Brown v Harris Farm Markets Orange Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v Harris Farm Markets Orange Pty Ltd [2022] NSWPIC 370
APPLICANT:	Dean Brown
RESPONDENT:	Harris Farm Markets Orange Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	11 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for permanent impairment compensation; accepted claim for injury to left foot and amputation of left small toe; disputed claim for consequential condition of lumbar spine as a result of altered gait; amputation below right knee as result of unrelated condition; claim for primary psychiatric/psychological injury; respondent accepted that applicant has secondary psychiatric/psychological injury; disputed claim for primary psychiatric/psychological injury; applicant’s evidence unreliable, although not attempting to mislead; lack of contemporaneous medical evidence regarding complaints of symptoms in lumbar spine due to altered gait; treating psychiatrist and general practitioner support diagnosis of primary psychiatric/psychological injury; consideration of Kooragang v Bates, Martin v Comcare, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, Le Twins Pty Ltd v Luo, Kumar v Royal Comfort Bedding Pty Ltd and Grant v Dateline Imports Pty Ltd; Held – The applicant has not satisfied the onus of establishing consequential condition of his lumbar spine as a result of injury to his left foot; award for the respondent with respect to the claim for consequential condition of the lumbar spine; the applicant has sustained a primary psychiatric/psychological injury; claim for permanent impairment as a result of psychiatric/psychological injury remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	1. That there is an award for the respondent in respect of the claim for consequential condition of the lumbar spine. 2. That the matter is remitted to the President for referral to a Medical Assessor for assessment of psychiatric/psychological injury on 12 January 2016. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents dated 6 July 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Dean Brown (Mr Brown) was employed by the respondent, Harris Farm Markets Orange Pty Ltd (Harris Farm) as a shop assistant.
On 12 January 2016, Mr Brown sustained an accepted injury to his left foot when it was run over by an electronic pallet jack. His left big toe was subsequently amputated. He also claims to have sustained a consequential condition of his lumbar spine, as a result of altered gait. He claims to have suffered severe depression and post-traumatic stress disorder, both as a result of the accident and the amputation of his foot.

By letter dated 12 January 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), for $54,820 in respect of 22% whole person impairment (WPI) as a result of psychological injury on 12 January 2016.
On 30 June 2021, the respondent’s workers compensation insurer, AAI Limited trading as GIO (GIO) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed liability for primary psychological injury, pursuant to s 65A(1) of the 1987 Act, as it asserted Mr Brown’s WPI resulted from a secondary psychological injury. It therefore disputed that he was entitled to compensation for WPI. In the alternative, liability was disputed because he had not reached maximum medical improvement, so had not been assessed with at least 15% WPI as required by s 65A(3) of the 1987 Act.
By letter dated 27 August 2021, the applicant’s solicitors made on his behalf a claim for $40,946 in respect of 17% WPI as a result of injury to his left lower extremity, TEMSKI/scarring and lumbar spine on 12 January 2016.
On 25 January 2022, the applicant’s solicitors advised the respondent’s solicitors that he had been assessed as having 37% WPI, which included an assessment in respect of a consequential injury to his right knee.
The applicant had not instructed his solicitors to “press this assessment of our client’s impairment for his impairment”. They nonetheless requested that the respondent’s solicitors request their independent medical examiner to address the issue of a consequential injury [sic] to the applicant’s right lower extremity as a result of the injury to his left foot.
On 17 March 2022, GIO issued the applicant with a further notice pursuant to s 78 of the 1998 Act. GIO accepted liability for injury to the applicant’s left ankle. It disputed liability for a consequential amputation of his left little toe; consequential condition of his lumbar spine; and consequential right knee amputation (which it noted was not claimed). GIO disputed that the applicant was entitled to permanent impairment compensation, as his accepted injury had not resulted in more than 10% WPI, as required by s 66(1) of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 March 2022. He claimed that on 12 January 2016, he sustained injury to his left foot when it was run over by an electronic pallet jack. He subsequently developed a diabetic blister, which developed into osteomyelitis. His sustained an amputation of his left leg below the knee [sic] in July 2020. He also sustained an injury [sic] to his lumbar spine as a result of altered gait. He also suffered severe depression and post-traumatic stress disorder, both as a result of the accident and the amputation of his left foot.
The respondent lodged its Reply on 11 April 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential condition of his lumbar spine as a result of injury to his left ankle on 12 January 2016, and
(b) whether the applicant has sustained a primary psychiatric/psychological condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation/arbitration hearing by telephone on 14 June 2022. Mr Carney of counsel, instructed by Mr Counter, appeared for the applicant, who was present. Mr Andrew Parker of counsel appeared for the respondent, instructed by Ms Nguyen. Ms Jones of GIO was also present.
The Application was amended by consent to claim that the applicant has sustained a consequential condition of his lumbar spine as a result of altered gait.
The respondent properly withdrew the dispute as to whether the amputation of the applicant’s left little toe was a consequence of the injury to his left ankle.
Mr Carney advised that the applicant would seek to amend the Application to claim that he had sustained a consequential condition of his right leg. The respondent advised that it would not consent to such an amendment. The amendment was ultimately not pressed.
The applicant sought to rely on Application to Admit Late Documents dated 9 June 2022 and attachments, which had been rejected as they were filed out of time.
The respondent did not object to the applicant relying on the documents, which were provided during the hearing.
The applicant was directed to file and serve the Application to Admit Late Documents on or before 17 June 2022. The applicant did not comply with that direction. The documents were ultimately filed on 6 July 2022.
The parties agreed that, should the applicant not establish that he has sustained a consequential condition of his lumbar spine, the medical dispute with respect to his physical injury is not to be referred to a Medical Assessor, as the accepted injury has not resulted in greater than 10% permanent impairment.

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

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 6 July 2022 and attachments, filed by the applicant and admitted by consent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Dean Brown

Mr Brown’s statement is dated 20 August 2021.
Mr Brown stated that he is illiterate and believes he suffers some form of dyslexia but has never been diagnosed with anything.
The applicant was diagnosed with Type II diabetes in 2006. He started taking insulin tablets, was in hospital for about two weeks, and had some insulin shots
In 2009, the applicant moved to Orange, where he was employed by Harris Farm as a shop assistant.
On 12 January 2016, the applicant was helping to unload a truck when his co-worker ran over his left foot with a pallet jack. He felt a sharp pain. He reported the injury to his supervisor but finished his shift in pain.
The applicant has listed his injuries and disabilities. They include pain and restriction of movement of his left foot and lumbar spine; depressed mood; anxiety; suicidal thoughts and tendency to engage in attempts at suicide and self-harm; hearing voices and visual hallucinations, the latter having ceased with treatment; recurring nightmares about the incident when his foot was crushed, and, less frequently, about the amputations; and avoidance of pallet jacks, becoming “paralysed with fear”. He cannot walk into the cool room, where the injury occurred.
The applicant could not afford to take time off work after the injury. On 2 February 2016, he finally consulted a general practitioner (GP) at Molong One Health in respect of a blister on his foot.
In February 2016, the applicant began to have nightmares and sleep deprivation in respect of the incident when his foot was crushed. He consulted a GP at Wellness Family Fitness Centre and was prescribed Diazepam. He was also referred to Cadia House (Cadia) but did not attend the appointment.
The applicant’s medication was changed on 22 February 2016 to Seroquel, and at about this time he commenced regular counselling at Cadia.
The applicant underwent debridement of his left foot at Orange (Base) Hospital on 11 March 2016. He underwent a bone scan in April 2016 and was referred by Dr Alex Hoyle for emergency care. It was at about this time that he began to experience stiffness in his back and left hip.
The applicant underwent further treatment and investigation of his left foot in April and May 2016. On 3 August 2016 he underwent amputation of his left little toe by Dr Lukins at Orange Base Hospital and was discharged the same day.
On 7 October 2016, the applicant underwent MRI of his lumbar spine, which revealed he suffered from L3/4 disc protrusion with compression on his left L4 nerve. I will refer to this below.
The applicant was hospitalised in 2016 for management of his diabetes and treatment of his psychological condition, including suicidal intentions and thoughts.
In March 2018, the applicant’s depression deteriorated. He was admitted to Orange Base Hospital on 28 March 2018 with suicidal intentions and was kept under observation until 4 April 2018.
The applicant was admitted to Hills Clinic, a psychiatric hospital, in June 2018, for three weeks. While he was there, he began to develop cellulitis on his right foot and leg.
The applicant attempted self-harm on 6 July 2018 and consulted Dr Hoyle. In November 2018, he began to experience more intense psychological symptoms and audio hallucinations. He was referred to Dr Argus, psychiatrist.
The applicant was admitted to Hills Clinic and Orange Base Hospital during 2019 and 2020 for treatment of his psychological condition. In May 2021, he suffered a relapse and was referred to Dr Andrew Wilson, who has opined that he has “PTSD”.
Due to the pain in his left foot, the applicant began to walk differently and tried to avoid putting pressure on it by using a walking stick. He began to develop stiffness in his back, which he reported to Dr Hoyle in October 2016.
The applicant began to have pain in his right foot in May 2018 and sought treatment from Dr Hoyle. A bone scan on 8 April 2019 revealed advanced Charcot arthropathy. He underwent several debridements.
On 19 December 2019, the applicant’s right leg was amputated below the knee. He was discharged from hospital in a wheelchair on 13 January 2020. In March 2020, he was provided with a prosthetic right leg. He had arthroscopy and wash out of the wound on 16 April 2020.

Medical evidence

The Wellness Family Medical Centre

The clinical records contain a referral for MRI of the lumbar spine, requested by Dr Laurence McEntee on 7 October 2016. It is clear on the face of the document that the patient was not the applicant. The name, address and date of birth are not those of the applicant.
The applicant presented on 4 February 2016 with a blister on the left foot, lateral aspect.
On 19 February 2016, Dr Sarah Wahid recorded that the applicant presented with depressed moods “last 1 month”. He did not go home last night but spent all night driving. He had suicidal ideation yesterday and was distressed talking about them. Work had been very stressful, with fewer employees and “works long hours”. There was no history of depression or anti-depressants. “Mum has depression.”
On 22 February 2016, Dr Wahid recorded that the applicant did not go to Cadia on Friday but went home and drank three bottles of Johnny Walker. He “went to Cadia today”. His suicidal thoughts had decreased. They were organising for him to see a psychiatrist in a week. He was reluctant but agreed to try antidepressants.
Dr Wahid recorded on 25 February 2016 that the applicant was feeling much better. He had issues with the area manager at work and was planning to stab him with a knife. Work and “HR” knew and were organising mediation.
Dr Wahid also noted that the applicant had poor feet health secondary to diabetic neuropathy and a right foot chronic ulcer. They had a long discussion about diabetes.
The applicant continued to consult the practice about his diabetes and foot ulcer. On 6 April 2016, Dr Hoyle recorded “computer malfunction – retrospective”. The applicant’s diabetic foot wound was looking much worse. He was “now starting to get hip pain ?compensatory due to gait from sore foot”.
On 27 April 2016, Dr Hoyle recorded left diabetic foot as the reason for contact. There was increasing pain.
Dr Hoyle recorded on 4 April 2017 that there was a lengthy discussion of depression. The applicant was not currently suicidal.
The applicant continued to consult the practice about his left foot and depression.
On 28 March 2018, Dr Hoyle recorded that the applicant was acutely suicidal. There were commanding voices telling him things, telling him to kill himself. He was very distressed. He planned to slit his wrist with a machete. They had decided on voluntary admission.
Dr Hoyle recorded on 27 April 2018 that Dr Divakaran, psychiatrist, had diagnosed the applicant with depression with psychotic symptoms, “not schizophrenia”.
On 11 May 2018, Dr Hoyle recorded that the voices were getting louder. The second one was only a mumble. They were telling the applicant to stab, cut and hang himself, and hurt random others. The commanding voice was outside his head when he was alone. He had the impression of seeing a male to the right side, never the left, in his peripheral vision.
On 5 June 2018, Dr Hoyle recorded that Hills Clinic referral was accepted, with a proposal for 21 day admission. The voices were still troubling the applicant and he was self-harming to “shut them up”. On 6 June 2018, the applicant had cut himself – “voices commanding him”.
On 6 July 2018, Dr Hoyle recorded that Hills Clinic was very helpful. The applicant had an episode of self-harm but was otherwise feeling much better. He had foot ulceration and cellulitis while in hospital. There was none currently but he needed urgent review of his feet.
On 21 September 2018, Dr Hoyle recorded that the applicant’s laceration was healing well. He had increasing pain in his left foot at the amputation site. There was no sign of Charcot deformity and no ulcer seen. The boot had not yet been forthcoming.
The applicant’s technique on crutches was “not idea” [assumed to mean “not ideal”]. He was instructed on how to offload the weight from his affected foot. He could touch it to the ground but should not put weight through it. If he could be seated at work it should be OK with the new cast, but he was not to do standing duties.
On 29 October 2018, there was a discussion of Charcot and changes to insulin regime.
On 19 November 2018, Dr Hoyle recorded that the voice was back, telling the applicant to hurt his family. He was avoiding contact with anyone due to the voices. Dr Hoyle noted “having nightmares”.
On 22 November 2018, Dr Hoyle recorded that the voice was back and worse. The applicant found it very distressing. Dr Hoyle noted “?voice is a symptom of depression and not actually psychosis. They come up when Dean is suffering a setback. Negative thoughts.”
Dr Hoyle recorded a telehealth consultation with Dr Bhavishankar on 7 December 2018. He thought there were a lot of obsessional characteristics and negative self-talk. “Boredom”. He agreed it was less likely to be a psychotic illness.
On 4 January 2019, Dr Hoyle recorded that the applicant had stopped taking all the mental health medications “(and all the others too!)” He was still taking insulin. He was fit to return to work as he was feeling mentally well. He was not wearing the Cam boot properly. Dr Hoyle advised him that it doesn’t work if he doesn’t wear it properly.
On 31 January 2019, Dr Hoyle recorded that the applicant’s headspace was not doing too well. He had withdrawn socially and was drinking more, four beers twice a week. Dr Hoyle explained that alcohol would worsen both depression and diabetes.
The applicant’s left foot looked swollen and hot. He was sent for X-ray to exclude Charcot and advised to keep off it as much as possible.
On 8 March 2019, Dr Hoyle recorded that the applicant had a foot ulcer. A bone scan was recorded as showing right Charcot foot with ulcer and tracking. There was a history of osteomyelitis in the left foot and amputation as a result.
On 8 April 2019, Dr Hoyle recorded ongoing cellulitis. It looked marginally improved, but the applicant reported it was worse over the weekend.
On 12 April 2019, Dr Hoyle recorded the need to clarify what was osteomyelitis, Charcot, and ulcer? The applicant was adamant he didn’t want to go into a Cam boot again, “will be poor for his mental health”. He was advised to get as much rest as possible over the weekend and avoid excessive time on his feet.
Dr Hoyle recorded on 16 April 2019 that the applicant was very distressed as Liverpool Clinic had recommended a further six weeks of Cam boot, which he found intolerable for his mental health. He was struggling to see the light at the end of the tunnel. He had a holiday planned to the south coast but was going to cancel it. He had some pain in the Cam boot and the podiatrist had reviewed it. He was to wear his orthotics when he wore the boot.
On 30 April 2019, Dr Hoyle recorded that the applicant didn’t make it to the south coast. He felt suicidal and planned to drive into trees. He declined referral to hospital.

On 9 May 2019, the applicant was feeling paranoid and had stayed home the other day. He planned to run into a tree on the way to work. Dr Hoyle recorded that DASS-21 indicated extremely severe levels of depression, anxiety and stress. The applicant had suicidal ideation without intent. Dr Hoyle wrote a referral to Hills Clinic and requested an urgent decision from the claims manager.
The applicant attended for a dressing of his right foot on 16 May 2019, when he had an ulcer on the top of his big toe. He was to be admitted to Hills Clinic for three weeks, commencing Monday.
On 21 June 2019, Dr Hoyle recorded that the applicant had found Hills Clinic very helpful. He was looking to change his position at Harris Farms.
The applicant missed several appointments. On 11 July 2019, Dr Hoyle recorded that the reasons for contact were diabetes mellitus, gastro-oesophageal reflux and major depression.
On 26 September 2019, Dr Hoyle recorded “Bloomfield [Hospital] admission Saturday/Sunday/Monday”. The applicant had stopped taking his meds because he didn’t think he needed them. He planned to commit suicide. He was feeling better but not yet back to normal.
On 12 November 2019, the applicant had a lengthy discussion with Dr Hoyle about his foot and possible amputation. They discussed “mh” [mental health] impacts, the risks and benefits. The applicant was having nightmares and suicidal thoughts related to them.
Dr Hoyle recorded on 19 November 2019 that the applicant was awaiting a CT at the end of the week to decide whether amputation was needed. There was a lengthy discussion of his mental health. He was working on self-improvement. The depression was a “trailer he brings around with him but doesn’t define him”. He was working on his “trillion dollar farm” and planning activities.
On 28 January 2020, registered nurse Lynne Lambell administered a mini metal state examination. The applicant’s score of 19 indicated moderate cognitive impairment.
Ms Lambell recorded on 1 April 2020 “wheelchair, scooters”. There was an “OT” assessment for home modifications. The applicant was to have surgical shoes for his remaining foot. Psychology was to start weekly, followed by fortnightly.
On 16 July 2020, Dr Hoyle recorded that the applicant had a foot ulcer “with vac dressing in situ”.
On 13 November 2020, Dr Hoyle recorded that the applicant’s mental health was “up to shit” the last day or two. It had been constant, but he had been able to keep it maintained. He felt as though he was going backwards. He felt like a nobody at work, doing work that was not meaningful.
On 27 November 2020, the applicant was doing a more physically demanding role.
Dr Hoyle recorded on 7 December 2020 that the applicant had had a bad mental health weekend. He attributed it to being told he needed to go to the registers when it was agreed he could work in groceries. He felt someone in the shop didn’t want him to be in “fruit and veg”.
On 18 December 2020, the applicant advised that he felt discriminated against at the Orange store. Dr Hoyle recorded that “Political issues/yellow flags seem to be the main concern”.
Dr Hoyle recorded on 22 January 2021 that the applicant wanted to move to less busy days at work to minimise his Covid risk, The workplace was not willing to do this.
On 19 March 2021, Dr Hoyle recorded that the applicant had horrifying dreams – “recurrence of amputation and ‘going ballistic in the hospital.’” He was waking in a sweat and panic and talking more in his sleep. He was not doing anything for his mental health as he was focused on getting back to work. He found working in the Bathurst store much better and was to increase to three days per week, as he found work beneficial for his mental wellbeing.
On 15 April 2021, Dr Hoyle recorded that the applicant’s real challenge was his frustration with losing sight of his values and principles. They discussed that he needed to focus on psychological therapy to help him live according to his principles and values, although he had suffered a catastrophic injury (amputation).
On 11 June 2021, Dr Shazia Habib recorded that the applicant couldn’t attend work because of relapse of depression. His mood was “low” and he felt anxious most of the time, slamming doors/punching walls.
Dr Hoyle recorded a “challenging consult” on 17 June 2021. The applicant reported worsening depression over the last month. He had not been attending work. Dr Hoyle advised that his self-destructive, high risk behaviours would not help his mental health.
On 22 June 2021, Dr Hoyle recorded intrusive thoughts, flashbacks, nightmares and avoidance behaviour. He noted traumatic events – amputations. The applicant denied any childhood events, but Dr Hoyle suspected this might be the case. Dr Hoyle recorded “? PTSD ? cluster B traits/disorder”.
On 29 June 2021, Dr Hoyle recorded that the applicant had seen Dr Wilson. The diagnosis was depression + post-traumatic stress disorder. Alternative medications were discussed.
On 10 August 2021, Dr Hoyle recorded that the applicant felt the medications had unmasked things. His dreams were “horrific - murder constantly, I’m sedating myself with alcohol”.
Dr Hoyle advised that the applicant would need to open up and experience some of his painful emotions and memories related to his workplace injury and amputation.
On 16 August 2021, Dr Hoyle recorded the applicant’s pattern of avoidance every time he returned to the Bathurst store (site of the injury). At the Orange store they treated him as an invalid and didn’t let him act within his physical capacity. I note here that the injury actually occurred at the Orange store.
Dr Hoyle recorded that the reasons for contact were post-traumatic stress disorder or major depression.
On 10 September 2021, Dr Hoyle recorded that the applicant was frustrated with having to repeat his story. He was wishing to forget what happened to him. Dr Hoyle advised he would need to work on accepting his injury and trauma.

Orange Base Hospital

There were several admissions for treatment of the applicant’s foot, which I will not discuss in detail.
On 20 June 2016, the applicant presented for review of his diabetic foot wound. He had been experiencing increasing pain in his chronic left foot ulcer and pain and discomfort on walking.
There is a discharge summary dated 9 August 2017. The applicant presented on 4 August 2017 with suicidal ideation. He was admitted to Bloomfield, initially under the Mental Health Act, then changed to a voluntary patient.
The history of presenting problem included that the applicant had been unwell for a while. “A lot of it was losing my toe in an accident at work…I didn’t fear for my life at the time. ‘They took it’ [it was amputated] in August 2016”. Relationship problems with his wife began about then.
The applicant was assessed as having suicidal ideation in the context of a situational crisis. He was not willing to discuss and explore the reasons why he was suicidal. The cause was likely multifactorial. He had been experiencing significant distress from his ongoing work environment and WorkCover case. He was reluctant to commence any psychiatric medication. As his mood had improved without them, it seemed appropriate not to commence them. He would benefit from ongoing psychology.
On 30 March 2018, there is a record that for the past two weeks, the voices had intensified. The applicant had always had them. He could not recognise them. A colleague had made a negative comment two weeks before, and the applicant had homicidal thoughts. It was recorded on 28 March 2018 that he was thought by psychiatrist Dr Gregory Hugh to have some anxiety and depressive symptoms, with OCD [obsessive compulsive disorder], in the context of situational crisis, or adjustment disorder secondary to his toe amputation.
On 22 April 2018, the applicant was admitted with a history of a male voice telling him to kill himself and hurt his family. He denied any plans to hurt his family.
The applicant had presented in 2017 with suicidal thoughts post-amputation of his toe. He had spoken to his wife about dreams of wanting to hurt himself and his family.
The applicant was to be discharged on 1 August 2019, and the hospital requested on 2 July 2019 that Dr Hoyle review him. He had presented with suicidality and features of a depressive illness. There had been a three week admission to Hills Clinic, following a suicide attempt and medication non-compliance. He was deemed safe for discharge while awaiting a bed at Dudley.
On 23 September 2019, the applicant was admitted after an argument with his wife, when he threatened to overdose on his medication. She was at work when he called her, heading to the hospital, advising he was suicidal and had a weapon.
On 9 March 2020, the applicant was admitted for gait retraining. He had undergone BKA [below knee amputation] and was admitted to rehab on 23 December 2019 for amputation care and gait retraining. This was complicated by mental health.
The applicant presented as distressed with interpersonal conflict, pseudo-hallucinations and depressive symptoms. “CL psych team” had assessed this as undiagnosed likely borderline and antisocial personality disorder.
There was a recent admission to Bloomfield. “Passive suicidal ideation” was noted. There was a background of situational stress (marital) and adjustment disorder (amputation).
The applicant was independent with wheelchair. He self-reported minimal self-wheeling, less than 10 “m” (metres/minutes?) and was pushed by his wife when outside the house.
The records relevantly note BKA secondary to Charcot foot; left foot osteomyelitis chronic; diabetic foot ulcer; MDD (major depressive disorder); Cluster B PD (personality disorders) (borderline and antisocial); multiple previous admissions to Bloomfield and Hills Clinic; all admissions related to suicidal ideation, in context of situational crisis.
As regards the applicant’s mental health, the records note that he had a complex multifaceted presentation. Personality disorder (Cluster B) diagnosis was always suspected, however, “made clear via the presentation in mid-2019 (threats to harm self in Amb Care)”. Co-morbid MDD was noted, as was no primary psychotic illness.
The applicant presented on 28 June 2020 with cellulitis of his left foot. It was noted that he had left foot prothesis “- no problems mobilising”. He had had right BKA and “prothesis in situ”.

Ms Katrin Wegener – pedorthist custom maker and orthopaedic shoe maker

Ms Wegener reported on 28 April 2017 to the applicant’s case manager.
Ms Wegener observed the applicant’s barefoot gait, noting that walking just a few steps became uncomfortable and he started limping to offload the pressure under the left foot, and he felt unsteady. She made recommendations for orthoses.

Dr Abjith Divakaran - psychiatrist

Dr Divakaran reported to Dr Hoyle on 27 April 2018.
The applicant had presented with distressing aggressive thoughts to harm himself and others, on the background of losing his toe two years ago.
“Not much” was known about the applicant’s childhood or family history. He reported he was generally a calm person with no aggressive intent or behaviour until recently.
The applicant developed osteomyelitis of his toe after a workplace injury. It had to be amputated after 12 months of conservative treatment. He considered this period very stressful because of the uncertainty of his future and employability. Work was very important to him, and he spent a lot of hours at work.
The applicant remembered conflicting messages from the various professionals involved in his care, but he decided to go ahead with the surgery. The pain and disability secondary to the loss of the toe reminded him of his decision, making him feel guilty, helpless and frustrated. This then turned into aggressive thoughts or behaviours.
The applicant reported hearing voices that were derogatory and commanding, asking him to do things he didn’t want to do. These episodes were often associated with dissociation from his surroundings. He denied symptoms suggestive of partial or generalised seizure, but the veracity of that information was “questionable”.
Dr Divakaran recorded that the applicant’s depressive symptoms and grief began two years ago and were continuing. He was easily irritable and annoyed, unable to cope with stress, with feelings of helplessness and hopelessness. They explored obsessive compulsive symptoms. Although the voices were internal and ego-dystonic, there were no other intrusive thoughts.
There were no other compulsions; manic or hypomanic episodes; and no substance use. Dr Divakaran recorded normal speech, no formal thought disorder, and no delusions. The applicant’s affect was irritable. He had partial insight and judgement.
Dr Divakaran opined that the applicant’s “current predicament” was best explained by an unresolved pathological grief that seemed to have progressed to depression. The atypical symptoms were those of dissociation and psychosis with good insight, which may point towards an independent organic cause, such as temporal lobe epilepsy (TLE).
Dr Divakaran diagnosed agitated depression with psychotic symptoms. The differential diagnoses were “??? Temporal lobe epilepsy” and OCD. The symptoms supporting the diagnoses were impulsivity, agitation, loss of continuity of time, dissociation, psychosis with good insight and obsessive compulsive like symptoms.
The applicant required an MRI of the brain to rule out TLE and a change in his medication. Once his acute symptoms settled, he would require psychotherapy/grief counselling.

Dr Ramakrishna Bhavanishankar – psychiatrist

Dr Bhavanishankar reported to Dr Hoyle on 31 December 2018.
Dr Bhavanishankar recorded a consistent history of the injury and amputation. The applicant had since had a series of setbacks due to poorly controlled diabetes. He was recently in the Health Clinic in Sydney due to intense suicidal thoughts and depression.
The applicant felt that psychological interventions were absolutely useless. His main concerns had been poorly remitted symptoms of depression and hearing voices. Two years ago, he started hearing a single male voice that can appear any time, and the voices are in his head. A voice told him to hurt himself and his wife, and sometimes commented on the work he was doing. He felt sometimes compelled and distressed. He tried to avoid and distract himself but felt it did not help. He had at times talked back to this voice and got angry at it.
The applicant noted mood swings and became snappy, irritable and angry with his family. He denied any thoughts, plans or intent to harm himself or anyone. He had low self-esteem and a sense of despair due to his health condition. He suffered from Charcot joints and had gait difficulties due to loss of sensation in his hands and feet.
The applicant cut his wrist six to eight weeks ago and felt it was a cry for help. The voices sometimes came back after an argument. He denied other perceptual abnormalities, passivity symptoms, self-referential ideas or hearing other voices.
Mr Brown reported the loss of role and function and lack of ability to provide for his family. He was upset about his failure as a father and husband and employee. He was worried about the future, bored, angry, and snappy. He had previously threatened to harm himself and reported a poor sense of self.
The applicant denied any relevant past history or family history.
Dr Bhavanishankar opined that the applicant presented with poorly treated agitated depression with psychotic features on a background of significant and prolonged medical complications of poorly treated diabetes.

Dr Peter Farmakis – psychiatry registrar Orange Base Hospital

Dr Farmakis reported on 22 July 2019 that the applicant required a mental health admission under his workers compensation claim. He had required recent admissions to Hills Clinic earlier that year for management of recurrent MDD.
The applicant had been an inpatient since 15 July 2019, initially for management of a right foot ulcer. The psychiatry team was consulted at the start, for assessment of low mood and expression of suicidal thoughts, which had exacerbated in the context of his recent poor medical health.
Both the applicant’s physical and mental health issues had deteriorated since his accident in 2016. The team believed he would strongly benefit from admission for treatment of his MDD.

Dr Michael Hong – consultant psychiatrist

Dr Hong was qualified by the respondent and reported first on 29 November 2019.
Dr Hong recorded a history that the applicant had last worked four months ago. He had a nervous breakdown at work but could not recall any triggering event. He subsequently had a psychiatric admission. He was hopeful of returning to work soon. His work always involved going to the cool room, where the accident happened.
The applicant said he was a “simple person”. He did not remember some parts of the history and declined to answer some questions. The history of the injury and amputation was nonetheless consistent.
The applicant did not know his psychiatric diagnosis. He had been admitted to Hills Clinic in 2018 and 2019, and had attended Orange Base Hospital. He had a few admissions in Orange, the last probably five months ago, and then went to Dudley Private Hospital for two weeks. He went to Orange Base Hospital because he had thoughts of self-harm. When Dr Hong asked him why, he said “that would be the million dollar question”.
Dr Hong noted that the applicant had type II diabetes. His recent blood sugar was better and stable. He did not know why it was not good over time. He had been taking insulin “on and off” and said he did not think he needed it anymore. When prompted by Dr Hong, he recalled a DKA (diabetic ketoacidosis) about five months ago. He said he was prescribed the wrong tablet.
The applicant felt that after the toe problem, his manager did not support him enough and they did not care. Every time he returned to work he had found the manager helpful. The only thing he could think of that was problematic was going near the cool room. Because the accident happened there, it tended to make him anxious. When others talked about his foot, he got anxious or angry at work.
Dr Hong recorded that the applicant had never suffered psychiatric problems early in life. His family started to notice his psychological difficulties about a year after the accident. He could not explain why he was getting angry and had thoughts of self-harm.
Dr Hong asked the applicant if he suffered psychosis or hallucination or heard “voices”. The applicant said he could not talk about it. He had not had any hallucination since starting his new medication. He denied bipolar disorder or OCD symptoms.
The applicant felt depressed and was slowly getting control of his mood. His anxiety and anger had been a lot better with his new medications. He had nightmares previously, which was no longer happening. He attributed this to clonidine medication. He declined to say whether he had attempted suicide but was no longer feeling suicidal.
Dr Hong recorded that the applicant had never consulted his psychologist or psychiatrist outside the hospitals. The only medication he could remember was clonidine. He had stopped medication for three to four days a month ago, because he thought he did not need it. He was going to Hills Clinic for a day program weekly but had missed a few weeks.
The applicant’s mother had had a nervous breakdown. He was unsure of her diagnosis. He denied abuse or trauma earlier in life.
The applicant was guarded in some aspects of his history. He did not demonstrate psychomotor disturbance, abnormal movements or stereotypy behaviours. He was not thought disordered. He was mildly restricted in his affect and reactivity. He denied hallucination or delusion and there was no overt cognitive disorder.
Dr Hong reviewed the applicant’s medical file. He opined that there was strong evidence Mr Brown suffered psychosis and responded well to antipsychotic medications. This was on a background of a long history of diabetes and reportedly poorly controlled blood sugar, and not being compliant with insulin. A major factor had been the accident at work, osteomyelitis and toe amputation.

Dr Hong opined that the applicant suffered a psychotic disorder in the context of poorly controlled blood sugar and diabetic complications. His differential diagnosis would be psychotic disorder NOS [not otherwise specified], schizophrenia or MDD with psychotic features. He did not currently exhibit significant depressive symptoms.
It was unclear whether the applicant had a primary psychotic disorder or primary MDD. There was a suggestion of personality vulnerability, but Dr Hong had not seen evidence of psychiatric or personality disorder before the accident. Having chronic poorly controlled diabetes and being non-compliant with medications would be predisposing factors.
Dr Hong opined that it was likely the applicant suffered depression following the accident and amputation, but this did not fully explain his recent psychological decline, specifically the deterioration four months ago.
Dr Hong again reported on 5 May 2021.
The applicant said he was “much more under control” and could recognise when he was becoming unwell. He did not know his diagnosis and said his doctor said he had Cluster B. He did not know whether he suffered from psychosis. He had not seen a psychologist or psychiatrist for about six months. His last psychiatric admission was probably seven months ago.
Dr Hong did not identify specific OCD symptoms but agreed the applicant’s thoughts of harming others could be OCD-like. The applicant said he suffered depression and anxiety. He was frustrated when he saw his amputated toe. Although his other leg is prosthetic, it did not bother him because there was no pain. The amputated toe was the main driver of his anxiety and depressive symptoms. He still heard “voices” every so often, the last time being last Wednesday, but he could not clarify further.
The applicant had thoughts of harming his wife and dreamt about it. He could not quite explain that, but he sometimes blamed her for his toe surgery. He still had fleeting suicidal ideation, and nothing acute recently.
The applicant had returned to work part time. He worked in the back storeroom. He would become intermittently frustrated, annoyed, and would take Valium. Dr Hong asked him about his mother committing suicide. He said he had forgotten about it but confirmed having seen her cutting herself when he was about seven.
Dr Hong noted that the applicant was a very poor historian, which may be due to intermittent psychotic symptoms or poorly controlled diabetes. The main drivers of his anxiety and depressive symptoms were the amputated toe and ongoing pain. The incident with the pallet was not something he thought about.
There had been a large number of diagnoses. The applicant did not know what condition he had, and Dr Hong thought the treating team could not be certain either. He preferred a chronic adjustment disorder diagnosis, as the overall evidence suggested the psychological injury started only after the toe injury.
Dr Hong opined that causation was multi-factorial. They included pre-existing uncontrolled diabetes; personality vulnerability from early life trauma; intermittent alcohol overuse; distress arising from the toe amputation; and chronic pain in the amputated toe.
The applicant had suffered depression and anxiety, with intermittent psychotic symptoms since the incident. The predominant psychiatric problem, according to him, was the amputation. He felt “disgusted” looking at his toe and had chronic pain. Pain also limited his activities. He was frustrated by the need for multiple surgeries and rehabilitation.
In contrast, the applicant’s BKA and prothesis did not bother him because there was no pain. The initial incident involving the pallet was not something he thought much about or remained distressed by.
Dr Hong opined that about nine-tenths of the applicant’s psychological injury was secondary in response to his physical injury from the pallet. Only one-tenth was a primary injury. His psychotic symptoms were predominantly related to his underlying diabetes and associated problems.
In terms of causation of the applicant’s primary psychological injury, if it is accepted that the toe amputation is a work injury, then the primary psychological injury arising from it should be regarded as a work injury.
Dr Hong noted many inconsistencies in the applicant’s history. This was likely due to his inability to recall information properly, which may be voluntary or involuntary, or related to vascular changes, and brain damage from recurrent diabetic complications and loss of consciousness.
Dr Hong did not assess WPI, as he did not believe the applicant had reached maximum medical improvement.

Ms Michelle Stewart – clinical psychologist

Ms Stewart reported on 5 May 2020.
The applicant had been in hospital for several weeks. Ms Stewart had seen him in January and April 2020.
On both occasions, Mr Brown presented with euthymic, animated affect, but expressed frustration about his extended rehabilitation, guilt about his perceived bad behaviour and anxiety about his situation. He also appeared to have some symptoms of depression. He denied suicidal and/or homicidal ideation but reported he had had urges to harm himself over the past few months. He felt better at other times, for example when spending time with his daughter.
Ms Stewart opined that the applicant would benefit from a graded return to work, to assist with anxiety and depression symptoms, and his frustration about not returning to work.

Dr James Bodel – orthopaedic surgeon

Dr Bodel was qualified by the applicant and reported first on 3 December 2020.
Dr Bodel summarised the applicant’s injuries as injury to the left foot and ankle; subsequent amputation of the left little toe; and subsequent BKA of the right leg.
Dr Bodel recorded a consistent history of the injury and the applicant’s treatment. The right amputation stump was well-healed, and the applicant was fitted with a prosthesis.
According to Dr Bodel, the applicant had developed consequential worsening of his diabetic foot on the right side, leading to the BKA. His complaints were of pain in the left foot and ankle. The BKA was functioning satisfactorily.
Bodel opined that the applicant’s crush injury to the left foot and need for amputation of the left little toe were related to the injury on 12 January 2016. The outcome for treatment was in part due to Mr Brown’s underlying pre-existing diabetic condition.
As the applicant does not make any claim with respect to his right leg, I will not discuss that part of Dr Bodel’s report that deals with the right BKA.
Dr Bodel opined that the applicant has mechanical backache, which is a consequential injury caused by the abnormal gait pattern after amputation of the left little toe and again after the aggravation caused by the BKA.
Dr Bodel assessed the applicant as having 7% WPI as a result of consequential condition of his lumbar spine; 4% WPI as a result of injury to the left lower extremity; and 2% for scarring of the left foot, a total of 13% WPI. He also assessed the applicant’s right lower extremity, to which I have had no regard.

Dr Michael McGlynn – plastic and reconstructive surgeon

Dr McGlynn was qualified by the applicant and reported on 14 December 2020.
Dr McGlynn recorded a consistent history of the injury and the applicant’s treatment. He noted the right BKA, which was unrelated to the workplace accident.
Dr McGlynn assessed the applicant’s TEMSKI scarring as 6% WPI.

Dr Ben Hooi-Beng Teoh - psychiatrist

Dr Teoh was qualified by the applicant and reported on 16 December 2020.
Dr Teoh recorded a consistent history of the injury and treatment. The applicant reported feeling depressed and worried about his health. He had been socially isolated and lacking motivation. He had “agonising pain” and had not been able to walk long distances. He had a BKA on 19 December 2019.
The applicant had not been coping and was “losing a piece of myself”. He had been preoccupied with negative thoughts, including suicidal ideation, and had taken overdoses. He had been irritable and angry, had threatened people and been impulsive. He had been very confident and sociable before the injury.
The applicant had been admitted twice to Hills Clinic, once to Dudley Private Psychiatric Hospital, and five times to Orange Base Hospital. His last admission was about eight months ago.
Dr Teoh recorded no past history of psychiatric illness. The applicant was pre-occupied with his chronic pain and physical disability, with negative thoughts. He reported significant depressive symptoms.
The applicant had been feeling worthless and helpless, with insomnia and irritability. He was “depressed all the time”. There was no evidence of psychotic symptoms.
Dr Teoh diagnosed MDD. The applicant’s prognosis was poor, as his condition had become chronic. He had suffered a primary psychiatric disorder as a result of the injury on 12 January 2016. Dr Teoh assessed 22% WPI.

Dr Andrew Wilson – consultant psychiatrist

Dr Wilson is the applicant’s treating psychiatrist. He reported to Dr Hoyle on 26 June 2021.
Dr Wilson recorded that the applicant had had significant problems with his mental health since his foot was run over by a pallet jack. He subsequently had amputations of the lateral aspect of his left foot, and required amputation below his right knee due to diabetic complications.
The applicant described feeling on edge, hypervigilant, easily stressed and “unable to let things go”. At times he became angry and violent. He had significant nightmares and flashbacks (re-experiencing phenomena) triggered by seeing a nurse or doctor or other stimuli that brought him back to his time in hospital, the amputation and injury experience.
Dr Wilson noted the applicant had problems with literacy, probably related to a learning disorder. He also had intercurrent lifelong ADHD symptoms, attention and concentration problems.
There was a history for the last two years of a voice in the applicant’s head, which sounded like that of his aunt. There used to be multiple voices that were typically running commentary or made comments such as “stay in bed”. There were no commands to harm himself or others. There were no other perceptual changes. There was possibly some persecutory ideation.
The applicant had been placed on clonidine for nightmares. It did not seem to be working. He had had several private hospitalisations, which had not been helpful.
Dr Wilson opined that the applicant presented with a complex array of problems, although his mental health had significantly deteriorated clearly following the work injury. There was no doubt he had a learning disorder and mild/moderate ADD [attention deficit disorder], which did not warrant treatment in its own right.
Dr Wilson believed the applicant’s primary diagnoses were major depression and post-traumatic stress disorder. There was a question whether the auditory perceptual disturbance and possible persecutory ideation represented psychotic symptoms or were more likely pseudo hallucinations associated with his trauma/post-traumatic stress disorder and possible Cluster B personality traits. This required further clarification and possible trial of an antipsychotic.
Dr Wilson recommended increasing the applicant’s Effexor. Once it was established whether it was effective, if his post-traumatic stress disorder symptoms continued, the next step was to increase the clonidine. There was an option to add an antipsychotic medication.
Dr Wilson had discussed with the applicant possibly seeing a psychologist again. This had been unhelpful, but Dr Wilson thought a very targeted approach, focused on specific anger management training, would be beneficial. The applicant was “willing to give this a go”.
On 6 September 2021, Dr Wilson reported to the applicant’s solicitors. He confirmed that his initial consultation with Mr Brown was on 29 June 2021. He had reviewed him with Dr Hoyle on 30 August 2021.
Dr Wilson repeated the history he recorded in his first report. He confirmed his diagnoses of major depression and post-traumatic stress disorder. The applicant’s employment was a substantial contributing factor to the injury.
Dr Wilson opined that the applicant had sustained a primary psychological injury on 12 January 2016, relating to the incident when his foot was crushed by an electronic pallet jack.
Dr Wilson reported to Dr Hoyle on 22 November 2021.
Dr Wilson noted some possible improvement with Lamictal. The applicant had completed the Diva 5, which confirmed he had likely mild to moderate ADHD.
Dr Wilson did not believe the applicant’s mental condition prevented him holding a driver’s licence, or that he was totally and permanently disabled/unable to work permanently as a result of his mental conditions.

Dr John Bosanquet – orthopaedic surgeon

Dr Bosanquet was qualified by the respondent and reported first on 30 May 2021.
Dr Bosanquet recorded a consistent history of the injury and the applicant’s treatment. He had had six operations, with a diagnosis of osteomyelitis in the left fifth toe, which had been amputated.
The applicant had phantom pains in his left foot after the amputation. His foot ached all the time. He had been fitted with orthotics. He had more pain walking and was doing more of this looking after his children. He was a type II diabetic, which was better controlled than at the time of the injury. He had put on weight, which he was trying to lose with diet and exercise.
Dr Bosanquet noted that the applicant had had a right BKA for a Charcot destructive arthropathy of his right ankle.
Dr Bosanquet diagnosed a soft tissue injury of the applicant’s left foot on 12 January 2016. This resulted in skin ulceration and infection of his left little toe, requiring amputation. He had been able to return to work on restricted duties and hours.
Dr Bosanquet assessed the applicant’s WPI as 3%.
Dr Bosanquet again reported on 17 February 2022.
The applicant was no longer working. After the amputation of his toe, he had developed sleep apnoea and depression with suicidal ideation. He was “in and out of Bloomfield” and in the Dudley Private Hospital for three weeks, and Hills Clinic three times, for three weeks. A right BKA was performed in December 2019, after a diagnosis of a Charcot arthropathy of the ankle joint. He had developed low back pain about six months ago, without a specific injury.
The applicant was unable to remember any history of injury to his lumbar spine. He had had two or three minor motor vehicle accidents. He had had no specific treatment to his lumbar spine.
Dr Bosanquet opined that due to neural and vascular changes in his right leg, that were unrelated to the injury, the applicant had undergone BKA. He had developed low back pain independent of the injury. There was no link between the amputation of his toe or BKA. His back pain had only developed recently and was partly a result of his morbid obesity. An alteration in gait was inconsequential in the light of his morbid obesity.
Dr Bosanquet assessed the applicant’s WPI as a result of injury to his left ankle as 4%, all of which he deducted, due to pre-existing arthritic changes in the ankle joint.
On 22 March 2022, Dr Bosanquet opined that there was no link between the injury and the applicant’s back pain or need for right BKA.

Dr John Garvey – general surgeon

Dr Garvey was qualified by the respondent and reported on 29 November 2021.
Dr Garvey recorded a consistent history of the injury and the applicant’s treatment. He noted the applicant had also undergone a right BKA.
Dr Garvey diagnosed a crush injury of the left foot, causing traumatic ulceration, requiring a ray amputation of the little toe. He noted typical gait of a below-knee amputee on the right, no leg length inequality or spinal deformity, and the applicant walked with a limp on both sides.
Dr Garvey assessed the applicant’s WPI as 8%, including 4% for scarring. He opined that the reports of Drs Bodel and McGlynn appeared reasonable, but he did not assess the spine because it was outside his specialty. The right BKA was not associated with the work injury.

SUBMISSIONS

The submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant submitted that there are two issues, the first being whether he has sustained a consequential condition of his lumbar spine; and the second whether his accepted psychological condition is primary or secondary.
The applicant submitted that it is significant that there was a long history of treatment of his left foot, which did not function as it should, and contributed to a change in his gait. He had a long history of treatment for his psychological condition, which started almost immediately. He had begun to walk differently, which he reported in October 2016.
The applicant submitted that there is a record of altered gait on 6 April 2016. This is a significant entry. Dr McGlynn mentioned pain in the lumbar spine.
The applicant submitted that Dr Bosanquet had not considered his GP’s evidence of a change in gait, and I would be circumspect in accepting his opinion regarding consequential condition of his lumbar spine. He relied on his own evidence, that of his GP and Dr Bodel.
The applicant referred to the report of MRI of the lumbar spine dated 7 October 2016, relied on his statement. It is apparent that the patient who underwent the investigation was not the applicant, who conceded as much, and the report is not relevant.
The applicant submitted there is a record of stresses at work on 19 February 2016, which is very close to the incident. He has given evidence of nightmares and suicidal ideation.
The applicant referred to the evidence of Dr Wilson, whom he did not see until 29 June 2021. He submitted that the symptoms of nightmares and flashbacks are clearly symptoms that one would normally think were referrable to post-traumatic stress disorder, but certainly to primary psychological condition. The diagnosis is post-traumatic stress disorder, which is a primary psychological condition. Dr Wilson is the only treating psychiatrist in this matter.
The applicant submitted that Dr Teoh had recorded a detailed history and concluded that he had a primary psychological condition. He referred to Dr Hong’s evidence. He submitted that Drs Wilson and Teoh opined that he had a primary psychological condition, as did Dr Hong “in a roundabout way”.
In reply to the respondent, the applicant submitted that it is not relevant that the hospital notes record that he did not fear for his life. He submitted that the history he gave to Drs Wilson and Teoh were the same and coincide with that taken by Dr Hong. Dr Hong said it could be a multifactorial condition, that is both primary and secondary. That is on all fours with Dr Wilson said.
As regards Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83, (Grant) to which the respondent referred, the applicant submitted that Deputy President Wood went to great pains to point out that you don’t need a diagnosis. What she said was that the member did not find that the symptoms in one shoulder related to the accepted injury, and therefore there was no consequential condition. It was a matter of proof. The member relied on Nguyen v Cosmopolitan Homes [2008] NSWCA 246. People are reading too much into Grant, which doesn’t change the law.

Respondent

The respondent submitted there is no issue that the applicant sustained injury on 12 January 2016. It conceded that this was somewhat significant, as it resulted in a number of surgeries and the amputation of a toe. The respondent takes issue with the allegations of consequential condition of the lumbar spine and primary psychological injury.
The respondent submitted that the applicant had run his case on the basis that he had altered gait that caused the consequential condition. The most important question is whether the lumbar spine condition results from the accepted injury/condition.
The respondent referred to the decision in Le Twins Pty Limited v Luo 2019 NSWCCPD 52 (Le Twins), in which the member at first instance used the “common sense” test, which the Deputy President said was wrong. It referred also to Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. It submitted that it is important that I make findings of fact based on “results from…”

The respondent submitted that to accept the applicant’s case, I would have to accept his statement over the clinical notes. It accepted that busy GPs don’t record everything but submitted there are fundamental problems with the applicant’s statement. It is dated six years after the event. The respondent submitted I would have some resistance to accepting that the applicant can remember what he told the doctors. It may not be that the applicant is lying, but he may be mistaken.
The respondent referred to Onassis v Vergottis (1968) 2 Lloyd’s Rep 403 at 431 and Watson v Foxman (1995) 49 NSWLR 315 at 319. They stand for the proposition that memories can fade over time, people can innocently reconstruct, and it’s important to look at the contemporaneous documents, albeit that I must consider all the evidence.
The respondent submitted that the reason I would not accept the applicant over the clinical records would involve me looking at paragraph 60 of his statement. The applicant stated that he reported back pain to Dr Hoyle in October 2016, but there is no record relating to the lumbar spine in October 2016. There is a reference in October 2018, which is inconsistent with his statement, and said nothing about the lumbar spine.
The respondent submitted that a more obvious problem is the applicant’s evidence that he underwent MRI of his lumbar spine. That is not the case. The reference is to a scan dated 7 October 2016. It is not a scan, but a referral for a scan, and it doesn’t relate to the applicant. He has either not read the statement properly, or he’s not remembered correctly what happened in October 2016. The respondent submitted that fundamentally altered the weight I could put on his evidence in any respect, certainly with respect to his back.
The respondent submitted that the other problem with relation to the applicant’s evidence is that he has a psychological condition. He has the symptoms referred to by Dr Wilson, and most importantly, Dr Hong said he was a poor historian. It is therefore difficult to accept his evidence about altered gait in the absence of any real complaint in the treating records about either the altered gait or even isolated entries about the back. The only reference to the back appears to be by Dr Bodel.
The respondent submitted that Dr Bodel has made no diagnosis in terms of the pathology. There is no MRI or other scan. It is very difficult to identify what it is about the altered gait that caused the condition in the back, because we don’t know what the condition is. It is accepted that in some cases a specific diagnosis or radiology is not necessary.
The respondent referred to Grant. Wood DP considered that enquiry as to diagnosis was appropriate in some cases and it submitted that this is such a case.
Dr Bodel diagnosed mechanical backache, which the respondent submitted was an imprecise term, which doesn’t mean there was an injury or a consequential condition. Dr Bodel has also clearly based his opinion on there being two causes for the applicant’s back complaint, one relating to the left toe amputation and the other to the altered gait as a result of the right knee amputation. When you take half of it away, it’s difficult to comfortably accept what Dr Bodel says. Even he may not say that the left toe in isolation is a material cause.
Dr Bosanquet opined that the applicant’s back condition was due to him being overweight. The respondent submitted that I don’t have to accept that for the applicant to fail in the claim. How can I be satisfied that the applicant’s statement sufficiently grounds Dr Bodel’s opinion, in the absence of corroboration? If there was no issue as to the applicant’s reliability, this may be case where I could “get the applicant up”, but there is no corroboration, either incorrect or unreliable evidence, no pathology, radiology or treating evidence regarding the back.
The respondent submitted that in view of the imprecise diagnosis by Dr Bodel, his opinion should be dismissed or not given sufficient weight that I could be comfortably satisfied there was a consequential condition.
The respondent did not submit that the applicant did not have an altered gait, but it submitted that what is not seen in the notes is that it had any material effect on his back. The hip is entirely different.
The respondent conceded that the applicant has a genuine psychological condition. That does not mean he has a primary psychological injury. The test that would need to be applied is the “main contributing factor” test. That would probably not apply if the condition is post-traumatic stress disorder, but if it is a disease, main contributing factor would apply. The respondent referred to Waverley Council v Sfuncia [2021] NSWPICPD 43 at 145.
The respondent submitted that in rare circumstances a psychological condition can be described as a personal injury, which would be a true post-traumatic stress disorder injury. By and large, they occur over a period of time, which the respondent submitted is precisely what the records seem to show.
The respondent submitted I would prefer the written form of what the applicant said from time to time. It referred to the clinical record on 19 February 2016, which it submitted is significant because there is no reference to the incident. It appeared he was depressed as a result of the incident or what was going on at the workplace. The respondent submitted this is not supportive of a frank or primary injury, but of a secondary injury.
The respondent submitted that, other than in February 2016, the first psychological complaint related to chronic disease. The complaints were of the effects of the incident, rather than the incident itself.
The respondent referred to Dr Hong’s report. The main driver of the applicant’s anxiety and depressive symptoms was pain. It submitted this is fairly consistent with the GP’s note. The applicant has also told people he doesn’t have a problem with the injury, being of a traumatic nature.
The respondent submitted that the applicant complained in a very different way to the various doctors as opposed to what he has said in his statement. It has said why I should have a problem with his evidence. It submitted that suicidal ideation can exist in the context of what was happening here, that is distress from the ongoing work environment and the WorkCover case, which can still be consequential. A situational crisis must be a consequential condition.
The respondent referred to the evidence of Dr Divakaran. It submitted the applicant’s symptoms were all in reply to something, that is consequential on the situation following the injury, rather than the event of the injury.
The respondent also referred to Ms Stewart’s history. It submitted the only contrast to that appears to be what the applicant said in his statement and what he told Dr Wilson. Ordinarily, symptoms of nightmares and flashbacks would be significant. The respondent submitted that the history was different. The nightmares and flashbacks were to a nurse or doctor, which could only have come after the injury. The amputation came several months after the event.
The respondent submitted that s 65A of the 1987 Act is for me entirely to consider, it is
not a matter for the experts. It referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. Given that s 65A is a purely legal concept, it is difficult to see what a psychiatrist can help me with.
The respondent submitted that Dr Teoh supports a consequential condition. It submitted the history given to him was of a secondary condition, whereas he came to the opinion it was a primary one. Experts don’t necessarily understand what is primary and what is secondary, pursuant to s 65A.
The respondent submitted that the same could be said of Dr Hong. The history supports a secondary injury, but he made the curious comment that it was about nine-tenths secondary and one-tenth primary. The respondent submitted that the amputation occurred four months after the injury. There is no rational explanation as to why Dr Hong considered that the amputation and its effect on the applicant’s psychological state somehow transformed this into a primary injury.
The respondent submitted Dr Hong was right to conclude that it was a secondary condition. Even on his opinion, the main contributing factor or substantial contributing factor test would not be satisfied.
The respondent finally submitted that while the applicant has some significant symptoms, they are not inconsistent with a diagnosis of secondary psychological condition. The applicant cannot establish on the balance of probabilities that he has a primary psychological condition.

SUMMARY

Claim for consequential condition of the lumbar spine

The applicant claims to have sustained a consequential condition of his lumbar spine as a result of the accepted injury to his left foot. He maintains that the condition has developed as a result of his altered gait.
Mr Brown does not have to establish that he has sustained injury to his lumbar spine arising out of or in the course of his employment, pursuant to s 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to s 9A of the Act. In accordance with the decision of Roche DP in Kumar v RoyalComfort Bedding Pty Ltd [2012] NSWWCCPD 8 and the cases discussed therein, he need only establish on the balance of probabilities that the condition of his lumbar spine resulted from the injury to his left foot.
I have approached the applicant’s evidence about this issue with some caution. That is not because I believe he has deliberately sought to give misleading evidence. Rather, it is for several reasons. He has stated that he is illiterate and believes he has some form of dyslexia; he has described himself as a “simple person”; and it is not in dispute that he has a significant psychological condition. He has been described as a poor historian.
The applicant’s statement, which was made more than five years after the injury, lists dates on which he sought treatment and investigations he has undergone. It is very doubtful that he had an independent recollection of those events several years after they occurred. There is no evidence that the statement was read to him before he signed it.
The applicant has, of course, given evidence of having undergone MRI of his lumbar spine on 7 October 2016, and the findings on investigation. It is clear from a review of the document to which he referred, and was conceded by his counsel, that the patient involved was not Mr Brown.
As the respondent submitted, the document is not even a report of an MRI. It is a referral for MRI of the lumbar spine. The clinical notes refer to a previous MRI suggestive of L3/4 disc protrusion compressing the left L4 nerve. That is what the applicant said in his statement, in reference to himself. This evidence is obviously incorrect.
I am obviously mindful of cases such as Nominal Defendant v Clancy [2007] NSWCA 349 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
which advise caution when relying on clinical records. However, it is difficult in this matter to avoid some reliance on the records, in particular, of the applicant’s GPs.
The applicant gave evidence that it was in about April 2016 that he began to experience stiffness in his back and left hip. Dr Hoyle has recorded on 6 April 2016 that the applicant’s diabetic foot wound was looking much worse, and he was starting to get hip pain, which Dr Hoyle queried may be compensatory due to his gait from his sore foot.
There are two matters to note about this entry. The first is that on 25 February 2016, Dr Wahid recorded that the applicant had a chronic right foot ulcer, and there was a long discussion about diabetes. The applicant ultimately came to right BKA as a result of diabetic complications. It is not clear whether Dr Hoyle was referring to the applicant’s left foot or his right. The second matter is that Dr Hoyle has referred to hip pain. There is no mention of back pain.
The applicant has given evidence that due to the pain in his left foot, he tried to avoid putting pressure on it, by using a walking stick; that he began to develop pain in his back; and he reported this to Dr Hoyle in October 2016. The clinical notes do not record any entry in October 2016, and in fact there are no entries at all between 11 July 2016 and 28 December 2016. It may be that the applicant has referred to October 2016 because that is when he believed he underwent the MRI scan of his lumbar spine.
The clinical notes make no reference to the applicant’s back or lumbar spine. The only references to altered gait are the one I have referred to above, and possibly Dr Hoyle’s reference in September 2018 to Mr Brown’s less than ideal technique on crutches after the amputation of his left toe. I do not believe that allows me to draw the inference of an altered gait that affected the applicant’s lumbar spine. Dr Hoyle recorded increasing pain in his left foot. He did not record any effect on his lumbar spine.
The respondent submitted that Le Twins is authority that the “common sense” test was wrong. The common sense test is a reference to the decision of Kirby P, as he then was, in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
I do not believe Le Twins stands for the proposition that the common sense test is wrong. What Acting Deputy President Parker said in that case was that the member omitted from the well-known passage that “what is required is a common sense evaluation of the causal chain”, the remainder of the passage:
“But in each case, the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity ‘resulted from’ the work injury which is impugned.”
Parker ADP said that the High Court in Martin v Comcare [2016] HCA 43; 258 CLR 467 identified the error of law in the decision of the Full Federal Court as being that it did not address or interrogate the statutory text, context and purpose. He found that in Le Twins the member had failed to address the relevant question under ss 322(2) or 322(3) of the 1998 Act.
I accept that I need to make findings of fact based on “results from…”. I am reliant for the most part on the medical evidence, because, for the reasons I have given, I have derived little assistance from the applicant’s evidence.
It may be accepted that the applicant’s gait altered as a result of the significant injury to his left foot, and the respondent conceded as much. It is likely that his gait was also altered by the right BKA. What is missing is any evidence, apart from that of Dr Bodel, that the alteration in his gait caused any condition to develop in his lumbar spine.
Even Dr Bodel referred to the applicant’s abnormal gait pattern again after the BKA. He described the applicant’s gait as typical of a below knee amputee on the right, and a mild limp on the left side because of the partial amputation of the left foot. Dr Bhavanishankar recorded that the applicant suffered from Charcot joints and had gait difficulties due to loss of sensation in his hands and feet.
I do not accept that the decision in Grant requires that Dr Bodel make a precise diagnosis, and I understand the respondent’s submission to be that a diagnosis is appropriate in some cases, including this.
Dr Bodel has responded to instructions from the applicant’s solicitors, which he has reproduced in his report dated 3 December 2020. They said:
“We are of the view that the applicant has sustained a frank injury or consequential injury to his lumbar spine as a result of the subject accident on 12 January 2016. If you are of the view that the applicant has sustained a consequential injury, please advise as to the mechanism of that injury.”
Dr Bodel responded that the applicant has mechanical backache, which is a consequential injury caused by the abnormal gait pattern after the amputation of the left little toe and then again after the aggravation caused by the BKA.
The difficulty I have in accepting Dr Bodel’s opinion is that the applicant’s history about this matter is unreliable, and the clinical records do not support the claim that he has sustained a consequential condition of his lumbar spine that “results from” the injury to his left foot, due to altered gait. If he had pain in his lumbar spine when examined by Dr Bodel, it may have been due to the BKA, to being overweight, as opined by Dr Bosanquet, or Charcot joints.
Dr Bosanquet recorded a history that the applicant had developed lower back pain about six months before his examination in February 2022, which would date its onset to about August 2021. This is at odds with the applicant’s evidence, and only serves to highlight once again that I cannot rely on that evidence but am in the position where I am mainly reliant on contemporaneous records.
I am not persuaded, on the balance of probabilities, that the applicant has sustained a consequential condition of his lumbar spine as a result of the injury to his left foot. There will accordingly be an award for the respondent in respect of that claim.
The parties agree that, should I not find for the applicant on the claim to have sustained a consequential condition, the medical dispute with respect to his physical injuries may not be referred to a Medical Assessor.

Claim for primary psychological injury

Section 65A of the 1987 Act provides:
“(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note : If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note : If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5)     In this section—
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.

‘psychological injury’ includes psychiatric injury.

‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”

The respondent does not dispute that the applicant has a psychological injury. It maintains that it is a secondary psychological injury, that is that it arose as a consequence of, or secondary to, a physical injury. A worker may have both a primary psychological injury and a secondary psychological injury.
The applicant’s evidence in respect of this claim includes that he had recurring nightmares about the incident when his foot was crushed and, less frequently, about the amputations, and avoided pallet jacks, becoming paralysed with fear. He could not walk into the cool room, where the injury occurred.
Once again, I need to exercise caution in accepting the applicant’s evidence, which is at times contradicted by the history obtained by the various practitioners who have treated or examined him. I also note his reluctance to engage with some practitioners, and that he at times refused to discuss the reasons behind his actions.
The GPs’ clinical records contain many references to psychological symptoms, but few to nightmares or fear of being near pallet jacks. Dr Hoyle recorded nightmares in November 2018 and again in November 2019. In March 2021, the applicant had horrifying dreams of recurrence of amputation and being in hospital. In June 2021, the applicant was having flashbacks and nightmares. Traumatic events, “amputations” were noted. Of course, by this time the applicant had also undergone right BKA. It was then that Dr Hoyle queried whether he had post-traumatic stress disorder.
Dr Hoyle recorded in August 2021 that the applicant had a pattern of avoidance every time he returned to the Bathurst store, where the injury occurred. This is an error, as it occurred at Orange. However, Dr Hong recorded that going near the cool room made the applicant anxious.
Orange Base Hospital recorded that the applicant didn’t fear for his life when the accident occurred. There are references to him hearing voices and displaying psychotic features. He “could not talk about” hearing voices with Dr Hong and told him the incident with the pallet was not something he thought about.
The applicant is now being treated by Dr Wilson. He recorded that Mr Brown had significant nightmares and flashbacks, triggered by seeing a nurse, doctor, or other stimuli that brought back his time in hospital, the amputation and the injury experience.
The respondent submitted that the nightmares and flashbacks were to a nurse or doctor, which could only have come after the injury. I do not accept that submission. Dr Wilson also noted other stimuli that brought back not only the applicant’s hospitalisation and the amputation, but also the injury experience.
While Dr Wilson opined that the applicant presented with complex problems, his primary diagnoses were major depression and post-traumatic stress disorder. The “psychotic symptoms” were more likely pseudo hallucinations associated with trauma/post-traumatic stress disorder and possible Cluster B personality traits. Dr Hoyle had already suggested post-traumatic stress disorder as a possible diagnosis before the applicant saw Dr Wilson, based on the history provided by the applicant and his own observations.
Dr Wilson was asked to provide a medico-legal report, in which he confirmed his diagnoses. He specifically stated that the applicant had sustained a primary psychological injury, relating to the incident when his foot was crushed by a pallet jack.
I have found Dr Teoh’s report of little assistance. He diagnosed MDD and opined that the applicant had a primary psychiatric disorder, without explaining why he had come to that conclusion.
Dr Hong was initially unsure whether the applicant had a primary psychotic disorder or primary MDD. It was likely that he suffered depression after the accident and amputation, but that did not explain the deterioration four months before.
In his second report, Dr Hong opined that one-tenth of the applicant’s psychological injury was a primary injury. If it was accepted that the amputation of his toe was a work injury (which is the case), then the primary psychological injury arising from it should be regarded as a work injury.
The respondent submitted that Dr Hong does not understand the difference between a primary and secondary injury, pursuant to s 65A of the 1987 Act. It submitted that the history supports a secondary injury, but Dr Hong assessed one-tenth of the injury as primary. I am not able to conclude that Dr Hong was unable to differentiate between the two types of injury. He was initially “on the fence”, but eventually identified a primary component of the injury.
The most persuasive evidence, however, in my view, is that of Dr Wilson, who is the applicant’s treating specialist, supported by Dr Hoyle, who has treated him for many years. Dr Wilson has diagnosed major depression and post-traumatic stress disorder, based on his assessment, and recommended treatment to address it. He has opined that employment was a substantial contributing factor to the injury.
I am persuaded that the applicant sustained a primary psychiatric on 12 January 2016. The assessment of WPI is a matter for a Medical Assessor.
The medical dispute as to the applicant’s WPI as a result of psychiatric/psychological injury will be referred to a Medical Assessor.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 370

11 July 2022