Dickson v Zurich Financial Services Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dickson v Zurich Financial Services Australia Limited [2022] NSWPIC 22
APPLICANT:	Adam Leigh Dickson
RESPONDENT:	Zurich Financial Services Australia Limited
MEMBER:	Kerry Haddock
DATE OF DECISION:	18 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation pursuant to section 38 of the 1987 Act from 1 August 2016 to 26 April 2021; previous award for the applicant in respect of period to 31 December 2012; respondent maintained there was a new diagnosis, and aggravation by subsequent employment, so that the applicant had to establish that employment was the main contributing factor to the injury; and the Commission does not have jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act; Held- the Commission has jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act; the date of injury has been determined to be 19 April 2004; the applicant is not required to establish that employment was the main contributing factor to the injury; consideration of Sabayanayagam v St George Bank Ltd, and other cases discussed in Roberts v University of Sydney; applicant had no work capacity from 1 August 2016 to 26 April 2021; award for the applicant of weekly benefits from 1 August 2016 to 26 April 2021, pursuant to section 38 of the 1987 Act, and section 60 expenses.
DETERMINATIONS MADE:	1. That there is an award for the applicant of weekly compensation at the rate of $656 per week from 1 August 2016 to 26 April 2021, pursuant to section 38 of the Workers Compensation Act 1987. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 3. That the parties have liberty to apply with respect to the award of weekly compensation.

STATEMENT OF REASONS

BACKGROUND

The applicant, Adam Leigh Dickson (Mr Dickson) was employed by the respondent, Zurich Financial Services Australia Limited (Zurich) as an underwriter.

Mr Dickson sustained a psychological injury, deemed to have occurred on 19 April 2004, arising out or in the course of his employment with Zurich.

The applicant brought proceedings against both Zurich and David Jones Limited (David Jones) in the Workers Compensation Commission in Matter Number 2164/15. He consented to an award in favour of David Jones at a conciliation conference on 9 July 2015.
The applicant was assessed by Approved Medical Specialist (AMS), Professor Nick Glozier, on 19 August 2015. Prof Glozier issued a Medical Assessment Certificate (MAC) dated 26 August 2015, in which he assessed whole person impairment (WPI) of 7% as a result of injury on 19 April 2004.

The applicant’s claim against Zurich was determined by Senior Arbitrator Douglas on 15 January 2016, after a hearing.
Senior Arbitrator Douglas determined that the applicant’s claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) was discontinued; that there was an award for Zurich with respect to the applicant’s claim for permanent impairment compensation pursuant to section 66 of the 1987 Act; that there was an award for Zurich with respect to the applicant’s claim for weekly payments for the periods from 20 May 2005 to 18 April 2007, and from 4 August 2008 to 7 November 2008; and there was otherwise an award for the applicant of weekly compensation at various rates and for various periods from 19 April 2007 to 31 December 2012, pursuant to section 37 of the 1987 Act. The applicant had closed the period of his claim at 31 December 2012.

Zurich lodged an appeal against Senior Arbitrator Douglas’s determination. On 6 May 2016, in Matter Number A1-2164/15, his Honour President Keating confirmed the arbitrator’s determination.
By letter dated 16 October 2019, the applicant’s solicitors wrote to GIO Workers Compensation Insurance (GIO), which is now the relevant insurer, as the respondent’s previous insurer, CGU Workers Compensation (NSW) Limited (CGU), is no longer managing workers compensation claims.
The letter stated that a finding had been made that the applicant received a psychological injury as a result of employment with Zurich. An order was made that he was entitled to be paid for various periods of incapacity up to “his entry into the 3^rd entitlement period under the 2012 amendments (section 38)”.

The applicant’s solicitors advised that, at the time of the determination, Mr Dickson continued to have a partial capacity for work. His capacity had since deteriorated as a result of his “compensable condition”, such that he was completely unfit for work and unlikely to regain capacity for work. They requested that GIO consider Mr Dickson’s eligibility to receive payments beyond 130 weeks, relying on an independent medical assessment by Dr Robert Gertler.

On 18 February 2020, GIO issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). GIO disputed that the applicant was entitled to weekly payments and medical or related treatment (expenses) because he did not have total or partial incapacity for work resulting from an injury, as required by section 33 of the 1987 Act, and because the medical or related treatment was not reasonably necessary as a result of an injury, as required by sections 59 and 60 of the Act.
GIO maintained that the current medical evidence was not conclusive regarding the applicant’s current diagnosis, and the causation of any diagnosis would be multi-faceted. It advised that an independent medical examination (IME) would be arranged, and liability would be reviewed on receipt of the report.

The applicant lodged an Application to Resolve a Dispute (the Application) on 20 September 2021. He claimed to have sustained psychological injury, deemed to have occurred on 19 April 2004, due to bullying and harassment from colleagues and supervisor in the workplace.
The Application claimed weekly benefits, pursuant to section 38 of the 1987 Act, from 1 August 2016 to 26 April 2021. The applicant’s pre-injury average weekly earnings (PIAWE) were claimed to be $820 per week. The applicant claimed past medical expenses of $10,135.45, in accordance with a Medicare Notice of Charge. He had requested an updated Notice, which would be provided upon receipt.
The respondent lodged its Reply on 11 October 2021.

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are as follows:

(a) whether the applicant has any entitlement to weekly payments pursuant to section 38 of the 1987 Act; and whether the Personal Injury Commission (the Commission) is deprived of jurisdiction;
(b) whether the applicant has any entitlement to weekly payments arising from the injury sustained in the course of employment deemed to have occurred on 19 April 2004, and
(c) whether the applicant’s identifying pathology is now completely different to the original diagnosis, which is the position of the respondent.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 9 December 2021.
Mr Young of counsel appeared for the applicant, instructed by Ms Middleton. Mr Barnes of counsel appeared for the respondent, instructed by Ms Tancred. The applicant was present.

The parties advised that the applicant’s PIAWE is agreed at $820 per week. Mr Young confirmed that the claim for weekly benefits closes on 26 April 2021. He advised that the applicant sought a general order for medical expenses pursuant to section 60 of the 1987 Act, should he be successful in his claim.

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 attached documents, and
(b) Reply and attached documents.

Oral Evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Adam Leigh Dickson

The applicant’s statement is dated 25 November 2020.
Mr Dickson does not work. He has not worked full time since 2010 or part time since 2013. He has a psychological injury that he sustained in 2003 whilst working at Zurich. The injury was subject to an award of weekly benefits for the period 2004-2005 [sic]. He had continued to try to work but his symptoms prevented this. He engaged a lawyer in 2011 after the insurer continued to decline his claim. He was awarded a section 66 lump sum payment of approximately $90,000 in 2016.
I note that the applicant was awarded no compensation pursuant to section 66 of the 1987 Act, having been assessed with 7% WPI, and an award was made for the respondent. Given the timing of the payment, I assume he was referring to the arrears of weekly compensation awarded by Senior Arbitrator Douglas.
The applicant stated that, since that award was made in 2015 [sic], he has suffered a deterioration of his symptoms. Both his IME and the insurer’s independent specialist have provided opinions that he has no capacity for any type of work.

The applicant then referred to his various employers. They include Kmart; BBC Hardware; Grace Bros; Royal Sun Alliance, GIO Insurance, Zurich (from 2003 to 2005), CGU, Lumley, Tower, Australian Apprenticeship Centre and Rebel Sport (from 2011 to 2013).
The applicant completed his schooling in year 12 and has undertaken training in insurance broking and underwriting and retail sales. He does not believe he has capacity to work in any roles for which he is qualified, or for which he has the necessary experience and skills, due to his work injury.
The applicant’s nervous breakdown in 2003 had caused severe debilitation, which had gradually been getting worse. Every day, he has symptoms such as dizziness, head pain, trembling and fatigue that intensify and worsen as the day goes on. By night-time he is in a lot of pain and distress.
In 2018, the applicant was getting the kids ready for school each day. Since 2018 this has decreased and he is able to do it only one to two days a week. He is no longer well enough by the end of the day to collect them from school and can only meet them at the end of the road. Once he gets them ready, he has to lie down for eight hours on and off. Once he took them to school, he used to be able to manage a little housework, but this is non-existent now. Since 2019 he has no longer been able to assist with home duties “and if I am it is a limited amount”.
The applicant has “put on a tonne of weight”, his muscles are deteriorating, and he is wasting away.
After lunch, the applicant tries to clean the kitchen, which increases his symptoms. His symptoms, particularly severe fatigue, peak in the day. When his wife gets home, she takes care of everything as he is totally debilitated and at his worst.
Before the applicant had his nervous breakdown in 2003, he could work full-time. By 2013, he couldn’t handle a four hour shift a week, as his physical symptoms would totally debilitate him. In 2018 “I am emotionally and physically drained by the simplest of household tasks. Doing even a small amount of work around the house or helping get the kids ready for school is exhausting and debilitating for me”.
If the applicant tries to do more than this, his symptoms can totally debilitate him for days and weeks, where he cannot handle anything. His body gives in and he is unable to do anything. When he is asleep or waking up, “a switch goes off” in his head “and my vision and balance it sucks all the energy out of me and leaves me feeling horrible and bedridden from [sic] weeks and months”, where it takes him to get back to feeling semi-normal. This is scaring him as it is increasing.
The applicant’s head felt like it was moving in circular motions, “like my vision is flicking up and down extreme dizziness and I have to close my eyes”. It makes him feel dread and sucks all the energy out of him, similar to having a really bad flu. This has happened regularly this year (2020).

Medical evidence

Professor Nick Glozier – Approved Medical Specialist

Prof Glozier examined the applicant on 19 August 2015 and issued a MAC dated 26 August 2015. The deemed date of injury was recorded as 19 April 2004.
Prof Glozier recorded a history that the workload at Zurich was greater than the applicant was used to and he was “flat chat, 9-5”. He was then seconded to a new team where the workload was “horrific”, and he felt a woman in the team was hostile and cold to him. He would leave work dazed and frustrated and interacted less at home. On 29 October 2003, he had “a breakdown” with a nocturnal panic attack, while feeling anxious about going to work the next day.
Over the next two months, the applicant experienced anxiety phenomena, characterised by somatic features of dizziness and internal shaking (but no external tremor), abdominal discomfort and nausea. His head would be pounding and his body aching, but there was no sweatiness, paraesthesia or other specific panic phenomena. There was a degree of depersonalisation but no dissociation. He once briefly lost consciousness sitting on the toilet. The symptoms built up each day and diminished in the evening and overnight, but never resolved.
The applicant’s symptoms, which were predominantly physical, left him feeling drained, with poor concentration, and feeling as though he could not cope. He was put on antidepressants and his symptoms increased when he ceased taking them in late 2004/early 2005.
After his employment was terminated, the applicant had several similar roles, but his symptoms would build up over the day and increased over time, so that he did not perform well. He was terminated or made redundant from these jobs. His position with David Jones was less demanding, but his symptoms again increased, and he felt unable to cope, quitting after a few months. He felt that his psychological interventions had no effect on his symptoms.
The applicant had had multiple casual roles since leaving David Jones, some of which were affected by his physical problems, in particular his knees and his irritable bowel symptoms. He took a casual position with Rebel Sports, working one or two short shifts per week, but stopped because of his symptoms.
The applicant was “adamant” that although his symptoms improved when there were few demands on him, he had never been symptom free or returned to the person he was in his 20s. It appeared there had been periods where mood symptoms had been dominant, although the general picture had been one of anxiety and somatisation features.
Prof Glozier noted that the applicant was particularly anxious socially, with fears and avoidance of using public toilets, eating and writing in public, and other social situations. He felt as though he was watched and judged and had a high degree of interpersonal sensitivity. He had continued to try and push himself in a range of roles and was not pervasively depressed.
Prof Glozier opined that the repeated episodes of symptom resurgence appeared to be exacerbations of a condition that had never remitted since 2003 and would be considered recurrences rather than new injuries or conditions.
The applicant operated “very much as a house husband”. He would attend to the needs of the children and the household. There were days when he felt his symptoms were worse, and he took many more breaks or relinquished the housework, although he continued to care for the children. He had been placed on the Disability Support Pension, predominantly for his anxiety and somatisation, but also because of his knee and back conditions.
Prof Glozier opined that the applicant developed anxiety and somatic features in 2003 in the context of perceived work stressors. They appeared to have been exacerbated by a panic attack and generalised anxiety at that time. The symptoms had never remitted, and the applicant had never been symptom free. He met the criteria for a Somatoform Disorder, although it was subordinate to the Anxiety Disorder. Irritable bowel syndrome is par excellence a Somatoform Disorder.
The applicant appeared to have an “eggshell skull”, and with his constitution, strong family history of psychiatric disorder, childhood and family dynamics, he was likely to have incurred such an anxiety disorder when facing excessive demands in almost any workplace. Whilst working for Zurich, these emerged as a full-blown psychiatric disorder.
Prof Glozier opined that the applicant’s disorder had remained since 2003/2004, although it was of variable severity. He concurred with the opinion of Dr A.P. McClure, who had been qualified by CGU, that the applicant had a Generalised Anxiety Disorder. He assessed 7% WPI. His Psychiatric Impairment Rating Scale (PIRS) for employability was 4.

Dr Harvey Wai-Shing – General Practitioner

Dr Wai-Shing’s clinical records commence on 12 January 2000. I will refer to only some of the records in these reasons. In particular, the records that pre-date the previous award are of little relevance.

On 10 August 2017, Dr Wai-Shing recorded that the applicant had been under Dr Montanari, psychiatrist at BWPH (Brisbane Waters Private Hospital) for the past year and saw him monthly. He was referred to Dr Lyndon at Greenwich, who “took him off all meds”, but he was unable to wean off Avanza. He was being investigated by Prof Brown, an immunologist, at Westmead Hospital for organic causes of lethargy, depression and stress.
Dr Wai-Shing noted the applicant had symptoms of lethargy, sore head, felt off balance, dizziness. He trembled within himself – “not visible”. “Buzzing”. If he exercised, he needed one to two weeks to recoup his energy levels. He remained unemployed.
On 22 November 2018, Dr Wai-Shing recorded that the applicant had decided to stop seeing psychologist Ms Melanie Clark. He wanted to go back to Dr Montanari. He managed his role as a house husband but needed to keep within his limits otherwise.
Ms Clark confirmed by letter dated 26 November 2018 that the applicant did not want to continue therapy, as he didn’t feel his needs were being met. There were two new interpersonal issues, but the processes that were getting him stuck were the same as with the other issues he had experienced with his wife, parents and other associates.

On 4 March 2019, Dr Wai-Shing noted having explained to UHG Insurance that he was unable to complete a report regarding the applicant’s ability to work/prognosis. Since 2016, he had seen the applicant only five times for either a referral or for him to advise the doctor whom he had seen on referral from Dr Montanari.

On 24 June 2019, Dr Wai-Shing recorded that the applicant claimed that 11 weeks before, he had had a “major” mental breakdown. He was last seen by him (this appears to refer to
Dr Montanari) one month ago. He had somatic symptoms, dizzy, weakness, shaky, anxious, nervous – worst by the end of the day. He claimed to feel better when he ate. He usually waited for the flareup to settle, but this time it did not. His main somatic symptoms were unsteadiness and dizziness. He was advised to stop Alprazolam – “too addictive”.
Dr Wai-Shing recorded on 13 January 2020 that the applicant needed a referral to
Dr Montanari. He was consulting Dr Wai-Shing about an injury to his left ring finger.
Dr Wai-Shung noted depression/anxiety/panic attacks.
Dr Wai-Shing prepared a Mental Health Care Plan on 13 January 2020.

The applicant’s presenting complaints were recorded as mixed anxiety and depression associated with psychosomatic symptoms. He had had these conditions since 2003 when he was bullied at work. He had had ongoing psychiatric management and assessments since then and remained under Dr Montanari’s care.
Dr Wai-Shing recorded the applicant’s symptoms. He had not been employed since 2013. When he worked four shifts at a Rebel Store, he would take days to recover. He had had several major relapses in 2003, 2015 and April 2019. In 2016 he had ECT treatment but had a severe adverse effect.

On 10 February 2020, Dr Wai-Shing recorded that the applicant claimed his psychiatric disorder condition “worst” [sic]. He had referred to WIRO to review his case. His solicitor had referred him for an updated psychiatric assessment. He had recently heard from GIO that it was going to re-open his case and recommence compensation “after paperwork attended to and he would get regular payments. Maybe this will continue for 5yrs and then reviewed – duration of liability unknown at this stage”.

Dr Wai-Shing noted that the applicant had a lump sum for the period 2005 to 2012 “(Adam thinks)”, which he received in 2016. He noted GIO’s contact details. It appears that he had a conversation with claims adviser “Fotoula”, recording that “case reopened”, the details were discussed, and it was noted that he first saw the applicant on 4 November 2003, but he did not make it a workers compensation case until 2004.
The applicant consulted Dr Wai-Shing about the injury to his finger and a rash on his face in February and April 2020.

On 4 August 2020, Dr Wai-Shing recorded “1/12 mental stress breakdown, giddy, sb (seen by) psychiatrist somatic symptoms again”. The applicant wanted to see a neurologist.
Dr Wai-Shin suggested a review of his “full bl” (blood?) investigations and then referral to
Dr Crimmins. Dr Wai-Shin had done a Mental Health Care Plan for the applicant in January 2020, but he never used it. He wanted scripts and Dr Wai-Shin prescribed Avanza.

On 18 August 2020, Dr Wai-Shin recorded that the script for Avanza had been rejected because another script dated 6 July 2020 was still active, with five repeats, and only one had been dispensed. He had left a message for the applicant.
On 8 September 2020, Dr Wai-Shin recorded symptoms of dizziness, HA (assumed to mean headaches), tremor, anxiety, generally unwell, some relief with sleep. The applicant wanted to see a neurologist.
Dr Wai-Shin recorded on 14 September 2020 a phone call from “Clara” at GIO. She advised that the claim was declined from 18 February 2020. GIO would pay for the consultation on 10 February 2020. It requested a copy of the workers compensation form for that consultation.

On 1 October 2020, Dr Wai-Shin recorded low moods, complaint of dizziness “room spins true vertigo”. Dr Montanari had placed the applicant on a new anti-depressant one month ago. The applicant felt his energy was crashing. He woke better but as the day went on, he was worst. Xanax provided only temporary relief.
On 19 October 2020, Dr Wai-Shin recorded that the applicant had been off Xanax for 17 days. He complained of dizziness, “ie unsteadiness, off balance no true vertigo???” He claimed that last Saturday his eyes were still and not flicking, but his whole visual field was flicking “maybe diagonally or vertically with a spinning component to it?” The first bad episode was in late June. Since then, the applicant had had low grade dizziness. There were bad episodes of spinning associated with sweats and nausea – about five bouts to date.
Dr Wai-Shin recorded on 16 November 2020 that the applicant had seen Dr Crimmins last week – for further investigations, including vestibular testing, “needs ears clean”. There had been no vertigo attacks for one month.
On 22 July 2021, Dr Wai-Shin recorded that the applicant had been referred for a sleep study. He was told he had at least 34 apnoeic or hypo apnoeic episodes an hour. He was on CBD oil and sleeping better but claimed his anxiety and somatic symptoms were the same. Dr Montanari wanted him to trial CPAP. The applicant was not keen but untreated OSA (obstructive sleep apnoea) is not good and increased risks, especially cardiac. Dr Wai-Shin noted he should at least do the trial.

Dr Roman Montanari – Psychiatrist

On 5 May 2017, Dr Montanari wrote to Dr Bill Lyndon, requesting his opinion regarding the applicant.
Dr Montanari noted that the applicant had a somewhat unusual presentation, a lack of response to treatments, and due to the chronicity and disabling impact of his illness, they were keen to choose the next course of treatment wisely.
Dr Montanari had “inherited” the applicant from Professor Carlos Zubaran in November 2016. Prof Zubaran had “continued down the MDD (Major Depressive Disorder) line” and strongly recommended ECT. The applicant had an anaphylactic reaction and ended up in ICU but was willing to revisit ECT.
Dr Montanari was not entirely comfortable with the MDD diagnosis due to the prominence of somatic complaints and relative lack of depressed or anxious mood. (Emphasis in original). The applicant didn’t look particularly depressed, and his DASS-42 scores were consistently in the mild to moderate range for depression.
The applicant gave a 13 year history of gradually worsening, non-specific symptoms, including physical malaise, fatigue, lethargy, dizziness, “feeling out of it”, “like having the flu”, and “my head gets trembly, achy, and I feel off-balance”. These symptoms seemed to strongly correlate with physical exertion. Even minor physical activity seemed to trigger or markedly aggravate the symptoms. Even doing a little ironing caused the applicant to “crash” and have to lie down. More strenuous exertion, such as washing the car, caused him to be “out of action” for days.
Dr Montanari had considered a diagnosis of fibromyalgia, but the applicant did not have the pain components he would expect. A diagnosis of Chronic Fatigue Syndrome (CFS) would probably be made by some clinicians.
In favour of the MDD diagnosis was a family history of schizophrenia and bipolar disorder. The applicant’s symptoms started in the context of a workers compensation case, eventually settled in his favour. He recognised that emotional stress, for example arguments with his wife, could exacerbate his symptoms. He had at times become teary and despondent and sleep disturbance was frequent. He gave a good history of interpersonal rejection sensitivity, but Dr Montanari did not think he properly met the criteria for DSM “Atypical Features”.
Dr Montanari listed the applicant’s treatments to that point. He had “stuck with mirtazapine”, primarily because it helped him sleep. With the addition of SNRIs, he reported no improvement, thought he was worsening, and there were side effects. Dr Montanari was weaning the venlafaxine and then likely the mirtazapine, in anticipation of trying different treatment. TMS (transcranial magnetic stimulation) was available on the Central Coast and ECT was not out of the question.
On 23 June 2017, Dr Montanari wrote to Prof David Brown, who had been recommended by Dr Lyndon to help rule out “non-psychiatric” diagnoses in patients like the applicant.
Dr Montanari advised Prof Brown that the applicant had been suffering for more than a decade with an illness that his GP was treating as Major Depression “(with quite good reasons)”. Neither Dr Montanari nor Dr Lyndon was satisfied that this was what they were dealing with.
Dr Montanari referred the applicant to Ms Clark on 10 May 2018. He noted that the applicant continued to struggle with a chronic disabling syndrome of unclear diagnosis, causing multiple vague somatic symptoms, and affecting his mood, energy and motivation, on a background of what appeared to be significant premorbid anxiety and interpersonal rejection sensitivity. Multiple investigations had failed to come up with anything solid, though there was some evidence of CNS (central nervous system) inflammatory activity of unclear relevance.

Dr Montanari opined that psychological interventions were “well and truly overdue”. He was glad the applicant had agreed to see Ms Clark, initially for six sessions under the Better Access initiative.
On 28 May 2019, Dr Montanari reported to the applicant’s solicitors.
Dr Montanari recorded the history that while working for the respondent in about mid-2003, the applicant joined a new team, where he found the workload overwhelming. He was denigrated and berated by a member of the team and eventually he conceded he “couldn’t do it”. He sought to return to his former team, but his team leader was about to take six weeks leave and said he would look into the situation on his return.
It was at about this time that the symptoms started. The applicant described dissociative symptoms in the form of derealisation, and unusual fatigue, together with panic attacks and sleep disturbance.
The applicant was diagnosed with a Depressive Disorder, a diagnosis he did not accept, stressing his very physical symptomatology. He nevertheless agreed to take an antidepressant. He tried to work but eventually conceded he could not continue.
Over the ensuing 15 years or so, the applicant reported he had the same cluster of symptoms, with varying intensity. Other symptoms included pain in the head; frequent insomnia; extreme sensitivity to minimal exertion; non-specific abdominal discomfort and pains; excessive interpersonal sensitivity; and self-consciousness about his appearance. These character traits were pre-existing but had become exaggerated to the point of causing impairment.
At a recent review, the applicant continued to describe similar symptoms, unabated and fluctuating in severity. He had undergone numerous investigations, and Dr Montanari referred to the most relevant ones.
Dr Montanari reported that diagnosis had not been straightforward, due to the atypical characteristics of the applicant’s presentation. The working diagnosis was Persistent Depressive Disorder. One of many possible differential diagnoses was CFS, the symptoms of which overlap with those of the applicant. There is no accepted “bio-marker” for either Depressive Disorder or CFS, so the diagnosis was debatable. Another possibility was that the applicant was suffering from an undiagnosed autoimmune condition, as there were features of his illness commonly seen in early cases of a number of such conditions.
Dr Montanari began treating the applicant in August 2016 (this was previously recorded as November 2016). Since that time, Mr Dickson had not been capable of performing any suitable work. His symptoms had failed to respond adequately to treatments, both pharmacological and psychological. He had had some limited trials of immunological treatment. This is discussed by Prof Brown below.
ECT was terminated due to an anaphylactic reaction. It is the most reliable antidepressant treatment and might still be effective with additional precautions. TMS has not yet been tried and in Dr Montanari’s opinion had a modest probability of proving effective. Failing the discovery of an effective treatment, he surmised that the applicant’s illness and incapacity to work would continue indefinitely.
As to causation, Dr Montanari opined that the generally accepted science is that the causes of depression are multifactorial, with both genetic predisposing and environmental precipitating and perpetuating factors.
In the applicant’s case, there were a number of salient factors that conceivably combined to produce his illness. They included genetic predisposition, developmental/psychological factors; work-related stress; a stressful home environment, including marital dysfunction (he had reportedly decided to leave his wife just prior to the onset of his illness); and chronic frustration due to fatigue and other symptoms hampering a normal family life.
Dr Montanari concluded that the applicant had consistently presented with a cluster of non-specific, yet highly debilitating symptoms, of a cryptogenic nature, which had failed to respond to various medical interventions. The onset of symptoms temporally coincided with multiple stressful environmental factors, a salient one being alleged verbal abuse at his workplace.
In cases like these, it is impossible to accurately quantify the contribution of any one particular precipitating factor. Following the precipitation of an illness, one can only speculate as to whether the perpetuation of symptoms and disability are considered direct ramifications of the original injury, or whether they would likely have occurred regardless. Dr Montanari’s profession is unable to answer these questions adequately, predict Mr Dickson’s prognosis or be confident regarding choices for further treatment.
On 18 May 2021, Dr Montanari responded to a series of questions from the applicant’s solicitors. Much of this report repeats the contents of his report dated 28 May 2019 and his earlier reports.
Dr Montanari’s clinical records indicated that the applicant was totally unfit for work from 2016 to 2019.
On 15 January 2020, the applicant had described another breakdown in April 2019. He was on mirtazapine, and there was a trial of adding reboxetine. The applicant reported on 3 July 2020 that he didn’t tolerate the medication and “I’ve had a pretty major nervous breakdown last night”. The same thing in 2015 took months to get better. Two grandmothers had died in the past four months. “Covid lock-down period”.
The applicant reported on 9 April 2021 that the Covid crisis was exacerbating his “episodes”. He had dizziness every evening, could not read or use the computer for more than 15 minutes, walk the dog, mow the lawn or empty the dishwasher without an exacerbation of his malaise, fatigue etc.
The applicant had presented fairly consistently, casually and appropriately dressed, not unkempt or malodorous. He was cooperative and attentive, with normal eye contact and level of consciousness. His affect was congruent with discourse and showed normal reactivity to humour and no excessive lability. His mood was reported consistently, fluctuating between euthymic and mild-moderately depressed, with some diurnal tendency to evening worsening. His speech rate and form presented as normal, although at times he felt his thoughts racing. He had been pre-occupied with self-image, seeming to border on paranoia, although there had been no additional symptoms to confirm psychotic processes, such as delusions or hallucinations.

Dr Montanari opined that the diagnostic criteria that best fitted the applicant’s symptoms were Somatic Symptom Disorder, Persistent and Severe. Differential diagnoses included MDD and CFS. Another possibility was a yet undiagnosed autoimmune condition.
Somatic Symptom Disorder, like MDD and CFS, is of unknown aetiology. Dr Montanari repeated what he had said in his report dated 28 May 2019 regarding possible causes of the applicant’s condition.
Dr Montanari opined that evidence for the applicant’s employment being a substantial contributing factor to his “current illness state” is mostly drawn from the temporal relationship between the onset of symptoms and the supposed work injury. The work-related injury, as described by the applicant, appeared to have been grievous enough to precipitate a psychological illness such as seen in him, especially given his apparent premorbid personality vulnerabilities.
However, the applicant’s recollection of events leading up to and during the work “injury”, as well as the details of the injury, were first related to Dr Montanari several years after. This had allowed for significant erosion and distortion of memories over time. He would not therefore be confident in declaring the applicant’s employment experiences the “main contributing factor” to his current illness. He was adequately convinced that the work experiences were a substantial contributing factor to the applicant’s existing illness. It was highly conceivable that the resultant loss of employment, together with the inherent blow to his self-esteem as a father/husband/provider, had perpetuated his illness into its current chronic disabling form.
On 30 August 2021, Dr Montanari certified that the applicant was not fit to participate in a medico-legal assessment, as it would very likely significantly exacerbate his symptoms. It was likely to be detrimental to his health, until such time as his symptoms were adequately controlled. This was unlikely to occur within the next six months.

Professor David Brown - Immunologist

Prof Brown reported to Dr Montanari first on 1 August 2017.
Prof Brown recorded that the applicant had had longstanding, predominantly physical, symptoms since 2003. Dr Montanari had noted that there was a significant question as to whether there was a depressive disease in the context of a strong family history of psychiatric disorders, or whether this represented an organic process.
The applicant’s predominant symptoms were feeling fatigued and intense almost agitation, with internal shaking that was not displayed physically. This was associated with head tightness or even pain, and the applicant found he must lie down. This was predominantly associated with episodes of physical or mental stress.
The applicant had had several psychiatric treatments that were largely unhelpful. At his first ECT he developed anaphylaxis. He had recently noted significant flushing when he had the internal agitated feeling. This was occasionally associated with episodes that seemed almost like true vertigo.
The applicant’s family history included schizophrenia and bipolar disorder. “Interestingly”, his mother developed Graves’ disease and had an episode of agoraphobia when she was younger. This established a first order relative with significant autoimmune disease. There were no other obvious features of this.
Prof Brown suggested the differential diagnoses were broad. He arranged for investigations and a lumbar puncture.
On 20 November 2017, Prof Brown reported that he had extensively investigated the applicant. The findings were subtle and borderline but might indicate some neuroinflammatory process.
Prof Brown had explained to the applicant that he could not make a diagnosis. He recommended a trial of methotrexate, which is a mild immunosuppressive agent, to which the applicant agreed.
On 5 February 2018, Prof Brown reported that the applicant had remained on methotrexate for 12 weeks, with significant side effects that had not improved. He therefore recommended another immunosuppressant, mycophenolate.
On 21 May 2018, Prof Brown reported that the applicant thought he may be worse on mycophenolate, but its cessation did not result in any improvement. Prof Brown had explained that there was very limited evidence of neuroinflammatory disease, and he had offered the applicant the therapeutic trial based on his family history. There was absolutely no evidence of any immune markers, although more are being discovered all the time.
Prof Brown suggested the applicant trial sirolimus, which is an mTOR pathway inhibitor. He was to review the applicant in three months.
On 23 August 2018, Prof Brown reported that although the applicant tolerated the sirolimus reasonably well, things had not improved. If anything, they were slightly worse. “This has been potentially triggered increased levels of family stress” [sic]. Prof Brown suggested the applicant persist for another two months, and then another possibility was a trial of steroid therapy.
On 17 October 2018, Prof Brown noted having reviewed the applicant from the point of view of his physical symptoms, fatigue, intense agitation, regular headaches, and mental stress.
The applicant had failed numerous targeted psychiatric therapies and trials of methotrexate and mycophenolate. He had been on sirolimus for six months, with no obvious benefit, seeming somewhat worse.

After a long conversation the applicant decided against steroid therapy. Prof Brown did not think this was unreasonable. He did think it was reasonable to stop the sirolimus. He recommended a graded exercise and psychological support. He had not made a follow up appointment.

Dr Robert Gertler – Psychiatrist

Dr Gertler was qualified by the applicant and reported on 23 September 2019.
Dr Gertler recorded a consistent history of the injury and subsequent events. From 2011, when the applicant decided to work in retail, he found it difficult to work full-time. Part-time work proved impossible, and in 2013 he ceased work. He believed his symptomatology had slowly become worse.
The applicant’s complaints were primarily somatic. He described an “ache” in his head that was “painful” and which he found difficult to describe. He had dizziness. His whole body could be affected and “drains the energy”. His symptoms became worse with any physical endeavour. He was generally tired and must rest during the day, particularly after certain physical activities. He was able to sleep with medication, his appetite was normal, and he had gained weight. He remained vulnerable to stress, and a recent issue with a neighbour led him to move.

The applicant’s concentration and memory were generally normal. Reading could cause a “flare up” in his dizziness. He was angry that he was unable to lead a normal life or be the father he would like to be. His mood was “pretty good”, with occasional days when he felt “down”.
Dr Gertler noted that the applicant saw a psychiatrist every two to three months. He was taking Avanza at night. He remained under the care of his GP. He had had an anaphylactic reaction to ECT.

The applicant described a supportive relationship with his wife of almost 20 years. She worked and he had essentially become a house husband. He took care of the children, drove them to school and did some housework, which was interspersed with having to lie down. He may watch football on television and attend the children’s soccer games but must lie down afterwards. He had no social life and rarely had contact with friends. He saw his parents and brother. He no longer went to the gym or played touch football.
Dr Gertler reported that the applicant’s affect was somewhat blunted, and he seemed lethargic. There was no evidence of significant depression or psychotic thought disorder, and no delusions or hallucinations. He was oriented for time, place and person and his memory appeared intact. His capacity for insight and judgment seemed appropriate. His general intellectual level was average.
Dr Gertler opined that diagnostically, the applicant presented a dilemma. It appeared that he suffered from symptoms consistent with a Somatoform Disorder but had also in the past suffered from symptoms of anxiety that may still be present, but did not manifest themselves, because of his extremely controlled and protected lifestyle.
The applicant was not fit for any type of external employment. He attempted to work for some 10 years after leaving Zurich, but ultimately failed and was only capable of minimal work within the home. It appeared that since 2013, he had been incapable of any employment that was reasonably within his skills, capabilities and injury restrictions. He did not have the capacity to return to employment in the foreseeable future.
Dr Gertler opined that the applicant was most likely vulnerable in terms of overall personality functioning before 2003/2004, but this was seemingly under control until the episode at Zurich, which precipitated an anxiety state. This then led to his current, chronic injury, which is a combination of a Somatoform Disorder and a pervasive dysthymia.

Dr Doron Samuell – Psychiatrist

Dr Samuell was qualified by the respondent and reported first on 3 June 2020.
The applicant was under the care of his GP and Dr Montanari, whom he had not seen for a couple of months. The applicant said, “There doesn’t seem to be much more that he could do”. Dr Montanari had tried many antidepressants and ECT (to which Mr Dickson had an allergic reaction), and “nothing seems to work”.
At the time of Dr Samuell’s assessment, the applicant was taking Avanza and Alprazolam when he was “really bad”, once per week. He had at one stage been quite reliant on it.
Dr Samuell recorded a consistent history of the injury and the onset of the applicant’s symptoms in about 2003. Mr Dickson recalled his first anxiety attack at North Sydney station. He was trembling and had difficulty sleeping. He had blacked out at work. At that point, he began having problems with headaches, tremor and dizziness. His GP wanted to medicate him for a psychological problem, but he initially had trouble accepting that his problems were not physical. He subsequently accepted Zoloft.

The applicant took six weeks off work and when he returned, continued to have dizziness and nearly fainted. He “finally agreed” to go on workers compensation. He was treated by
Dr Butler and a psychologist, “Renee”, between 2004 and 2005. He then began seeing her privately a year or two later, until 2011 or 2012.
Over time, the applicant’s symptoms had not changed. After ceasing employment with Zurich, he was changed to Lexapro and had difficulty holding onto a job. Since his psychological difficulties, he had been fired from all subsequent jobs. He commenced with Dr Montanari in about 2015.

The applicant described his relationship with his wife as fine, but it had been tested in the last month with isolation. They had “learned to budget” and winning his first claim “helped a lot”.
Before isolation, the applicant would get up at 7am, shower, get ready and drive the kids to school. His symptoms were elevated around that point. He had had the same symptoms for about 17 years and knew how to manage his day. He accepted that he had depression and it manifested as physical symptoms. He would rest to control his symptoms.
The applicant did the housework and his symptoms increased. He had lunch and had to rest and lie down. He collected the kids, by which time his symptoms had deteriorated. He felt “horrible”, mainly in his head. He had pain, trembling and dizziness. With stress, his symptoms tended to double, and he may be bedridden for a week if he did anything physical. His wife did most of the cooking. He did his best with cleaning and did no shopping, apart from occasional emergency items. He tended to his own self-care and showered daily.
Dr Samuell recorded that the applicant’s sleep was “not the best”; his appetite was “too good”, and he had put on weight; he had pain and suffering every day; his mood was hopeless; diurnal mood variation was absent; his concentration was normal; and suicidal ideation was absent. His physical symptoms were a painful feeling in his head, intensifying as the day went on; dizziness; trembling; and feeling wiped out.
Dr Samuell noted that the applicant was pleasant and cooperative. His self-care and grooming were appropriate. His psychomotor functioning and speech were normal. He described experiential symptoms of anxiety. There was no sense that he was exaggerating or embellishing. His affect was reactive, within a normal range, and appropriate to the discussion. His cognitive functioning was normal and there was no evidence of psychosis.
Dr Samuell accepted Prof Glozier’s assessment report. He had diagnosed Generalised Anxiety Disorder and probable Somatoform Disorder. The DSM has since changed, and
Dr Samuell expected Prof Glozier would be comfortable with a diagnosis of a Somatic Symptom Disorder that fits with his opinion.

Dr Samuell referred to the decisions in the previous matter and various medical reports.
He noted that Dr Montanari had diagnosed Persistent Depressive Disorder and entertained the possibility of CFS that, in Dr Samuell’s view, was more adequately captured by a Somatic Symptom Disorder diagnosis.
Dr Samuell opined that what is relevant is that there have been continuous symptoms since the applicant’s employment with Zurich. He had been extensively reviewed and treated. There had been some diagnostic uncertainty and during the time that Mr Dickson had had difficulty, the DSM had changed, adding to further variation in the proposed diagnoses.
The applicant’s assertions that, due to his ongoing psychological difficulties, he had had trouble maintaining employment, were plausible, and consistent with his health seeking behaviour, including ECT.
Dr Samuell opined that the applicant had a Somatic Symptom Disorder. It is a Somatoform Disorder. It is a condition where psychological distress is likely manifest as physical symptoms. The applicant’s concerns about the symptoms are at a level that is clinically significant and impairing. There seems to be sufficient evidence that the symptoms had been continuous since his employment with Zurich. Given his lengthy history of symptoms without any positive response to treatment, his prognosis was uniformly poor.
Dr Samuell did not expect the applicant to work again in any capacity. Although it is highly unusual that the difficulties he described would still be relevant to his current presentation, the continuity of symptoms, his health seeking behaviour and his reduced level of functioning on a continuous basis was sufficient to establish that the initial difficulties at Zurich remained the ongoing substantial cause of his current mental health problems. He had exhausted all reasonable treatment and Dr Samuell could only suggest rehabilitative measures. Further treatment was unlikely to be effective.

Dr Samuell provided a further report dated 8 October 2021, having performed a file review. He was provided with numerous documents, including the reports relied on in the previous proceedings and the clinical records of Dr Wai-Shing, Dr Montanari, BWPH and Coast Anxiety Solutions.
Dr Samuell noted his previous diagnosis and prognosis. He also referred to the various reports provided by other practitioners. It is not my intention to refer in detail to those reports.
Dr Samuell concluded that it appeared Mr Dickson had been very thoroughly medically investigated, without significant clinical findings. Dr Montanari had diagnosed Somatic Symptom Disorder, with differential diagnoses of Major Depression and CFS. He was not confident in declaring employment to be the main contributing factor to Somatic Symptom Disorder. Dr Samuell considered it noteworthy that Somatic Symptom Disorders are not considered to be trauma related.
Dr Samuell concluded that the applicant has had an unusual presentation and psychologists and psychiatrists have expressed uncertainty about his diagnosis. It also “appears” as though the difficulties first began during the course of his employment. As the applicant’s difficulties evolved, practitioners appeared to gravitate towards a Somatoform Disorder diagnosis, such as that previously diagnosed by Dr Samuell. It is not unusual for there to be uncertainty about a diagnosis over many years, particularly with Somatoform Disorders.

Dr Samuell concluded that the new documents gave a fulsome picture that the applicant’s first mental health difficulties occurred within the context of work. He opined that the nature of the ongoing symptoms and diagnostic clarification point to a condition, the Somatic Symptom Disorder, that is not work related, despite it appearing there in the first instance. It appeared likely there was a personality component to Mr Dickson’s presentation that had been inadequately investigated.
Dr Samuell opined that Dr Montanari had provided substantial evidence that there was a Somatic Symptom Disorder that was an internal, non-trauma related condition that, by definition, cannot be caused by the applicant’s employment. These conditions are typically the product of internal, rather than external, conflicts. Employment was not the main contributor [sic] factor.
In response to a question as to whether the applicant continued to suffer from the effects of the work related injury, Dr Samuell opined that the evidence that his current difficulties were the product of a work related stressor was weak. “Quite separate from his workplace”, he continued to have somatic difficulties that were medically unexplainable. There was no logical connection with his work related injury.

Dr Samuell was unable to reliably comment on the applicant’s work capacity. If it was determined that he had no capacity, then he opined that the lack of capacity cannot be reasonably connected to the workplace injury. The applicant has a Somatic Symptom Disorder that explained his absence from work between 2016 and the time of his last assessment. In Dr Samuell’s opinion, it was not plausibly connected to the workplace injury.

Dr Samuell was asked to opine on Dr Montanari’s conclusion at paragraph 103 above. He responded that it “does not make sense”. If pressed, it is likely that Dr Montanari would accept that the applicant’s mental health difficulties arose during the course of his employment, and many years subsequent to the reported difficulties, he continued to have significant mental health problems that were not reasonably related to his employment.
Dr Samuell believed Dr Montanari would appreciate that individuals attempt to make sense of their symptoms within the context of current stressors. A naïve interpretation of
Mr Dickson’s difficulties would be to make a simple linear relationship between his employment at Zurich and the development of his symptoms. “The passage of time has shown us that it has had nothing to do with his employment”.

SUBMISSIONS

The parties’ submissions have been recorded and a transcript is available. I will therefore only briefly summarise the submissions.

Applicant

The applicant submitted that the respondent was clearly on notice that he made a claim pursuant to section 38 of the 1987 Act. The section 78 notice formally denies liability under sections 33, 59 and 60 of the Act. Injury as such is not in issue. The section 78 notice, by denying incapacity, is in essence a work capacity decision (WCD), which gives the Commission jurisdiction to hear this section 38 claim.
The applicant submitted that the decision of Arbitrator Harris, as he then was, in Oliver Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) supports the position that the Commission has jurisdiction.

The applicant submitted that Dr Samuell opined in his first report that he did not expect he would work again in any capacity. That satisfies the provision in section 38(2) of the 1987 Act.

On the issue of causation, the applicant referred to the decision of Senior Arbitrator Douglas, and his review of the medical evidence. He submitted that Senior Arbitrator Douglas preferred the opinion of Prof Glozier to Dr McClure, but his determination also assists in relation to the evidence of the treating practitioners.

The applicant submitted that somatic features were acknowledged and recorded by
Prof Glozier. They feature in the treating records, which was acknowledged by him. He submitted that Prof Glozier’s diagnosis matched the one unanimously made by the doctors in these proceedings.
The applicant then referred to Dr Montanari’s reports. Dr Montanari says the applicant has been totally incapacitated for work from 2016 to 2019. He only came onto the scene in August 2016, so there is nothing mysterious or suspicious, or a concession that there has been no incapacity between the last award and August 2016. The applicant chooses to commence his claim from that date forensically because Dr Montanari can provide evidence of total incapacity. He is the one who knows the applicant’s condition best.

While the respondent wishes to use Dr Montanari’s report against the applicant, he submitted that the report is from the point of view of a caring, learned, considered and balanced health professional, who is “not here to be a hired gun”, but to provide an honest opinion of what he and the applicant have been grappling with for many years.
The applicant submitted that his condition manifests itself in physical symptoms and various conditions have been investigated and eliminated. The diagnosis is a Somatic Symptom Disorder that is persistent and severe. The persistence draws a clear line of connection between the employment injury and now. There is a differential diagnosis of MDD, and there is the CFS, but Dr Montanari seems to discount that.

The applicant submitted that the section 78 notice does not raise injury, which makes sense “because they’ve already lost on injury”. Even if it did raise injury, and it does raise causation of the incapacity, the test would be whether employment was a substantial contributing factor, as we are dealing with an injury in 2004. Any application of section 4(b)(ii) “main contributing factor” is misconceived.

The applicant submitted that, viewed through the lens of section 9A of the 1987 Act, and the findings of the prior award, what Dr Montanari says is that employment is a substantial contributing factor and remains so.

The applicant submitted that I would accept his evidence, because up to and including the time of the award, and varying degrees of capacity to work, there has not been any break in the chain of causation of his incapacity from 2004 to the award in 2015 and the appeal in 2016.

The applicant submitted that there has been no change since the end of 2012. He referred to Dr Samuell’s first report, which is in stark contrast with his second. His diagnosis was the same as Prof Glozier, given the change in DSM, and the same as Dr Montanari and
Dr Gertler. He “flips” in his second report.

The applicant submitted that he cannot follow Dr Samuell’s second report, which is totally inconsistent with his first. When he was asked what was the substantial cause (of the condition) he said it was Zurich, and in the next report, when he was asked about main contributing factor, he changed his opinion. The applicant submitted that is the primary difference between the reports. He was asked the wrong question.

The applicant then referred to Dr Gertler’s evidence. He was another doctor who did not just simply jump on one side or the other and his is a considered opinion. He submitted the conclusion was consistent with what Prof Glozier found. Dr Gertler opined he was not fit for any type of external employment.
The applicant submitted that the finding in the original proceedings is not challenged. What is challenged is what is existing now and causing the diagnosis. Dr Gertler accepted there was still a continuous line of symptoms and complaints and incapacity that flows back to the applicant’s employment with Zurich.

Referring to Dr Samuell’s second report, the applicant submitted that “so-called new documents” that were provided may have been new to him, but they were not new to
Prof Glozier and Dr Gertler had some of the material, at least from Dr Wai-Shing and
Dr Montanari. It is not ground-breaking material, and it doesn’t upset the assumptions and conclusions Dr Samuell made in his first report. That is, consistent complaint of symptoms, treatment from various doctors and inability to work. They’re the three things he accepted, and he therefore supported the applicant. There is nothing in his report that changes those assumptions.

The applicant submitted that Dr Samuell doesn’t address why it is that when Prof Glozier’s opinion is translated to the new DSM-4, the same diagnosis was work-related then, but can’t be work-related now. On the applicant’s reading of his report, he is now saying that a Somatic Symptom Disorder, no matter how it arises, can never be related to work, can never be related to trauma and can only be caused by internal factors. That is fundamentally inconsistent with his first report. It is also inconsistent with the prior award.

The applicant submitted that Dr Samuell doesn’t explain his change of opinion because he applied the wrong test and he can’t explain it.

The applicant submitted I would accept his evidence that his condition still relates to the original injury, that he has become worse, and that worsening was treated by Dr Montanari from August 2016.

Respondent

The respondent submitted that Roberts may be distinguished, as the claim was made in respect of section 38(3)(b) of the 1987 Act. This matter clearly comes within section 38(2) of the Act.

The respondent referred to the dispute notice dated 18 February 2020, in which it disputed that the applicant was entitled to weekly payments and medical expenses because he did not have total or partial incapacity for work resulting from an injury, as required by section 33 of the 1987 Act. It submitted that “injury” must relate to the original injury pleaded, deemed to have occurred on 19 April 2004. It further submitted that the fact that the notice stated the medical evidence regarding the applicant’s diagnosis was not conclusive and that causation was multifactorial, so the matter was in dispute, deprives the Commission of jurisdiction to deal with the claim pursuant to section 38 of the 1987 Act.

The respondent submitted that the applicant’s claim must have a total duration of 130 weeks, pursuant to section 37 of the 1987 Act. As the applicant has been paid some 12 to 13 weeks, that would be the limit of my jurisdiction.

The respondent submitted that there is a live issue about whether “main contributing factor”, as opposed to “substantial contributing factor”, arises. Because the applicant went back to work, this ought to come into the purview of a deterioration of a condition, if he is successful. The respondent submitted that main contributing factor ought to be the predominant test for him to satisfy.

The respondent submitted that there is a new diagnosis of a Somatoform Disorder, which is an endogenous condition. It referred to the applicant’s “florid description of physiological symptoms”, rather than the condition of Generalised Anxiety Disorder found by Prof Glozier.

The respondent submitted that the diagnosis of the AMS was Generalised Anxiety Disorder, and at that point it was not a Somatoform Disorder. The applicant was not totally incapacitated for employment at that time. The respondent submitted that the important point is that Prof Glozier found that the Somatoform Disorder was subordinate and not rateable in respect of the PIRS calculation. The respondent submitted that the overriding and abiding condition from which the applicant suffers and from which he is incapacitated is the Somatoform Disorder.

The respondent referred to Dr Montanari’s report dated 28 May 2019. It submitted that he had great difficulty in attributing the applicant’s incapacity to any direct reference to his employment with Zurich. It submitted that it is important that Dr Montanari made a distinction between substantial and main contributing factor.

The respondent then referred to Dr Gertler’s evidence, submitting that he agreed there is no direct correlation between what the applicant was suffering in the past and the alleged incapacity he now suffers. It submitted it relates to something completely different. It further submitted that Dr Gertler has not explained how, if the applicant has a current chronic injury, it is linked to his work for Zurich.
The respondent submitted that Dr Samuell was not initially given Dr Montanari’s clinical notes, and referred to his second report. It also referred to Dr Lyndon’s evidence and submitted that he identified more physiological than psychological symptoms.

The respondent submitted that the applicant had not satisfied the onus that his incapacity for work is due entirely to the injury deemed to have occurred on 19 April 2004. It submitted that there should be an award in its favour with respect to the claim for weekly compensation.

SUMMARY

I firstly note that the respondent did not assert in its dispute notice or in its Reply that the Commission was deprived of jurisdiction to make an award in favour of the applicant pursuant to section 38 of the 1987 Act.
However, the applicant did not object to the question of jurisdiction being raised at the conciliation/arbitration hearing and has made submissions on the issue. The Commission must determine cases according to the terms of the applicable legislation (Department of Environment, Climate Change & Water v J [2010] NSWWCCPD 56, in which Deputy President Roche referred to Electricity Commission of New South Wales v Yates (1993) 30 NSWLR 351). To the extent that it is necessary, I grant leave to the respondent pursuant to section 289A(4) of the 1998 Act to rely on the issue of jurisdiction.
The respondent also did not assert in its dispute notice or its Reply that the applicant was required to establish that employment was the main contributing factor to the injury. Its dispute notice did not raise the issue of “injury”, which has in any event been determined by Senior Arbitrator Douglas.
The applicant made this point in his submissions, but he dealt with the application of section 4(b)(ii) of the 1987 Act and did not specifically object to the issue being raised. To the extent that it is necessary, I grant leave to the respondent pursuant to section 289A(4) of the 1998 Act to raise the issue of “main contributing factor”.

Jurisdiction

Section 38 of the 1987 Act provides:
“(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if--
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
…”
Both parties relied on the decision in Roberts, which the respondent submitted may be distinguished.
Arbitrator Harris held in Roberts that the Commission has the power to order weekly compensation pursuant to section 38 of the 1987 Act; and in that case the applicant had satisfied the necessary conditions of section 38(3) of the Act.
Arbitrator Harris referred to the decision of the Court of Appeal in Sabanayagam v St George Bank Ltd [2016] NSWCA 145 (Sabanayagam).
The Court of Appeal in Sabanayagam held that the insurer had not made a WCD and remitted the matter to the Workers Compensation Commission for determination of the worker’s claim for weekly compensation (pursuant to section 38 of the 1987 Act).
Sackville AJA (Beazley P, as she then was, agreeing) held:
(a) Pursuant to section 105(1) of the 1998 Act, the Commission has jurisdiction over matters that arise under either the 1987 Act or the 1998 Act. A matter arises under a law of the Parliament “if the right or duty in question owes its existence to the law or depends on the law for its enforcement”, at [125];
(b) The worker was entitled to weekly compensation after the second entitlement period “if she satisfied the requirements of s 38(2) or s 38(3)”of the 1987 Act at [127]; and
(c) “It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the insurer had misconstrued the legislation, thereby causing it to make an erroneous decision”, at [128].
As Arbitrator Harris noted, there is therefore binding Court of Appeal authority that the Commission does have jurisdiction to determine whether the applicant is entitled to weekly payments pursuant to section 38 of the 1987 Act.
Arbitrator Harris provided further reasons in Roberts for his rejection of the respondent’s submission that the Commission has no jurisdiction to award weekly payments during the section 38 period. He referred to the principles of statutory construction stated in Military Rehabilitation Commission v May [2016] HCA 19 at [10], where the plurality held that the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] – [71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.
The 1987 Act and the 1998 Act were amended by Workers Compensation Legislation Amendment Act 2018 (the 2018 Act). The jurisdiction of the Commission was enlarged by the repeal of sections 43(1) and 43(3) of the 1987 Act, to which Sackville AJA referred in Sabanayagam; by the repeal of the note to section 105 of the 1998 Act that restricted the Commission’s jurisdiction to determine a dispute about a WCD; by the repeal of various sections relating to review of WCDs (the former sections 44BA to 44BF of the 1987 Act); and by the insertion of section 289B of the 1998 Act, which provides that a “referral of a dispute for determination by the Commission” of a WCD operates to stay the decision.
As Arbitrator Harris held, and with which I respectfully agree, contextually, the amendments made by the 2018 Act only served to reinforce the broad jurisdiction of the Commission. Section 289B clearly contemplates that the Commission will determine a dispute about a WCD. There appears to be no logical reason for the Commission to have jurisdiction in the first and second entitlement periods, pursuant to sections 36 and 37 of the 1987 Act, but not in the third entitlement period, pursuant to section 38 of the Act.

Despite the reference in section 38 to matters arising under that section being decided by the insurer, I agree with Arbitrator Harris that the broad jurisdiction under section 105 for the Commission to hear and determine all matters arising under the 1987 and 1998 Acts includes jurisdiction to determine disputes regarding workers’ entitlements pursuant to section 38 of the 1987 Act.

In Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [45] the plurality of the High Court, citing Legal Services Board v Gillespie-Jones [2013] HCA 35 at [48] held that “a construction that ‘appears irrational and unjust’ is to be avoided where the statutory text does not require that construction”. As Arbitrator Harris observed in Roberts, it would be an absurd construction that, following the 2018 amendments, workers would have no right to contest an insurer’s decision concerning their entitlements to weekly compensation pursuant to section 38 of the 1987 Act.

The Commission’s jurisdiction to award weekly compensation after the third entitlement period was confirmed by the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113. It would indeed appear “irrational and unjust” that the Commission would have jurisdiction to award weekly compensation after the expiry of five years, but not to award it during the section 38 period.
I respectfully agree with the decision of Arbitrator Harris in Roberts. I reject the respondent’s submission that the decision may be distinguished because it related to a claim pursuant to section 38(3)(b) of the 1987 Act. Arbitrator Harris held that the Commission could make a preliminary finding that it is satisfied that a worker falls within either section 38(2) or section 38(3) of the Act, and, if the latter, that he or she satisfies the conditions of section 38(3)(a), (b) and (c). The factual position in Roberts was that the applicant fell within the provisions of section 38(3) of the 1987 Act. Sackville AJA referred to both sections 38(2) and 38(3) in Sabanayagam.
There is nothing in Roberts that would justify distinguishing it from this matter; and nothing in the decisions referred to by Arbitrator Harris that would do so. If the Commission has jurisdiction to award weekly compensation pursuant to section 38(3) of the 1987 Act, as determined by Arbitrator Harris, then it has jurisdiction to award it pursuant to section 38(2) of the Act. I determine that the Commission has jurisdiction to make an award of weekly compensation pursuant to section 38 of the 1987 Act.

Claim for weekly benefits and medical expenses

The respondent submitted that the applicant has been diagnosed with a new condition of Somatoform Disorder, which is an endogenous condition. That, it submitted, is the overriding and abiding condition from which he suffers, and which is incapacitating him for work.

I do not agree that Somatoform Disorder is a “new condition”. As far back as 2015,
Prof Glozier recorded a history that the applicant had developed somatic features in 2003, in the context of perceived work stressors. He met the criteria at that stage for a Somatoform Disorder. Prof Glozier opined that the applicant’s disorder had remained since 2003/2004.
Prof Brown recorded in August 2017 that the applicant had had predominantly physical symptoms since 2003. He was unable to conclusively diagnose any physical condition.
Dr Samuell also diagnosed Somatic Symptom Disorder (the DSM classification having changed), and initially opined that what was relevant was that the applicant had had continuous symptoms since his employment with Zurich. I will return to Dr Samuell’s evidence below.
It is clear from a review of the determination of Senior Arbitrator Douglas that the applicant was experiencing physical symptoms at an early stage after the injury. Senior Arbitrator Douglas has recorded his evidence that he had anxiety attacks, sleeping difficulties, dizziness, tremor and brief blackouts. Dr McClure, who was qualified by the respondent, recorded that he had feelings of internal shaking with no external tremor, sweatiness and abdominal discomfort, feeling dizzy and blurry and feeling tension. Prof Glozier recorded similar symptoms, but in greater detail.
It is not unusual, especially in the case of psychological conditions, for diagnoses to alter over time, or for differential diagnoses to be made. Indeed, Prof Glozier diagnosed Generalised Anxiety Disorder, while opining that the applicant also met the criteria for a subordinate Somatoform Disorder. Dr Montanari was not entirely comfortable with a diagnosis of MDD, but he thought the applicant’s GP had good reasons for treating the condition as such. He noted that the diagnosis was not straightforward.
In my view, Dr Montanari has attempted to provide a fair and balanced opinion as to causation and the applicant’s condition. He has noted the prominence of somatic complaints and considered physical conditions such as CFS. He fairly conceded that it is generally accepted that the causes of depression are multifactorial. In the applicant’s case, salient factors included work-related stress. It has, of course, already been determined by Senior Arbitrator Douglas that the applicant has sustained psychological injury arising out of or in the course of his employment with the respondent.
Dr Montanari conceded that his profession can only speculate as to whether the applicant’s symptoms and disability are direct ramifications of the injury, or whether they are likely to have occurred regardless. However, he concluded that the work-related injury, as described by the applicant (whose evidence was accepted by Senior Arbitrator Douglas, and which
I also accept) appeared to have precipitated a psychological illness. This was especially the case, given his premorbid personality vulnerabilities.

Dr Samuell diagnosed a Somatic Symptom Disorder and referred to the continuous nature of the applicant’s symptoms. He believed there was sufficient evidence that the applicant’s symptoms had been continuous since his employment with Zurich. He opined that the initial difficulties at Zurich remained the substantial cause of the applicant’s current problems.
I agree with both conclusions.
Dr Samuell altered his opinion in his second report. The respondent submitted that this was on the basis of additional material provided to him. The applicant submitted that his conclusions are fundamentally inconsistent with his first report and with the prior award.
I would add that it is also inconsistent with the MAC.
Having first opined that the applicant’s Somatic Symptom Disorder was related to his employment with Zurich, Dr Samuell opined in his second report that Somatic Symptom Disorders are not considered to be trauma related. He reported that “the passage of time has shown us that [the applicant’s symptoms] has had nothing to do with his employment”.

In my view, the provision of additional documents to Dr Samuell does not adequately explain his change of opinion. He initially accepted that a Somatic Symptom Disorder may be related to external events, and then opined that the condition is not considered to be related to trauma. The conclusions cannot stand together. Dr Samuell has not explained his conclusion that the nature of the applicant’s ongoing symptoms and “diagnostic clarification” point to a condition that is not work related
All the practitioners who have examined the applicant were aware that he was vulnerable to psychological injury. Prof Glozier referred to his “eggshell skull”. Dr Montanari noted his family history, as did Prof Brown. Dr Gertler recorded his vulnerability, which he opined was under control until the episode at Zurich. Dr Samuell had access to the MAC when he provided his first report. I do not accept the conclusions he reached in his second report.
I do not accept the respondent’s submission that Dr Montanari had difficulty attributing the applicant’s incapacity to his employment with the respondent. He concluded that the work-related injury appeared to have precipitated a psychological illness, and he was convinced that the work experiences were a substantial contributing factor to the applicant’s existing illness. The illness was chronically disabling.
I also do not accept the respondent’s submission that the applicant is required to establish that employment was the main contributing factor to the injury. The applicant described the application of section 4(b)(ii) as misconceived. That is the case.
Section 4 of the 1987 Act was amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Act), to provide that the definition of injury includes “disease” injuries, but only if the employment was the main contributing factor to the worker contracting the disease (section 4(b)(i)); or to the aggravation, acceleration, exacerbation or deterioration of the disease (section 4(b)(ii)).
The amendments to section 4 of the 1987 Act by the 2012 Act apply only to injuries received on or after 19 June 2012. The applicant’s injury has been determined to have occurred on 19 April 2004. Senior Arbitrator Douglas made a specific finding that section 16 of the 1987 Act (which provides for the fixing of a date for a “disease” injury) had no application to the circumstances of his case.

The fact that the applicant has had employment since the date of the injury, and his condition appears to have steadily deteriorated, does not alter the date of the injury, or engage section 4(b)(ii) of the 1987 Act. The applicant has not worked since about 2013, and his employment after leaving the respondent was considered by Senior Arbitrator Douglas in making his determination.

I have determined that the applicant does not have a “new condition”, and there is no evidence whatsoever that he has sustained an aggravation, acceleration, exacerbation or deterioration of a disease. Senior Arbitrator Douglas’s determination is to the contrary. There was and is no requirement that the applicant establish that employment with the respondent was the main contributing factor to his injury.
It follows that Dr Montanari’s lack of confidence in accepting that employment was the main contributing factor to the applicant’s injury has no relevance to the determination I am required to make. Nor, in fact, is his opinion as to substantial contributing factor (which is supportive of the applicant), because the applicant has already established that he has an injury to which his employment was a substantial contributing factor.
The effects of the injury on 19 April 2004 are continuing and the applicant’s current condition is directly attributable to the injury.
I will now consider the issue of the applicant’s incapacity for work. The respondent did not submit that Mr Dickson has at any relevant time had any capacity for work. It in fact submitted that the matter comes within section 38(2) of the 1987 Act.

Dr Montanari, who has been treating the applicant since 2016, opined that he has not been capable of performing any suitable work since that time. It is clear, as Dr Montanari reported, that Mr Dickson’s condition has failed to respond to treatment. Dr Montanari described his illness as chronically disabling.
Dr Gertler’s report is now somewhat historical, being dated 23 September 2019. However, at that stage, he opined that the applicant was not fit for any type of external employment and was only capable of minimal work within his home. He did not have the capacity to return to employment in the foreseeable future. There is no evidence to suggest that the applicant’s condition has improved at all since Dr Gertler’s examination.
Dr Samuell, while he changed his opinion regarding causation of the applicant’s condition, at first expressed the view that he did not expect Mr Dickson to work again in any capacity. In his second report, he said he was unable to reliably comment on work capacity (assumed to be because he did not have the opportunity to re-examine the applicant). However, he had examined the applicant 17 months before, and, as I have said, there is no evidence to suggest any improvement in his condition.
I am satisfied, on the basis of the applicant’s evidence, which I accept, and the medical evidence, that the applicant has had no current work capacity since 1 August 2016.
The PIAWE is agreed at $820 per week. The respondent submitted that the applicant’s claim was limited to 130 weeks, pursuant to section 37 of the 1987 Act, and he has been paid for 12 or 13 weeks. Neither party has placed a list of payments in evidence. The claim has been made pursuant to section 38 of the 1987 Act, and I propose to make an award under that section. The parties may have liberty to apply with respect to the award of weekly benefits.
Pursuant to section 38(6) of the 1987 Act, the weekly payment of compensation to which an injured worker who has no current work capacity is entitled after the second entitlement period is at the rate of 80% of the PIAWE. That is $656 per week (80% x $820).
There will accordingly be an award for the applicant from 1 August 2016 to 26 April 2021 at the rate of $656 per week, pursuant to section 38 of the 1987 Act.

The applicant is entitled to an award for payment of his medical expenses, pursuant to section 60 of the 1987 Act.
The parties have liberty to apply with respect to the award of weekly compensation.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 22

18 January 2022