BDQ v Secretary (Department of Communities and Justice)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BDQ v Secretary (Department of Communities and Justice) [2023] NSWPIC 145
APPLICANT:	BDQ
RESPONDENT:	Secretary (Department of Communities and Justice)
Member:	Gaius Whiffin
DATE OF DECISION:	6 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for functional neurological disorder; claims for weekly compensation and treatment expenses pursuant to section 60; consideration of applicant’s statement, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b)(i) in relation to which his employment with the respondent was the main contributing factor; AV v AW considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury since 14 July 2022; Wollongong Nursing Home Pty Limited v Dewar and ACW v ACX considered; Held – the applicant sustained a “disease” injury (being a functional neurological disorder) pursuant to section 4(b)(i) as a result of excessive workload and stress in the course of his employment with the respondent, and in relation to which his employment with the respondent was the main contributing factor to the contraction of that disease; the injury will be deemed to have occurred on 6 January 2022 (that being the date agreed upon between the parties); the applicant has been and remains incapacitated for work as a result of the injury; he has had no current work capacity since then; award for the applicant pursuant to section 37(1) from 14 July 2022 and on a continuing basis; award for the applicant pursuant to section 60.
determinations made:	The Commission determines: 1. The applicant sustained a “disease” injury (being a functional neurological disorder), pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), as a result of excessive workload and stress in the course of his employment with the respondent, and in relation to which his employment with the respondent was the main contributing factor to the contraction of that disease. The injury will be deemed to have occurred on 6 January 2022 (that being the date agreed upon between the parties). 2. Since 14 July 2022, the applicant has been incapacitated for his employment with the respondent due to his functional neurological disorder. Since that date, he has had no current work capacity in accordance with s 37(1) of the 1987 Act. 3. The applicant has not made any earnings since 14 July 2022. The applicant’s pre-injury average weekly earnings (PIAWE) is $2269.39 (as agreed between the parties). The Commission orders: 1. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 14 July 2022 to date and on a continuing basis, at the rate of $1815.51 per week (as adjusted applying relevant indexing). 2. Liberty to apply will be granted to the parties to approach the Commission regarding the calculation of the applicant’s PIAWE once relevant indexing is applied, should the parties be unable to agree in this regard. 3. There will be an award that the respondent pay the applicant’s reasonably necessary expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

BDQ (the applicant) is 61 years old and commenced employment in June 2014 with the New South Wales Department of Communities and Justice (the respondent). He was initially employed by it as a caseworker, but his role changed in January 2018 to that of a permanency coordinator. He worked in that capacity until he ceased working in
September 2020. He has not worked since.
The applicant alleges that he was exposed to work stressors during the course of his employment with the respondent, including the extent of his workload and the general nature of his work in being responsible for the permanency planning of children in crisis. He also alleges that those work stressors led to him developing physical and largely neurological symptoms, diagnosed as functional neurological disorder. He further alleges that due to this disorder, he has been incapacitated for employment since September 2020.
The applicant did not claim workers compensation from the respondent until December 2021. The claim was subsequently initially accepted by the respondent, and the applicant received weekly compensation and payment of his expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), until 14 July 2022.
On 21 June 2022 however, the respondent issued a notice denying liability for the claim under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and disputing that the applicant had sustained an injury pursuant to s 4 of the 1987 Act, therefore also disputing that he was entitled to any compensation whatsoever regarding such an injury. The respondent then confirmed that liability denial by way of a further notice issued on 20 September 2022 following a request by the applicant for it to review its
21 June 2022 notice.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims weekly compensation from 14 July 2022. The ARD was also amended during a preliminary conference before the Commission on 22 February 2023 for the applicant to also claim a ‘general’ order pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are as follows:
(a) did the applicant sustain a disease injury (being functional neurological disorder) in accordance with s 4 of the 1987 Act, as a result of excessive workload and stress in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of that disease, and
(b) if so, to what extent has the injury incapacitated the applicant since 14 July 2022.

PROCEDURE BEFORE THE COMMISSION

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.
The dispute was listed for conciliation/arbitration before the Commission on 17 March 2023. On that occasion, Mr Craig Tanner of counsel appeared for the applicant, instructed by
Mr Jones. The applicant was present with his spouse, BEV. Mr John Fennel of counsel appeared for the respondent, instructed by Mr Ainsworth, and Ms Neville was also present representing the interests of the respondent’s insurer. The conciliation/arbitration was conducted by way of a MS Teams link.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The issues to be determined (see paragraph 6 above) were agreed upon, and the following additional matters were noted:
(a) the applicant confirmed that he claimed weekly compensation pursuant to s 37 of the 1987 Act from 14 July 2022 to date and on a continuing basis, as well as a ‘general’ order pursuant to s 60 of the 1987 Act;
(b)    the applicant confirmed that he had not made any earnings since 14 July 2022;
(c)    the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) was $2269.39;
(d)    the parties agreed that if I was to find in favour of the applicant in relation to the issue at paragraph 6(a) above, the deemed date of the applicant’s injury would be 6 January 2022 (as initially determined by the respondent in a notice to the applicant dated 18 January 2022), and
(e) the parties agreed that if I was to find in favour of the applicant in relation to the issue at paragraph 6(a) above, a ‘general’ order in favour of the applicant pursuant to s 60 of the 1987 Act would follow.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, except for the report of Dr Frean dated
27 September 2021 (pages 48-57), which was withdrawn from the application by the applicant during the preliminary conference before the Commission on
22 February 2023 after I expressed the view that the applicant’s reliance upon it contravened cl 44 of the Workers Compensation Regulation 2016, and
(b) the respondent’s Reply (Reply) and attached documents - the Reply was attached to an application to admit late documents dated 15 February 2023 and had been admitted (with the consent of the applicant) during the preliminary conference before the Commission on 22 February 2023.

Oral evidence

No oral evidence was given by the applicant or any other witness at the arbitration hearing.

Applicant’s evidence

The applicant relies on a statement of his that he signed (at page 1 of the ARD) on
17 November 2022.
The applicant says that prior to commencing employment with the respondent in June 2014, he had been diagnosed with peripheral sensory neuropathy in 2000. Since then he had experienced symptoms (burning, numbness, and pins and needles), but these symptoms were manageable without any need for medical treatment or medication as at July 2020. He had tried antidepressant medication for treatment of the symptoms in 2002 and in 2008, but on each occasion, he ceased taking the medication after a short period of time due to its ineffectiveness. He also tried Epilim to treat the symptoms for a couple of years. In relation to the symptoms, he says:
“The symptoms I suffered caused me to experience discomfort and pain and impacted on the way I experienced life; however I was still able to complete my duties and advance my career. I was not required to take time off work due to my condition while in this role and did not lodge any claim for workers compensation benefits.”
The applicant advises that he was initially employed by the respondent as a caseworker in June 2014 after gaining postgraduate qualifications from Charles Sturt University. He experienced work stressors in this role relating to his workload and the nature of his work. He was then appointed to a role as a permanency coordinator in January 2018. He explains that:
“In this role I supported four Funded Service Providers and the Mayfield Communities Service Office to achieve permanency for children and young people. The number of children I was allocated varied and at the time I ceased work in September 2020 I was responsible for the permanency planning of approximately 245 children who were placed with Funded Service Providers and up to 100 children who were about to enter care or had already done so. The nature and workload required in this role was complex and challenging and caused me to face several work stressors trying to meet the needs of children and young people who were in crisis. As an emerging role which had not previously been defined, I was faced with a large workload and difficult timelines. As an example, in addition to my usual daily duties, I was responsible for finalising up to 500 reports a year on permanency consultations and funding reviews I had completed in addition to other work which was not always scheduled.”
And:
“During this period, I was working excessively and experiencing a large amount of stress and pressure associated with my employment.”
From July 2020, he began to experience symptoms including “unsteadiness when walking, a mild dull sensation in my head, intermittent swaying and stumbling, involuntary movements, cognitive impairment, poor memory retention and disturbed sleep” as well as “word finding and processing difficulties, poor balance, ongoing cognitive fatigue and trouble managing my behaviour and emotions”. He consulted with his general practitioner, Dr Wills.
He ceased working on 15 September 2020, and was referred by Dr Wills to a neurologist,
Dr Loiselle, on 7 December 2020. Dr Loiselle arranged various investigations, and then provided him with a diagnosis of functional neurological disorder.
He says that on 18 December 2020, he notified the respondent of this diagnosis, but did not at the time claim workers compensation benefits from it. He took personal leave with the intention of eventually returning to work.
He outlines his treatment for his condition:
(a)    he has consulted with a psychologist (initially Catherine Ebert but more recently weekly with Kathy Morrison) since January 2021;
(b)    he initially had some physiotherapy treatment, but since April 2021, he has followed a home exercise programme;
(c)    he was reviewed by Dr Loiselle until 17 April 2021, when that doctor referred him back into the care of his general practitioner - he has since been reviewed again by Dr Loiselle on 28 October 2022;
(d)    he began consulting with a psychiatrist (Dr Meagher) in February 2022;
(e)    he currently takes medication in the forms of Sertaline, Circadin, and Lyrica;
(f)    he is currently reviewed by his general practitioner every three months - she has currently certified him as unfit for any type of employment;
(g)    he was assessed by a neuropsychologist (Dr McRae) in April 2022 and in
May 2022 - he then engaged with a neuropsychological physiotherapist and occupational physician during June 2022 and during July 2022;
(h)    he was examined on behalf of the respondent by Drs Abeya (psychiatrist), Frean (occupational physician) and Granot (neurologist), and
(i)    his solicitors arranged a medico-legal examination for him with Dr Williams (neurologist) on 5 August 2022.
He then lists his current symptoms, which include cognitive fatigue, physical fatigue, disturbed sleep, burning sensations, pins and needles, anxiety, hypervigilance, sleep disturbance, poor memory retention, bowel and urinary issues, numbness, problem-solving and decision-making difficulties, as well as difficulties managing behaviour and regulating emotions.
He says that after the respondent received reports from Drs Abeya and Frean, he had a meeting with its human resources department on 5 October 2021, when he was advised that he “could not return to work safely or enduringly and there were no job options for me moving forward”. He then received an email from the respondent on 7 October 2021 “formally stating that I was permanently unfit to undertake the requirements and demands of my role as Permanency Coordinator”. He says that these dealings with the respondent increased his symptoms. He then formally notified the respondent of a workers compensation claim in relation to his functional neurological disorder, on 20 December 2021.
Finally, he advises in his statement that when he was assessed by both Drs Granot and Williams, he provided them with accurate information detailing the ongoing impact upon him of his symptoms. He agrees that Dr Williams’ report contains an accurate reflection of his current condition, but in relation to Dr Granot’s report, he advises:
“In my opinion, the report of Dr Granot did not accurately reflect my past work history, nor did it accurately capture the tasks and activities of my role. I also believe his report overlooked and misrepresented several work-related stressors presented by myself, my wife, and medical evidence provided by my treating doctors.”
Although they are not specifically mentioned in the applicant’s statement (as they were sent after the statement was signed), the ARD also contains two letters from the respondent to him dated 23 November 2022 (at page 330) and 9 December 2022 (at page 332). The
23 November 2022 letter advises the applicant that the respondent was considering terminating his employment as he had been “absent from the workplace for in excess of two years, found permanently unfit by Sonic HealthPlus and continue to be certified unfit by your General Practitioner”. The letter asked the applicant to provide the respondent with any additional information to be considered by it before it made its final decision.
The 9 December 2022 letter then formally terminates the applicant’s employment with the respondent. The letter advises that the information sent by the applicant to the respondent after the 23 November 2022 letter did not address his “ability to undertake the inherent requirements of a Permanency Coordinator”.
The applicant relies upon a medico-legal report from Dr Williams dated 17 August 2022, which is found at page 8 of the ARD.
Dr Williams extensively reviews the applicant’s treatment history since he first consulted with Dr Wills on 23 July 2020, reporting stumbling, swaying, imbalance, poor sleep, nightmares, and nocturnal confusion. He also reviews the reports provided to him from Drs Loiselle, Abeya, McRae, and Granot. He notes that the applicant was provisionally diagnosed with sensory neuropathy in 2000.
The doctor experiences significant difficulties in obtaining an outline of the applicant’s current symptoms, but does note that he was told by the applicant that the symptoms were worse when he was stressed or fatigued. The doctor was assisted by the applicant’s wife to understand the symptoms, and was eventually able to “define a circular process whereby
BDQ experienced ‘stress’ that led to cognitive slowing as well as cognitive and physical fatigue, which in turn created difficulties in functioning that could reinforce his experience of stress”. The doctor records the applicant’s wife as telling him:
“She knew him originally as an intelligent, professionally accomplished man who, from 2018 had become increasingly less capable, less logical, less able to solve problems, and more forgetful of meals, medications, and even the requirement for deodorant. I regarded it as an important spontaneous observation by BEV that her husband’s condition improved when he was less stressed.”
The doctor notes contradictory comments made by the applicant regarding his estimate as being “only a little above average with regard to levels of tension”, whereas he then emphasised “the magnitude of the effect his condition has had on his life experience”. After consulting with the applicant’s wife regarding the applicant becoming “a very tense person more recently”, the doctor opines that the applicant has mood parameters which are suggestive of an agitated depression.
On examination, the doctor could not identify any signs of organic neurological disease, but did identify functional features.
The doctor then reviews the applicant’s radiological tests, and provides a detailed opinion. He advises that despite his difficulties in assessing the applicant, he was able to form “a definite opinion that BDQ manifests a Functional Neurological Disorder (FND) presenting predominantly, but not exclusively, as cognitive slowing and cognitive dysfunction”.
As part of the doctor’s detailed opinion, he states:
“FND is a form of Conversion Disorder which is diagnosed on the basis of positive features rather than being a diagnosis of exclusion. The major feature is of inconsistencies without any physical, pathophysiological or medical explanation. In addition to historically documented inconsistencies, BDQ demonstrated moment-to-moment inconsistencies in both history and physical examination today, which, in the absence of any significantly abnormal investigation results, are in my opinion, sufficient to make a diagnosis of FND.”
“It is appropriate that prior to making a diagnosis of FND, as has been done by
Dr Loiselle and others, consideration is given to all potential alternative explanations, such as the possibility of an underlying neurodegenerative condition. No such condition has been identified. In my opinion, sufficient time has passed, and there has been sufficient fluctuation in BDQ’s symptoms over that time, without any clear evidence of deterioration, to make such an explanation for his condition highly unlikely. Therefore, in my opinion there is little doubt that the correct diagnosis of BDQ’s condition is Functional Neurological Disorder.”
“In conclusion, I return to BDQ’s final comments concerning the high degree to which his physical, social, cognitive and emotional functioning has been adversely affected. While I accept this statement as accurate, the discrepancies between this statement and BDQ’s self-evaluations at other times and in other contexts is notable, and in my opinion, is an inconsistency providing further evidence in support of the diagnosis of FND.”
“Yes. The diagnosis of FND is appropriate when the patient presents with inconsistent symptoms and signs that, after appropriate assessment and investigation, are not explicable on the basis of known pathophysiological mechanisms. In this context,
BDQ’s presentation is consistent with FND.”
“‘Stress’ is a general term, often poorly defined, and can refer to physical, social or emotional factors. A specific stressor often has different effects on different subjects (eg the level of stress I would experience if I were to be made responsible for Air Traffic Control at a major airport is quite different to the level experienced by someone who was trained and experienced in performing such duties.) Having said that, there would seem to be general agreement that the responsibility for several hundred vulnerable children that BDQ accepted in his previous employment was and is highly stressful, so his experience of high levels of stress in that role cannot be said to be unexpected. However, it might be argued that BDQ’s responses to that stress are particular to his individual characteristics and vulnerabilities.”

In relation to causation of the applicant’s functional neurological disorder, the doctor advises that it is uncertain as to whether the applicant’s symptoms in 2000 were early manifestations of it. However, it was certain that stress exacerbated the applicant’s symptoms. In circumstances where the applicant’s employment with the respondent involved his responsibility for “several hundred vulnerable children”, the doctor opines that both “the nature of his employment duties and the temporal history of his symptoms are consistent with that employment being a substantial contributing factor to his condition”.
Finally, in relation to the applicant’s current capacity for work, the doctor opined:
“At this time BDQ’s apparently strong focus on his interior experience would preclude engagement in the majority of vocations for which he might otherwise be qualified or suitable. However, it should be emphasised that this situation is not necessarily permanent.”
The applicant also relies upon a medical report from Dr Abeya dated 24 September 2021 (page 36 of the ARD) commissioned by the respondent.
The applicant describes to the doctor the nature of his employment with the respondent as a permanency coordinator. It involved “a lot of negotiating and working with agencies as well as navigating systems”. The applicant supported four agencies and managed around 250 youths. Challenges continued to develop as the role of a permanency coordinator was a newly created role that had not been previously defined. The work was “quite often endless and timelines difficult”. The applicant would complete over 500 reports per year on funding reviews, and would also conduct debriefs. He described the work as “very enjoyable and rewarding even though stressful”. He told the doctor that “in short there was never enough time in the day to complete everything he needed to”.
The doctor notes that the applicant was diagnosed with sensory neuropathy in around 2000. The symptoms at the time included a burning sensation that progressed from his right foot to his hands and face. The symptoms never completely disappeared but varied in intensity as time progressed. The symptoms would worsen during periods of fatigue.
The applicant describes to the doctor how he became increasingly unwell in around March or April 2020. He began to experience numbness and started to stumble when he walked. He experienced “fogginess” in his head which progressively worsened. He felt there was a “disability in his cognitive thinking”, which began to interfere with his work duties. By September 2020, he believed that he was no longer able to complete his work satisfactorily. His confidence was affected and he began to doubt his ability. His “thinking process” became impacted, he became fatigued easily, he became overwhelmed easily, and he struggled with simple tasks. He needed to take regular breaks, and his sleep became affected. He “felt he no longer had his previous normal skills of being able to think”.
The applicant’s wife attended his appointment with Dr Abeya, and relevantly, the doctor records:
“I asked him about his speech and he said that he could take time to talk now and was different to how he was normally. I specifically asked his wife about this and he and she reported that he was not calm and collected in conversation as he had always been. She also noted that he struggled to find words at time and had real difficulties in trying to comprehend what she was saying and understand the meaning of what was said. She noted that he had done remarkably well during the lengthy two hours plus assessment we had today but stated that this would take its toll later.”
The doctor also records that the applicant suffered from vertigo at times, and described a disorder where he “felt like just having had seasickness with his legs going week”. He was unsteady and stumbled, and he had spasms in his legs in 2020.
The doctor records the following summary in relation to the applicant’s symptoms at the time of the consultation:
“He said the biggest struggle has been with his emotions and the cognitive fogginess in addition to a general feeling of being unwell and the impact it has had on his day-to-day functioning. He said he also keenly felt the change in his general levels of resilience and not being able to do things he could manage easily before. He said life in all has become a bit of a struggle and though there are some better days he also had ‘doona days’ when he did not want to move out of bed. He said he had to accept this is the situation and get on with life.
Speaking of work he said he did not think he could ever get back to the kind of position he had before. In fact he said he worried about going back to any type of government role as he could not think of how he could manage a position given his current state.”
The doctor performs some tests of the applicant’s cognitive functioning, the results of which were within a normal range, although the applicant was slow in executing the tasks involved in the tests. The doctor says:
“This would keep with the reported subject fogginess and also the objective report from his wife about his struggles with speech. His neurologist has stated that there is no diagnosable neurological condition and hence the diagnosis of functional neurological disorder. It would also appear that there was no cognitive insult. Yet he clearly struggles with his day-to-day cognitive functioning despite testing normally. From a psychiatric diagnosis perspective his presentation is compatible with a functional neurological symptom disorder also known as a conversion disorder. It is important to note that this is a somatic disorder characterised by persistent change in motor or sensory function. There is often an underlying psychological cause to the physical symptoms and at times it could be quite obvious but at others not so apparent. It must also be noted that the symptoms are not wilfully manufactured, consciously simulated or exaggerated by the patient and as a result the person feels very little control over the symptoms … It is ultimately an expression of internal stress and therefore removing points of stress can indeed be very helpful in overall management of the condition.”
In relation to the applicant’s current capacity for work, the doctor opines:
“From an employment perspective given BDQ’s current presentation with the ongoing symptoms of his conversion disorder, which includes significant cognitive challenge, he would struggle to return effectively to his substantive work position. In addition it has to be noted that exposing himself to his previous work environment could place him at increased risk of further exacerbation of symptoms (noting that there has been alleviation of some symptoms since leaving work). Therefore whilst the symptoms themselves would make attending to the necessary job tasks a struggle, the day to day stressors of his role would in itself leave him vulnerable to further exacerbation of the symptoms. As a result I find him unfit for his substantive work role as a Permanency Coordinator. Whilst I am of the opinion that he is likely to improve further in his symptoms I believe the vulnerability that a return to his position would bring is not likely to change considerably in the foreseeable future. As a result I find him permanently unfit for his substantive position from a psychiatric perspective.”
A neuropsychological assessment report upon the applicant by Dr McRae dated
28 May 2022 is found at page 28 of the ARD. The assessment occurred over three dates and lasted over five hours in total.
During his interview with the doctor, the applicant described his role with the respondent and its requirements in detail. He described becoming unwell in mid 2020 in the context of stress at work. He began to experience symptoms including word finding difficulties, poor balance and unsteadiness, headaches, thinking difficulties, reduced memory, poor decision-making, and difficulties sequencing. He was referred to a neurologist (Dr Loiselle) who diagnosed a functional neurological disorder.
The applicant also described to the doctor his current symptoms, which included occasional imbalance, susceptibility to fatigue, and “fogginess”. His memory was poor, his attention was weaker, his speed of thinking was slower, he had word finding issues, he had difficulties processing and sequencing information, and he reported reduced problem-solving and decision-making abilities.
The doctor administered tests in relation to the applicant’s premorbid intellectual capacity, attention-related skills, memory functions, motor speed and speed of information processing, visuospatial and language abilities, as well as high level thinking skills. The doctor’s conclusion was:
“On neuropsychological assessment, his results revealed largely intact cognitive performances, with some specific weakness identified in processing speed, which was mostly below expected levels. This impacted on certain higher-level activities involving inhibition and multitasking. Otherwise, he remained well oriented to person, place at time, and his memory performances were quite reasonable, especially for verbal material. There was no evidence of broad dysfunction across the domains of language, visuospatial skills or executive abilities. He did not endorse any significant symptoms on a mood questionnaire, with normal levels of depression anxiety and stress, but continues to report a feeling of ‘dullness’ and ‘fogginess’. Overall, his profile was considered to reflect mostly intact cognition with some information processing dysfunction likely related to FND. While slowed processing can be associated with, given BDQ’s presentation, history and the specificity of his processing results, my opinion is that his information processing deficits are keeping with functional neurocognitive symptoms.”
The ARD also contains (from page 18) certificates of capacity issued by Dr Wills on
23 June 2022 and 15 September 2022. The certificates both refer to a diagnosis of functional neurological disorder “resulting from workplace related events/exposures”. They provide detailed management plans for the applicant’s condition, and certify him as having no current work capacity between 23 June 2022 and 15 December 2022.
The ARD finally contains the applicant’s clinical records in relation to his treatment with
Dr Loiselle (from page 58), Waratah General Practice (Dr Wills) (from page 70), and Neuro Alliance (from page 284). I have considered these records and will refer to them in more detail if specifically directed to them during the parties’ submissions.
At this stage however, I do note that the records from Dr Loiselle importantly contain a number of reports from him to Dr Wills.
Dr Loiselle initially consulted with the applicant on 7 December 2020, and sent a report to
Dr Wills dated 8 December 2020 (at page 66 of the ARD). He provided a summary of the applicant’s symptoms (which he updated in his later reports) and conducted an extensive clinical examination. He was unsure of a diagnosis (stating that most of his examination findings had a significant functional component), and ordered investigations.
The applicant then consulted again with Dr Loiselle on 17 December 2020, and the doctor sent a report to Dr Wills dated 18 December 2020 (at page 64 of the ARD). Following nerve conduction studies with EMG, as well as a cognitive exam and EEG recording, the doctor opined that most of the applicant’s “signs are consistent with functional neurological disorder”. He made treatment recommendations and “suggested it is worthwhile applying for this as work-related”.
Dr Loiselle next reported to Dr Wills on 28 April 2021 (at page 62 of the ARD). He reviewed the applicant’s symptoms, medication, and progress, as well as conducting a clinical examination. He noted some improvements in the applicant’s sleep patterns, numbness, unsteadiness, facial expression, and gait, but not in his head “fogginess”. He stated that “BDQ’s presentation including the improvement of symptoms and signs remain consistent with a functional neurological disorder”. He recommended ongoing physiotherapy and psychological treatment, as well as the prescription of antidepressant medication.
Dr Loiselle’s last report to Dr Wills is dated 28 October 2022 and found at page 58 of the ARD. The doctor provided the following update summary of the applicant’s symptoms:
“•      Functional neurologic disorder. As below. Insurance opinion Dr Granot ?post viral ?migraine, medicolegal opinion Professor Williams, psych opinion Dr Linton Meagher, occupation physician, work psychiatrist, all agree FND.
o URTI March to April '20, 2 courses abs. Breathless for a while.
o Brain fogginess - Gradual onset, possibly from May. Feels constantly sedated. Dull headache, frontal, 24/7, varies in intensity. Panadol only a few occasions. Does not interfere with activity. Eyes feel heavy / sleepy. Sleep OK. Off work since Sept '20. Good with known processes, but less with new information. STM loss. MRI brain and whole spine normal. Denies depressive or anxiety symptoms. MMSE 28 ACE 94 Dec '20.
o Tremor - onset May '20. Left index finger and thumb, there at rest, postural on phone, also on right. Not action. Feels like body vibrating. Hands slow, stiff. Right-handed. Handwriting OK. Keyboard fine. No tremor noted on EMG left 1st DIO late '20.
o Rhythmic movement of foot or feet during sleep. At least since '01 when Natalie met him, less this year. Some hypnogogic jerks / awakening. Restless legs, has to get up.
o Poor smell function most of time - smells food OK, some things cannot smell.
o Fasciculations left > right calves. Onset '14. Mild back or radicular pain. Now thighs, arms
oAlternating bowel habit from '14. Improved with FODMAP diet, probiotics, apple cider vinegar.
o Urinary leakage - Drips after urinating, requiring toilet paper. Not prior to urinating. Longstanding nocturia, increasing recently to 3-4.
o Vivid dreams, rare REM.
o Progressive numbness. Onset '00, one toe, progressed over time, feet, legs, then hands up to elbows, face within a few years. Pins and needles, burning, numb. ?Dr Park Penrith, early on. Power OK, maybe a bit weaker past 6/12. Ataxia since May '20. Stumbles. Sways. NCS Gosford about '07 apparently showed abnormality. NCS here Dec '20 normal.
•       Probable S1 radiculopathy. Left S1 pain with discectomy late '90s. EMG late '20 frequent abnormal spontaneous activity lateral gastrocs were some left, including CRDs. Only mild axonal loss. Possible mild chronic neurogenic changes left 1st DIO not elsewhere.
•      Vit D Def 17 nmol/l. Early '20, improved with replacement.
•      B6 Excess 726 late '20. Had started multivitamin a few weeks prior.”
The doctor confirmed that the applicant’s symptoms remained consistent with a diagnosis of functional neurological disorder. He specifically noted that the applicant still struggled coping with stress and that his symptoms were “worse when dealing with boss or insurance claims”.
The clinical records from Dr Loiselle also contain a report from the doctor to the respondent’s insurer dated 28 January 2022 (at page 60 of the ARD). In that report, the doctor opined:
“BDQ has symptoms and signs consistent with a functional neurological disorder. Although these are somewhat poorly understood at present, it is felt that these have a strong psychological basis, not really considered a disease. Given
BDQ’ history there is a strong likelihood that his employment was a significant if not the main contributor to the development of his condition, therefore could be considered a ‘personal injury’.”
The doctor then opined that:
(a)    “the time and place of the injury suggests employment as a contributing factor”;
(b)    the nature of the applicant’s employment was not important but the stress associated with it was;
(c)    “the duration of work is not inconsistent with employment as a contributing factor”;
(d)    the applicant’s injury would have been significantly less likely to occur in a less stressful situation than the major source of stress identified by the applicant as emanating from his work, and
(e)    there were no previous psychological issues or lifestyle issues that contributed significantly to the applicant’s injury.

Respondent’s evidence

The respondent relies upon medical evidence from Dr Granot. The doctor’s first report dated 10 June 2022 is found at page 7 of the Reply. The doctor conducted his examination of the applicant by telehealth, and specifically acknowledged that there were limitations to the examination.
The doctor nevertheless took a history from the applicant broadly consistent with (although less detailed than) the histories provided by him to other doctors. He noted increasing unsteadiness in around May 2020, as well as gradual cognitive “dullness”. He was investigated by his general practitioner in July 2020, and then consulted with Dr Loiselle in December 2020. His “brain fog” became his dominant issue, which affected his ability to perform his employment role with the respondent. The doctor then recorded:
“Over time, the imbalance has decreased significantly (listing slightly but no longer as unsteady as before), but worse with physical stressors. His cognitive issues have not improved, remain continuous and can also manifest as word-finding difficulties, and are also worse with stress and work or cognitive load, including work or when he felt stressed. He describes this as feeling sedated, after medication or waking from a deep sleep. He also adds feeling nausea and flu-like symptoms, worse with exacerbations of his other symptoms. On careful questioning, he was aware of a dull headache (low grade, nagging, worse at times of exacerbations and rated at 6-7/10 at most severe and baseline 4-5/10). Visual triggers can worsen fatigue. There is no phonophobia, photophobia or osmophobia.”
In relation to precipitating factors for the applicant’s condition, the doctor noted:
“When asked specifically about work stress, he was unable to mention any trigger events. There was no notable specific change in stress level (there were peaks and troughs – such as a marked increase in reports being due in 2019), it was ongoing and continuous: ‘there was no end to it’ and he constantly had to deal with children in crisis in terms of permanency planning and additional work needed to be fitted in … When asked specifically about respiratory infections, he noted he had a respiratory infection in February and March and this ‘went to my chest’ and needed further antibiotics.”
The doctor disagreed with the diagnosis of functional neurological disorder, noting “there is no clearcut history of a precipitating stressor”. He considered the applicant’s respiratory infection to be significant, raising the possibility of a post-viral phenomenon, and he stated that “the differential would lie between atypical migraine … a possible vestibular problem and a post-viral infective phenomenon”. He also considered the possibility of an underlying neurodegenerative disorder. He suggested that the applicant be again reviewed by
Dr Loiselle and be offered vestibular function testing and migraine therapy. He summarised:
“As discussed in the opinion section above, I do not find that functional neurological disorders the most likely diagnosis in my differential list, and feel that several other diagnosis certainly worth examining or re-examining first … As discussed above, I do not find there to have been a distinct injury come up but rather the possibility of several disease conditions, the differential diagnosis of which requires further investigation and review as discussed in detail in the section above.”
The doctor saw no link between his differential diagnosis and the applicant’s employment with the respondent “in any definitive way”. Importantly in this regard, he explained:
“Given the above differentials and the distinct lack of work stressors or other clear precipitating factor that could link this to work, I do not see that this is a work-related neurologically based injury. I am unclear as to the reasoning for the psychiatric assessment to link this to work, but that would be worth clarification.”

The respondent’s solicitors then provided Dr Granot with the report from Dr Williams dated 17 August 2022, and posed further questions to the doctor. The doctor provided a supplementary report dated 3 January 2023, which is found at page 19 of the Reply.
In the report, the doctor now agreed with the diagnosis of functional neurological disorder, explaining that the features noted by Drs Williams and Loiselle (which were strongly suggestive of functional neurological disorder) were not present when he examined the applicant. He also explained that this varying presentation of the applicant when being reviewed was “indeed supportive of a functional aetiology to his presentation”, and the applicant’s “inconsistent appearance is often quite typical of FND”.
The doctor however continued to question Dr Williams’ view that the functional neurological disorder was work-related given the “unclear nature of the precise precipitant”, and the fact that the applicant did not specifically allege a “cumulative stressor”. He recommended that the applicant undergo a psychiatric review, and he summarised:
“According to a recent comprehensive review of FND by Dr Hallett and colleagues, the aetiology of FND is multifactorial and complex, ranging from psychological stressors including a history of childhood adversity, particularly neglect, to physical illnesses, to genetic factors. In general terms, BDQ was exposed to stress as part of his work, but there is no clear precipitant that would classify his work as the contemporaneous and causal factor, as opposed to being in general a potential trigger. I therefore find it difficult to state that there was a contemporaneous and especially ‘causal’ relationship between his employment and FND, given the lack of clarity regarding work versus other potential precipitants.”

Applicant’s submissions

The applicant’s submissions have been recorded and I will not summarise them in detail.
The applicant takes the Commission through the reports of Dr Loiselle, and submits that (as the applicant’s treating specialist) he has a better knowledge of the applicant’s condition than any other specialist that has examined the applicant, especially as he personally conducted necessary investigations as well as examining the applicant. His assessment and diagnosis are reliable and should be accepted. He accepts that the applicant was exposed to a “major source of stress” at work, and therefore considers work to be the main contributing factor in the development of the applicant’s functional neurological disorder (see paragraphs 54-55 above).
The applicant makes the point that the respondent has produced no lay evidence in response to his statement evidence, and therefore, the stressful nature of his employment that is explained in the statement should be accepted.
The applicant then refers to the report from Dr Williams and emphasises the thorough details obtained by him regarding the applicant’s history and symptoms, which then provide the necessary and proper foundation for his detailed opinion explaining why he concluded the applicant’s diagnosis of functional neurological disorder, as well as why he concluded there was a relationship between the disorder and the significant stress that the applicant suffered during the course of his employment with the respondent (see paragraphs 30-31 above).
The applicant then takes the Commission through the reports of Drs McRae and Abeya, both of which contain consistent histories to those in the applicant’s statement and to those given by the applicant to Drs Loiselle and Williams. All histories note the applicant’s work stressors as the context for the onset of his functional neurological disorder.
The applicant then draws the Commission’s attention to the following clinical records from
Dr Wills’ practice (Waratah General Practice):
(a)    the clinical note on page 90 of the ARD regarding a consultation on
20 November 2021 – which it is submitted provides clear contemporaneous evidence of the applicant’s work stressors, and in which the general practitioner provides a diagnosis of functional neurological disorder;
(b)    the clinical note on page 94 of the ARD regarding a consultation on
6 January 2022 – which it is submitted provides evidence of the applicant’s symptoms continuing to be triggered by workplace correspondence (even after he had stopped working), and
(c)    the completed doctor’s statement (in relation to a total and permanent disability superannuation claim of the applicant’s) on pages 270-273 of the ARD – which it is submitted provides evidence of both Dr Wills’ diagnosis of the applicant’s condition being functional neurological disorder, as well as her opinion that the applicant is “permanently unfit” (when asked whether the applicant would be likely to resume work in the future) – it is noted that the statement was signed on
7 October 2021.
The applicant then turns to discuss the opinions of Dr Granot. It is submitted that the doctor had difficulties reaching any diagnosis in his first report, and therefore could not be confident in his opinions. He then accepted the diagnosis of functional neurological disorder in his second report. There should therefore now be no dispute regarding that diagnosis.
In relation to Dr Granot’s opinions regarding the causation of the applicant’s functional neurological disorder, the applicant submits that the doctor misdirected himself in not finding a (see paragraph 59 above) “clearcut history of a precipitating stressor”, in circumstances where it is clear from the histories provided by the applicant both in his statement and to all the doctors who have examined him, that he suffered significant stress during the course of his employment with the respondent. The doctor’s opinions regarding causation are based on a lack of work stressors that is not supported by the evidence.
In relation to the applicant’s current capacity for work, he submits that there is no evidence suggesting that he has any current work capacity or that a real job in the labour market would be available to him. He specifically relies upon the following evidence:
(a)    his general practitioner has issued certificates of capacity (covering the period between 23 June 2022 and 15 December 2022) stating that he has no current work capacity (see paragraph 46 above) – his general practitioner has treated him for many years and is in the best position to assess capacity in this regard – there is also no evidence that since 15 December 2022, the applicant’s condition has changed in any way;
(b)    his general practitioner has certified that he is permanently unfit for work (see paragraph 69 above), when asked to support his total and permanent disability superannuation claim;
(c)    the respondent considered him permanently unfit for a role with it when it terminated his employment (see paragraphs 22-23 above) - the applicant submits that as a major employer, it can be assumed that the respondent would have found work for the applicant if he had any current work capacity;
(d)    Dr Abeya certifies the applicant as being permanently unfit for his role with the respondent (see paragraph 41 above), and
(e)    Dr Williams’ view regarding the applicant’s capacity (see paragraph 32 above), while not specifically precluding all employment options, does suggest a lack of current work capacity in the context of no specific employment being identified in any of the other evidence - no guidance in this regard has been provided to the Commission to suggest that there would be a particular job that the applicant was capable of performing - if the respondent was to “responsibly manage” the applicant’s claim, it could take steps in this regard in the future.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not summarise them in detail.
The respondent commences by advising that it will be focusing in its submissions upon whether the applicant has proved that his employment was the main contributing factor to the contraction of his condition. It will leave the other remaining issues in the dispute to the Commission, which it says might indicate to me “the respondent’s position with respect to those issues”. Specifically, the respondent did not make any submissions regarding the view that the Commission should take as to the current level of the applicant’s capacity for work.
It submits that merely because a condition arose in the context of employment, it does not follow that there is the necessary causal link to make employment the main contributing factor to the condition. It concedes that employment was a factor in the applicant’s condition, but also notes the applicant’s extensive history of neurological conditions. It concedes that the applicant was exposed to stress in the course of his employment, but disputes that there is sufficient evidence for me to be comfortably persuaded that his employment was the main contributing factor to the contraction of his condition.
The respondent refers to Dr Loiselle’s 28 January 2022 report (see paragraph 54 above) and submits that the doctor does not clearly articulate the history from the applicant that he relied upon in providing the opinion in that report. He provides a “bare opinion” that is not enough to satisfy the Commission that the applicant’s employment was the main contributing factor to the contraction of his condition.
The respondent also notes that Dr Loiselle (as well as other neurologists who have examined the applicant) suggests that the applicant’s condition has a “strong psychological basis”. The respondent questions the weight to be given to neurologists’ opinions in this regard, who do not bring psychological expertise.
The respondent refers to Dr Granot’s second report, in which the doctor (see paragraph 63 above) identifies functional neurological disorder as a multifactorial and complex condition. The doctor acknowledges that the applicant was exposed to stress at work but finds “no clear precipitant” in order to classify his work as “the contemporaneous and causal factor”. The respondent submits that if the doctor did not have sufficient evidence in order to find that work was the main contributing factor to the contraction of the applicant’s condition, neither does the Commission.
The respondent refers to Dr Williams’ report (see paragraph 30 above) and submits that the effect of the doctor’s opinion is that functional neurological disorder is an internally sourced condition which arises from unknown causes and circumstances, but does not arise from external sources, even though stress can exacerbate the symptoms of the condition. This opinion is not sufficient for the Commission to find that the applicant’s stress at work was the main contributing factor to the contraction of the condition.
The respondent then refers to Dr Abeya’s report (see paragraph 40 above) and submits that the doctor identifies underlying psychological causes for functional neurological disorder - the condition is an “expression of internal stress”, and work cannot therefore be the main contracting factor to the contraction of the condition.

Applicant’s submissions in reply

These submissions have also been recorded and I will not summarise them in detail.
The applicant submits:
(a)    in his 28 January 2022 report, Dr Loiselle specifically (see paragraph 55 above) excludes other factors as being relevant in the causation of the applicant’s condition – his opinion is clear that work was the main contributing factor to the contraction of the condition;
(b)    the opinion of Dr Wills is also clear that work was the main contributing factor in this regard – the applicant refers to a mental health care plan completed by the doctor and found at page 182 of the ARD (amongst the clinical records from Waratah General Practice), in which the doctor opines that the applicant’s “long career in stressful work environments are the probable trigger for his current diagnosis”, and
(c)    the opinions of Drs Loiselle and Wills (being the applicant’s treating practitioners) should take precedence and override the opinions of other doctors.

FINDINGS AND REASONS

Did the applicant sustain a disease injury (being functional neurological disorder) in accordance with s 4 of the 1987 Act, as a result of excessive workload and stress in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of that disease

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a)     personal injury arising out of or in the course of employment,
(b)     includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
I am comfortably satisfied that the diagnosis of the applicant’s condition is that of functional neurological disorder. This is the opinion of the applicant’s treating doctors (Drs Loiselle and Wills), and is supported by the opinions of Drs Williams, Abeya, and McRae. The only contrary opinion in the evidence was the initial opinion expressed by Dr Granot, an opinion from which he resiled in his second report. The respondent rightly chose not to submit to the contrary.
In fact, the only contentious issue upon which the respondent chose to submit was whether, pursuant to s 4(b)(i) of the 1987 Act, employment was the main contributing factor to the contraction of the applicant’s functional neurological disorder.
The definition of “main contributing factor” is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises [at 77-78]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a)     The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I accept the evidence given in the applicant’s statement. There has been no suggestion or evidence that I should accept otherwise. The history given by the statement is consistent with the histories provided in the medical evidence, specifically the detailed reports provided by Drs Williams, Abeya and McRae.
The applicant says (see paragraphs 14-15 above) that his symptoms of functional neurological disorder arose around July 2020 in the context of “a large amount of stress and pressure associated with my employment”. His employment as a permanency coordinator was a poorly defined role, it provided him with an excessive and urgent workload, and it required him to manage several hundred vulnerable children. It is not surprising that the role would cause a significant amount of stress.
The applicant does not identify any other sources of stress at the time.
I also accept the submission made by the applicant that significant weight should be given to the opinions expressed by his treating doctors as to the causation of his functional neurological disorder.
Dr Loiselle was able to consult with the applicant on at least four occasions, order and conduct the investigations that he thought necessary, and otherwise exercise the appropriate care for the applicant of a responsible treating neurologist. Despite the respondent’s submission to the contrary, I find the doctor’s opinion that (see paragraph 54 above) “there is a strong likelihood that his employment was a significant if not the main contributor to the development of his condition” to be highly significant, especially in the context that (see paragraph 55 above) the doctor does not identify any other contributing factors, and opines as to a strong temporal relationship whereby the condition “would have been significantly less likely to occur” in a less stressful situation than the applicant found himself in at work.
I also reject the respondent’s submission (see paragraph 76 above) that Dr Loiselle had not obtained an appropriate history from the applicant. The submission is contrary to the detailed summaries of the applicant’s condition contained in the doctor’s treating reports to Dr Wills (see specifically paragraph 52 above).
Dr Wills is the applicant’s treating general practitioner and has consulted regularly with the applicant regarding his functional neurological disorder since July 2020. In my opinion, this places her also in a very strong position to comment regarding the relationship between the applicant’s work stressors and the development of the disorder. Her certificates of capacity (see paragraph 46 above) as well as her mental health care plan (see paragraph 82(b) above) make it clear that she considers the applicant’s stressful work environment to be the “trigger” for the development of his functional neurological disorder.
Dr Williams then provides what I consider to be a very detailed and helpful report regarding the nature of a functional neurological disorder, and the reasoning he adopted in diagnosing the applicant with that disorder. The respondent argues (see paragraph 79 above) that the doctor’s opinion is not sufficient for the Commission to find that the applicant’s stress at work was the main contributing factor to the contraction of the condition, as the doctor essentially explains the condition as internally sourced but exacerbated by stress. However, the doctor does identify (see paragraphs 30-31 above) the “highly stressful” employment undertaken by the applicant with the respondent, and that the applicant’s response to that stress was particular to him. The doctor then provides an opinion that the employment was a substantial contributing factor to the condition, based upon the nature of the applicant’s employment duties, and the temporal history of his functional neurological disorder symptoms to performing those duties.
Although the doctor does not refer to “main contributing factor”, in the context of his report where no other contributing factors are mentioned (the doctor being at pains to point out that all other possible explanations for the applicant’s symptoms, including an underlying neurodegenerative condition, needed to be excluded before the diagnosis of functional neurological disorder was made) and where the doctor specifically notes the temporal relationship between the applicant’s stress at work and the onset of his symptoms, I find the doctor’s opinion as to the causation of the applicant’s functional neurological disorder to be supportive of the proposition that the stress experienced by the applicant in his employment with the respondent was the main contributing factor to the contraction of the disorder.

Dr Abeya also does not refer to “main contributing factor”. She however explains (see paragraph 40 above) that a functional neurological disorder is “ultimately an expression of internal stress”, and the condition is managed by attempting to remove points of stress. She takes a very detailed history of the stress experienced by the applicant at work (see specifically paragraphs 34 and 36 above). She does not record stress from any other source. In this context, I do not believe that the doctor’s report supports the respondent’s submission (see paragraph 80 above) that her opinion is that the applicant’s employment was not the main contributing factor to the contraction of his condition; to the contrary, I believe that the report (in solely identifying stress experienced by the applicant at work) is more supportive of the applicant’s submissions.
The opinion of Dr Granot as to the causation of the applicant’s functional neurological disorder (see specifically paragraph 63 above) stands in contrast to the opinions expressed by Drs Loiselle, Wills, Williams and Abeya. The doctor finds it
“difficult to state that there was a contemporaneous and especially ‘causal’ relationship between his employment and FND, given the lack of clarity regarding work versus other potential precipitants.”
However, the doctor does not specifically identify what other potential precipitants may be relevant to the applicant, only stating in the most general terms that the aetiology of functional neurological disorder is multifactorial and complex, and then suggesting certain potential causes. He does not however provide any evidence or comment regarding the relevance of these potential causes to the applicant.
The doctor acknowledges that the applicant was exposed to stress at work, but confusingly finds that stress to not be a “clear precipitant” but rather a “potential trigger” to the development of his functional neurological disorder. I would have thought that if the factor was a trigger, it would also be a precipitant.
I also find the doctor’s opinions that there was no contemporaneous relationship between the applicant’s stress at work and the onset of his functional neurological disorder symptoms and that therefore the stress was not a clear precipitant to those symptoms, to be totally inconsistent with the histories that the applicant provided as to the onset of his symptoms to the other doctors that examined him, and indeed with the history that he in fact provided to Dr Granot (see paragraph 58 above). In this regard, I accept the applicant’s submission at paragraph 71 above.
I further note the following further limitations with Dr Granot’s opinion:
(a)    he initially refused to diagnose the applicant with a functional neurological disorder - but changed his mind in his second report;
(b)    he only examined the applicant once by telehealth - which he specifically acknowledged provided limitations (see paragraph 56 above);
(c)    in his first report (see paragraph 59 above), his diagnosis was unclear and he deferred to the applicant being further reviewed by Dr Loiselle, and
(d)    in his second report (see paragraph 63 above), although he was willing to accept a diagnosis of functional neurological disorder, he still recommended a psychiatric review.
Overall, I find Dr Granot to be speculative. In both of his reports, he has difficulties expressing clear opinions. I propose to give his reports less weight than the weight that I propose to give to the evidence presented from Drs Loiselle, Williams, Abeya and McRae.
In summary, after reviewing and evaluating the evidence presented in its entirety (with significant weight being given to the opinions of Drs Loiselle and Wills), I am comfortably satisfied that the applicant experienced significant stress in his employment with the respondent, and that this stress was the main contributing factor in the contraction of his functional neurological disorder. In weighing up the competing causative factors as referred to in AV, I cannot find any convincing evidence of non-work factors at the time when the disorder was diagnosed.
Finally, in dealing with the respondent’s submission at paragraph 77, I do not accept that the neurologists who have provided opinions in relation to the diagnosis of functional neurological disorder and its causation do not have the necessary expertise. In my opinion, the disorder requires treatment from both neurologists and psychiatrists or psychologists (which has basically been the treatment regime undertaken by the applicant - see paragraph 18 above). The disorder involves both neurological and psychological symptoms, and I am quite satisfied that both neurologists and psychiatrists and psychologists can comment upon it (as has happened in relation to the applicant with this dispute).

To what extent has the injury incapacitated the applicant since 14 July 2022

I accept that the effects of the applicant’s functional neurological disorder continue. I accept in this regard the evidence as to his current symptoms contained in his statement (see paragraph 19 above) and in the evidence from Dr Loiselle (see paragraph 52 above). He has been consistent in his description of his symptoms to the doctors who have examined him, and the doctors (including Dr Granot) have accepted the complaints as being genuine and reasonable.
The symptoms include significant cognitive issues as well as physical fatigue and anxiety. The symptoms have caused him, and continue to cause him, an incapacity for work. The respondent has not made any submissions to the contrary.
The applicant is therefore entitled to weekly compensation in relation to this incapacity pursuant to s 37 of the 1987 Act from 14 July 2022 (when he was last paid weekly compensation by the respondent).
Section 37 provides as follows:
“(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.”
It is therefore important to determine whether the applicant has current work capacity.
Clause 9(1) of Schedule 3 to the 1987 Act provides:
“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.”
It seems to me to be fairly clear that the applicant’s functional neurological disorder renders him unable to return to his pre-injury employment with the respondent. The respondent accepted as such when it terminated that employment on 9 December 2022, specifically stating that (see paragraph 23 above) the termination was due to his inability to undertake the “inherent requirements” of his role.
Dr Abeya (see paragraph 41 above) also found him permanently unfit for his work as a permanency coordinator with the respondent. There is in fact no medical evidence to the contrary, and importantly, the applicant’s evidence in his statement (see paragraph 20 above) and in the histories provided to the doctors who have examined him is that his symptoms and his stress levels increase when he has to deal with the respondent. I accept that evidence, which would preclude the applicant from being able to currently perform any work with the respondent.
The question remains whether there is any other suitable employment that the applicant would be able to perform, so that he could be said to have “current work capacity” within cl 9(1).
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“‘suitable employment’ in relation to a worker, means employment in work for which the worker is currently suited--
(a)    having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
It appears to me when considering the entirety of the medical evidence presented, that only Drs Wills and Williams have squarely considered whether the applicant is fit for any suitable employment.
The certificates of capacity from Dr Wills (see paragraph 46 above) as well as her certificate in relation to the applicant’s total and permanent disability superannuation claim (see paragraph 69 above) reveal that she does not believe that the applicant has any current work capacity, and is permanently unfit for work.
Being the applicant’s treating general practitioner, who has consulted with him more than any other doctor regarding his functional neurological disorder and the symptoms that he experiences as a result of the disorder, I intend to give Dr Wills’ opinions in this regard significant weight.
Dr Williams (see paragraph 32 above) considers the applicant unfit for “the majority of vocations for which he might otherwise be qualified or suitable”. The applicant submits (see paragraph 72 above) that in the context of no specific employment being identified in the evidence as suitable for the applicant, Dr Williams’ opinion should be interpreted as supporting the position that there is no suitable employment available to the applicant. I accept the submission. It appears to me that, especially when considering the entirety of the evidence regarding the extent of the applicant’s ongoing symptoms from his functional neurological disorder, Dr Williams is only opining that there might be a theoretical job available for the applicant.
The applicant relies upon the authority of Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar), and contends that there is no evidence before the Commission of a “real job” that he would be currently fit and qualified for, and be expected to secure and retain.
In Dewar, Roche DP discussed section 32A:
“58.   However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
59.   The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
60.   Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
and:
“63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
I have come to the conclusion that there are currently no “real jobs” that the applicant is able to do. Dr Wills does not consider the applicant fit for any employment, and in my opinion,
Dr Williams’ view does not go so far as identifying “a real job in employment for which the worker is suited”.
In considering the matters prescribed in s 32A of the 1987 Act, there has been no evidence provided in relation to return to work planning or the provision of occupational rehabilitation services. Further, a realistic assessment of the nature of the applicant’s incapacity as well as his age, education, skills and work experience, lead me to the conclusion that he is not currently fit for suitable employment within the meaning of the section.
Neither party relies on any evidence from a vocational expert. In those circumstances, it is for me to use common knowledge or experience to determine whether the applicant’s age, education, skills and work experience (having regard to his current levels of incapacity) would allow him to undertake any suitable employment. As Snell DP recently observed in ACW v ACX [2020] NSWPICPD 19 applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720:
“109. A fact finder is entitled to make commonsense findings, provided these are ‘within the realm of common knowledge or experience’.”
There is not much evidence before me as to the applicant’s education, skills and work experience. The best summary is probably contained in the report from Dr McRae (specifically pages 30-31 of the ARD). Until 1997, he had worked as a motor mechanic, in a munitions factory, in horticulture, and in the “armoured car industry”. He had undertaken TAFE courses in order to engage in some of these vocations. He then worked in the Sheriff’s office (performing management tasks) until 2006, when he began working for NSW Trains. He ultimately became an acting inspector, responsible for dealing with critical incidents and investigations into the use of force by transport officers. He stopped working for NSW Trains when he commenced working for the respondent in 2014. He obtained university qualifications during his role with the Sheriff’s office and prior to commencing his role with the respondent.
In my opinion, it is unrealistic to suggest that the applicant would be able to work in similar roles to his pre-1997 roles. He has not worked in such roles for around 25 years, and considering his age and lack of recent experience, it is highly unlikely that he would be successful in obtaining such a role, especially without re-training. I also find that the roles would involve physical work that he would not be able to perform having regard to his functional neurological disorder symptoms.
Further, his roles since 1997 have involved significant cognitive ability, and in that sense have been similar roles. In my opinion, as he is not fit for his role with the respondent, he is also not fit for similar roles, such as the roles performed in the Sheriff’s office and for NSW Trains.
In summary, I accept the evidence of Dr Wills that the applicant has no current work capacity. Further, even if it could be suggested that Dr Williams’ opinion was that there may possibly be some theoretical suitable position available for the applicant; taking into account the factors prescribed in s 32A of the 1987 Act, and also taking into account the medical and other evidence relied upon by the parties, I still find that the applicant has no current work capacity and has discharged his onus of proving as such. He is therefore entitled to an ongoing award of compensation pursuant to s 37(1) of the 1987 Act.

SUMMARY

I therefore find that the applicant sustained a “disease” injury (being a functional neurological disorder) pursuant to s 4(b)(i) of the 1987 Act, as a result of excessive workload and stress in the course of his employment with the respondent, and in relation to which his employment with the respondent was the main contributing factor to the contraction of that disease. The injury will be deemed to have occurred on 6 January 2022 (that being the date agreed upon between the parties).
I also find that since 14 July 2022, the applicant has been incapacitated for his employment with the respondent due to his functional neurological disorder. I find that since that date, he has had no current work capacity and satisfies s 37(1) of the 1987 Act in order to entitle him to an ongoing award of weekly compensation.
The applicant has not made any earnings since 14 July 2022. The parties have agreed his PIAWE at $2269.39 (see paragraph 9(c) above). In accordance with s 37(1) of the 1987 Act, 80% of $2269.39 is $1815.51.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 14 July 2022 to date and on a continuing basis, at the rate of $1815.51 per week (as adjusted applying relevant indexing).
Liberty to apply will be granted to the parties to approach the Commission regarding the calculation of the applicant’s PIAWE once relevant indexing is applied, should the parties be unable to agree in this regard.
In accordance with the agreement between the parties (see paragraph 9(e) above), there will also be an award that the respondent pay the applicant’s reasonably necessary expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 145

6 April 2023