect of Ms Yusuf’s back is found in her statement and in the several sources referred to at [80] above. She has consistently complained of low back pain to her treating doctors since seeing Dr Virk on 11 April 2008, the day of her second accident. Dr Lee Zhu also recorded a complaint of back pain on 17 April 2008, though appears to have dated it from a fall one month before. It not being suggested that Ms Yusuf had another fall in the first part of 2008, I assume that Dr Lee Zhu’s reference to “a month ago” is a reference to the fall at work in or about January 2008.
The CT scan performed on 18 April 2008 revealed minor postero-central disc bulging at L4/5 and L5/S1 without significant compression of the thecal sac. She complained to Dr Li of back pain on 24 April 2008 and the doctor certified her unfit until 28 April 2008 and prescribed celebrex. Further complaints of back pain are recorded on 28 April 2008 and the referral letter to Dr Kuo on that date refers to Ms Yusuf suffering strong low back pain radiating to both legs. A WorkCover certificate of 5 May 2008 refers to the back injury.
Ms Yusuf attended at Bankstown Hospital on 18 June 2008 complaining of low back pain since her injury two months earlier. I accept that that reference is a reference to her work injury. The notes referred to Ms Yusuf not coping with “the pain” and being prescribed panadeine forte and valium. The reference to “the pain” is clearly a reference to low back pain. Her back symptoms did not ease and she complained of back pain to Dr Virk regularly (sometimes in tears) until November 2008 when she changed to Dr Stenning.
In addition to her attendances on Dr Virk, Ms Yusuf attended at Bankstown Hospital on 20 October 2008 complaining of ongoing back pain with a history of having fallen at work. She was given panadeine forte and valium. X-rays revealed a slight straightening of the normal lumbar lordosis that may have been due to muscle spasm.
Dr Saunders also confirmed the history of low back pain and pain into the left leg in her report of 18 November 2008.
Dr McKechnie took a history that Ms Yusuf complained of severe back pain with intermittent radiation through the left buttock and leg. Whilst there were no objective neurological signs, he noted the CT scan demonstrated “small L4/5 and L5/S1 disc protrusions according to the radiology report” though he did not examine the scans. He referred Ms Yusuf for an MRI scan. In the questionnaire completed on 29 November 2008, Ms Yusuf described her symptoms as pain, numbness, and weakness in her lower back and left leg.
A further CT scan on 21 January 2009 revealed minor bulging and spondylosis at L4/5 and L5/S1 and minor left-sided facet joint degeneration at L4/5 and mild bilateral facet joint degeneration at L5/S1.
Ms Yusuf presented at Westmead Hospital on 6 March 2009 with low back pain radiating into her left leg. She presented again on 24 March 2009 with a history of chronic back and upper limb pain. The notes request that Ms Yusuf be referred to the outpatient mental health team for “? PTSD ? depression that may well be contributing to her chronic pain status”. She presented again on 27 March 2009 with right flank pain.
Dr Middleton (the AMS) did not find that Ms Yusuf suffered no injury, or that the effect of the injury had resolved, but merely that there were “no significant objective or radiographic findings of lumbar spinal abnormality” (emphasis added) (MAC at page four). The MAC is only conclusively presumed to be correct with respect to the assessment of whole person impairment. Though I have had regard to the MAC, I find Dr Middleton’s opinion of limited assistance in determining the issues before me.
Given the consistent history of complaints of back and left leg pain noted above, I accept Dr Matalani’s conclusion that Ms Yusuf suffered a soft tissue injury and musculo-ligamentous strain to her low back as a result of her injuries in or about January 2008 and on 11 April 2008. I do not accept Dr Stephen’s evidence that the effects of the work injuries have ceased. Though it is unclear from his report, he seems to have based this conclusion on the lack of an identifiable physical component to Ms Yusuf’s complaints. The lack of such evidence does not necessarily support a conclusion that the effect of a back injury has ceased. In any event, the assertion is not accurate. Low back x-rays in October 2008 revealed a slight straightening of the normal lumbar lordosis that may have been due to muscular spasm.
Though counsel for Amity properly conceded that Ms Yusuf’s complaints might have been genuine initially, he added that it was now not possible, because of her extreme presentation, to determine if the complaints are still genuine. He referred to Ms Yusuf’s complaint (found in Dr Matalani’s report) that she cannot sit or stand for prolonged periods and the Arbitrator’s observation (at [16] of his Reasons) that she sat for three hours during the arbitration without appearing to be uncomfortable or having to change position. However, whether Ms Yusuf’s complaints can be accepted requires an assessment of all of the evidence.
Whilst I accept that Ms Yusuf’s complaints and restrictions are not fully explained by the radiological investigations that have been performed to date, she has consistently complained of back and left leg symptoms since her work injuries. Given the consistency and frequency of those complaints, I accept that she experiences significant back and left leg pain and, given the lack of back symptoms before January 2008, I accept that her pain has resulted from the work injuries, notwithstanding that she has exaggerated in her presentation to several of the medical experts. It follows that I do not accept the Arbitrator’s conclusion that the back injury was not of great significance. For the same reasons, I do not accept Amity’s submission that Ms Yusuf has not discharged the onus of proof.
Psychological injury
It is submitted that the Arbitrator erred in finding a primary or secondary psychological injury on the basis of Dr Newlyn’s evidence when:
(a)those opinions were based on assumptions and facts not accepted by the Arbitrator, meaning that they were founded on facts not proved in the proceedings;
(b)those opinions were expressed as bare ipse dixits without being supported by any reason or explanation and were therefore not probative evidence and could be afforded no weight, and
(c)by reason of (a) and (b), the evidence of Dr Newlyn was not sufficient to found the finding of psychological injury.
Amity further submits that it must be assumed that Dr Newlyn accepted Ms Yusuf’s complaints of pain to be genuine and that his opinion was that the pain resulting from the work injuries caused the psychological condition. Contrary to the complaints made by Ms Yusuf to Dr Newlyn, the Arbitrator found that Ms Yusuf had suffered no injury to her neck or right shoulder, that the calf injury (not mentioned to Dr Newlyn) had resolved by October 2008, and that the back injury was “not of great significance” (Reasons at [61]). In light of the Arbitrator’s observation about Ms Yusuf’s ability to sit (Reasons at [16]), he clearly considered her complaints to be exaggerated. Therefore, the facts on which Dr Newlyn’s opinion is based have not been proved in evidence (Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1985) 59 ALJR 844) (‘Paric’). The Arbitrator’s findings as to the duration and severity of Ms Yusuf’s symptoms are in marked contrast to the history recorded by Dr Newlyn and on which he based his opinion. Therefore, so it is argued, his opinion is not of “any value” and cannot be accepted.
It is also argued that Dr Newlyn has not explained how or why he reached his conclusions and, in these circumstances, his conclusions should be afforded no weight (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Southwest Sydney Area Health Service v Edmonds (2007) NSWCA 16). In particular, it is submitted that Dr Newlyn has failed to explain whether it was the presence of any pain or the severity of the pain complained of that produced a psychological condition.
It is further argued that Dr Newlyn failed to address the possibility that Ms Yusuf’s psychological condition, if any, could be explained on the basis of malingering and feigning, on the basis of a somatoform disorder intrinsic to her personality and unrelated to the injury, or on the basis of other stressors in her life. It is argued that Ms Yusuf raised no concern regarding psychological issues until a number of months after the work injuries. Her marital problems and her other health problems would clearly represent stressors capable of giving rise to a psychological condition, yet Dr Newlyn failed to address those issues.
It is also submitted that Dr Newlyn failed to deal in any meaningful way with Ms Yusuf’s history of “stress” experienced in December 2006, when she was referred to a psychiatrist (Dr Chaudhary), and the reference to stress in April 2007. It is fatal to Dr Newlyn’s opinions, so it is argued, that he has failed to address or comment on the issues raised by Dr Lee, namely that Ms Yusuf may be suffering from a longstanding somatisation or factitious disorder that pre-existed the subject work injuries and may have resulted from the “social adversity”.
In response, it is submitted on behalf of Ms Yusuf that:
(a)the Arbitrator was entitled to accept that Ms Yusuf was suffering from a psychological injury resulting from the work related injuries;
(b)Dr Newlyn’s opinion was well developed and based upon an interview with the worker and the material provided to him by the worker’s solicitors. He was well aware that the worker complained of pain, particularly in her buttocks and down her left leg;
(c)there was a basis for the worker’s complaints of pain in her back which resulted from injury the employer accepted occurred;
(d)Dr Newlyn’s opinion was based on the presence of pain arising out of the work related incidents. The doctor noted Ms Yusuf’s previous stress related problems but discounted them as a reason for her current (post-injury) problems because she had not previously reported psychiatric symptoms from stress (page five of Dr Newlyn’s report of 30 March 2009);
(e)despite the fact that Ms Yusuf had other stressors in her life, she continued to work and there is no evidence that she lost any time from work as a result of her pre-injury physical complaints. It was not until after the work injuries that she developed florid psychological symptoms, and
(f)employers must take their workers as they find them (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [40]) (‘Chemler’).
The Arbitrator found that Ms Yusuf received no injury to her neck or right shoulder and that she recovered from her right calf injury by October 2008. Those findings are not challenged on appeal. The question therefore arises as to whether, in the light of those findings, what weight, if any, can be attached to Dr Newlyn’s conclusions. Ms Yusuf told Dr Newlyn that her back was “a big problem”. A review of the evidence suggests, and I find, that Ms Yusuf’s dominant complaints to her treating doctors, including the emergency departments of Bankstown and Westmead hospitals, have been of severe symptoms relating to her back injury (see [82] to [89] above). Therefore, I do not believe that the Arbitrator’s adverse finding in respect of the neck, right shoulder and right calf reduces the probative value of Dr Newlyn’s report. Given the severity and frequency of Ms Yusuf’s back symptoms, I am comfortably satisfied that Dr Newlyn’s history has provided a “fair climate” for the acceptance of his conclusion (Paric).
Nor do I accept that Dr Newlyn’s conclusion is a bare ipse dixit. Dr Newlyn is a consultant psychiatrist and a WorkCover approved impairment assessor. He concluded that Ms Yusuf developed a major depressive disorder because of her pain. He based his conclusion on a combination of the history he took, the background material provided, and his mental status examination of Ms Yusuf (Dr Newlyn’s report 30 March 2009, page nine). His history included a history of the work injuries (page two), a lack of significant psychological symptoms before the work injuries (page five), and a description of Ms Yusuf’s restrictions in her daily routine and the change in her personality since the work injuries (page seven).
Dr Newlyn noted that Ms Yusuf said, “I feel that as the pain is higher things are worse”. As noted above, her back was a big problem. Ms Yusuf’s back symptoms were and remain the major problem. Dr Newlyn took a history of the work injuries, the pain and other consequences of those injuries, and the consequence of that pain (depression). The doctor felt that Ms Yusuf’s history was consistent with his psychiatric mental status examination and, as a result, concluded that Ms Yusuf’s employment was the cause of her major depressive disorder. It is difficult to see what further explanation the doctor could have provided in the circumstances of this case. Dr Newlyn’s conclusion is succinctly stated and is consistent with Ms Yusuf’s complaints and presentation since the work incidents. It is entitled to appropriate weight having regard to the other evidence in the case.
Counsel also submitted that the magnification of pain is a symptom of the depression and it may be that the depression has produced the complaints of pain. Merely recording complaints without separating symptoms from causes, so it is argued, does not advance the worker’s position. It is true that “anxiety and depression almost always magnify pain, and vice versa” (Guides to the Evaluation of Permanent Impairment, American Medical Association, fifth edition 2000, at 366) and it is often important (but not necessarily decisive, given the aggravation provisions in section 4 of the 1987 Act) to determine which came first. The force of this submission depends on an analysis of the history.
As is discussed further below, Ms Yusuf performed her normal duties without restriction until her work injuries. She continued working after the first injury but ceased after the second. Her complaints of significant back pain are well documented and the link between her back pain and depression first appears in Dr Virk’s notes on 27 June 2008. Dr Virk suggested no other cause. Dr Virk’s certificates consistently refer to backache and depression from that date until his last certificate on 23 November 2008.
The back injury clearly placed Ms Yusuf’s marriage under strain. Dr Virk noted on 8 August 2008 that Ms Yusuf was unable to cope and that sex was difficult. I infer that sex was difficult because of Ms Yusuf’s pain. This is consistent with Dr Lee’s note that Ms Yusuf’s husband left her after the injury because they could not sleep together. It follows that the history clearly establishes that the depression developed as a result of the back injury and before Ms Yusuf separated from her husband. Indeed, I infer that the back injury was probably a major cause of the separation. It follows that Dr Newlyn’s conclusion on causation (that the depression resulted from the back pain) is perfectly consistent with the history and I have no hesitation in accepting it.
I do not accept that it was necessary for Dr Newlyn to explain whether it was the presence of any pain or the severity of the pain complained of that produced the psychological condition. Ms Yusuf’s evidence is clear that the level of pain was and is severe and that is what restricts her activities. Though I believe there may well be an element of exaggeration in her presentation, I accept that she has significant back pain as a result of her work injuries and that she has developed a depressive disorder as a result of that pain, as diagnosed by Dr Newlyn.
It is correct that Dr Newlyn did not expressly state if Ms Yusuf’s psychological condition could be explained on the basis of malingering, feigning, somatoform disorder, or other stressors. However, he took a detailed note of her previous psychiatric history (none), family of origin history (born in Somalia, moved to New Zealand and then to Australia), developmental history (no childhood symptoms were recalled and there was no history of sexual or physical trauma), relationship history (Ms Yusuf was sad when her first husband was killed; her second husband left her after the work injury), academic history (year 8 in Somalia), employment history (no work in Somalia or New Zealand, process work and nursing assistant work in Australia), chemical dependency history (none), and her forensic history (none). Given this history, which I accept as evidence of the fact (Papercoaters Pty Ltd v Jessop [2009] NSWCA 1 at [42]), and the doctor’s conclusion that the history was reliable and consistent with his psychiatric mental status examination, I do not believe it was necessary for Dr Newlyn to expressly deal with the differential diagnoses listed above. He noted Ms Yusuf’s marital problems. I am satisfied that Dr Newlyn did not consider them to be significant or to detract from his ultimate conclusion. He considered the substantially accurate history, conducted a mental state examination and, as an expert, drew his conclusions accordingly.
Even if Ms Yusuf’s marital and other personal problems have contributed to her depression, that does not prevent a finding that her depression has resulted from her work injuries. It is trite law that a condition can have more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). What is required is satisfaction that, on the balance of probabilities and as a matter of common sense, the condition complained of has resulted from the injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’)).
I do not accept that Dr Newlyn failed to deal in any meaningful way with Ms Yusuf’s history of “stress”. He referred to the clinical notes from Dr Al-Shelh, Dr Lee Zhu, and the Advanced Medical Centre (Dr Virk) and was aware that Ms Yusuf had been referred to a women’s refuge after a domestic argument in October 2005. Notwithstanding the content of those notes, he concluded that employment was the cause of Ms Yusuf’s depression. I do not believe it is of any relevance that Dr Newlyn did not deal with the reference in Dr Lee Zhu’s notes to stress in December 2006 (when the notes suggest Ms Yusuf was referred to a Dr Chaudhary) or to Dr Virk’s reference to stress in April 2007. There is no evidence that Ms Yusuf saw Dr Chaudhary or that she required treatment for any psychological condition at that time or any other time before her work injuries. On their own, the entries carry little weight and it is hardly surprising that Dr Newlyn did not expressly refer to them.
It is submitted that the Arbitrator misquoted Dr Lee’s evidence. The Arbitrator said (Reasons at [51]) that Dr Lee “ultimately decides that it is ‘more likely than not’ that the Applicant’s employment was a substantial contributing factor to her psychological condition”. In fact, Dr Lee said that it was probable that the worker’s “employment was not a substantial contributing factor” to her condition (emphasis added).
It is further argued that the Arbitrator has erred in preferring Dr Newlyn’s evidence over that of Dr Lee on the basis that the opinion expressed by Dr Newlyn was “a confident one”, while Dr Lee had “some difficulty… in weighing the evidence before him” (Reasons at [51]). It is submitted that the better view is that Dr Newlyn’s opinions were made overconfidently and without proper consideration, while Dr Lee made a more appropriate attempt to understand the worker’s presentation in the context of the whole of the available history. Therefore, Dr Lee’s opinions should be accorded more weight. The Arbitrator has erred, it is submitted, in preferring Dr Newlyn’s opinion while failing to critically examine whether his opinion was properly explained and based on a complete and proven history.
I have already dealt with the submission that Dr Newlyn did not properly explain his conclusion and whether his history provided a “fair climate” for the acceptance of his conclusion.
I agree that the Arbitrator misquoted Dr Lee’s evidence. The Arbitrator said (at [51] of his Reasons):
“Dr Newlyn’s diagnosis ‘Mrs Yusuf does have a psychiatric impairment’ based upon the ‘DSM IV Decision Tree’ appears to be a confident one. Contrast Dr Lee who obviously has some difficulty, see the closing paragraphs under ‘Opinion’ in his Report, in weighing the evidence before him. He ultimately decides that it is ‘more likely than not’ that the Applicant’s employment was a substantial contributing factor to her psychological condition.”
In fact, Dr Lee said under “Opinion” (at page nine) in answer to the question “Do you think the claimant’s employment is a substantial contributing factor to the injury alleged in this claim?”
“I have to firstly express concern about this lady’s uncertain documents.
As I am provided strong evidence that there is no organic basis to her report of pain, and given the pre-existing evidence of social adversity, I believe it is more likely than not that her employment was not a substantial contributing factor to this condition.”
Whilst the Arbitrator erred in misquoting Dr Lee’s evidence, that error is of limited consequence because Ms Yusuf’s psychological condition is clearly a secondary psychological condition as it has arisen as a consequence of, or secondary to, a physical injury (section 65A(5) of the 1987 Act). The psychological condition is not “the injury” Ms Yusuf “received” (section 9 of the 1987 Act) but is a condition that has arisen as a result of the injury (Kooragang). All that Ms Yusuf has to establish is that her condition has, as a matter of common sense, resulted from the work injury. For the reasons set out above, I am comfortably satisfied that she has established the relevant connection on the balance of probabilities.
I do not agree that the Arbitrator erred in preferring Dr Newlyn’s evidence to Dr Lee’s evidence, though I do not agree with the Arbitrator’s reason for doing so. Whether an expert witness is confident in expressing his or her conclusions may be a factor to consider in assessing the weight of that witness’s evidence. The better approach, however, is to consider the probative value of the evidence by analysing the conflicting opinions, the history of the matter and the history on which the opinions are based, and determine which are the more logical and plausible.
Amity argues that Dr Lee’s evidence should be preferred because he made a more appropriate attempt to understand the worker’s presentation in the context of the whole of the available history. Whilst Dr Lee provided a lengthy review of the documentary evidence, I have not found his report to be of any assistance in resolving the issues in dispute.
Dr Lee stated (at page eight) that Dr Newlyn did not exclude whether Ms Yusuf’s symptoms were “due to a general medical condition”. Whilst Dr Newlyn did not expressly rule out the effects of a general medical condition, he concluded that employment was the only cause of Ms Yusuf’s major depression (page 16). I am therefore satisfied that he dealt with that issue. I have dealt above with Dr Lee’s comment that Dr Newlyn did not raise the differential diagnosis of somatisation disorder, factitious disorder, or malingering. I do not believe that omission makes any difference to the weight I attach to Dr Newlyn’s report.
Whilst Dr Lee recorded that Ms Yusuf’s employment was not a substantial contributing factor to her condition that is not the correct test. Nevertheless, I infer that Dr Lee did not consider Ms Yusuf’s depression resulted from her work injuries. He gave two possible diagnoses, either somatisation disorder unrelated to the work injuries or feigning. Dr Lee did not properly explain why he felt Ms Yusuf might have somatisation disorder. If it is based on his reference to Ms Yusuf complaining of “multiple problems” to Dr Lee Zhu on 16 February 2006 for which no diagnosis was provided, the notes for that date refer to Ms Yusuf having been referred to a Dr Matthias. There is no report from that doctor and whether those complaints were diagnosed or not is unclear. In respect of the complaints of pelvic pain, Ms Yusuf underwent an ultrasound on 20 September 2006, which revealed a small thin-walled cyst of the left ovary. The significance of this finding is not dealt with in the clinical notes, which are extremely difficult to read.
Given Ms Yusuf’s work history and the absence of any or any significant complaints of psychological symptoms before the work injuries, the reference to depression (in the context of her back pain) in Dr Virk’s notes on 27 June 2008, and her consistent complaints of back and leg pain since her work injuries, I do not accept the diagnosis of somatisation disorder and I prefer and accept Dr Newlyn’s diagnosis and opinion on causation. For the same reasons I do not accept that Ms Yusuf has been or is feigning.
Based on Dr Newlyn’s evidence, Ms Yusuf’s evidence, and the evidence in the hospital and clinical notes referred to above, I am comfortably satisfied that Ms Yusuf’s depression has resulted from her pain as a result of her back injuries with Amity. That Ms Yusuf may have been a vulnerable person because of her family and personal situation does not detract from this conclusion. Employers take their employees as they find them (Chemler at [40]).
Evidence of Drs Stephen and Saunders
It is argued that the Arbitrator wrongly concluded that Drs Stephen and Saunders “appear to support Dr Newlyn’s view that the applicant is suffering a psychological injury” (Reasons at [46]). It is submitted that neither doctor has the relevant expertise in relation to the psychological aspects of the claim and, in any event, their opinions do not support the conclusions reached by Dr Newlyn. Dr Newlyn considered that the cause of any psychological condition was the worker’s pain, while Dr Stephen was of the view that “there is no physical basis for her complaints”. Dr Stephen did not diagnose a psychological condition, but concluded that the worker’s complaints were “non-organic”. He added that whether the worker’s complaints were psychiatrically based was outside his area of expertise.
It is conceded that Dr Saunders stated that the worker’s problems seemed to be “a complete decompensation regarding her psychological status” and that further psychiatric intervention was recommended. It is argued, however, that immediately following this statement the doctor observed that the worker’s husband had left her and that the worker had no family in Australia and was a refugee from Somalia and had been in Australia for only four years having come here after her first husband died. Dr Saunders considered, so it is argued, that these factors were relevant to the worker’s psychological condition and made no comment to the effect that such condition had been caused by her pain.
In these circumstances, it is argued that it was inappropriate for the Arbitrator to rely on the opinions of Drs Stephen and Saunders as giving support for Dr Newlyn’s conclusions. In fact, Dr Stephen’s opinions more closely accord with the view expressed by Dr Lee.
It is submitted on behalf of Ms Yusuf that Drs Stephen and Saunders are both medical practitioners and as such are able to express a view as to the worker’s psychological status. The Arbitrator did not rely upon their opinions as to whether the worker had a diagnosable psychiatric condition or as to the cause of that condition.
I agree that Dr Stephen did not provide any evidence in support of Dr Newlyn’s diagnosis. Dr Stephen concluded that there was no physical basis for Ms Yusuf’s complaints. Whether they were psychiatrically based, or manufactured, or a combination of both, was outside his area of expertise.
Dr Saunders merely noted that Ms Yusuf had “a complete decompensation regarding her psychological status” and probably needed psychiatric intervention, but expressed no view as to the cause of that decompensation.
Neither Dr Saunders nor Dr Stephen provided support for Ms Yusuf’s psychological claim and the Arbitrator erred in relying on them. However, as I have re-determined this issue based on Dr Newlyn’s evidence, the error is of no consequence. In reaching my conclusion that Ms Yusuf’s psychological condition has resulted from her back injuries, I have placed no weight on the reports from Drs Saunders or Stephen.
Incapacity
It is submitted that the Arbitrator erred in assessing Ms Yusuf’s entitlements under section 40 on the basis of incapacity resulting from a psychological injury causally related to the injuries to her back and erred in assessing the worker’s ability to earn in some suitable employment to be $175.00 per week. The Arbitrator made this calculation, so it is argued, on the basis that the worker was capable of working in suitable duties for 20 hours per week because of her psychological “injury”, because he concluded that the “back problem is not of great significance” (Reasons at [61]) and that “the applicant’s incapacity is, because of her physical condition, greater than as indicated by Dr Newlyn” (Reasons at [64]). In other words, it is argued that the Arbitrator found Ms Yusuf to be capable of working more than 20 hours per week in suitable employment by reason of her back injury alone.
It is also argued that the allowance of $175.00 per week based on an ability to work 20 hours per week assumes an hourly rate of $8.75 per hour. Almost all unskilled jobs attract hourly rates of at least $12.50 and, in the absence of an explanation, the Arbitrator’s assessment cannot stand.
It is further argued that the Arbitrator has fallen into error in failing to give any or any adequate reasons in respect of his finding as to the worker’s ability to earn in some suitable employment. He made no findings as to what duties might be regarded as suitable or what it was about her physical or psychological condition that precluded her from performing suitable duties for more than 20 hours per week. The Arbitrator erred in accepting Dr Newlyn’s opinion when Dr Newlyn did not explain the restriction in hours he placed upon the worker and did not identify the type of work she could perform other than stating that she should avoid work as a nursing assistant but “could work in a non-stressful job”.
Amity has approached the section 40 assessment on two alternative bases. First, on the basis that the Arbitrator’s finding in relation to the worker having suffered a psychological injury is upheld and, second, on the basis that the assessment is limited to the incapacity resulting from the back injury alone. In respect of the first scenario, it is submitted that Ms Yusuf could work as a process worker for 20 hours a week at $13.00 per hour giving an ability to earn of $260.00 per week. Further, there is no reason why Ms Yusuf could not work in non-stressful employment for 30 hours a week and in that event, her ability to earn would be $390.00 per week, which is above the probable earnings but for injury.
If the appeal in respect of the psychological injury is upheld, it is submitted that Ms Yusuf’s ability to earn would be considerably greater. The Arbitrator concluded, so it is argued, that Ms Yusuf could work more than 20 hours per week if her only injury was her back injury, which he considered to be of “no great significance”. If the only injury under consideration is the back injury, it is argued that Ms Yusuf would be able to earn in some suitable employment an amount equal to or greater than her probable earnings but for injury.
It is submitted on behalf of Ms Yusuf that:
(a)in assessing the worker’s ability to earn at $175.00 per week, the Arbitrator correctly took into account her need for treatment for psychological condition and that she would possibly need to improve her English, and
(b)reliance is placed on the principles discussed in Mangion v Visyboard Pty Ltd [1991] NSWCC 1; (1992) 8 NSWCCR 175 (‘Mangion’).
I agree that the Arbitrator did not explain how he determined Ms Yusuf’s ability to earn to be $175.00 per week. The parties have invited me to re-determine the matter and that is the course I propose to adopt. Whilst I accept that the effect of Ms Yusuf’s back injury is continuing and that, as a result of her back injury, she has a depressive disorder, I do not accept that her work related conditions have rendered her totally unfit for work, though that is clearly her belief. The case must therefore be determined under section 40 of the 1987 Act.
Applying the five steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’), I note that probable earnings but for the injury (step one) are now agreed at the figure the Arbitrator found, namely $385.00 per week.
In assessing Ms Yusuf’s ability to earn (step two) I must have regard to the terms of section 43A of the 1987 Act. Ms Yusuf’s injury is a soft tissue and chronic musculo-ligamentous strain of the low back that has rendered her unfit for her pre-injury employment as a nursing assistant. As a result of that injury she has developed a major depressive episode, which I accept has also rendered her unfit for her pre-injury job. I accept Ms Yusuf’s evidence that her back symptoms limit the time she can work without a break (see Ms Yusuf’s undated statement, paragraph 11) and Dr Newlyn’s evidence that her depression restricts her to a “non-stressful job for less than 20 hours per week”.
Neither Dr Middleton nor Dr Stephen expressed any opinion on fitness for work. Dr Assem, Amity’s injury management consultant, felt in May 2008 that it was in Ms Yusuf’s best interests to commence a graded return to work program on suitable duties, initially four hours per day for three days per week with the following restrictions: a lifting restriction of five kilograms, no repetitive bending or prolonged static back flexion, and the provision to sit or stand at her own discretion. As her symptoms improved, her restrictions could be incrementally upgraded according to tolerance. Dr Assem’s optimism has not been fulfilled and Ms Yusuf’s symptoms have not improved.
Based on the evidence in her undated statement, Ms Yusuf is soon to turn 41. Whether she is in fact 10 years younger, as Dr Lee’s history suggests, makes no relevant difference to the section 40 assessment. Her education was limited to year eight in Somalia. Though English is not her first language, I note that she had a sufficient grasp of English to complete an aged care certificate. Her work experience has been limited to process work in Melbourne and work as a nursing assistant with Amity. She resides at Bankstown, a heavily populated multicultural suburb of Sydney with many employment opportunities.
On 23 November 2008, Dr Virk certified Ms Yusuf fit for suitable duties for four hours per day for five days per week. Dr Stenning certified Ms Yusuf unfit for work from 19 February 2009. In the absence of any evidence of a change in Ms Yusuf’s symptoms between November 2008 and February 2009, I do not accept Dr Stenning’s certification of total incapacity.
Ms Yusuf has not received any rehabilitation training. While she returned to work for four days in about June 2008 (see Dr Matalani’s report 11 February 2009, page six) it is unclear if that was part of a formal injury management plan.
Taking into account the above matters, I find that Ms Yusuf’s employment prospects are limited to light unskilled work, such as process work. I accept Amity’s submission that such jobs pay of the order of $13.00 per hour. Whilst Dr Virk certified her fit for work for 20 hours per week, having regard to Ms Yusuf’s background and presentation, I think she will have difficulty in obtaining and retaining such employment. Allowing for that fact, I assess her ability to earn in suitable part-time unskilled process work (step two) to be $200.00 per week.
The difference between steps one and two (step three) is $185.00 per week.
It is argued that if Ms Yusuf experiences pain in her neck and right shoulder which has not resulted from an employment injury, then the incapacity resulting from such pain would be a matter to be taken into account in the exercise of the discretion in section 40(1). It is also submitted that if some or all of the worker’s alleged psychological symptoms are a manifestation of feigning or malingering, this too would be a relevant factor to the exercise of the section 40 discretion as it is impossible to know the true nature and extent of her genuine back symptoms.
Ms Yusuf has not challenged the Arbitrator’s finding that she did not injure her neck and right shoulder. As Ms Yusuf continues to complain of neck and shoulder symptoms and Dr Newlyn referred to her being unable to drive because of her shoulder and pain, I believe that in the exercise of the section 40(1) discretion the figure of $185.00 should be reduced by $50.00 to $135.00 (step four). Whilst there may be an element of exaggeration in Ms Yusuf’s presentation, as I have taken full account of that fact in assessing her ability to earn (step two), it is not a factor that justifies a further reduction in the exercise of the discretion.
DECISION
Paragraph two of the Arbitrator’s determination of 30 July 2009 is revoked and the following order made in its place:
“2.The respondent employer is to pay the applicant worker weekly compensation under section 40 of the Workers Compensation Act 1987 in the sum of $135.00 per week from 9 December 2008 to date and continuing.”
Paragraphs one, three and four of the determination of 30 July 2009, including the Arbitrator’s “Costs Decision” are confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
01 December 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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