Brookes v Ewp Plant Equipment Sales Service and Spares

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brookes v EWP Plant Equipment Sales Service and Spares [2022] NSWPIC 236
APPLICANT:	Christopher Brookes
RESPONDENT:	EWP Plant Equipment Sales Service and Spares
MEMBER:	Rachel Homan
DATE OF DECISION:	24 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of accepted lumbar injury and secondary psychological condition; ongoing effects of injury in dispute; where pre-existing lumbar and psychological conditions; evidence of work capacity for a period of time following injury; multiple causes of incapacity; Held- weighing the evidence, the accepted lumbar injury and secondary psychological condition continued to be incapacitating during the period of weekly compensation claimed; no current work capacity; Calman v Commissioner of Police and McCarthy v Department of Corrective Services; respondent ordered to pay ongoing weekly compensation pursuant to sections 37 and 38 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. From 7 November 2020 to date and continuing, the applicant has had no current work capacity as a result of the lumbar injury and secondary psychological condition. 2. The applicant is likely to continue indefinitely to have no current work capacity. 3. The respondent to pay the applicant weekly compensation from 7 November 2020 for the balance of the second entitlement period pursuant to s 37(1)(a) of the Workers Compensation Act 1987 (1987 Act) at the rate of $1,472 per week. 4. The respondent to pay the applicant weekly compensation from the conclusion of the second entitlement period to date and continuing pursuant to s 38(6)(a) of the 1987 Act at the rate of $1,472 per week.

STATEMENT OF REASONS

BACKGROUND

Mr Christopher Brookes (the applicant) was employed by EWP Plant Equipment Sales Service and Spares (the respondent) as a heavy vehicle/diesel mechanic. The applicant claims to have sustained an injury to his lumbar spine due to the nature and conditions of his employment with the respondent. In addition, the applicant claims to have sustained a secondary psychological condition due to his ongoing physical pain.
Liability for the lumbar injury was accepted by the respondent’s insurer on 8 August 2019. Liability for a secondary adjustment disorder was subsequently accepted on 21 November 2019.
On 4 December 2019, the applicant’s neurosurgeon, Dr Renata Abraszko, wrote to the respondent’s insurer seeking approval for the applicant to undergo a right L4/5 microdiscectomy.
On 18 May 2020, the insurer disputed liability to pay weekly compensation or medical and related treatment expenses in relation to the lumbar injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent relied on a report from Independent Medical Examiner (IME), Dr Anthony Smith, which found that any ongoing symptoms at the lumbar spine were related to a pre-existing condition and not the workplace injury.
Liability to pay ongoing weekly compensation and medical and related treatment expenses in respect of the secondary psychological condition was disputed in a further s 78 notice issued on 18 September 2020. The insurer relied on the opinion of IME, Dr Graham George, who found that the applicant’s adjustment disorder had resolved. The applicant was notified that his weekly payments would cease.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 2 December 2021. The applicant sought weekly compensation on an ongoing basis pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) from 7 November 2020, as well as orders for the respondent to pay the costs of and incidental to the surgery proposed by Dr Abraszko.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 8 March 2022. The applicant was represented by Ms Sarah Warren of counsel, instructed by Mr Sebastian Canavo. The respondent was represented by Ms Kavita Balendra instructed by Ms Serena Bentley. A representative from the insurer was also present.
After a lengthy period of conciliation, the parties were unable to reach a settlement acceptable to all of them.
Directions were made amending the ARD to omit the claim for the costs of and incidental to the L4/5 microdiscectomy proposed by Dr Abraszko. The description of injury was amended to clarify that the applicant relied on a secondary psychological condition rather than any primary psychological injury. The applicant’s wages schedule was adjusted to accurately record the end date of the second entitlement period under s 37 of the 1987 Act.
As there remained insufficient time for oral submissions to be heard, a timetable for the service and lodgement of written submissions on the outstanding issue in dispute was established. The parties were informed of my intention to determine the dispute on the material before the Commission at the conclusion of that timetable.
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 issue remains in dispute:
(a) the extent and quantification of incapacity resulting from the accepted back injury and secondary psychological condition during the period 7 November 2020 to date and continuing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to the Application to Admit Late Documents lodged by the applicant on 17 January 2022;
(d)    documents attached to the Application to Admit Late Documents lodged by the applicant on 1 March 2022;
(e)    documents attached to the Application to Admit Late Documents lodged by the respondent on 2 March 2022;
(f)    documents attached to the Application to Admit Late Documents lodged by the applicant on 8 March 2022;
(g)    written submissions lodged on behalf of the applicant on 18 March 2022;
(h)    written submissions lodged on behalf of the respondent on 31 March 2022, and
(i)    written submissions in reply lodged on behalf of the applicant on 5 April 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 statements made by him on 29 April 2020, 15 May 2020, 29 January 2021 and 17 January 2022.
The applicant, who is currently 31 years of age, was employed by the respondent from 2017 until late November/early December 2019.
The applicant said it was not unusual for him to go home after work with aches and pains as his job was very physically strenuous.
The applicant said his duties involved almost constant bending, heavy lifting, and having to work in physically awkward positions. One of these tasks was changing truck tyres. This involved having to bend to remove the truck tyre then lift, handle and manoeuvre the old tyre and do the same for the new one. When he did this, the applicant’s back was under a lot of pressure and in a bent position for a prolonged period.
Replacing truck brakes was also a physically strenuous task. The brake drums were extremely heavy. When lifting them, the applicant’s back was bent and under intense pressure. The gearbox and clutches were also quite heavy. The applicant had to manoeuvre these items on his own and he had to work in awkward positions in order to reach these items. The applicant said he was not provided with equipment or assistance to help.
The applicant also had to work on plant equipment with hydraulic cylinders. The seals in the cylinders would wear out a need to be replaced. To test whether the seals needed to be replaced, the applicant had to place the cylinder and 20kg weights in a boom basket to be left overnight. If the seals needed to be replaced, the applicant would need to lift and manoeuvre the cylinders by hand, often on his own, bending his back and placing a lot of pressure on his back.
Other physically challenging aspects of the applicant’s work included working on the steering of boom lifts, steering yolks, hydraulic motors and boom and scissor lift wheels. These tasks all involved lifting and manoeuvring heavy equipment. To access and work on certain items, the applicant had to place his body in awkward positions. The applicant said he rarely had help from colleagues and usually needed to carry the whole weight of heavy items by himself.
The applicant said his body hurt every day at and after work. The applicant did not immediately notice that something was wrong with his back. By 17 April 2019, the applicant’s back was in constant aching pain and not getting any better. The pain on that date was worse than the applicant’s usual work-related back pain. The applicant could not recall any specific incident or anything of note that happened on that date.
The applicant went to his general practitioner, Dr Mahfuz, and took about two weeks off work for treatment using sick and annual leave. The applicant was referred to a chiropractor but did not see any benefit after a few sessions.
As the applicant’s pain was not getting any better, his general practitioner prescribed Panadeine Forte and referred the applicant for a CT scan which showed a bulging disc. Dr Mahfuz recommended the applicant start physiotherapy and continue on analgesic medication.
The applicant attended physiotherapy at Rehab HQ and kept working. During this period, the applicant’s condition started to deteriorate to the point where he could not do anything at work because his back was in so much pain. In late May 2019, the applicant approached his manager because of the pain and was told to go home. The applicant stopped doing other physical activities, including most domestic chores around the house.
On 5 June 2019, the applicant’s general practitioner told him to take a week off work. The plan was to return to work on light duties. However, it became apparent to the applicant that his employer thought he was faking his injury. A return to work plan was agreed in mid-to-late July 2019. On 22 July 2019 the applicant returned to his general practitioner, as he was in so much pain and discomfort at work. The applicant stopped work.
The applicant changed physiotherapist and continued with physiotherapy and regular general practitioner check-ups. As his condition was not getting any better, the applicant was referred for an MRI scan on 16 October 2019. Following this, the applicant was referred to neurosurgeon, Dr Renata Abraszko.
The applicant first saw Dr Abraszko in November 2019 and was referred for a cortisone injection. The cortisone injection helped slightly with the pain. The applicant’s pain was relieved for about a week before returning to normal.
In December 2019, Dr Abraszko told the applicant that the only treatment option was to undergo an L/45 microdiscectomy surgery.
A further MRI was performed in February 2020.
The applicant stated that his condition was getting worse. The applicant’s pain originated in his lower back radiated down to his groin and legs intermittently. The applicant had noticed his right foot and leg going numb and a burning sensation in his right groin and thigh. The applicant found it difficult to sit or stand for prolonged periods. This made it hard to drive, complete housework or sleep. The applicant was getting very little sleep and this had affected his mental health and general well-being.
To manage his health, the applicant was taking Endone and Valium. The applicant stopped physiotherapy because it stopped working.
The applicant stated that during and since high school, he had always worked in jobs requiring manual labour. Whilst at school, the applicant worked as a kitchen hand and later started work as an apprentice electrician. The applicant realised that being an electrician was not for him so decided to become a heavy vehicle/diesel mechanic. The applicant started as an apprentice diesel mechanic in 2008 and from that point on had always worked as a heavy vehicle/diesel mechanic.
The applicant described a separate psychological injury pre-dating the back injury in May 2019 arising from difficult interpersonal relationships in the workplace. Following the back injury, the applicant felt very unsupported.
The applicant felt the work environment was extremely hostile and that he was being ostracised because he had been injured and lodged workers compensation claim. The applicant’s employment was terminated six months later. There was a dispute between the applicant and the employer in around February 2020 in relation to the collection of the applicant’s personal toolbox and tools.
The applicant acknowledged a history of psychological health issues. The applicant suffered from anxiety and depression since preschool and had attended counselling on and off. The applicant had not been to counselling for about a year and was not experiencing any limitations due to his mental health before commencing work for the respondent. The last ‘episode’ had been five years earlier, around the time the applicant’s son was born.
The applicant had been taking the antidepressant Pristiq since he was about 15 years old. That dosage was increased in May 2019. On 20 April 2020, the applicant received a referral to a psychiatrist at Lighthouse Psychology.
The applicant described his psychological symptoms and said he had struggled to cope with the normal aspects of daily life. The applicant had resorted to drinking excessive amounts of alcohol and self harming.
The applicant also reported that he had been diagnosed with Scheuermann’s disease when he was 15 years old. The condition affected the applicant’s thoracic spine rather than his lumbar spine. The diagnosis never stopped the applicant from living a full and active life. The applicant did not recall the disease ever causing any pain, issues or restrictions. The applicant did not have to take any medication and was able to work full-time in heavy manual labour jobs without issue. The applicant played soccer as a teenager and adult without any problems.
Dr Abraszko had referred the applicant to Dr Raymond White, a rheumatologist, for an opinion as to whether the Scheuermann’s disease was causing the applicant’s current back issues. Dr White formed the opinion that the pre-existing condition was not related to the applicant’s current issues and had not worsened since the onset of the back injury in April 2019.
In his most recent statement, the applicant said his wife continued to do nearly all the chores at home. On the rare occasions when the applicant had mowed the lawn, he had been in aggravated pain for days. Over the last few months, the applicant began to experience episodes of sharp pain in his lower back causing him to drop to his knees. The back pain was constant and getting worse. A burning sensation in the applicant’s groin was also getting worse. The applicant had experienced weakness and tingling in the right foot.

Treating medical evidence

A report from the applicant’s general practitioner, Dr Vishal Banypersad, dated 25 June 2019 recorded that the applicant presented on 1 May 2019 with lower back pain radiating to his buttock. A CT scan confirmed lumbar disc bulge with radiculopathy. The applicant’s work involved bending, kneeling and heavy lifting in order to perform duties such as removing wheels and repairs. The applicant’s symptoms had an insidious onset as result of cumulative work activity.
Dr Banypersad said the applicant was previously a physically well young man who was unlikely to sustain the injury outside of his employment.
At the date of his report, Dr Banypersad said the applicant was seeing a physiotherapist and had physical capacity to work on light duties with reduced hours initially. In relation to the applicant’s psychological condition, Dr Banypersad said,
“The worker has been experiencing work-related stress as a result of his physical injury and the perceived scrutiny and workplace stigma that can accompany a workers compensation claim. He does have a history of anxiety, for which he takes medication. His anxiety had been stable up until this recent work-related physical injury. He is seeing a psychologist to assist with his current situation however he has anxiety about returning to the current work environment. In my opinion, returning to work as soon as possible in a supportive work environment, is paramount to maintaining a healthy overall wellbeing.”
A clinical psychologist, Dr Viviana Lee reported on 5 September 2019 that the applicant was not working due to the anxiety of returning to a workplace which he deemed a toxic environment. The applicant had reported that whilst returning to work for two days, he felt uncomfortable and anxious and this may have impacted on his pain levels, which flared up the following day.
The applicant was seen by neurosurgeon, Dr Renata Abraszko, on 13 November 2019. Dr Abraszko reported:
“His back pain is constant. He cannot work. He cannot lift, bend, or twist. He is doing physiotherapy with not much improvement. I recommended him right L4-L5 epidural injection. He had a CT and MRI which showed disc prolapse at L4-L5 level.”
On 4 December 2019, Dr Abraszko noted some improvement following injection for a couple of days, but the pain gradually returned. The applicant had difficulty sitting and walking for prolonged period and could not stand.
General practitioner, Dr Rubaiyat Mahfuz, prepared a report for the insurer on 17 January 2020, diagnosing a broad-based disc bulge at L4/5 and L5 radiculopathy. Dr Mahfuz gave the opinion,
“He is a heavy goods vehicle mechanic and the work involves bending, kneeling and heavy lifting to perform duties such as removing wheels and bushing repairs. His work related injury is related to cumulative work activity.”
Dr Mahfuz recorded that the applicant was still symptomatic with lower back pain associated right-sided sciatica. There had been no significant improvement with physiotherapy and epidural injection. Dr Mahfuz considered that the applicant had capacity for some type of employment with restrictions.
In report dated 27 May 2020, Dr Abraszko noted that the applicant had been seen by the respondent’s IME, Dr Smith:
“He saw Dr Smith, and his claim was denied. He was told that he has Scheuermann’s disease. His recent MRI of the lumbar spine revealed L4-5 disc extrusion. The disc extrusion is not Scheuermann's disease. I recommended him to see the rheumatologist about his previous Scheuermann's disease.”
Rheumatologist, Dr Raymond White, prepared a report dated 28 May 2020, in which he provided the opinion:
“I am confident that Mr Brookes does not have an inflammatory spondyloarthropathy, and agree that his back pain has a mechanical basis. Even so, I strongly doubt whether his previous Scheuermann’s disease has been a contributing factor. The radiological changes associated with that would have been long standing and could not be held responsible for the symptoms that have developed in the last 12 months. Hence, I am sure that the identified disc pathology has been the dominant problem, and therefore doubt whether benefit would be obtained from antirheumatic treatment.”
Dr Mahfuz prepared a further report for the insurer on 27 August 2020 in which he gave the opinion,
“Christopher Brookes has been unfit for work from 16/10/2019. All his work cover certificate from that date till now reflects this. He is unfit or work due to his ongoing work related issues which are-
(a) Work place related stress & anxiety; Depression from chronic pain
(b) Lower back pain with right sided sciatica; CT shows broad based disc bulge at L4/5 narrowing the right lateral recess; MRI shows central/right paracentral disc protrusion at L4/5, narrowing the right lateral recess.”

On 14 October 2020, Dr Abraszko noted that the applicant still had “severe pain” located in the lower back and to the right side.
On 10 June 2021, psychologist, Mr Karl Noyeaux, prepared a report on the relationship between the applicant’s mental state and his workplace injury. Mr Noyeaux noted that the applicant had been referred for opinions and management in relation to anxiety/depression stemming from work-related issues, chronic pain and suicidal ideation.
Mr Noyeaux took a history of the back injury, which now restricted the applicant from engaging in various physical activities that he could engage in previously. The WorkCover claim was rejected and the applicant had $25,000 worth of tools stolen. The applicant also reported being adversely mistreated by his manager in the workplace. The applicant found it extremely uncomfortable at work and no one was talking to him. The applicant also reported being under significant financial stress. The applicant reported that he went off work due to back pain and suffered from constant pain on a daily basis. This had repercussions on his relationship with his family and led to a deterioration in his quality of life and mental health. The applicant had a disturbed sleeping pattern due to constant pain.
The applicant reported that the combination of physical, financial and mental stresses lead him to start drinking on a daily basis. The applicant was drinking up to one whole bottle of whiskey daily to escape the chronic back pain and to escape his mind. Mr Noyeaux said,
“It is evident from the comprehensive background history obtained from Mr Brookes that he struggled with worry and ruminating negative beliefs of self for a significant period of time due to constant pain causing him emotional distress. It is evident that Mr. Brookes alcohol abuse behaviours stemmed from coping and managing physical and emotional pain.”
Mr Noyeaux gave the further opinion,
“It is likely the workplace injury, the bulging disc is an aggravator to his condition; Mr Brookes discussed the pressure mounted on him over the past several months; the constant pain contributed to the anxiety and depressive mood which were the main factors to his drinking alcohol and suicidal ideations. It is likely Mr Brookes is self-medicating to get a sense of his chronic pain ceasing when under the influence.”
Mr Noyeaux responded to the opinion given by the respondent’s IME, Dr George, that the applicant’s adjustment disorder in response to his physical injury had resolved. Mr Noyeaux said the applicant’s adjustment disorder had not resolved and had manifested into a dysthymic disorder.
A different psychologist, Mr James McIntosh, prepared a report for the applicant’s general practitioner, dated 11 January 2022. Mr McIntosh noted that he had seen the applicant in 2015 for management of anxiety. The applicant was able to exhibit remission and remediation of symptoms. Mr McIntosh described the applicant’s presenting issues as follows:
“He discussed being jobless and long term embroiled in current workcover disputes. He described considerable pain focused symptomology which is associated with back injury. He described financial distress. He noted having a reasonably supportive family, however, reported family relations were strained due to current life circumstances. Mr Brookes was noted to have gained considerable weight since previous time working together.”
Mr McIntosh diagnosed major depressive episode (reactive) with concurrent alcohol dependence disorder. This largely related to the applicant’s WorkCover circumstances.

Certificates of capacity

The applicant’s general practitioner, Dr Rubaiyat Mahfuz has provided Centrelink medical certificates covering the period of compensation claimed in which the applicant was certified as having no capacity to work or study due to lower back pain with right-sided sciatica and L4/5 disc protrusion as well as anxiety and depression.
WorkCover certificates were issued by Dr Mahfuz and Dr Banypersad in the second half of 2019. For a period commencing in early August 2019, the applicant was certified as having some capacity for work with restrictions. In mid-September 2019, for a brief period, the applicant was certified as being fit for pre-injury duties. By mid-October 2019, the applicant returned having no current work capacity.

Dr Stenning

In relation to his lumbar injury, the applicant relies on a medicolegal report prepared by neurosurgeon Dr Warwick Stenning, dated 16 April 2021.
Dr Stenning took a history of the back injury and described the applicant’s current symptoms as follows:
“He currently experiences low back pain which is worse on walking and dressing. He needs assistance with dressing. The pain radiates into his right leg to above the knee. He has recently been limping. There has been pain present in his right leg from the outset. Prior to his incident he was able to perform his normal household duties but is unable to do any now. He needs assistance in dressing and drying himself below his waist. He sometimes finds that his back spasms and he is stuck in the flexed position. This may last for one week.”
Dr Stenning performed an examination and reviewed a CT scan performed on 7 May 2019, which showed a central moderate size broad-based disc bulge at L4/5 with the appearance of an acute disc extrusion. The same pathology was seen on MRI performed on 17 October 2019. A lumbar MRI performed on 21 February 2020 revealed that the disc extrusion was slightly larger. Lumbar MRI performed on 19 November 2020 revealed that the disc fragment was smaller but the annular tear at that level was more prominent. Desiccation at the same level was still present.
Dr Stenning considered reports from Dr Abraszko, Dr White and the applicant’s general practitioner, as well as the IME report from Dr Smith. Dr Stenning gave a diagnosis:
“The features of Schuerman’s disease are present but are minor. It is quite possible that these were not causing any symptoms prior to the onset of back pain and right sided sciatica.
The Schuerman’s disease would not have contributed to the weakness of the L4/5 disc annulus, and therefore can be discounted as significant in the current clinical context.
I found absolutely no evidence to support a diagnosis of right sided hip arthritis, which would be a most unlikely diagnosis, at any rate, in a 30 year old without a significant history of congenital hip dysplasia, or a significant hip injury earlier in life.”
Dr Stenning gave the opinion that the applicant was not fit for any form of work on the day that he examined him.

Dr Canaris

In relation to his psychological condition, the applicant relies on medico-legal reports prepared by consultant psychologist Dr Christopher Canaris, dated 31 May 2020 and 13 September 2021.
In his report dated 31 May 2020, Dr Canaris took a history of the applicant being off work in the setting of an L4/L5 back injury. The applicant tried to return to work but was told the injury wasn’t real and he could have done it by getting out of bed. The applicant attempted to return to work but no one spoke to him and the mood there wasn’t good. The applicant described arranging to collect his tools worth $20,000 from the workplace but being told subsequently that they had been collected by someone else on his behalf. The applicant was ordered off the property and told he was a liar and fraud.
The applicant disclosed a history of pre-existing anxiety for which the applicant was taking medication.
The applicant reported that he could not work out and walking was the only physical activity open to him. Even putting shoes and socks on in a bent over position caused discomfort. The applicant could drive but could not sit in the same position for any length of time.
The applicant reported abusing alcohol and a number of psychological symptoms. The applicant was seeing a psychologist wants to twice a month and taking Pristiq, diazepam and Endone.
Dr Canaris diagnosed a generalised anxiety disorder which preceded the workplace difficulties. The difficulties at work had caused a significant aggravation, which persisted to the point where the applicant was no longer able to work. The aggravation arose because of lack of support after the applicant’s physical injury. Dr Canaris said,
“As noted above, he has a pre-existing condition which is presumably of constitutional origin with evidence of some aggravation from non-work-related factors such as the birth of his daughter. I note also evidence of aggravation preceding his physical injury arising from workplace pressures when asked to work on machinery/plant with which he was not familiar and faced with criticism because he found this difficult despite having informed his employer that he had not been trained for these tasks.
His psychological injury (i.e. the aggravation of his pre-existing condition) appears to arise predominantly from his employer’s reportedly poor treatment after his injury although his physical injury itself would have been stressful for him. Consequently, his psychological injury appears to be predominantly primary but with a secondary component and an underlying constitutional component.”
With regard to capacity for work, Dr Canaris gave the opinion,
“He would not be fit to work in his last job even if the option were open to him. I assume there are physical limitations with regard to the kind of work he could do. His confidence has been shaken somewhat and so he would need significant support in finding his way into some other line of work.”
In his supplementary report, Dr Canaris noted that he had previously diagnosed a generalised anxiety disorder which had been exacerbated by a combination of physical difficulties and problems with the employer. Dr Canaris also acknowledged a diagnosis by Dr Frank Kai Tai Chow in September 2019 of an adjustment disorder and a diagnosis by Dr George on 26 August 2020 that the adjustment disorder had resolved. Dr George documented an essentially unremarkable mental state examination.
Dr Canaris noted the subsequent history on 7 March 2021 as follows:
“On 7 March 2021, your client was brought into hospital by ambulance on a Section 22 after he had had an argument with his wife and threatened to walk in front of a car sending a text of his wife saying goodbye. The police documentation states that he was ‘currently off work due to a back injury and going through the courts as workers comp rejected claim. He is constantly in pain due to his back and takes Endones’ and had consumed half a bottle of whisky and Endones’. He was described on admission as having a history of depression, anxiety, alcohol dependence, and chronic pain. He was po1trayed on mental state examination as ‘tearful, engaged well, polite and forthcoming’ with a ’flattened affect’, ‘low and anxious’ mood, we thought content characterised by ‘hopelessness and worthlessness’.
Dr Canaris noted that the applicant had subsequently been referred to Mr Noyeaux who diagnosed a sedative, hypnotic, or anxiolytic use disorder, alcohol dependence, major depressive disorder, somatisation disorder, and dysthymic disorder.
Based on this additional history, Dr Canaris gave the further opinion,
“Based on this history as well as on the history I elicited earlier, your client's psychological injury arises substantially as a result of his physical injury and subsequent workplace difficulties. He has a pre-existing psychological condition but appears to have functioned reasonably before this time. His presence psychological injury on balance is an aggravation of a pre-existing condition.
There is ongoing evidence that your client's back pain contributes significantly to his psychological injury.
His psychological injury impacts adversely on his capacity for work. His depression and anxiety would make it very difficult for him to return to his preinjury employment even if the option were open to him. His psychological injury is likely to undermine his capacity to cope with his physical problems including his pain and as such would compound his physical limitations. It is also likely to undermine his capacity to retrain into a sedentary occupation. His problems with alcohol would add to his difficulties on this score.”

Dr Smith

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Anthony Smith, dated 3 March 2020 and 27 January 2022.
In his first report, Dr Smith took a history of an injury at work on 17 April 2019 and noted that on that date, there was no particular accident or injury.
Dr Smith recorded that the applicant had had backaches off and on in the past, as well as other muscular pains. They had always settled down after a night’s rest and the applicant never worried about them. The applicant was aware of having Scheuermann’s disease affecting his thoracic spine.
Dr Smith’s considered the radiological evidence and noted correspondence from Dr Abraszko. Dr Smith noted that three weeks earlier, for no apparent reason, the applicant experienced severe pain in the left leg.
After performing an examination, Dr Smith gave the opinion,
“This man has thoracolumbar Scheuermann’s disease, superimposed on this long-standing lumbar degenerative disease, which is more marked at L4 – 5 than anywhere else. In addition, I think, he has bilateral hip osteoarthritis.
There is no clinical evidence of nerve root impingement on today’s examination. In all probability, the back symptoms are coming from pathology in the facet joints at L4 – 5 and possibly the level above. In my opinion, the disc protrusion has not been producing any symptoms. The sequestration of the disc, which has caused an increase in the size of the disc bulge, is on the right-hand side of the midline and not likely to be producing leg symptoms on the left. The leg symptoms on the left are new symptoms that are consequent to the degenerative process at L4 – 5 and L5 – S1.”
Dr Smith said the hip arthritis and Scheuermann’s disease were familial conditions. Employment with the respondent in the absence of any documented aggravating factor could not be considered a substantial contributing factor to the underlying pathology or current symptomology. Dr Smith said the most severe symptom present now was left-sided sciatica which began three weeks earlier and at a time when the applicant was not in employment.
Dr Smith said the applicant had no symptoms present now that were consequent to any exacerbation that may have occurred on or around 17 April 2019. There was no occupational, recreational or domestic activity that was free of the risk of exacerbating the combination of pathologies affecting the applicant’s lower back. Exacerbations would last seconds, minutes or one to two weeks at the very most.
In his supplementary report, Dr Smith noted that he had been provided with the report of Dr White, dated 28 May 2020. Dr Smith described Scheuermann’s disease as an autosomal dominant inherited phenomenon leading to structural abnormality in the path of the spine affected. It lead to early development of degenerative osteoarthritic changes in the spinal column. The applicant did not have a single normal disc anywhere in his lumbar spine and never had a normal disc in his lumbar spine. Disc bulging was a part of the Scheuermann’s disease process.
Dr Smith also noted the report of Dr Stenning and observed that his clinical examination did not include the hip joints. Dr Smith said Dr Stenning had no basis on which to say on clinical grounds one way or another, whether there was hip arthritis. Dr Smith said he conducted a clinical examination of both hips, neither of which was normal.
Dr Smith commented that the left leg symptoms which were most prominent when he examined the applicant had resolved and the applicant only had right leg pain when he saw Dr Stenning.
Dr Smith confirmed his opinion that the applicant had thoracolumbar Scheuermann’s disease with superimposed extensive degenerative disease in the thoracic and lumbosacral spine.
Dr Smith gave the further opinion,
“I would expect into to continue have back pain with or without leg pain from time to time, consequent to the genetic pathology present in is low back, which has arthritic changes superimposed on it. Most of the symptoms will come from the arthritic process at L4-5 and L5-S1. The disc bulging that was present at L4-5 demonstrated an MRI scan of 7 October 2019 was degenerative and not post-traumatic in its nature.
I remain of the opinion that there will be no symptoms present after two weeks at the very most consequent to the onset of any symptoms that might have occurred on 17 April 2019.”

Dr Chow

The respondent relies on the medico-legal report of consultant psychiatrist, Dr Frank Kai Tai Chow, dated 23 September 2019. Dr Chow took a history of the back injury and reported,
“He said his back is getting better. He is right to return to work. Physically, he does not need light duties. However, he does not want to go back to the same workplace as he is extremely anxious. He would like work with a new employer. It is too uncomfortable to go back as they did not talk to him when he previously returned.”
Dr Chow took a history of pre-existing severe separation anxiety when the applicant was very young. The applicant had depression anxiety throughout his teenage years. The applicant saw a psychologist and as a teenager and had been on antidepressants since.
The applicant reported ongoing fluctuating low mood and anxiety and sleep disturbance.
Dr Chow gave the opinion,
“In my opinion, Mr Brookes reported experiencing sufficient symptomology for a diagnosis of adjustment disorder with anxiety. He has engaged with a psychologist for the last two months of his physical injury has further improved.
He said his workplace was not supportive and the relationship is unlikely to be repaired due to his observation of the culture and how others were treated.
He is now keen to look for alternative employment, especially in a bigger workshop which should be more supportive. He does not believe mediation with his employer will be beneficial.
Prognosis of his condition should be good once is able to obtain alternative employment.”
Dr Chow considered the aggravation of the applicant’s pre-existing psychiatric condition was likely to resolve over the next three months.

Dr George

Psychiatrist, Dr Graham George, provided supplementary medico-legal reports on the applicant’s psychological condition on 31 August 2020 and 3 February 2022.
In his first report, Dr George took a history of the applicant coming into conflict with his manager after lying down to relieve back pain at work. The applicant ceased work due to back pain and reported that he continued with pain on a daily basis.
The applicant reported that his current sleep pattern was six to seven hours a night, his appetite was variable and his mood was up-and-down. The applicant enjoyed spending time of his children activities such as going to the beach.
The applicant reported having a panic attack two weeks earlier at a shopping centre, however, he believed that he probably had panic attacks in the classroom at school but was not able to identify them as panic attacks at the time.
The applicant reported that he had come under the care of a psychologist, Mr Peter Khan, seeing him weekly.
The applicant reported that his personal belongings included a toolbox worth around $20,000 had been given way. The applicant reported that his anxiety and depression had increased since that time:
“He said that, previously, he felt a degree of ‘stress’ with his back, but he developed more marked anxiety, subsequent to his tools being taken.”
The applicant indicated that he had been on the antidepressant, Pristiq, for five years. The applicant also took diazepam regularly. Around the time when his toolbox was taken, the applicant started to abuse alcohol. The applicant admitted to self harming a few months earlier.
Dr George made a diagnosis of self-limited adjustment disorder with mixed anxiety and depressed mood subsequent to the initial back injury. Dr George did not believe the applicant continued with that condition currently. The applicant’s current diagnosis was alcohol use disorder (recently in remission).

In his second report, Dr George was asked to consider whether the applicant’s symptoms resulted from a secondary psychological condition as a result of the physical injury or a primary psychological injury caused by interactions with his employer. Dr George commented,
“Therefore, he has had a chronic disorder causing pain, and this was significant in his employment with EWP. Therefore, I regard his initial psychological injury as being a secondary condition.”
Asked to comment on Dr Canaris’ opinion, Dr George responded:
“Dr Canaris has detailed deterioration in Mr Brookes' mental state during 2021. The different conditions, from which he is alleged to suffer, have propagated over time. My assessment was that his adjustment disorder was self-limiting initially. I believe that the subsequent conditions, whilst serious in themselves, could not, necessarily, be viewed as related to his work-related injury. He had a documented history of pre-existing psychiatric conditions.”

Applicant’s submissions

The applicant’s submissions noted that the only dispute between parties requiring determination was the extent and quantification of any entitlement to weekly compensation pursuant to ss 37 and 38 of the 1987 Act resulting from the lumbar spine injury and secondary psychological condition during the period 7 November 2020 to date and continuing.
The applicant noted that the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) figure was $1,840.
The applicant submitted that he had no capacity to work during the period claimed as a result of his lower back injury and secondary psychological condition.
It was noted that the applicant had received 74 weeks of weekly benefits to date with 56 weeks remaining in the second entitlement period.
The applicant’s evidence that he had always worked in jobs requiring manual labour was noted. The applicant’s duties with the respondent involved constant and extensive, bending, heavy lifting and working in awkward positions. The applicant often suffered from aches and pains due to the strenuous nature of his duties and did not immediately notice there was something wrong with his back. The applicant noticed constant aching pain, which was not improving on 17 April 2019 and sought medical attention.
The applicant described the worsening of his condition, such that by January 2021, he experienced constant ache, difficulty sitting or standing for prolonged periods and difficulties with his sleep affecting his mental health and general well-being. The applicant was taking Endone and Valium which also affected his capacity to work and be around heavy machinery.
The applicant set out issues in relation to his psychological condition after the back injury, including feeling unsupported in the workplace and struggling with chronic pain. Although the applicant acknowledged his prior psychological history, his mental state had stabilised and he was capable of working on a full-time basis prior to the back injury. The applicant had described his psychological symptoms and struggled to cope.
The applicant referred to the treating medical evidence, including the clinical records of the applicant’s general practitioners and the report from Dr Mahfuz, dated 17 January 2020. Dr Mahfuz noted that the applicant was still symptomatic with lower back pain and associated right-sided sciatica. The injury was attributed to the heavy nature of the applicant’s work.
In the report of 27 August 2020, Dr Mahfuz concluded that the applicant had been unfit for work from 16 October 2020 due to the ongoing work-related issues including lower back pain with right-sided sciatica, the workplace related stress and anxiety, and depression from chronic pain.
It was noted that on 7 March 2021, the applicant experienced a mental break, requiring him to be taken to hospital by ambulance after being placed under a ‘Section 22’ order by the police. The applicant started seeing Mr Noyeaux on or about 12 April 2021. Mr Noyeaux recorded that the applicant was struggling to deal with his anxiety related to his pain. The applicant reported that he experienced anxiety and depression since the workplace injury, which had deteriorated over time. Subsequent reports from Mr Noyeaux recorded ongoing symptoms and the opinion that the workplace injury, related events surrounding the injury and constant pain, had contributed to the applicant’s anxiety and depressive mood, alcohol dependence and suicidal ideations.
The applicant referred to the reports of Dr Abraszko and her opinion that the applicant did not have an inflammatory spondyloarthropathy. The applicant’s back pain had a mechanical basis. Dr Abraszko doubted that the previous Scheuermann’s disease had been a contributing factor. The radiological changes associated with the pre-existing condition would have been long-standing and could not be held responsible for symptoms that had developed since 2019.
The applicant noted the numerous radiological investigations, all of which demonstrated disc bulging/extrusion at L4.
The applicant relied on the opinion of Dr Stenning, who concluded that the applicant was not fit for any form of work as of April 2021. In Dr Stenning’s opinion, the Scheuermann’s disease would not have contributed to the weakness of the L4/5 disc annulus and could be discounted as significant in the current clinical context. There was no evidence to support a diagnosis of right hip arthritis and Dr Stenning considered that diagnosis most unlikely.
In relation to his psychological condition, the applicant relied on the opinion of Dr Canaris, who considered that the applicant would not be fit to work in his last job and would need significant support in finding his way into some other line of work. The applicant had a significant aggravation which persisted to the point that he was no longer able to work. In his supplementary report, Dr Canaris gave the opinion that the psychological injury had arisen substantially as a result of the physical injury and subsequent workplace difficulties.
The applicant submitted that the Commission would be satisfied, on the evidence, that the applicant had no capacity to work in any employment since November 2020. The applicant’s condition had deteriorated. The applicant’s prior history of working in roles requiring heavy manual labour was noted. It was submitted that the applicant’s capacity to work in sedentary employment was negatively impacted by his psychological condition and restricted ability to sit for prolonged periods. It was noted that the applicant had been certified as unfit for any type of work from 7 November 2020 to date and continuing.
The applicant submitted that his expert evidence would be preferred over that of the respondent. The opinion of Dr Smith was flawed in that he did not deal with the heavy nature of the applicant’s work duties or the impact of those work duties on the lower back. The absence of a specific incident on 17 April 2019 was consistent with that date being a deemed date of injury.
The applicant submitted that Dr Smith did not deal with the issue of capacity and if he did his opinion would be clouded by his opinion that there was no work-related injury.
The applicant submitted that Dr George’s opinion was of limited value. It was not clear what documents Dr George had seen prior to his examination. His assessment as at August 2020 was based on the applicant reporting that he was feeling good that day. Even so, Dr George diagnosed an adjustment disorder linked to the initial back injury.
The applicant noted that Dr George did not undertake a re-examination of the applicant for the purposes of his supplementary report.
Noting the statements from the applicant and the treating medical evidence, it was clear that the applicant’s psychological condition and lower back condition continued to deteriorate.
The applicant submitted that the Commission had jurisdiction to award weekly compensation under s 38 of the 1987 Act. The respondent was put on notice that the applicant had made a claim pursuant to s 38 of the 1987 Act. The s 78 notice denying capacity was a work capacity decision giving the Commission jurisdiction to hear the s 38 claim. The respondent had not asserted in the dispute notices or the Reply that the Commission was deprived of jurisdiction to make an award in favour of the applicant pursuant to s 38 and had not sought leave pursuant to s 289A(4) of the 1998 Act to rely on the issue of jurisdiction.
The applicant relied on the decisions of Member Haddock in Dickson v Zurich Financial Services Australia Limited [2022] NSWPIC 22 and Arbitrator Harris in Robert v University of Sydney [2021] NSWWCC 25.
The applicant submitted that the Commission was empowered to make a finding as to whether the applicant fell within ss 38(2) or 38(3). The applicant submitted that he had ‘no current work capacity’ during the relevant period. There were no additional requirements under s 38 of the 1987 Act that the applicant had to comply with in order to be entitled to compensation under that section.

Respondent’s submissions

The respondent disputed that the applicant had no current capacity for work in relation to the accepted lower back injury and resultant secondary psychological condition. It was the respondent’s position that any incapacity for work was not caused by a work-related injury and was not compensable.
In relation to the psychological condition, the respondent relied upon the report of Dr Chow dated 23 September 2013 suggesting that the applicant was right to work but did not want to go back to the same workplace. The applicant’s condition was situational and did not give rise to an incapacity for work generally but only in incapacity for work with the insured employer.
The respondent also relied on the report of Dr George, dated 31 August 2020 in which he diagnosed a self-limited adjustment disorder. Dr George did not believe the applicant suffered from that condition at the time of his assessment. Dr George considered there was an exacerbation of the applicant’s underlying psychiatric injury as a result of his toolbox being stolen. The respondent noted the applicant’s evidence that following his termination his toolbox was never returned to him. The applicant described the sequence of events as having a significant impact on his mental health.
The respondent submitted that the more careful analysis in Dr George’s report, would lead the Commission to prefer it over Dr Canaris, who did not distinguish between an aggravation as a result of the back injury or an aggravation as the result of work incidents.
The respondent submitted that the applicant’s underlying psychiatric condition was initially aggravated by the physical injury. The subsequent deterioration in the applicant’s psychological condition was attributable to workplace stressors, particularly after the applicant’s toolbox was stolen. The deterioration was not appropriately characterised as a secondary psychological condition. The applicant’s own evidence did not support his claim of incapacity resulting from the secondary psychological condition.
In relation to the lumbar spine, the respondent submitted that it differed from the applicant on the issue of whether the underlying Scheuermann’s condition was causative of the applicant’s current incapacity.
The respondent relied upon the report of Dr Smith who diagnosed thoracolumbar Scheuermann’s disease more marked at L4/5 and bilateral hip osteoarthritis. That diagnosis was confirmed in Dr Smith’s supplementary report. Dr Smith considered that any symptoms due to work would last two weeks, at most, from the onset in April 2019.
The respondent submitted that Dr Stenning’s opinion on capacity contrasted with the evidence from the applicant’s general practitioner. The general practitioner considered the applicant’s incapacity related to his psychological injury and that the applicant had work capacity in relation to his physical injury. By September 2019, the applicant was considered to have capacity to work full hours and full duties with postural breaks and careful bending and lifting in relation to the physical injury. The respondent noted that the applicant attended job interviews at this time and so clearly regarded himself as having capacity for work.
The respondent noted the opinion of Dr Abraszko that the applicant had an L4/5 disc extrusion unrelated to Scheuermann’s disease. The opinion of Dr White was also noted. Notwithstanding the differing opinions as to causation expressed by Dr Abraszko and Dr White, the respondent submitted that the applicant’s evidence in relation to capacity was found in the reports of Dr Stenning and his general practitioner. The evidence of the applicant’s general practitioner, who had seen him over a period of time and observed any relevant fluctuations in symptoms, was to be preferred.
The respondent submitted that the applicant had capacity for work in accordance with his general practitioner’s notes, that is full-time pre-injury duties. Any current incapacity was not related to the work injury which was the subject of these proceedings.

Applicant’s submissions in reply

The applicant submitted that in so far as the respondent relied on the comments of Dr Chow in relation to the applicant’s physical capacity, Dr Chow was a psychiatrist and not qualified to comment on the applicant’s orthopaedic condition. No weight should be given to the comments of Dr Chow in relation to the applicant’s physical capacity to work.
The applicant agreed that his general practitioner was best placed to assess his capacity over time. The medical certificates from the applicant’s general practitioner certified him as having no capacity to work throughout the relevant period, being 7 November 2020 to date and continuing.
Dr Mahfuz gave the opinion in his report of 27 August 2020 that the applicant had been unfit for work due to his ongoing work-related issues including lower back pain with right sided sciatica and the workplace stress and anxiety and depression from chronic pain.
In relation to the reference in the clinical records to the applicant attending a job interview on 2 September 2019, the applicant submitted that this was over a year prior to the period in dispute in these proceedings and at a time when the applicant was attempting a work trial. That evidence was not determinative of whether, as at November 2020, the applicant had capacity to work as a result of his workplace injury.
In the relevant period, the clinical notes demonstrated the applicant was still struggling with physical pain from his back as well as struggling psychologically. The treating medical evidence demonstrated that the applicant’s capacity had not improved and, in all respects, had deteriorated both physically and psychologically.

FINDINGS AND REASONS

Incapacity resulting from injury

It is not in dispute in these proceedings that the applicant sustained a compensable lumbar “injury” due to the nature and conditions of his employment with the respondent. It has also been accepted that the applicant suffered a secondary psychological condition as a result of his physical injury. What is in dispute in these proceedings is the ongoing effects of the injury and secondary psychological condition on the applicant’s capacity for work in the period from 7 November 2020 to date and continuing.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
A commonsense evaluation of the causal chain is required in order to determine whether incapacity for work has resulted from the injury and secondary psychological condition. 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].
It is the respondent’s case, that any incapacity for work during the relevant period has resulted from causes other than the accepted work injury and secondary psychological condition.
In relation to the lumbar spine injury, the respondent relies on the opinions of Dr Smith. Dr Smith’s medical opinions stand apart from the evidence of the applicant’s treating surgeon and general practitioners and the opinion of his medicolegal expert, Dr Stenning, in so far as he did not agree that the applicant’s ongoing lumbar symptoms were attributable to the work injury. Dr Smith took the view that the applicant had pre-existing Scheuermann’s disease, and long-standing lumbar degenerative disease, which may have been aggravated by the applicant’s employment but such aggravation should have ceased within a couple of weeks.
There is some support for the respondent’s submission that an employment related aggravation had ceased in the WorkCover certificates of capacity issued by the applicant’s general practitioners. Although the applicant was initially certified as having no current work capacity, by around August 2019 the applicant was certified as fit for suitable duties and, for a short period of time, pre-injury duties.
Dr Chow also saw the applicant in September 2019. Consistently with the respondent’s submissions, Dr Chow reported that the applicant’s back was getting better and the applicant was “right to return to work”. Physically, the applicant did not need light duties. The applicant did not, however, want to return to work as he felt extremely anxious and uncomfortable in the work environment, which he felt was not supportive of his injury.
Consistently with Dr Chow’s observations, the applicant’s statement evidence, the clinical records and WorkCover certificates issued by the applicant’s general practitioners in this period indicated that the applicant had sustained a separate psychological injury, related to his experience of the work environment, and unrelated to the lumbar spine injury.
Notwithstanding the evidence of an improvement in the applicant’s physical capacity for work and the concurrent presence of psychological incapacity which was not related to the physical injury, the clinical records do not suggest a complete resolution of the applicant’s lumbar symptoms during this period.
On 28 June 2019, Dr Banypersad recorded that the applicant’s pain was manageable, although in certain situations, for example, building a bed for his daughter, the applicant had to take regular breaks. On 11 July 2019, it was noted that the back was feeling better and the applicant should try to return to work on reduced hours on light duties. The applicant then returned to work, however, in a consultation on 22 July 2019, it appears the applicant reported increased symptoms:
“Went back to work but was holding on until 12 o'clock due to pain. John discussed how normal to get a bit of discomfort when returning to work. Is taking voltaren when needed, not regularly.”
On 23 July 2019, Dr Banypersad recorded,
“Does have physical capacity to return to work although struggled physically after 2 days - has been referred to a new physio.”
Although the applicant’s certified capacity for work was increased and it was noted that the applicant was looking for alternative work, back symptoms, including flareups of sciatica, continued to be noted in consultations in August 2019.

On 2 September 2019, Dr Banypersad recorded,
“Physically doing ok - continuing to have weekly physio. In terms of capacity fit now to try normal hours and days with regular postural breaks and careful bending/avoiding heavy lifting.”
On 17 September 2019, it was noted,
“Seeing physio weekly for lower back - exercises getting more difficult Back is ok - occasional flare of aching in R thigh - brief lasting, not debilitating, not requiring analgesia.”
A clinical note recorded on 19 September 2019 recorded that the applicant was looking for new work through an agency who had requested a letter stating that the applicant was fit to work.
On 30 September 2019, it was noted that the applicant was still getting back pain at home with bending and lifting.
On 16 October 2019, it was noted that the back pain was persisting. At this point, the applicant was referred for an MRI and specialist review as the applicant had been symptomatic for six months. On 8 November 2019 it was reported that the applicant was still symptomatic with pain and would be seeing a neurosurgeon the following week. When the applicant saw Dr Abraszko, she took a history of “constant” back pain that rendered the applicant unable to work, lift, bend or twist.
The treating medical evidence therefore indicates that although the applicant’s physical symptoms improved with a period of time off work in mid-2019, the symptoms did not resolve completely. The applicant’s physical symptoms deteriorated upon an attempted return to work then continued to be problematic and unresponsive to conservative treatment measures, eventually leading Dr Abraszko to recommend surgery.
It is notable that there is no suggestion in the evidence before me that, other than transient aches and pains associated with his physical work, the applicant’s lumbar spine was symptomatic prior to the commencement of employment with the respondent. This is despite the presence of Scheuermann’s disease.
Dr Abraszko, Dr White and Dr Stenning have all agreed that the applicant did have pre-existing Scheuermann’s disease. Unlike Dr Smith, they have not, however, attributed the applicant’s ongoing lumbar symptoms to that condition or any pre-existing degenerative disease at the lumbar spine. Rather, the applicant’s doctors have pointed to the radiological evidence of a disc extrusion at L4/5, which they regarded as work-related, as the dominant cause of the applicant’s symptoms. Dr Smith’s opinion has been considered and specifically rejected by Dr Abraszko, Dr White and Dr Stenning.
There is also no support in the applicant’s treating medical evidence for the suggestion made by Dr Smith that the applicant’s symptoms may be attributable to hip pathology. The symptoms recorded in the left leg by Dr Smith at the time of his examination of the applicant are not duplicated in the applicant’s evidence. Rather, applicant’s evidence suggests symptoms including sciatica, were more consistently experienced in the right leg.
Dr Stenning specifically considered the suggestion made by Dr Smith that the symptoms might be attributable to hip pathology and found “absolutely no evidence” to support a diagnosis of hip arthritis. Dr Stenning commented that such a diagnosis would be most unlikely given the applicant’s young age, without a significant history of congenital hip dysplasia or a significant hip injury earlier in life.
Although Dr Smith has maintained the opinions expressed in his March 2020 report in his more recent supplementary report, after carefully weighing the evidence, I prefer the applicant’s evidence.
During the period of weekly compensation claimed in these proceedings, from 7 November 2020, the applicant’s medical evidence demonstrates that the lumbar symptoms which commenced in around April 2019 continued to be present and incapacitating. On 14 October 2020, Dr Abraszko noted that the applicant still had severe pain in the lower back and to the right side. Dr Stenning saw the applicant in April 2021 and took a history of lower back pain, worse on walking and dressing, radiating to the right leg causing limping. Dr Stenning gave the opinion that the applicant was not fit for any form of work on the day that he examined the applicant.
Mr Noyeaux took a history of chronic back pain which restricted the applicant from engaging in physical activities when he saw the applicant in June 2021. More recently, Mr McIntosh took a history of considerable pain symptomology associated with the back injury when he saw the applicant in January 2022.
Centrelink medical certificates issued by Dr Mahfuz covering the period in question, certified the applicant as having no capacity for work due to lower back pain with right sided sciatica and L4/5 disc protrusion.
I am satisfied on the evidence before me that the applicant’s lumbar spine has remained symptomatic from the time of the work injury despite a period of improvement in mid-2019 and has continued to cause incapacity for work during the period 7 November 2020 to date and continuing. I am further satisfied that the lumbar symptoms and incapacity have resulted from the work injury.
The applicant’s evidence also suggests that he has been incapacitated during the relevant period due to psychological symptoms secondary to the physical injury.
It is noted that the applicant has consistently disclosed a history of pre-existing psychological symptoms and treatment. As indicated above, the applicant’s own evidence, the treating evidence, WorkCover certificates and the report of Dr Chow all indicate that there was an aggravation or exacerbation of the applicant’s psychological symptoms due to the perception of a hostile environment work following the back injury. This included a dispute with the employer over the return of the applicant’s tools. The respondent submits that any such condition does not “result from” the lumbar injury and is separate to the secondary psychological condition for which liability was accepted.
There is, however, a substantial body of evidence indicating that the physical injury was also causative of psychological symptoms due to the experience of pain, functional restrictions and its impact upon the applicant’s sleep.
In the report dated 25 June 2019 from Dr Banypersad, psychological symptoms resulting both from the physical injury and perceived scrutiny and workplace stigma were described.
In the report of Dr Lee, dated 5 September 2019, it appears that anxiety associated with the perception of a toxic workplace environment was the predominant cause of psychological incapacity, although there was a reference to the applicant’s pain levels in the same report.
In his report of 27 August 2020, Dr Mahfuz described the applicant as unfit for work due to his lower back pain as well as psychological symptoms. The psychological symptoms were described as both his workplace related stress and anxiety and, importantly, “depression from chronic pain”.
Mr Noyeaux in June 2021 described psychological symptoms resulting from work-related issues as well as chronic pain. In addition to the alleged mistreatment by management and loss of his tools, the applicant gave a history of suffering constant pain on a daily basis with repercussions on his family relationships, quality-of-life and sleep pattern. Mr Noyeaux expressed the view that the applicant’s alcohol abuse behaviours stemmed from his constant physical pain. Mr Noyeaux considered that the constant pain contributed to the applicant’s anxiety and depressive mood which had led to his drinking alcohol and suicidal ideations.
The history on which the diagnosis of a major depressive order (reactive) with concurrent alcohol dependence disorder was made by Mr McIntosh included the applicant’s pain focused symptomology associated with the back injury.
Consistently with the treating evidence, the applicant’s medicolegal expert, Dr Canaris took the view that the applicant’s pre-existing psychological condition had been exacerbated by a combination of physical difficulties and problems with his employer. The history given to Dr Canaris was of the applicant being in constant pain, due to his back. Dr Canaris concluded that the back pain continued to contribute significantly to the applicant’s psychological condition and, in turn, his capacity for work.
The history provided to both Dr Chow and Dr George was consistent with the applicant’s evidence. Both the physical symptoms as well as anxiety associated with the applicant’s tools being taken and issues in the workplace were described in the histories taken by the respondent’s IMEs. Asked specifically whether the applicant’s symptoms resulted from a secondary psychological condition or a primary psychological injury caused by interactions with the employer, Dr George responded that the applicant had a chronic disorder causing pain and there was initially a secondary condition.
The primary difference between the respondent’s IMEs and the applicant’s evidence lies in their opinions as to the ongoing effects of the secondary psychological condition. Dr Chow initially expected that the condition would resolve over the next three months. Dr George considered that an adjustment disorder subsequent to the back injury had resolved by the time of his first report. That view was, in large part, based on the mental state examination performed on that date.
Despite the significant deterioration in the applicant’s psychological state documented in the treating evidence and described in the report of Dr Canaris, Dr George maintained his view that the secondary psychological condition had resolved in his supplementary report. Dr George largely attributed the deterioration to the applicant’s pre-existing condition and was unable to relate it to the back injury. Dr George’s opinion does not, however, adequately explain the ongoing prominence of pain and functional limitations associated with the back injury in the treating psychological evidence.
Considering all of the evidence before me, it is apparent that the applicant’s psychological condition is multifactorial. It arises from the pre-existing diagnosis, adverse interactions in the workplace as well as the symptoms and restrictions associated with his back injury. At times, particularly in the second half of 2019, the adverse interactions in the workplace appear to have more prominently affected the applicant’s psychological functioning. Over time, however, there has been a continuing contribution from the back injury. I am not satisfied that the secondary psychological symptoms resulting from the back injury have at any time abated. If anything, they appear to have increased in line with a deterioration in the applicant’s back symptoms. I am satisfied that the secondary psychological symptoms have, during the period of weekly compensation claimed, contributed significantly to the applicant’s psychological incapacity.
The case law confirms that incapacity can result from multiple causes and yet be compensable. In Calman v Commissioner of Police[3] (Calman), the High Court referred to a passage in Salisbury v Australian Iron and Steel Ltd[4] at [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. 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.”
[3] [1999] HCA 60; (1999) 19 NSWCCR 40.
[4] [1943] NSWStRp 50; (1943) 44 SR (NSW) 157.
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.
Similarly, in Accident Compensation Commission v CE Heath Underwriting and Insurance (Australia) Pty Ltd[6] Brennan J said:
“Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury ...”.
[6] [1994] HCA 68; (1994) 121 ALR 417.
In Sutherland Shire Council v Baltica General Insurance Co. Ltd[7] Clarke JA, applying Accident Compensation Commission, said:
“... I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity.”
[7] (1996) 39 NSWLR 87.
In the present case, I am satisfied that during the period 7 November 2020 to date and continuing, the applicant’s lumbar injury and secondary psychological condition have resulted in incapacity for work. Whilst there may have also been a contribution from the applicant’s pre-existing condition and psychological symptoms resulting from adverse interactions in the workplace, I am satisfied that the lumbar injury and secondary psychological condition significantly and materially contributed to the applicant’s incapacity at all times during the period in question.
The most recent WorkCover certificates, the Centrelink certificates and the reports from the applicant’s specialists and medicolegal experts indicate that the combination of his physical and psychological symptoms have left the applicant totally incapacitated. Although there have been periods since the date of injury where there was partial capacity for work, I am not satisfied that this has been the case on and from 7 November 2020. Noting the medical evidence and the applicant’s work history, I am satisfied that during the period in question, the applicant had a present inability arising from his injury such that he was not able to return to his pre-injury employment or any suitable employment.

Entitlement to weekly compensation

The parties agree that the applicant has received 74 weeks of weekly compensation to date and his claim commences in the second entitlement period pursuant to s 37 of the 1987 Act. The applicant’s PIAWE figure is agreed at $1,840.
Section 37 of the 1987 Act, as it applies in this case relevantly provides:
“37 Weekly payments in 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:
(a)(AWE × 80%) − D, or
(b)MAX − D,
whichever is the lesser.”
There is no evidence of any applicable deductable amounts. Given the findings above, the applicant will be entitled to an award of weekly compensation pursuant to s 37(1)(a) of the 1987 Act at the rate of $1,472 per week, being 80% of his PIAWE, for the balance of the second entitlement period.
After the second entitlement period, s 38 of the 1987 Act applies. It has not been submitted by the respondent that the Commission lacks jurisdiction or power to award weekly compensation after the s 37 period ceases. A number of recent decisions of the Commission have held that the Commission has power to make relevant findings and award compensation pursuant to s 38 of the 1987 Act.[8] I agree with the legal analysis set out in those decisions and adopt it for present purposes.
[8] In addition to the decisions cited in the applicant’s submissions see, for example, Diaz v Sydney International Container Terminals Pty Ltd [2022] NSWPIC 155 and Chea v Woolworths Group Limited [2022] NSWPIC 26.
It is, however, necessary for the applicant to establish that the requirements of s 38 are met. Section 38 provides:
38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
…
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
Subsection 38(2) will be satisfied if the applicant demonstrates that he has, in the period after the second entitlement period, had no current work capacity and is likely to continue indefinitely to have no current work capacity.
For the reasons given above, I am satisfied that in the period after the second entitlement period to date, the applicant has had no current work capacity. Noting the duration of symptoms and the deterioration, particularly of the applicant’s psychological condition, during 2021, the evidence of set out in the Centrelink certificates and the reports from the applicant’s specialists and medicolegal experts also provides a sufficient basis to conclude that the applicant is likely to continue indefinitely to have no current work capacity.
I am satisfied that the applicant satisfies the requirements of s 38(2) of the 1987 Act. There will be an award of weekly compensation pursuant to s 38(6)(a) of the 1987 Act, at the rate of $1,472 per week, being 80% of the applicant’s PIAWE, from the conclusion of the second entitlement period, to date and continuing.

SUMMARY

From 7 November 2020 to date and continuing, the applicant has had no current work capacity as a result of the lumbar injury and secondary psychological condition.
The applicant is likely to continue indefinitely to have no current work capacity.
The respondent to pay the applicant weekly compensation from 7 November 2020 for the balance of the second entitlement period pursuant to s 37(1)(a) of the 1987 Act at the rate of $1,472 per week.
The respondent to pay the applicant weekly compensation from the conclusion of the second entitlement period to date and continuing pursuant to s 38(6)(a) of the 1987 Act at the rate of $1,472 per week.

[2022] NSWPIC 236

24 May 2022