Anderson v Grocery Delivery E-Services Australia Pty

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Anderson v Grocery Delivery E-Services Australia Pty [2022] NSWPIC 440
APPLICANT:	Shawna Anderson
RESPONDENT:	Grocery Delivery E-Services Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	5 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits on the basis of no current work capacity; whether incapacity results from left shoulder injury; evidence of workplace stressors causing psychological decompensation following return to work; whether secondary psychological symptoms also; Calman v Commissioner of Police and McCarthy v Department of Corrective Services considered; Held — ongoing physical and secondary psychological symptoms materially contributed to incapacity; no current work capacity; award for the applicant for weekly compensation pursuant to section 37(1) of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	The Commission determines: 1. In the period 14 June 2021 to date and continuing, the applicant has had no current work capacity as a result of the injury on 17 December 2020. 2. Award for the applicant for weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 14 June 2021 to date and continuing, based on the agreed pre-injury average weekly earnings (PIAWE) rate of $1,063.75, as periodically indexed. 3. The respondent to pay the applicant’s reasonably necessary expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Shawna Anderson (the applicant) was employed by Grocery Delivery E-Services Australia Pty Ltd (the respondent) as a picker/packer.
On 17 December 2020, the applicant sustained an injury to her left shoulder when her arm was struck by a trolley being pushed by another worker.
The respondent’s insurer paid the applicant weekly compensation in respect of the injury until liability was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 May 2021.
The applicant sought review of the insurer’s decision but it was maintained and amended in further notices issued on 30 June 2021 and 4 February 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 12 May 2022. The applicant seeks weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 (the 1987 Act) from 14 June 2021 to date and continuing.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 25 July 2022. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Ms Basema Elmasri. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Mr Dean Pefani. A representative from the insurer was also present.
During the conciliation conference, the parties informed me that the applicant’s pre-injury average weekly earnings (PIAWE) figure was agreed at $1,063.75. Leave was granted to the applicant to amend the ARD to include a general claim for compensation pursuant to s 60 of the 1987 Act.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the extent and quantification of any incapacity resulting from the injury on 17 December 2020 during the period 14 June 2021 to date and continuing, and
(b) the entitlement to s 60 expenses.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(c)    ARD and attached documents;
(d)    Reply and attached documents;
(e)    documents attached to an Application to Admit Late Documents lodged by the respondent on 18 July 2022, and
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 20 July 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statement made by her on 27 April 2022.
The applicant described her previous employment experience as an aged care nurse. Prior to the commencement of employment with the respondent in August 2018, the applicant cared for her children at home.
On 17 December 2020, the applicant was walking with an empty trolley when it collided with the full trollies being pushed by two of her colleagues. One of the trollies hit the applicant’s left shoulder and arm and the left side of her body. The applicant’s left arm and the left side of her neck went numb from the pain.
The applicant saw a first-aid officer and an icepack was applied. As the applicant’s pain did not subside, she went to see a doctor at the Wentworthville Medical and Dental Centre. An
X-ray was taken and the applicant was referred to the in-house physiotherapist.
The applicant took a week off work and returned after the Christmas break, working her pre-injury hours in light duties. The applicant is left-handed, so her duties were heavily restricted. The applicant’s assistant manager told her that the only light duties available involved standing at the door, reminding staff to wash their hands and put their hairnet on. The applicant was still experiencing excruciating pain.
After one week, the assistant manager assigned the applicant to work in her pre-injury duties on the picking lines. Although the applicant was seeing her general practitioner, Dr Tessy Abraham on a weekly basis, the applicant felt the doctor was disregarding her complaints of pain.
The applicant’s pre-injury duties required her to work above shoulder height, which aggravated her shoulder pain. The applicant was not able to fulfil her duties properly and moved at a much slower pace. This would annoy other line members who would complain to the line managers. Other employees frequently shouted at the applicant that she was not going fast enough. When the applicant complained of her symptoms, the line managers would say that she was only certified to work on light duties for one week and she should stop making excuses and get on with work. One particular assistant manager made invalidating comments such as, “you’re only upset because the doctors haven’t written what you want on your certificate”.
The applicant’s pain worsened and on 2 January 2021, the applicant returned to see her general practitioner and was referred for an MRI and prescribed painkillers.
In early February 2021, the applicant started her shift with pain in her arm as usual. The applicant struggled with her work duties and the pain in her arm intensified to the point where even the slightest movement was causing excruciating pain. The applicant informed her manager who asked her to take a break to see if that helped. The applicant was interrogated as to her symptoms by management and they continued to pass derogatory comments. The applicant found this psychologically overwhelming and felt her managers were convinced that she was faking her pain and making a scene. The applicant left the worksite at 9.00am and had a meltdown in her car for about 30 minutes before being able to drive home.
The applicant continued to complain of pain to Dr Abraham but was told to continue to take medication which did not resolve the problem. The applicant continued with physiotherapy until March 2021.
As a result of the constant pain and restriction of movement, the applicant’s mood was always down and she became anxious and stressed about her future. Dr Abraham recommended that the applicant see a psychologist and the applicant consulted with Denise Piercy in March 2021. The applicant disclosed that she was very distressed by the ongoing pain and extreme financial stress. The applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood.
The applicant’s employment with the respondent was terminated in June 2021.
The applicant had a disagreement with Dr Abraham as she believed that nerve testing had been delayed. The applicant began consulting a new general practitioner, Dr Osman, on 18 June 2021.
The applicant said that as a result of the injury to her left shoulder, she continued to struggle with day-to-day domestic tasks and personal care.
The applicant described prominent pain in her neck, left arm and left shoulder with limitation of movement in these parts. The applicant was limited to using her non-dominant right arm. The applicant was unable to drive and participate in recreational activities. The applicant had become socially isolated.
The applicant remained under the care of a psychologist and was prescribed Cymbalta for nerve pain and symptoms of depression. The applicant was being issued with certificates of capacity by Dr Osman confirming her inability to return to work. Dr Osman recommended ongoing physiotherapy, psychological treatment and pain specialist treatment.

Certificates of capacity

For the period 11 June 2021 to 9 July 2021, the applicant was certified by her former general practitioner, Dr Abraham, as having capacity for some type of work for four hours per day, five days per week. The certificate pertained to a “painful left shoulder”. The applicant had a lifting/carrying and pushing/pulling ability of not more than 3kg and was to perform mainly right-handed duties only.
A certificate of capacity issued by her current general practitioner, Dr Khaled Osman, on 13 January 2022, certified the applicant as having no current work capacity. The certificate indicated that the incapacity related to work-related injuries as follows:
“Adjustment disorder with mixed anxiety and depressed mood
severe L shoulder pain - restricted ROM
severe L arm pain Regional pain syndrome
soft tissue injury L shoulder and L arm
Median nerve slowing bilaterally- NCS”

Dr Abraham

Attached to the Reply are clinical records from the applicant’s initial general practitioner, Dr Tessy Abraham.
At an initial consultation on 17 December 2020, Dr Abraham recorded,
“left shoulder work related injurv o/e no external bruise but very painful rom x-ray r/o fracture for rest with Mobic”
At a consultation on 8 January 2021, it was noted,
“cervical MRI scan report discussed in detail essentially normal esp left side .right side got o.a
now she said is in lot of pain lyrica causing drowsiness so she does not want to go back to work to do light duties
keen to have more days off
she missed last few days work (suppose to be on light work
counselled
finally l pushed her to start very light work which won't cause any aggravation”
On 15 January 2021, Dr Abraham recorded,
“shoulder u/s report normal no tear
but she is screaming with pain ??is it real”
In response to a questionnaire from the insurer dated 4 March 2021, Dr Abraham provided a diagnosis of soft tissue injury going to the left shoulder and noted, “?CRPS”.
Asked whether the applicant was exaggerating her symptoms, Dr Abraham responded,
“In my opinion → Yes it is
May be wrong!!!”
Dr Abraham also said she considered the diagnosis was consistent with the mechanism of injury and that work was a substantial, or the main contributing factor to the applicant’s condition.

Dr Osman

The applicant’s current general practitioner, Dr Khaled Osman, prepared a report for the applicant’s solicitor on 8 November 2021. Dr Osman recorded that the applicant had the following diagnoses:
“•      Adjustment disorder with mixed anxiety and depressed mood
•       Severe pain left upper limb consistent with regional pain syndrome
•       Severe left shoulder pain
•       Severe left arm pain
•       Soft tissue injury left shoulder and left arm
•       Borderline median nerve slowing bilaterally- NCS
•       Left shoulder subscapularis and supraspinatus tendinitis
•       Chronic pain”
As a result of these diagnoses, the applicant had no current capacity to work. Dr Osman considered that the incapacity was the result of the injury sustained at work on 17 December 2020.
Dr Osman’s report attached relevant clinical records as well as the report of a left shoulder ultrasound performed on 30 September 2021. That investigation was reported to show signs of subscapularis and supraspinatus tendinitis.

Dr Biggs

A report prepared by orthopaedic surgeon, Dr Daniel Biggs, dated 18 February 2021, noted the injury in December 2020. Dr Biggs recorded:
“She has developed a severely painful left upper limb and exhibits features consistent with a regional pain syndrome.
I have taken the liberty of referring Ms Anderson to Dr Lewis Holford, Pain Management Specialist, for his early intervention in that regard.”

Ms Piercy

The applicant’s psychologist, Ms Denise Piercy, prepared a report on 26 April 2021.
Ms Piercy diagnosed an adjustment disorder with mixed anxiety and depressed mood and described the applicant’s current treatment. Ms Piercy said,
“If her physical impairments abate, her psychological symptoms are well-managed role/capacity within the next six months.”
Asked to comment on the causal relationship between the applicant’s diagnosis and her workplace injury, Ms Piercy stated:
“Prior to the physical injury in the workplace Shawna was psychologically well. Following the injury and Shawna’s attempts to return to work (whilst managing the ongoing physical pain and related difficulties). She reports that her work colleagues and managers were unsupportive and antagonistic towards her. On several occasions. She reported pain and distress, and was told that ‘if she went home, she would not be paid’.
Shawna continues to feel considerable distress that she is not currently able to work (owing to the physical injury and ongoing pain) and related to the lack of concern and support from her work colleagues. She feels she cannot trust them, and is extremely unsettled by the loss of many aspects of work which she valued (including social contact, structure and routine, a sense of purpose, pride in her ability to support herself and her children independently etc.). These losses, the ensuing lack of communication from the workplace and worry regarding her future security have led to Shawna’s psychological symptoms following her workplace injury.”
In a further report for the applicant’s solicitor, dated 6 September 2021, Ms Piercy stated,
“During Shawna's initial consultation with me in March, she reported ongoing severe pain and discomfort with her left shoulder following the incident at work in December. Shawna was very distressed that her ongoing pain was causing incapacity (she was not able to do basic self-care activities, care for her children, drive etc), lack of sleep and extreme financial stress. She felt very uncertain about whether she 'had a job to return to' after several conflictual interactions with staff at work and this ambiguity appeared to greatly exacerbate and perpetuate her distress.”
Asked to comment on the applicant’s capacity for work, Ms Piercy stated:
“Shawna is still recovering from her physical injuries; when she has substantially recovered full use of her arm, she is likely to be fit to return to work (with an alternative employer) contingent upon the progress of her psychological recovery. Shawna is highly motivated to return to work and is greatly aggrieved by the implication by the insurer that she is fabricating or exaggerating the extent of her injury. I am hopeful that, with proper treatment and recovery of her physical injury, Shawna will recover from the psychological incapacity which has accompanied the injury, pain, incapacity, and subsequent mistreatment by her employer.”

Dr Dowla

A report prepared by neurological consultant, Dr M Dowla, dated 14 July 2021, took a history of the injury on 17 December 2020. Dr Dowla reported that nerve conduction studies showed borderline median nerve slowing bilaterally. Dr Dowla gave the opinion:
“I believe she has a soft tissue injury in her left shoulder. She is likely to improve with physiotherapy and exercise. I also suggested her to take simple analgesics such as paracetamol or Panadol Osteo. I will be happy to review her after three months to see the progress.”

Dr Assem

The applicant relies on a medico-legal report prepared by rehabilitation specialist, Dr Mohammed Assem, dated 27 September 2021.
Dr Assem took a history of the injury on 17 December 2020 that was consistent with the applicant’s evidence. The applicant reported recurrent aggravations and exacerbations of her left shoulder symptoms following the return to work. The applicant had difficulty coping with the pain and stiffness at her left shoulder and difficulty elevating her arm above shoulder level.
Dr Assem noted that the applicant attended Westmead Hospital on 2 January 2021 and an MRI was performed on 7 January 2021, which was reported to be normal. An ultrasound performed on 14 January 2021 was also reported to be normal. The applicant was referred to Dr Biggs who suspected the presence of regional pain syndrome.
Dr Assem noted the change in general practitioner and the referral to a pain management specialist. The applicant was noted to be consulting a psychologist and to have undergone nerve conduction studies which were reported by Dr Dowla to be normal.
The applicant’s symptoms included pain and stiffness in her left shoulder, fluctuating in intensity. There was an associated area of hypersensitivity. The applicant’s left hand was sometimes swollen, with a white discolouration. There was increased perspiration in her left axilla. The applicant was unable to clench her fist.
On examination, the applicant was noted to be depressed and teary. Left shoulder movements were limited. Dr Assem was not able to visualise any swelling, discolouration, change in temperature or perspiration using the audiovisual technology available.
Dr Assem concluded that the applicant sustained a soft tissue injury to her left shoulder that was complicated by the development of chronic regional pain, anxiety and depression. The applicant had symptoms and signs suggestive of complex regional pain syndrome (CRPS), but Dr Assem was unable to determine whether the diagnostic criteria for that condition were satisfied. Dr Assem considered it probable that the applicant had adhesive capsulitis.
Asked for an opinion in relation to the applicant’s capacity for work, Dr Assem responded:
“She continues to be incapacitated as a consequence of the work injury. Her progress was delayed due to lack of appropriate treatment for her condition.
…
Given the severity of her complaints, limitations, associated psychological sequelae, she is unfit to work at the present time.
…
Ms Anderson is unfit to work at the present time. With appropriate support, care and treatment, she will be able to commence a graded return to work program on suitable duties, initially at reduced hours with an incremental upgrade in hours and restrictions depending on her progress. It is too early to determine her long term prognosis as she has not received appropriate treatment for her condition.”

Dr Kumagaya

The applicant also relies on a medico-legal report by consultant psychiatrist, Dr David Kumagaya, dated 17 March 2022.
Dr Kumagaya took a history of the physical injury on 17 December 2020. Upon return to work, the applicant reported:
“Ms Anderson described how she was pressured to work outside of the restrictions of her certificate of capacity, on full duties. This resulted in an exacerbation of her physical injuries. Ms Anderson also described how she experienced invalidating comments from her manager including statements to the effect of, ‘if you go home you will not be paid’, and ‘you’re only upset because your doctors haven’t written what you want on your certificate’. Given the exacerbation of her physical injuries, as well as her deteriorating mental state, Ms Anderson was unable to work beyond February 2021 onwards.”

The applicant also reported experiencing psychological symptoms associated with her physical injuries and functional limitations:
“Ms Anderson reported considerable symptoms and functional limitations as a result of her physical injuries. She continued to experience prominent pain about her neck, left arm, and left shoulder, with limitation of movement about such sites of her body. As a result of her physical injuries, in addition to her workplace stressors and circumstances, Ms Anderson described the onset of depressive and anxious symptoms in approximately February 2021. These included low mood, decreased interest and engagement in activities, initial and middle insomnia, concentration difficulties, low energy levels, easy fatigability, anxiety, and irritability.”
Dr Kumagaya performed a mental state examination and diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood. Dr Kumagaya said the applicant’s psychological injury was a “secondary injury” sustained as a result of physical injuries from workplace accident on 17 December 2020. The injury was exacerbated by exposure to an unsupportive and invalidating workplace environment.
With regard to the applicant’s capacity for work, Dr Kumagaya said,
“Given the severity of her enduring depressive and anxious symptoms, Ms Anderson is currently unable to undertake any occupations.”

Dr Wijetunga

The respondent relies on a medicolegal report prepared by occupational physician, Dr Nel Wijetunga, dated 9 April 2021.
Dr Wijetunga noted that in the letter of referral, the applicant’s employer had raised concerns around the consistency of the applicant’s claim. Video footage obtained by the investigator showed a trolley collision at low speed. The applicant’s nominated treating doctor, Dr Abraham, had provided clinical notes containing comments questioning the legitimacy of the injury. The insurer sought clarification from the doctor, who advised that the applicant may be exaggerating her symptoms. The applicant’s physiotherapist had concerns regarding his capacity to effectively treat the applicant. It was noted that the applicant had been referred to a pain management specialist and psychologist.
The applicant reported pain around the clavicle, into the armpits, breast and medial aspect of the elbow. The applicant described pain at a constant level of 8/10. The applicant was taking about four tablets of Panadol on a daily basis.
Dr Wijetunga recorded her findings on physical examination as follows:
“Ms Anderson presented to today's assessment and sat primarily with her left arm flexed against her chest. She described severe pain with minimal skin pressure over the left aspect of her scapula, lower back, across the anterior aspect of her chest and lateral ribcage and upper arm down the medial aspect of the elbow. There were some inconsistencies in her presentation, whereby she reacted with extreme pain on light touch to the forearm and to the wrist. However, when she was distracted, she did not experience the pain.”
The applicant demonstrated reduced range of movements at the left shoulder. There was no obvious wasting.
With regard to diagnosis, Dr Wijetunga stated
“In the absence of other imaging and based on her history alone, the diagnosis would be a soft tissue injury. This would be expected to have resolved by now.
Her presentation suggestive of neurological symptoms is not consistent with the mechanism of the injury.
From the mechanism of the injury, it would not be expected that she would have sustained more than a soft tissue injury. From this perspective, the soft tissue injury is causally related to the accident. However, her current level of incapacity cannot be explained by the mechanism of the injury.”
With regard to the applicant’s capacity for work, Dr Wijetunga gave the opinion:
“Based on her presentation, she is still fit to continue to work on full-time duties with the following restrictions:
• No pushing or pulling against force using both arms
• No lifting using both arms
• No repetitive typing
• No sustained awkward postures.”
Asked for an opinion with regard to the causal relationship between the work injury and the applicant’s incapacity, Dr Wijetunga stated:
“In my opinion and based on the available information, the work-related diagnosis is not the main cause for Ms Anderson's symptoms and level of incapacity. Her level of incapacity has most probably been clouded by other psychosocial factors. However, it may be important to exclude red flags by referral to a neurologist or a nerve conduction study.”

Applicant’s submissions

The applicant referred to her statement evidence and noted the difficulties she experienced with her initial general practitioner. The applicant described psychological symptoms for which she was seen by Ms Piercy and ongoing symptoms in her neck, left arm and shoulder. The applicant said her chronic pain was impacting upon her mental health and described significant physical and psychological consequences of the injury.
The applicant noted that both Dr Assem and Dr Wijetunga found limitations of movement in the left shoulder in their physical examinations. This suggested a reproducible loss of range of movement in the left shoulder.
The applicant noted that Dr Assem was unable to examine the applicant for CRPS due to the telehealth examination. Dr Biggs who had seen the applicant did, however, raise the issue of a regional pain syndrome and referred the applicant to a pain specialist.
The applicant noted that the possibility of a CRPS diagnosis was also raised by Dr Abrahams in her response to the insurer’s questionnaire.
Ultrasound investigations of the applicant’s left shoulder performed in September 2021 were reported to show signs of subscapularis and supraspinatus tendinitis.
Dr Assem gave the opinion that the applicant had chronic regional pain, notwithstanding that he was unable to diagnose CRPS. He also considered that the applicant probably had adhesive capsulitis and features of sympathetic dysfunction causing a high level of pain and disability. Given the severity of the applicant’s complaints, limitations and associated psychological sequelae, the applicant was unfit to work at the present time.
The applicant submitted that all of her certificates of capacity during the period in question certified her as having no current work capacity.
The applicant referred to the report from Dr Osman, who diagnosed an adjustment disorder and symptoms in her left upper limb. Dr Osman considered the applicant had ongoing incapacity for work and did not suggest there was any residual capacity.
Dr Kumagaya described psychological symptoms arising from pain, as well as the treatment the applicant experienced at work following the injury. Dr Kumagaya’s psychological opinion was unchallenged by the respondent’s evidence. Dr Kumagaya gave an opinion that the applicant was currently unable to undertake any occupations.
The applicant submitted that her psychological symptoms alone were sufficient for the Commission to find that the applicant had no current work capacity. There was no contradictory evidence before the Commission.
The applicant referred to the reports from Ms Piercy and noted that she reached the same diagnosis as Dr Kumagaya. In each of her reports, Ms Piercy found the applicant had no current capacity for work. Ms Piercy gave the opinion that the applicant’s psychological symptoms were secondary to her pain as well as her treatment upon return to work. The applicant noted that no factual evidence regarding the events following the return to work had been provided by the respondent.
The applicant submitted that Dr Wijetunga did not address her own examination findings in expressing her ultimate opinion. Dr Wijetunga said the mechanism of injury was consistent with a soft tissue injury. Dr Wijetunga’s conclusion that the applicant had current work capacity was not explained in light of the findings on examination.
The applicant submitted that despite having doubts about the extent of the applicant’s incapacity, Dr Abraham had considered the possibility of CRPS developing.
The applicant submitted that, considering the evidence as a whole, the Commission would be satisfied that the applicant’s physical and psychological symptoms, in combination, demonstrated that she had no current work capacity.

Respondent’s submissions

The respondent noted that the applicant pleaded a consequential psychological condition but said there was a significant body of evidence of a bullying and harassment claim on return to work following the injury. That claim was not before the Commission and would constitute a different injury.
The respondent referred to the applicant’s statement evidence describing co-workers shouting at her and telling her to stop making excuses and get on with work. The precipitating factor to the loss of capacity in early February 2021 was described in the applicant’s statement as a series of events between the commencement of work and 9.00am on the day in question. Prior to these events, the applicant had been able to return to work on light duties and continue working. The respondent submitted that the applicant’s psychological condition was not a consequential condition but potentially a separate injury occurring on a date in February 2021 due to events in the workplace on that date.
The respondent submitted that, on the applicant’s own evidence, the primary cause of her incapacity was not her physical injury or any consequential condition.
The respondent noted that Dr Assem had recorded that the applicant ceased work due to bullying and harassment by a supervisor. With appropriate support, he considered the applicant would be capable of commencing a graded return to work program on suitable duties with an incremental upgrade in hours and restrictions.
The respondent noted that there was no evidence of a confirmed diagnosis of CRPS.
The respondent noted that Ms Piercy suggested that, with treatment, the applicant would be able to return to work with an anticipated timeline of six months. Ms Piercy took a history that following an attempt to return to work, the applicant’s work colleagues and manager were unsupportive and antagonistic. The respondent submitted that Ms Piercy’s evidence indicated that what had caused the applicant’s incapacity was not her physical injury, but her treatment upon return to work.
The respondent referred to the medico-legal report of Dr Kumayaga and noted that he took a history of the applicant experiencing invalidating comments from her manager. Dr Kumagaya made a diagnosis which he found had developed as a result of the physical injury with exacerbation by the subsequent experience of unsupportive and invalidating treatment in the workplace. The respondent submitted that Dr Kumagaya’s opinion together with Dr Assem’s report indicated that the primary cause of incapacity was not any secondary psychological condition or the physical injury but a new psychological condition caused by events upon the applicant’s return to work.
The respondent referred to Dr Wijetunga’s report and noted her observations that the applicant’s presentation was inconsistent with the mechanism of injury. Dr Wijetunga considered the applicant’s incapacity had been clouded by other psychosocial factors. The respondent submitted that the new psychological condition was of such weight that it clouded the applicant’s physical presentation.
The clinical records from Dr Abraham were observed to reveal some reluctance on the part of the applicant to return to work.
In response to a question from the Commission as to how the respondent addressed the medical evidence of secondary psychological symptoms and physical symptoms causing incapacity in light of authorities such as Murphy v Allity, which held that incapacity could result from multiple causes and yet be compensable, the respondent said it was a matter of determining the level of contribution of each injury. The respondent submitted that the evidence indicated that the applicant had been able to return to work on a return to work program. The evidence from Dr Assem suggested that the applicant was on a trajectory to return to full-time work but for what happened on the particular day in February 2021 when the applicant ceased work.

Applicant’s submissions in reply

The applicant submitted that she had a consequential psychological condition in one form or another, causally related to her physical injury. If some part of the condition was caused by the manner in which she was treated on return to work, that did not mean that the applicant did not have a consequential condition. The condition was still causally related to the restricted hours and physical restrictions arising from the injury, even if that condition could potentially satisfy the definition of a separate injury.
The applicant submitted that it was not necessary for her to establish that the physical injury was the main contributing factor to her consequential psychological condition. It was only necessary that the injury materially contributed to the consequential condition.
The applicant submitted that there was a plethora of contributing factors. It was not possible to separate out the applicant’s treatment at work. There was a chain of causation between the applicant’s physical symptoms and the onset of the psychological condition.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the 1987 Act to the injured worker shall include a weekly payment during the incapacity.
In these proceedings, the applicant is seeking orders for payments of weekly compensation from 14 June 2021 to date and continuing in accordance with s 37(1) of the 1987 Act, on the basis that she had “no current work capacity” as a result of the injury on 17 December 2020.
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, she must demonstrate that she has, during the relevant period, had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
There is no dispute in these proceedings, that the applicant sustained an injury to her left shoulder on 17 December 2020. The dispute between the parties goes to the ongoing effects of that injury on the applicant’s capacity for work.
The respondent’s submissions highlight the fact that the applicant returned to work following the injury on 17 December 2020. The respondent suggests that the applicant was on a trajectory to return to full capacity following the return to work but for a psychological condition caused by events in the workplace in February 2021 which led to the applicant ceasing work. The respondent submitted that psychological condition potentially gave rise to a new injury for the purposes of s 4 of the 1987 but no claim or injury of that nature was before the Commission in these proceedings. The respondent’s submissions suggested that the Commission would not be satisfied that the physical injury or any secondary psychological condition materially contributed to the applicant’s present incapacity for work.
A commonsense evaluation of the causal chain is required in order to determine whether incapacity for work has “resulted from” the injury on 17 December 2020. In Kooragang Cement Pty Ltd v Bates[1] Kirby P said,
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[2]
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[2] (1994) 10 NSWCCR 796 at [810].
In Calman v Commissioner of Police[3] (Calman), the High Court found:
“Whether incapacity results from injury is a question of fact. Upon the findings in this case, however, the answer to that question could admit of only one answer. As a matter of law, the Tribunal was bound to find that the incapacity of the appellant resulted from injury within the meaning of s 33 of the Workers Compensation Act. Although the incapacity would not have arisen but for the appellant being told that he was to be transferred, there would have been no incapacity but for the existence of his underlying anxiety disorder. The incident, which was the immediate cause of his incapacity, merely exacerbated the underlying anxiety disorder which continued to exist, notwithstanding that immediately before the incident it manifested no symptoms. In those circumstances, the injury was a contributing cause to the incapacity. As Jordan CJ pointed out in Salisbury v Australian Iron and Steel Ltd [20]:
‘It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause [21]. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.’
In the present case, the underlying anxiety disorder continued and was capable of producing serious effects if exacerbated or aggravated, as the Tribunal's findings showed. That being so, the Tribunal was bound to find as a matter of law [22] that the appellant's incapacity resulted from injury within the meaning of s 33 of the Workers Compensation Act.”[4]
[3] [1999] HCA 60; (1999) 19 NSWCCR 40.
[4] at [39]-[40].

Calman was referred to in McCarthy v Department of Corrective Services[5], where Roche DP made observations concerning the appropriate test on causation for establishing an entitlement to weekly compensation:
“It is trite law that a loss can result from more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; (2009) 83 ALJR 986). The authority of Calman is also instructive on this issue. The Court held (at [38], excluding footnotes):
‘Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”
[5] [2010] NSWWCCPD 27.
There is consensus in the medical evidence before the Commission that the injury on 17 December 2020 constituted a soft tissue injury to the left upper limb. Whilst initial radiological investigations including an X-ray and ultrasound of the shoulder and MRI of the cervical spine failed to reveal any significant pathology, the applicant has consistently reported severe symptoms of pain as well as some restriction of movement in the upper limb.
The evidence from Dr Abraham confirms that the applicant reported ongoing symptoms and indicates that Dr Abraham considered the possibility that the applicant had CRPS. Although Dr Abraham’s response to a questionnaire from the insurer and clinical notes suggested some uncertainty as to whether the applicant may be exaggerating her symptoms, Dr Abraham ultimately concluded that the diagnosis was consistent with the mechanism of injury and that work was a substantial contributing factor to the applicant’s condition.
The applicant’s current general practitioner, Dr Osman, also considered that the applicant’s ongoing upper limb symptoms were consistent with a regional pain syndrome and diagnosed severe left shoulder and left arm pain. An ultrasound of the left shoulder performed on 30 September 2021 at Dr Osman’s request also revealed signs of subscapularis and supraspinatus tendinitis.
The applicant was seen by orthopaedic surgeon, Dr Biggs, who also noted a severely painful left upper limb and features consistent with a regional pain syndrome. Dr Biggs considered that referral to a pain management specialist was warranted.
Dr Assem saw the applicant in September 2021 and he also agreed that the applicant had a soft tissue injury to her left shoulder that was complicated by the development of chronic regional pain. Dr Assem was unable to make a diagnosis of CRPS as his assessment was conducted by video link. Dr Assem considered it probable that the applicant also had adhesive capsulitis. Dr Assem’s examination revealed restrictions of movement at the left shoulder.
The examination conducted by the respondent’s medico-legal expert, Dr Wijetunga was largely consistent with Dr Assem’s examination. The applicant reported severe pain and demonstrated reduced range of movement at the left shoulder. Consistently with the applicant’s treating doctors and Dr Assem, Dr Wijetunga diagnosed a soft tissue injury although she could not explain the applicant’s level of current incapacity.
Dr Wijetunga did not expressly consider whether the applicant had features of adhesive capsulitis or consider the possibility of a regional pain syndrome. Dr Wijetunga’s examination was conducted prior to the most recent ultrasound revealing subscapularis and supraspinatus tendinitis.
This review of the medical evidence reveals, therefore, a largely consistent presentation and report of symptoms at the applicant’s left shoulder. Whilst those symptoms appear to be in excess of what might be expected, having regard to the radiological investigations, clinical examinations of the applicant have shown reproducible restrictions of movement. All of the doctors, apart from Dr Wijetunga appear to have accepted that the applicant’s symptoms might be accounted for by a regional pain syndrome. There is, however, no evidence of a diagnosis of CRPS. Recommendations have been made for the applicant to receive treatment from a pain management specialist, although it appears this has not been done due to a lack of funding.
In addition to the evidence of ongoing physical symptoms at the left shoulder, there is a substantial body of evidence of psychological symptoms impacting upon the applicant’s capacity for work.
Dr Osman has diagnosed an adjustment disorder with mixed anxiety and depressed mood. The same diagnosis has been given by the applicant’s treating psychologist, Ms Piercy and the applicant’s medicolegal expert, Dr Kumagaya.
The evidence from Ms Piercy suggests that the applicant’s psychological condition is multifactorial. At the applicant’s initial consultation, she reported ongoing severe pain and discomfort following the injury at work in December 2020. The applicant also reported distress that the ongoing pain was causing incapacity, lack of sleep and financial stress. This evidence is suggestive of a consequential or secondary psychological condition, resulting from the physical injury.
Similarly, Dr Kumagaya took a history of psychological symptoms associated with the applicant’s physical injury and functional limitations.
As noted by the respondent’s submissions, the evidence also indicates a contribution to the applicant’s psychological condition by events in the workplace following her return to work in January 2021.
Those events are described in some detail in the applicant’s statement evidence. The applicant has described being shouted at by co-workers and her managers making invalidating comments. The applicant ceased work following what she perceived as interrogation by her managers as to her symptoms in early February 2021. The applicant said she found this psychologically overwhelming and she felt that her managers were convinced she was faking her pain and making a scene. The applicant described a psychological decompensation following these events.
Importantly, however, the applicant also attributed the cessation of work to her physical symptoms. The applicant said she had been struggling with her work duties and, on the day that she ceased work, her pain had intensified to the point where even the slightest movement caused excruciating pain.
The evidence from Ms Piercy and Dr Kumagaya does not suggest that the workplace interactions were the only contributing factor to the applicant’s psychological condition. Ms Piercy described those events as exacerbating or perpetuating the applicant’s psychological distress together with the ongoing pain and functional limitations. Dr Kumagaya attributed the onset of depressive and anxious symptoms in February 2021 to both the applicant’s physical injury and the workplace stressors.
As submitted by the applicant, in order for her to establish a secondary psychological condition, the injury on 17 December 2020 need only be a material contributing factor to her psychological condition. The fact that other workplace events and stressors may have contributed to the applicant’s condition, or exacerbated or aggravated it in such a way as to constitute a separate psychological injury for the purposes of s 4 of the 1987 Act, is not fatal to her claim.
Similarly, applying the authorities set out above, the possibility that some separate, subsequent injury or condition is contributing to the applicant’s current incapacity for work, does not mean that incapacity does not also result from the injury which is the subject of these proceedings.
Having regard to all of the evidence, I am satisfied that the applicant has, in the period 14 June 2021 to date and continuing, continued to experience physical symptoms as a result of the injury on 17 December 2020 as well as secondary psychological symptoms resulting from that injury that have materially contributed to her incapacity for work.
Although the applicant had, briefly, been certified as having current work capacity by Dr Abraham, in the period which is the subject of the current claim, Dr Osman has certified her as having no current work capacity as a result of the combination of psychological and physical symptoms resulting from the injury. Dr Osman’s certifications are consistent with the opinions expressed by Ms Piercy on the applicant’s capacity for work and the opinions of the applicant’s medicolegal experts, Dr Assem and Dr Kumagaya.
Although the respondent’s medico-legal expert, Dr Wijetunga was not able to attribute the applicant’s current level of incapacity to her physical injury, she did accept that her incapacity had been clouded by other psychosocial factors. Dr Wijetunga was not asked and was probably not qualified to express an opinion on the contribution of any secondary psychological condition to the applicant’s incapacity for work.
Although there is some suggestion in the medical evidence that the applicant may have been in a position to return to work at some point in the future with appropriate support and treatment, the evidence does not suggest that such treatment has been made available to the applicant to date.
For all of the reasons given above, I am satisfied that in the period 14 June 2021 to date and continuing, the applicant has had no current work capacity as a result of the injury on 17 December 2020.
As a result of this finding, the applicant will be entitled to an award of weekly compensation pursuant to s 37(1) of the 1987 Act, based on the agreed PIAWE rate of $1,063.75, as periodically indexed.
It is also appropriate that there be a general order for the respondent to pay the applicant’s reasonably necessary expenses pursuant to s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

[2022] NSWPIC 440

5 August 2022