Dhillon v Hanson Constructions Materials Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dhillon v Hanson Constructions Materials Pty Ltd [2021] NSWPIC 507
APPLICANT:	Gagandeep Dhillon
RESPONDENT:	Hanson Constructions Materials Pty Ltd
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	8 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Consideration of whether psychological injury was a primary or secondary injury; Held - finding that the applicant sustained a primary psychological injury and is entitled to be assessed for lump sum compensation (section 65A of the Workers Compensation Act 1987).
DETERMINATIONS MADE:	1. The applicant has suffered a primary psychological injury in the course of his employment with the respondent arising out of the nature and conditions of employment. 2. The matter is remitted to the President to be referred to a Medical Assessor for whole person impairment assessment (primary psychological injury). 3. The date of injury 2 October 2019. 4. The Application to Resolve a Dispute, the Reply and late documents dated 24 August 2021 should be provided to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Mr Gagandeep Dhillon (the applicant) was employed by Hanson Constructions Pty Ltd (the respondent) as a truck driver and later as a yardsman. He commenced his employment in March 2012.
On 27 June 2018, the applicant sustained an injury to his lumbar spine. There is no dispute in relation to that injury.
The applicant claims that as a result of the way he was treated when he returned to work, he sustained a primary psychological injury.
The dispute in the matter is in relation to whether the applicant sustained a primary psychological injury or a secondary psychological injury. The importance of this issue is that if it is found that the applicant suffered a psychological injury “as a consequence of, or secondary to a physical injury” (s65 of the Workers Compensation Act1987 (the 1987 Act)) then the psychological injury is a “secondary psychological injury”, and no lump sum is payable under Division 4 of the 1987 Act.
It should also be observed that the claim mounted by the applicant is that the primary psychological injury arises out of the nature and conditions of employment and therefore the relevant legal test is of ‘substantial contributing factor’.
The respondent submits that if it is found that the applicant has a psychological injury then that injury is a secondary psychological injury arising from chronic pain and not a primary psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant receive a psychological injury arising out of or in the course of employment and was his employment a substantial contributing factor to that injury?
(b) If the applicant did receive a psychological injury arising out of the course of employment, was the injury a primary psychological injury or a secondary psychological injury?

ISSUES NOT IN DISPUTE

The parties agree that if a positive finding was made for the applicant, the matter would be remitted to the President to be referred to a Medical Assessor for whole person impairment assessment of the applicant’s psychological condition arising from his return to work.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply to the Application to Resolve a Dispute, and
(c)    Application to Admit Late Documents dated 24 August 2021.
The parties were also directed to file submissions. I have received -
(d)    submissions from the respondent dated 12 October 2021, and
(e)    submissions from the applicant dated 25 October 2021.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was able to complete their submissions on the listed date. The parties were then directed to file submissions, the respondent and then the applicant in reply.

APPLICANT’S EVIDENCE

The applicant has provided two statements. The first is dated 5 August 2020[1] and the second is dated 1 June 2021.[2]
[1] Page 1 of the Application.
[2] Page 14 of the Application.
The applicant has been employed by the respondent since March 2012. He was initially employed as a truck driver and later as a yardman.
On 27 June 2018, the applicant was using a front wheel loader to empty out a pit. He sustained an injury whilst performing his duties when his foot slipped and he fell landing heavily on his bottom. He immediately felt pain in his backside and reported his injury shortly thereafter. The applicant explains he was off work for two to three months because of his injury.
The applicant returned to work on light duties working four hours a day, two days a week in the office assisting with paperwork. He remained formally on light duties until he ceased work in September/October 2019.
Due to his injuries the applicant could not physically drive to work and the respondent company would arrange a driver to pick him up and take him home.
The applicant explains[3] that after about four days of being picked up from home there was no one to pick him up because there were no employees available. The applicant states there were times he would be waiting for three days for someone to come. He would ring the company’s transport manager, Mr Steve Cummins and ask him if anyone was available to come and pick him up and he would be told that no one was available and to stay home for the day and further arrangements would be made for the next day. The applicant explains that he would be getting ready to go to work at 5 am and still be waiting for a lift sometimes at 2 pm in the afternoon.
[3] Paragraph 28.
Around August 2018 the applicant says that he was feeling frustrated about not going to work and concerned about his employment so he consulted his doctor, Dr Eric Lim in Parramatta. After approximately two or three visits the applicant was referred to a psychologist who worked in the same medical practice as Dr Lim.
The applicant explains in relation to being picked up that around February and March 2019 he was not picked up for about six weeks. He would ring Steve Cummins every day, and if he was not available he would speak to ‘Betty’, the receptionist in the office who would say that she would let Steve know or ask someone if the applicant was to be picked up for that day. The applicant said sometimes he would receive a telephone call back to say that there was no one available and at other times no one would ring back.
In around March 2019, Dr Lim certified the applicant as being able to drive to and from work and increased his days and hours of work to five or six hours a day, three days a week. The applicant said he commenced driving to and from work and sometimes he could get to work without back pain and at other times he experienced back pain but continued to drive to work.
In around May 2019, the applicant’s rehabilitation provider asked if the applicant was capable of driving work trucks. The applicant said he wasn’t sure because of his back pain but would give it a try.
On consultation with Dr Lim, Dr Lim refused the request to drive trucks however in approximately June or July 2019 Dr Lim permitted the applicant to drive a concrete truck for one load, or for two hours a day provided the pain was bearable.
The applicant then started to drive cement trucks for two hours and then would return to work in the office. This arrangement continued for the next three weeks. The applicant states[4] that after two or three weeks Jordan, the transport manager told the applicant to remain with the cement truck and not to come to the office. The applicant was not provided with any reason as to why he could not return to the office however he was only certified to do one or two hours in a truck.
[4] Paragraph 42.
The applicant reported to his rehabilitation manager that the back pain was too much to drive the truck and it was suggested that he drive a cement tanker truck.
Approximately a week or so later, that is around the end of August or beginning of September 2019, the applicant drove a cement tanker truck with Mr Etcel who is the tanker manager. The applicant understood they were meant to drive to Newcastle but when they got to Pennant Hills the applicant says he experienced extreme pain in his back and told Michael that he could not continue and they would need to return to work which they did.
The applicant says that on the way back to the yard, Mr Etcel said that the company had no position available as a cement tanker truck driver and could not understand what was going on. The applicant said he was getting more worried about his job and his future.
When the applicant returned to work he told Jordan Aynsley, Michael Etcel and the rehabilitation person present that the cement tanker truck was worse on his back than driving a cement truck. They suggested that the applicant would need to see a doctor to get clearance to get to drive the cement tanker truck.
On a further consultation with Dr Lim in September 2019 the applicant reported his pain on driving a cement tanker truck and was told by Dr Lim not to drive any trucks at all.
The applicant returned to work and told Jordan Aynsley about the consultation with his doctor and was instructed he would have to start taking his annual leave because “they can’t just have me working in the office”. The applicant felt concerned about his job future, financial position and family. He observed his sleeping was suffering.
Around September 2019 just after the applicant commenced using up annual leave, he took three days annual leave each week and worked in the office for another two days.
The applicant said he consulted a psychologist and felt that he was getting very angry with his family. He was also drinking quite heavily at that time.
The applicant says that most of the time he was working in the office Mr Aynsley would see him and ask him when he was going to go back on the trucks. This made the applicant feel nervous and he felt ashamed when he returned to work.
In October 2019, the applicant had a significant altercation with his wife when he tried to hurt both his wife and himself. He was intoxicated and had a knife. The police were involved and the applicant was placed under an Apprehended Violence Order.
After he was released by the police the applicant contacted Dr Lim and reported what had happened in the significant altercation. Dr Lim suggested the applicant stop going to work and referred him to a psychiatrist, Dr Kahn and suggested rehabilitation for drinking.
At paragraph 62 of the applicant’s first statement, he helpfully identifies five factors which he believes are the cause of his psychological injury. I will now outline those factors:
The first factor was when the applicant said he had no transport to pick him up from home and to take him to work though he had got ready at 5.00 am. On some days he would not hear from his employer though he was ready to go to work, until 2.00 pm. The applicant says there were days and weeks when no one would contact him to inform him if he was going to be picked up. The applicant said this made him feel anxious, frustrated and concerned about his future employment.
The second factor identified by the applicant is for about two or three weeks in June or July 2019 when he had been given permission by his doctor to drive concrete trucks for one load or for two hours a day, he was supposed to spend the rest of his shift working in the office. The applicant was told by Jordan, transport supervisor, without any reason that he was not allowed to come to the office and just stay in the yard. The applicant says this made him feel dejected and concerned about his future employment.
The third factor identified concerns a period at the end of August and the beginning of September 2019 when he was driving a cement tanker truck with Michael Etcel the tanker manager as his passenger. The applicant explained that he felt pain in his back and could not continue to what he thought the destination was being Newcastle. On the way back to the yard, the applicant says Michael Etcel told him that the company had no position available for him to actually drive a cement tanker truck and did not understand why they were performing this trial. The applicant says he felt he was getting mixed messages from his employer and the rehabilitation person which once again caused him to be concerned about his future employment.
The fourth factor identified by the applicant occurred in September 2019 when the applicant’s doctor told the applicant he should not drive any trucks at all. The applicant was then told by Jordan Aynsley to start taking annual leave for not being able to drive a truck so the applicant took three days annual leave a week while working the remainder two days. The applicant felt that things were getting worse for him, causing him sleepless nights, concerns about job future and financial security.
The fifth factor is identified by the applicant around conduct occurring in September 2019 when the applicant says he kept being asked by Jordan Aynsley when he was going to back to driving trucks even though he understood that Jordan Aynsley was aware that the applicant’s doctor had not allowed him to drive trucks. The applicant says he felt nervous and ashamed that he could not drive trucks.
The applicant’s second statement has been prepared in response to lay evidence from other witnesses. The applicant answers evidence given by other employees by the respondent.
In respect of a statement of Michael Etcel, the applicant says that Mr Etcel did ask him to drive faster as he was driving around 80 kph in a 100 kph zone. The applicant said he tried to speed up but the truck seats were vibrating more and this hurt his back. The applicant also explains that he did not pull over and let Michael drive because the passenger seat was not any different to the driver’s seat and he had some concern that Michael would drive faster which would further aggravate his lower back.
The applicant says that a discussion did take place when Michael mentioned that there was no position for a tanker driver which is in direct contrast to the evidence given by Mr Etcel.
The applicant also explains that on the return trip Mr Etcel asked the applicant to take the Best Street exit which was a route that had a lot of small turns and roundabouts and the applicant struggled with this route given he was a new driver with no semi-trailer experience.
In response to the statement of Jordan Aynsley, the applicant disagrees that he was not proactive in looking for work. Indeed he states that if he was not proactive he would not have commenced light duties so early. However, in response to the administrative work in the office, the applicant said he did not have any experience doing office work and it was foreign to him and he followed instructions from Betty and tried his best. He was able to run sheets for every trucking yard in Sydney, uploaded truck fault reports in the system and file managed. In addition he sorted the run sheets by months and years when he had time to attend to it. He took company cars for servicing and empty trucks to weighbridge. He also checked diesel fuel gauges in the yard, collected mail from the post office and minor tasks such as getting milk from the fuel station.
The applicant says that there were other injured workers who worked at the Girraween office at the same time when the applicant was also on light duties. However, there was only one other person and not five people. The applicant was transferred later to the Parramatta office.
The applicant felt that Jordan Aynsley was ignoring his light duties and asked him to remain and to assist with other duties such as hosing the yard down. The applicant explained this hosing down involved using an industrial heavy high pressure water hose where the pressure was around 10 litres per second. The applicant felt that this was inappropriate with his injuries.
In respect of taking annual leave, the applicant says he was not told by Jordan Aynsley that the staff had to draw down their leave balance in accordance with enterprise bargaining agreements (EBA). The applicant was not provided with any reason and became increasingly worried about the security of his job and started to consume more alcohol which led to the domestic violence issues in the home.
In response to a complaint made that Jordan Aynsley had to chase the applicant for his certificates of capacity and he was generally late in providing these forms, the applicant explains that he had been sending certificates of capacity directly to GIO or to the rehabilitation provider and not directly to Mr Aynsley.
In response to the statement of Stephen Cummins the applicant says that it is untrue that someone from the office would ring and inform him there was no one available to pick him up. The applicant says he often tried to contact Mr Cummins but couldn’t reach him and would speak to ‘Betty’. On some occasions the applicant said he would directly contact drivers to ask if someone was coming. He was never told any details which included the date or time to be picked up, on some occasions someone picked him up at 5.00 am and other times it was 10.00 am or would show up unannounced.

OTHER LAY EVIDENCE

The respondent commissioned a report from Verifact attempting to contact various witnesses and give their evidence as to the complaints made by the applicant. I will now go through each statement that has been obtained.

Michael Etcel

Mr Michael Etcel has provided a statement dated 18 August 2020. He observes that he had little direct involvement with the applicant however was concerned when he took him for a test drive as his driving ability was well below what he would expect to be considered to drive a tanker for Hanson. Mr Etcel also says that it was his observation when the applicant was working in the office that he would only do what he was told to do and would not be proactively looking for work.
Mr Etcel could provide no assistance in respect of the allegation that the applicant was not picked up or advised when he would be picked up for work.
In respect of the test drive in the tanker, he wanted to ensure the applicant had no difficulties driving a tanker and to see how his injured back held out.
Whilst the tanker was travelling to Hornsby, the applicant said to Mr Etcel that “tankers ride harder than concrete trucks and that his back was starting to hurt”. Mr Etcel encouraged the applicant to pull over and he was willing to drive the tanker back to the yard but the applicant replied that he would keep driving.
Mr Etcel said that they would only travel a quarter of the way, that had the run been to Newcastle it would go a lot longer.
At no time did Mr Etcel say that he told the applicant that they did not have a position for him as a tanker driver. However, he agrees that had the applicant been able to manage the run, a job would have been created for him.
Michael Etcel has provided a further statement dated 27 July 2021.[5] Mr Etcel states that there was never any intention to drive to Newcastle however Newcastle may have been mentioned when the applicant said his back was hurting and Mr Etcel said he was only a quarter of the way to Newcastle which was where he would be expected to drive if he came over in the tanker.
[5] Page 6 of the late documents.
When the applicant was travelling at a slow speed of 60-70 kph when merging onto the M2 with a speed limit being 100 kph, Mr Etcel said the applicant did not check his mirror before merging and a B-double truck had to take evasive action and went across the right lane to avoid hitting us.

In respect of the observations made when the applicant travelled along Best Street, Mr Etcel says that the applicant’s driving ability was well below what would be required and he would need a lot of training before he would consider him for a job driving tankers.

Jordan Aynsley

A statement was obtained from Jordan Aynsley by Verifact investigators on 18 August 2020. At that stage he understood the applicant had suffered a physical injury to his back in June 2018. He says that he understood the applicant was not proactively looking for work and the feedback he received from the front officer personnel was that unless he was told what to do the worker was not proactive.
Mr Aynsley said that he telephoned the applicant on 9 October 2019 to check how he was going. He understood that the applicant had split from his partner and was sleeping in his car and having financial problems. Mr Aynsley offered for the worker to come to the shower and he could be assisted with food.
Mr Aynsley cannot assist in relation to the applicant’s allegations of not being picked up or notified when he would be picked up.
In respect of an allegation that Mr Aynsley told him not to return to the office he does not disagree with that allegation however explains that the rehabilitation provider had only permitted the worker to work at maximum of one delivery or driving a two hour day. The front office at Girraween was not a large area where up to three people normally worked.
Sometime after working in the office there was also another employee on light duties and there simply was not enough room for five people. Mr Aynsley said he asked the applicant to remain at Pendle Hill to assist the batch office where there were light duties for him to be able to do.
In respect of the allegation that the applicant was asked to take annual leave without any explanation as to the reason, that being to draw down their leave balances in accordance with the EBA, Mr Aynsley says that the applicant would have been aware of the reason for it. He says his employees were advised of the situation through their line supervisors. He denies saying to the applicant that he would have to start to take his annual leave because he was unable to drive our trucks.
Mr Aynsley also takes the opportunity in his statement to complain that the applicant was generally late in providing forms regarding certificate of capacity to him. He suggested that he probably had to ask the applicant for certificates three or four times.

Steve Cummins

Steve Cummins has prepared a statement dated 25 August 2020.[6] Mr Cummins was not the applicant’s line manager but had known him at work and not socially.
[6] Page 57 of the Reply.
In response to the allegation that the applicant would not be picked up or informed when he would be picked up for work, Mr Cummins says that the applicant was working in the office at Girraween one or two days a week. He says “when we could”[7] they would have one of the other employees on light duties pick the applicant up from home in the morning and take him home after his shift. Mr Cummins comments that sometimes he had three or four employees on light duties at the Girraween office however Betty, the receptionist would find work for him to do.
[7] Paragraph 14 of his Statement.
Mr Cummins says that when no one was available to pick him up the applicant would be rung and told about the situation. Mr Cummins does not identify who would call the applicant but presumably he is referring to Betty.
Mr Cummins was asked by Verifact to provide a further statement but declined. Mr Cummins has provided an email in the Verifact documents dated 1 August 2021.[8] Mr Cummins agrees that he only spent a half day in the office however there was a pool of four or five drivers that used to pick him up. He also states that the applicant was informed when he would be picked up and when he would not. Every time he called Mr Cummins, he would answer him or call him back however he was not in the office all the time.
[8] Page 12 of the late documents.

MEDICAL EVIDENCE

I will now consider the medical evidence in this matter.

Dr Rastogi

Dr Rastogi has prepared a report dated 22 June 2020.[9] Dr Rastogi has a history which is in accordance with the applicant’s statement. In particular he states that the applicant had ongoing significant psychological stress and felt that:
“the employer was dismissive of his injuries and pressured him to return to full-duties whilst receiving minimal treatment for pain and failed a re-trial to drive trucks. This culminated in exacerbations of depression with depressive cognitions, anxiety and fears about future causing a sense of entrapment and a loss of vocational certainty. He self-medicated with increasing alcohol causing significant consequences in relationship and aggression towards his wife”.
[9] Page 75 of the Application.
Dr Rastogi concludes that the lack of support of his employer with dismissiveness, threats and inability to accommodate his physical injuries culminated in an adjustment disorder with anxious and depressed mood that impacted the applicant’s functioning since October 2019 when he returned to work and resulted in functional decline. Dr Rastogi therefore opined that employment was the main contributing factor to the psychological condition and the psychological injury was primary stemming from issues with his employer and a lack of appropriate physical treatment for his pain condition.
Dr Rastogi has prepared a second report dated 22 August 2020.[10] In that report Dr Rastogi once again opines that the applicant experienced mild adjustment symptoms following a physical injury but continued working. Dr Rastogi then says that the physical injury was dismissed by the employer who was pushing him to resume pre-injury duties and there was alleged bullying and victimisation with threats and subsequent termination. This culminated in a major depressive disorder with significant functional impairments. The chronic pain associated has resulted in physical decline and aggravation of his depression.
[10] Page 87 of the Application.
Dr Rastogi has prepared a third report dated 23 December 2020.[11] In that report Dr Rastogi certifies the applicant as having 18% whole person impairment. He further explains that the applicant did experience mild adjustment symptoms following his physical injury but there was no psychological impairment at that stage. The physical injury was dismissed by his employer who was pushing him to resume his pre-injury hours and there were allegations of bullying and victimisation with threats and subsequent termination.
[11] Page 90 of the Application.
Dr Rastogi was of the opinion that the applicant experienced a primary psychological injury namely major depressive disorder with anxiety causing functional impairments due to a culmination of bullying and harassment by his employer following his physical injury at work with dismissal and intimidation posing a threat to his work and failing to accommodate him.

Dr Khan

Dr Khan is the applicant’s treating psychiatrist. The applicant was referred to Dr Khan by his general practitioner Dr Lim and first saw the applicant in October 2019. He has produced a treating report back to Dr Lim dated 2 October 2019.[12]
[12] Page 95 of the Application.
Dr Khan took a history of the applicant having sustained a workplace physical injury and then experiencing deterioration in his mental state characterised by low mood, anxious ruminations, irritability, sleep disturbance and feelings of hopelessness and worthlessness. His mental health difficulties perpetuated in an escalation in alcohol use.
Dr Khan diagnosed the applicant as having a chronic adjustment disorder with mixed disturbance of emotions and conduct perpetuated alcohol use disorder and tobacco use disorder in the context of chronic pain.
In a further treating report to Dr Lim dated 2 October 2019[13] Dr Khan once again observed the applicant’s mental state deterioration following his workplace physical injury. Dr Khan maintained his previous diagnosis of the applicant.
[13] Page 95 of the Application.
In an email from Dr Khan to Suncorp dated 13 October 2019[14] Dr Khan opined that the applicant’s psychological condition developed as a result of a primary work-related physical injury that occurred during his employment as a truck driver. The applicant had injured his coccyx and developed chronic pain together with depressive and anxious cognitions consistent with a chronic adjustment disorder with mixed disturbance of emotions and conduct, which perpetuated in alcohol use disorder.
[14] Page 63 of the Reply.
A similar report has also been prepared dated 16 October 2019[15] as well as a further report of 21 October 2019.[16] Dr Khan writes a treating report on the 28 October 2019[17] where he takes a history of the difficulties the applicant was experiencing in relation to transport to work. Dr Khan takes a history in the following manner:
“A colleague would initially pick him up from home to attend work but after sometime this stopped without a clear reason. He reported that he would often spend hours at home where he was ready to leave for work and was waiting for someone to take him to work but would receive a call later in the day saying no one was available to pick him up. After two months of not being picked up and becoming psychologically distressed, Mr Dhillon saw his GP and requested permission to drive to work so he could perform his light duties. He felt unsupported and dismissed by his workplace. Mr Dhillon later trialled a return to work as a truck driver but after approximately two weeks, his coccyx pain was aggravated. He returned to light duties for a few days and work pushed him for annual leave. Mr Dhillon described worsening depressive and anxious cognitions that perpetuated his alcohol use.”
[15] Page 97 of the Application.
[16] Page 98 of the Application.
[17] Page 99 of the Application.
It should be observed there are multiple reports which refer to the applicant’s struggles with his alcohol problems and marital distress.
Dr Khan has helpfully provided a substantive report to the applicant’s solicitors dated 16 July 2020.[18] It outlines the extensive treatment the applicant has been provided by Dr Khan which includes some 17 consultations at that time. Dr Khan outlined the applicant’s difficulties following his physical injury and then restates his history in relation to the applicant’s complaints about failure to pick up that have been outlined in his previous report.
[18] Page 121 of the Application.
Dr Khan’s opinion is that employment was a substantial contributing factor to the applicant’s injuries. It was important to note in Dr Khan’s opinion, that Mr Dhillon had suffered a primary psychiatric/psychological injury that emerged as a result of a lack of support from his employer during the return to work process where he was not provided suitable duties and was unsupported, ignored and dismissed.

Dr Teoh

Dr Teoh prepared a report at the request of the respondent insurer dated 23 November 2019.[19] Dr Teoh took a history of the applicant’s significant back pain and treatment thereafter.
[19] Page 69 of the Reply.
Dr Teoh diagnosed the applicant as having a chronic adjustment disorder with depressed mood and an alcohol use disorder. The condition had been caused by the injury sustained at work which resulted in chronic pain and physical disability. What is clear is that Dr Teoh does not take any history in respect of difficulties when the applicant returned to work.
Dr Teoh has prepared a further report dated 7 September 2020.[20] Dr Teoh once again confirmed his previous diagnosis in relation to the pain the applicant had been experiencing however does not engage directly with the allegations that the applicant makes so far as his treatment by the respondent company. Quite clearly it is Dr Teoh’s opinion that the applicant has a secondary psychiatric injury that has persisted as a result of the applicant’s pain and disability.
[20] Page 86 of the Reply.

Dr Bertucen

Dr Bertucen prepared a report dated 19 May 2020[21] to the applicant’s insurer. In that report Dr Bertucen takes a history of the injury causing the applicant pain and a trial to return to work being difficult as the applicant had pain in his back caused by vibration and hard suspension.
[21] Page 76 of the Reply.
In respect of the failure to pick the applicant up for work Dr Bertucen takes a history that the applicant had two weeks away from work and was completely unable to sit for long periods to drive and then returned to clerical type duties in the Hanson office. The applicant stated that he had to be collected by car for several months after his return to work.
In October 2019 the applicant was informed there were no further suitable duties that could be offered to him and he was directed to take annual leave.
Dr Bertucen diagnosed the applicant as having a chronic adjustment disorder/major depressive disorder (now in partial remission) and a secondary alcohol use disorder which had been in remission for the last few months.

General practitioner treating notes

The treating notes from the general practitioner have helpfully been annexed to the Application.[22] I do not propose to outline all the entries but focus on the relevant ones as counsel did in their submissions. On 29 November 2018[23] the applicant consults with Dr Calvache-Rubio and a note is taken that there were “difficulties getting to work. Driving max 10 minutes as recommended by physio. Severe discomfort in car and requires transportation.”
[22] Page 129 of the Application.
[23] Page 132 of the Application.
On 10 January 2019 the applicant sees Dr Lim who takes a history that the applicant has not been picked up for work, not transported. The employer was being difficult and needs insurer assistance as the applicant can’t sit or drive.
On 10 May 2019[24] Dr Lim takes a history that the applicant has not been picked up for at least the last four to five weeks.
[24] Page 146 of the Application.
On 7 June 2019 the applicant saw Dr Lee[25] and provided a history that he was working currently with reduced hours and was not anxious about work. It should be observed that in that consultation there were also some notes from Dr Sing, orthopaedic doctor, who indicates that the applicant may need to have a CT-guided injection into the coccyx if his symptoms become aggravated.
[25] Page 148 of the Application.
On 5 August 2019 the applicant consulted with Ms Revill, psychologist.[26] The applicant reported that he had worked the last four days and drove a truck however did not feel comfortable in the truck as it was affecting his back. The applicant reported that he was frustrated about his finances and was thinking about retraining for tankers because they ride more smoothly and will be less injurious to his back.
[26] Page 152 of the Application.
In a further consultation with Ms Revill on 19 August 2019,[27] Ms Revill took a history that the applicant was going to undertake full-time duties and was still asking his work to change the truck he is given as it may exacerbate his injury. He experiences pain which he finds very exhausting.
[27] Page 153 of the Application.
In a further consultation with Ms Revill on 26 August 2019,[28] the applicant reported he was depressed in mood because he was not coping at work. The applicant reported that his work was not supportive of his driving in the smoother trucks without further evidence of improvement. The applicant drank too much on the weekend at home as he was unhappy and cried in the car on the way to the appointment. He was stressed about money and work and it was affecting his personal life. He was fighting with his wife and kids.
[28] Page 153 of the Application.
In a consultation with Dr Lim on 26 August 2019[29] the applicant reported that he was getting harassed and stressed at work and not settling.
[29] Page 154 of the Application.
In an entry dated 2 September 2019,[30] the applicant told Ms Carmody that he tried to drive the concrete truck but was unable to drive due to pain.
[30] Page 154 of the Application.
On 18 September 2019[31] the applicant expressed concern that he may be fired by his employer as he cannot drive his truck.
[31] Page 155 of the Application.
In a consultation with Ms Carmody on 30 September 2019,[32] the applicant reported that there had been increased alcohol use and that he was arrested last week due to domestic violence allegations. He felt stressed, distressed and unhappy.
[32] Page 155 of the Application.

THE APPLICANT’S CASE

The applicant’s case is that he has suffered a primary psychological injury arising from the way he was treated when he returned to work after receiving his physical injury. The claim is that the applicant was subjected to bullying and harassment and unfair management treatment whilst working for the respondent and he subsequently psychologically decompensated. The primary claim is that the psychological injury arose as a result of the nature and conditions of employment, that is there were things that happened to him every day that were in the form of individual assaults to his psychological condition. The test is then proposed to be whether employment was a substantial contributing factor to the injury.
As submissions proceeded the applicant’s counsel reminded me of the decision of Deputy President Roche in Attorney General’s Department v Kay[33]. In that decision Deputy President Roche discussed the authorities in relation to perception and psychological injuries and essentially guided decision-makers that employers take their employees as they find them. At [52] Deputy President Roche stated:
“Perception of real events which are not external events can satisfy the test of injury arising out of or in the course of employment. If events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment and a psychological injury follows, it is open to the Commission to conclude that causation is established as long as the events within the workplace were real rather than imaginary … There is no requirement at law that the worker’s perception of events must have been one that passed some qualitative test based on an objective measure of reasonableness and it is not necessarily the worker’s reaction to the events must have been rational, reasonable and proportionate before compensation is recovered.”
[33] [2010] NSWCCPD 76 at 52.
Further, at [54] Deputy President Roche stated:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an offensive or hostile working environment and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction will always be subjective and depend upon his personality and circumstances.”

RESPONDENT’S CASE

The respondent’s case mounts a challenge on the applicant’s factual allegations, that is, that when the applicant returned to work the respondent alleges that the applicant was not treated unfairly in the circumstances of his return to work and indeed the respondent did what it could to accommodate the applicant’s injury.[34]
[34] Respondent’s submissions paragraph 32.

CONSIDERATION

In order to properly consider the submissions made it is important that I assess the factual allegations made by the applicant. I will now do so.

Transport to work (factor 1)

The first allegation made by the applicant is that there was no transport to pick him up from home to take him to work although he was often ready. The applicant says there were days when no one would contact him, or his phone calls would not be returned, and he would not be picked up.
In response to that allegation the respondent relies upon the evidence of Mr Cummins. Unfortunately, Mr Cummins agrees that he was only in the office for a half day a week. He understood there were a pool of four to five drivers that would pick the applicant up and he also states the applicant was informed when he would be picked up and when he would not. Mr Cummins does not indicate who performed this job and does not nominate himself as the person that would make those phone calls. Mr Cummins obviously had contact with Betty, the office administration lady, but there is unfortunately no evidence from Betty to challenge the applicants evidence. There is no evidence from Betty that puts in dispute the applicant making telephone calls to her attempting to find out what is happening.

In those circumstances the respondent has not raised a serious assault on the applicant’s factual allegation in this regard. I am persuaded by the applicant’s evidence which is supported by the treating notes of the general practitioner, in particular the contemporaneous entry on 10 January 2019 when the applicant complains to Dr Lim that he had not been picked up for work. This evidence is also consistent with the report of Dr Khan dated 28 October 2019.
I therefore find in favour of the applicant in respect of the factual allegation of not being picked up or advised when he would be picked up.

Appropriate duties (factor 2)

The second allegation made by the applicant is that in about June or July 2019 he was only meant to drive concrete trucks for one load or for two hours a day and then work in the office. The applicant says he was advised by Jordan Aynsley to stay out in the yard without any explanation.
In reply Mr Aynsley says that he asked the applicant to remain at Pendle Hill to assist the batch office when there were light duties for him to be able to do.
What is consistent in the evidence is the applicant was instructed not to return to the Girraween office. Mr Aynsley’s evidence is that he provided a reason as to why that would be so however the applicant says that no reason was proffered.
I accept that the applicant was instructed not to return to the office.

Cement tanker truck trial (factor 3)

The applicant says that in September 2019 he had a cement tanker truck trial with Michael Etcel. The applicant and Mr Etcel both agree that they were travelling to see how the applicant would be able to drive and that the applicant was driving at a speed which was not appropriate in the circumstances.
The applicant says that he experienced pain and that and that Mr Etcel advised that there was no position available to him.
Mr Etcel agrees that a job would have been created for the applicant if he had been a proficient driver, but he disagrees that he told the applicant there was not a position for him.
In relation to this, it seems that what was communicated to the applicant was indeed that there was no present role for the applicant as a tanker driver. There does not seem to be a discord in the evidence given by the applicant and Mr Etcel that there wasn’t a position for him, simply as there wasn’t a position available and one would have to be created for him.
In this regard there is no real conflict in the evidence, and I find that the applicant was informed that there was presently no job available for him. Whether or not one would have been created for him is a different matter and it does not negate from the fact that there presently wasn’t one available for the applicant.

Annual leave (factor 4)

The fourth factor identified by the applicant was that he was instructed to take annual leave when he couldn’t drive a truck. This left the applicant feeling concerned about job future and financial security.
Mr Aynsley says in his evidence that there was a valid reason why employees were being instructed to take annual leave and that is in accordance with the EBA. That is, employees were being asked to draw down their leave in accordance with the EBA. Mr Aynsley says that he assumed the applicant would have been aware of the reason for it and should have been informed by their line supervisors.
There was no evidence from anyone who is the applicant’s line supervisor that they indeed did explain to the applicant the reason why he was being asked to take annual leave. There was no evidence that Mr Aynsley was the applicant’s line manager and that he directly told the applicant.
In those circumstances I find in favour of the applicant on this factual matter, that is that he was asked to draw down his annual leave with no explanation provided to him.

Asked to continue driving trucks (factor 5)

The fifth allegation made by the applicant is that in or around September 2019 he said he was being asked by Mr Aynsley when he was going to return to drive trucks even though the applicant’s doctor had not permitted him to do so. Mr Aynsley does not appear to address this factor though does complain that the applicant was slow in providing WorkCover certificates.
For business operational arrangements, it may be that Mr Aynsley was making innocent enquiries of the applicant as to his capability to drive, and this would be quite normal in a normal business setting.
In those circumstances I find that Mr Aynsley did make enquiries of the applicant when he would return to drive a truck and no criticism is made of Mr Aynsley in that regard.
I therefore find that the events the applicant experienced at work were indeed real events and not imaginary. It is quite clear that it was the applicant’s perception that there was a hostile work environment by failing to communicate and failing to support in his return to work and failing to accommodate his injuries.[35]

Primary or secondary 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.”
There is obviously a divergence of opinion in the medical case as to whether the applicant has suffered a primary or a secondary injury. There appears to be no dispute made by the respondent that the applicant does indeed have a psychological injury, the issue really is the characterisation of that injury.
Dr Rastogi, who has been retained on behalf of the applicant, has opined in his final opinion that the applicant experienced a primary psychological injury due to a culmination of bullying and harassment by his employer following his physical injury at work. Dr Rastogi explains that whilst the applicant did experience mild adjustment symptoms following his physical injury, there was no psychological impairment at that stage. The psychological impairment came when the applicant returned to work and experienced difficulties with his employer.
Dr Khan is the applicant’s treating psychiatrist and has seen the applicant on multiple occasions. It is quite obvious in Dr Khan’s earlier reports that he places significant emphasis on the applicant’s work-related physical injury and his chronic pain condition.
It does not appear to be until late October 2019,[36] where Dr Khan takes a proper history in relation to the difficulties the applicant was experiencing in relation to his return to work. In particular, he refers to the failure to collect the applicant or advise him that he was not being collected and transported to work. Dr Khan helpfully opines in his last report that the applicant has suffered a primary psychological injury that emerged as a result of a lack of support from his employer during the return to work process.
[36] 28 October 2019.
Dr Teoh prepared a report on behalf of the respondent and advised the applicant has suffered a secondary psychological injury that has persisted as a result of the applicant’s pain and disability. Having looked at the report of Dr Teoh it does not appear to me that he has any history of the applicant’s difficulties that he has experienced in his return to work. In light of my findings in respect of the factual issues in this dispute, Dr Teoh has not turned his mind to the impact of that experience on the applicant’s psychological condition.
Dr Bertucen takes a history in relation to the failing to be picked up, simply that he had to be collected by a car for several months after his return to work. Likewise, Dr Bertucen really does not have the history of any of the factual allegations the applicant has made.
In the circumstances, the opinions of Dr Bertucen and Dr Teoh provide me little assistance as they do not really address the applicant’s allegations of how he was treated when he returned to work.
In the alternative, Dr Khan, and Dr Rastogi both formed the opinion that the applicant has suffered a primary psychological injury, they, both having a full history of the applicant’s treatment on his return to work.
The respondent points out that Dr Rastogi appears to take some pain in recording his diagnosis and the words “in the context of chronic pain” has some moment. Whilst looking at the reports of Dr Rastogi there is obviously some import on the chronic pain such as the chronic pain resulted in physical decline and the aggravation of the depressive symptomatology, this does not negate Dr Rastogi’s final opinion in relation to this diagnosis of the applicant suffering from a primary psychological condition.
Dr Khan to my mind is in a position where he has treated the applicant over a significant period and his opinion which he finally comes to, should be given some weight given his opportunity to examine and treat the applicant over some 17 consultations.
In those circumstances I do find the applicant has suffered a primary psychological injury at work.
Both written submissions refer to a decision of Cannon v The Healthy Snack People Pty Ltd.[37] The respondent relied upon this decision to assert that although the applicant was on a return-to-work plan because of physical injury, s 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and because of that physical injury has developed a secondary psychological condition.
[37] [2009] NSWCCPD (Cannon).
That appears to me to be an accurate statement of the application of the legislation however when one closely looks at the decision of Deputy President Roche in Cannon, it appears that the decision provides authority,[38] that if a worker is on suitable duties because of a work-related physical injury, as is this case, and the applicant develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to the physical injury but has resulted in harassment.
[38] Paragraph 103, of the decision.
Deputy President Roche provides guidance to the effect that s 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or discomfort and/or loss of impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of lump sum compensation in circumstances where, as a result of physical injury, a worker is placed on suitable duties and, as a result of an “extraneous or intrinsic” event, such as harassment or bullying while on those duties develops a psychological injury.
I therefore find that the applicant has received a primary psychological injury and should be referred for whole person impairment assessment.

[2021] NSWPIC 507

8 December 2021