Dredge v Marco Polo Aged Care Services Ltd - [2021] NSWPIC 10

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dredge v Marco Polo Aged Care Services Ltd [2021] NSWPIC 10
APPLICANT:	Carron Marie Dredge
RESPONDENT:	Marco Polo Aged Care Services Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	8 March 2021
CATCHWORDS:	WORKERS COMPENSATION- claim for weekly benefits and medical expenses as a result of psychological injury; it was conceded that the applicant has no work capacity; section 289A(4) of the 1998 Act; respondent sought leave to rely on novus actus interveniens, including a straight litigation neurosis; Karathanos v Industrial Welding Co Ltd considered; Held- leave granted to the respondent to rely on novus actus interveniens; in light of Kooragang Cement Pty Ltd v Bates, it is doubtful that Karathanos is still good law; the applicant’s incapacity for work was not the result of novus actus interveniens; Kooragang considered; the effects of the injury continued and the chain of causation was not cut; award for the applicant of weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	1. That there is an award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $842.63 per week from 6 January 2020 to date and continuing. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Carron Marie Dredge (Ms Dredge), was employed by the respondent, Marco Polo Aged Care Services Ltd (Marco Polo) as Care Staff (Assistant in Nursing - AIN).
Ms Dredge sustained a psychological injury, the deemed date of which is accepted to be 20 June 2019, arising out of or in the course of her employment.
The applicant claims weekly benefits compensation from 6 January 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act); and medical expenses pursuant to section 60 of the 1987 Act of $2,463.69.
The respondent’s insurer, iCare Workers Insurance (iCare), issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) on 12 December 2019. It disputed liability for ongoing payment of weekly benefits for the injury on 20 June 2019. The reason for the decision was that the applicant did not have a total or partial incapacity for work resulting from an injury. iCare therefore disputed liability for the payment of weekly benefits and medical expenses.
The dispute notice stated that iCare had previously accepted liability for psychological injury sustained on 20 June 2019 but had received medical evidence that the applicant’s condition had resolved; and she was fit to return to work as an AIN.
On 3 January 2020, the applicant requested a review of the decision to dispute liability.

The decision was maintained by notice issued on 16 January 2020. The notice referred to the applicant having presented to her treating psychologist on 18 December 2019 as teary and emotional in the context of her claim being denied.
The notice stated that iCare considered the evidence supported that the applicant’s incapacity for work did not result from a work injury; and the treatment she required was not reasonably necessary as a result of a work injury. It therefore maintained that she was not entitled to weekly compensation or medical expenses.
On 10 June 2020, the applicant’s solicitors requested a review of the decision to dispute liability.
The decision to dispute liability was maintained by notice dated 2 July 2020. iCare advised that it had requested supplementary reports from the applicant’s independent medical examiner and its own independent medical examiner.
The applicant lodged an Application to Resolve a Dispute on 5 November 2020.
The respondent lodged its Reply on 26 November 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the applicant’s conceded incapacity for work is related to a novus actus interveniens.

Matters previously notified as disputed

The respondent disputed that the applicant had an incapacity for work after 5 January 2020 as a result of injury on 20 June 2019; and that she was entitled to ongoing weekly payments of compensation and medical expenses.

Matters not previously notified

The respondent sought leave at the arbitration hearing to maintain that the applicant’s incapacity for work is related to a novus actus interveniens. The applicant opposed the granting of leave.
Leave was granted to the respondent to raise the issue of novus actus interveniens, for reasons that were given during the arbitration hearing and have been recorded.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 8 February 2021. Mr Andrew Parker of counsel, instructed by Ms Amy Scanu, appeared for the applicant, who was present, along with her aunt and uncle as support persons. Mr Lachlan Robison of counsel, instructed by Mr Mark Van der Hout, appeared for the respondent. Ms Lara Joseph attended as iCare’s representative.
The respondent conceded that the applicant is totally incapacitated for work; and the only issue is whether the incapacity is related to a novus actus interveniens.

The parties agreed that the applicant’s pre-injury average weekly earnings were $1,053.29.

The applicant sought a general order for medical expenses pursuant to section 60 of the 1987 Act.
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 taken into account in making this determination:

(a) Application to Resolve a Dispute 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, Carron Marie Dredge

Ms Dredge has made a statement dated 29 July 2019. As injury is not in dispute and the respondent does not rely on any defence pursuant to section 11A of the 1987 Act it is unnecessary to refer to all her evidence.
The applicant stated that she had worked for the respondent for about 18 months. She had previous experience as an AIN for about 11 years.
At about the end of 2017 or the beginning of 2018, an elderly resident of Marco Polo passed away. The applicant was with him and had to wait about 20 minutes for assistance, while holding him in her arms. She screamed for assistance and was crying. She stated that it should not have taken about 30 minutes to return him to bed; and she did not feel good about it.
The applicant sustained a needle stick injury on 14 May 2018. She had to wait for the results of blood tests to ascertain whether she had contracted any disease. She felt stressed and upset that “management” didn’t ask if she was OK. At the time, there were no instructions regarding needle stick injuries, but when a registered nurse received a needle stick injury about four weeks later, instruction sheets were placed in the nurses’ stations.
Another resident passed away on 7 February 2019, after a fall. The applicant found him and believed that he had been deceased for some time. As a result of this incident, she had nightmares. She consulted her doctor and was given some time off. She was issued with a standard medical certificate. Her condition continued and the incidents continued on her mind.
The applicant stated that she also experienced bullying from Paul, the Team Leader. She had made several complaints about this. Another employee, Kathryn Elliott, sent an email to management on 19 December 2018, complaining about neglect of residents, lack of stock and bullying, but they received no feedback.
The applicant attended a meeting with Manager Vincent on 4 March 2019 to discuss Kathryn’s email and the death of the resident on 7 February 2019. Vincent was yelling “how dare you throw every problem…at me on a Monday morning at 9 o’clock?”
The applicant was a total mess from the verbal attack. She had leave approved from 16 March 2019 and due to her condition, she asked for earlier leave, which Vincent approved.
The applicant returned to work on about 2 April 2019. An employee named Robbie was bullying residents. This made her physically sick; and she was sent home a number of times.
A family lodged a formal complaint against Robbie and the applicant was required to give a statement. While he was under investigation, he lodged unsubstantiated complaints about her and others about “petty things”.
The applicant was advised by email on 17 June 2019 that she was required to respond to Robbie’s allegations. She was extremely distraught and upset and advised HR that she intended to resign. She was instructed to go downstairs and provide two weeks’ notice if that was how she felt. There was no attempt to provide her with support.
On 30 June 2019, the applicant requested that she not work with Marie, who had asked her about Robbie and the meeting, as she did not feel like talking about it. Marie found out about this and screamed at her. She also made other comments.
The applicant last worked on 16 July 2019. She did not feel well during her shift, experiencing chest pains, and was allowed to leave early.
On 28 July 2020, the applicant stated that she had not returned to work. She submitted a workers’ compensation claim on 6 August 2019 and it was accepted.
The insurance company sent the applicant to Dr Whetton, whom she found to be very rude. He basically told her to get over it and resign if she wasn’t happy.
In December 2019 the applicant was told by her case manager to arrange an appointment with her doctor, as they had some things to discuss with her. The applicant made an appointment with her GP and the rehabilitation provider was also there. The latter called the case manager who said they were going to cut off the applicant’s payments and she wasn’t entitled to any more compensation.
The applicant was hysterical. The case manager said she had to go back to work at Marco Polo and gave her a date to return to work. She said the applicant would have to do an assessment to see what duties she was fit to do.
On 18 December 2019, the applicant saw her psychologist, Nicole Rowe, and had a “breakdown”. A day or so before she had tried to overdose on medication and made herself very sick.
Towards the end of December (2019) the applicant’s aunt took her to Wollongong Hospital as she was very concerned about her. Her medication was changed, and she was told she should stay with family.
On 3 January 2020 the applicant requested a review by the insurance company. She received a call from her case manager, who said they had reviewed the decision, but she had to arrange an appointment with her doctor and rehabilitation provider before she was given any more information.
The applicant asked the case manager to just tell her on the phone, but she refused because she was worried about the applicant’s mental health and what she would do. The applicant said it was probably denied again; and the case manager confirmed that it was.
The applicant had to stop seeing her psychologist when her payments were cut off, as she could not afford it. She felt the psychologist was very helpful and the only person who cared and understood. She “went really downhill” when she had to stop seeing her.
The applicant has given evidence about her state of health and activities. She sees her GP about once per fortnight and takes medication. She had been put on a mental health plan and was able to see her psychologist again. The psychologist had left; and she had an appointment with a new one. She sometimes spoke to Illawarra Community Mental Health Service by phone.
The applicant stated that the situation and the way she was treated by Marco Polo made her very upset; and is “so unfair”. “They say to us that we have to be the eyes and voice for the residents but when we speak up, we are punished”. She used to love her job and the residents all liked her. She did not think she could go back to Marco Polo or even to aged care, which made her upset.

Factual Investigation – A.B. Investigations

A.B. Investigations provided a report dated 24 September 2019.
As the respondent does not rely on section 11A of the 1987 Act; and concedes that the applicant has had no capacity for work since 6 January 2020, it is unnecessary to refer to the evidence obtained by the investigator.

Medical Evidence

Family Medical Practice Bellambi

The clinical records of the practice date back to 1985. Many are hand-written and illegible. There are many references to headaches.
There is a history of psychological symptoms as far back as October 2002. There is also a history of alcohol abuse, with the applicant “going through detox” in May 2004.
On 2 January 2008, there is a record that “partner died” and what appears to be “valium”.
On 24 December 2011, there is a record that the applicant had a “new boyfriend” and was “stressed about past”. “Valium” is recorded.
On 24 May 2013, there is a record of “poor sleep/anxiety”.
On 22 June 2019, there is a record that appears to read “went back to work. Very stressed/anxious. Diarrhoea + vomiting. Poor sleep pattern.”
On 17 July 2019, there is a record of increased stress levels due to “bullying” (?) at work and problems with management.
The notes continue to record depression, low mood and poor sleep. On 1 August 2019, there is a record of the various incidents referred to by the applicant in her statement. She was “depressed” and “crying”.
On 17 August 2019, the applicant had “continuing symptoms of PTSD”. She was “unable to speak about the workplace without crying”.
On 23 October 2019, there is a record of “[illegible] to return to work but never at MP” (assumed to mean Marco Polo). The applicant was very tearful. The notes appear to read: “She will never get a job anywhere else”.
On 12 December 2019, there is a record that the applicant had a conference with Donna from SIS Rehab. – “Not going well. Tearful…very stressed/depressed…”; and what appears to be “lots of emails from M Polo”.
On the same date, Dr Emilija Sokolovska issued a SIRA Certificate of Capacity that certified the applicant with capacity to work for eight hours per day, five days per week, from 12 December 2019 to 13 January 2020; and “not to work at Marco Polo”.

On 21 December 2019, the notes record “letter from WorkCover”. The rest of the entry is illegible, apart from “poor sleep” and “suicidal thoughts”.
On 3 January 2020, the entry reads “very depressed”. There is also reference to “crying” and “suicidal feelings/impulses”. The applicant was certified as having no work capacity from 3 January 2020 to 13 January 2020.
Given the concession by the respondent that the applicant has had no capacity for work since 6 January 2020, it is not necessary to refer to the remainder of the clinical notes.

Vocational Assessment Report – SIS

SIS reported on 2 December 2019.
The report noted that Dr Sokolovska had certified the applicant with capacity to work for eight hours per day, five days per week, with the restriction that she was not to return to her pre-injury employer.
Dr Sokolovska had confirmed on 22 November 2019 that the prognosis for the applicant returning to employment with her pre-injury employer or within aged care services was poor. She approved the vocational goals of home care worker; disability support officer; and customer service assistant (inquiry clerk).

Dr Peter Whetton - Psychiatrist

Dr Whetton was qualified by the respondent and reported on 17 September 2019, having examined the applicant on 5 September 2019.

Dr Whetton recorded that there were “two sides to the story”. The applicant said she last worked on 20 June 2019. When she ceased work, she had become anxious on approaching the workplace and had heart palpitations. She described sleep and appetite disturbance, being tearful and not wanting to go out.
In the weeks after ceasing work, the applicant said she felt let down by Marco Polo and stayed at home. Her emotional state hadn’t settled down. When she talked about work, she felt upset. Her sleeping had not improved, but she was going out and doing her shopping.
Dr Whetton recorded the applicant’s problem at Marco Polo was “they don’t treat residents well”. She complained of neglect of patients; and staff not being treated well. She had approached management, but issues were not acted upon.
The applicant provided a history of the deaths of two residents and the needle stick injury, as well as being “screamed at” by Vincent and the investigation regarding Robbie. She was involved in a disciplinary meeting and as a result was distressed.
Dr Whetton opined that the applicant had developed a state of emotional upset and anxiety symptoms. At the time of his examination she still had emotional upset, but her symptoms were not at such a level as to warrant a psychiatric diagnosis. From her history, she may have warranted a diagnosis of Adjustment Disorder with Anxiety when she ceased work. This had since resolved; and on 5 September 2019 her state was more in keeping with a normal reaction to a stressful situation.
The applicant’s presentation was straightforward and cooperative; and Dr Whetton found no indication of exaggeration of her symptoms. She was fit to return to work as an AIN but would not return to Marco Polo. He did not provide support for a defence to the claim pursuant to section 11A of the 1987 Act.

The Wollongong Hospital/Illawarra Community Mental Health Service

The applicant presented to the Hospital on 29 December 2019 with “acute psychological stressors in relation to work issues”. She was reviewed by the mental health team and deemed suitable for discharge home.
The Community Mental Health Service followed up with the applicant’s mother, “Joy”, on 31 December 2019, when Ms Dredge’s mother advised that she was “struggling with terms of having to go back to work on the 7/1/20. Joy advised that she believes Carron will never be able to return to her place of employment”.

Ms Nicole Rowe – Consultant Psychologist

Ms Rowe reported on 5 November 2019.
The applicant had symptoms of anxiety and depression. She referred to “extreme work related stress”, of which she gave several examples. Ms Rowe described the applicant’s symptoms as Mixed Depression and Anxiety.
Ms Rowe’s case notes record that the applicant was observably anxious, as she was somewhat fidgety and shaking throughout the consultation. She was extremely emotional and somewhat incoherent at times. It was quite distressing for her to discuss the events in the workplace. She felt unable to return as a result of the elder abuse she had witnessed.

Ms Rowe’s case notes dated 20 November 2019 describe the applicant as extremely emotional and anxious. She had been experiencing severe migraines. She had been unable to leave home; and was avoiding answering the phone or responding to emails. As a result, she had received a warning from WorkCover about compliance with appointments. This had made her more anxious and overwhelmed, as she feared she may be cut off from WorkCover.
The applicant was to have a phone consultation with her return to work coordinator, Donna Peterson, the next day. She feared she would be pressured to return to work. She perceived herself as unable to return to Marco Polo, given the context of the workplace trauma she had experienced. Ms Rowe encouraged her to express this during the consultation with Donna.

Ms Rowe also recorded that the applicant was experiencing quite severe and vivid nightmares; and severe anxiety in the presence of stimuli associated with the workplace trauma.
Ms Rowe reported on 18 December 2019.
The applicant had presented as teary and emotional, shaking profusely; and found it difficult to articulate her thoughts and remain coherent. She had been informed that her WorkCover claim had been denied; and she was due to return to work on 7 January 2020. This had “come as quite a shock to her”. She felt unable to return to the workplace due to the level of stress and anxiety she experienced.
Ms Rowe found that the applicant was at moderate to high risk of suicide. A plan was developed and the applicant’s mother agreed to monitor her. She would reside with her mother, who would manage her medication. The applicant was also provided with Lifeline’s contact details. The applicant told Ms Rowe she would be unable to follow through with any self-harm plans due to her relationship with her children and grandchildren.
Ms Rowe reported again on 2 January 2020.
She noted that the applicant had proceeded with the plan they had developed and remained at her mother’s home.
Ms Rowe recorded that over the Christmas period the applicant’s employer had ceased all payments, which resulted in an exacerbation in suicidal ideation. Ms Dredge had gone to Wollongong Hospital for assessment.
The applicant had received the forms to “appeal” the denial of her claim; and sought legal advice. She was to contact Grand Pacific Health to schedule an appointment to participate in its Suicide Prevention Program.

Dr Stephen H Allnutt – Forensic Psychiatrist

Dr Allnutt was qualified on behalf of the applicant. On 21 May 2020 he wrote to Illawarra/Shoalhaven Mental Health Services, expressing his concern that she had recurrent suicidal ideation, with urges; and this also concerned her family. Dr Allnutt requested that contact be made with the applicant as soon as possible.
Dr Allnutt reported to the applicant’s solicitors on 9 June 2020. He recorded a history that the applicant saw a social worker three or four times in 2017, in relation to the death of her partner; and was prescribed anti-depressants. She understood that she had been diagnosed with depression but recovered over the next 12 months.
The applicant was involved in an abusive relationship between 2010 and 2012 and was depressed. She took anti-depressants for six months. She denied any further episodes of depression since 2017 and before the injury.
Dr Allnutt referred to a “series of incidents” during the applicant’s employment with the respondent. The history accords with the applicant’s evidence. The applicant went off work in July 2019 “because she felt that Marco Polo did not care about her”. She was experiencing high levels of anxiety, with chest pain.
The applicant had remained off work. She said she did not leave the house, had panic attacks, thought people were talking about her and felt emotionally upset when she went out, so she preferred to stay home. She had panic attacks, which were easily triggered by even minor stressors.
Dr Allnutt reported that the applicant had daily suicidal thoughts. She had gone to Wollongong Hospital “a couple of months ago” because she had strong thoughts of suicide but was not admitted. She had taken an overdose in 2019.
Dr Allnutt diagnosed a “constellation of symptoms”, consistent with panic disorder with agoraphobia and social phobia; a major depressive disorder; and post-traumatic stress symptoms. Overall, the applicant manifested a panic disorder and a major depressive disorder.
Dr Allnutt opined that the applicant’s history was consistent with vulnerability to depression and anxiety. However, she had no active symptoms at the time of the injury. Her experience of the behaviour of management towards her and towards clients triggered the onset of her current condition and made a substantial contribution to her mental state.
In Dr Allnutt’s opinion, the applicant was totally incapacitated for work. She continued to experience the symptoms that led her to go off work in the first place.

SUBMISSIONS

Counsel’s submissions have been recorded, and I do not propose to reiterate them in these reasons. I set out below a summary of the submissions.
Mr Robison, for the respondent, submitted that the background to the injury is of no moment, as it is conceded that the applicant has sustained injury. The respondent’s case is that the work injury has resolved; and there is extraneous causation, that is the applicant’s reaction to her benefits being cut off; and financial concerns.
Mr Robison referred to Dr Whetton’s opinion that the applicant did not have a psychological diagnosis. Her condition had resolved and was more in keeping with a reaction to a stressful situation. Mr Robison referred to a contentious situation in the workplace, which was consistent with upset, rather than a psychological condition. He specifically eschewed any reliance on section 11A of the 1987 Act.
Mr Robison referred to Dr Allnutt’s report that the applicant was “tearful”, which he submitted was equally as consistent with emotional upset as a psychological condition. The diagnosis of a major depressive episode is by its nature a limited window of injury. The applicant had had two periods of depression and was susceptible. Her depression was periodic rather than permanent in nature.
The barriers to the applicant returning to work included decreased motivation. Mr Robison submitted that this was equally consistent with emotional upset as a psychological condition.
Mr Robison submitted that, based on Dr Whetton’s opinion, the applicant had recovered. That alone is the end of the matter. The applicant’s general practitioner had the view that she could work, but not for the respondent. The test for an award of weekly benefits is whether the applicant can work, not whether she can work for this particular employer.
As for the respondent’s reliance on novus actus interveniens, Mr Robison referred to Dr Allnutt’s letter to Illawarra/Shoalhaven Mental Health Services dated 21 May 2020. This was part of litigation neurosis and arises from the termination of benefits. The Health Service recorded that the applicant had been on workers’ compensation and had had no income since January 2020. Mr Robison submitted that this ties in with Dr Allnutt’s report about financial concerns.
Mr Robison submitted that the Illawarra/Shoalhaven Mental Health Services recorded that the applicant felt guilty that she was not there to help the residents. This is the result of not being at work, rather than being at work. He referred to Ms Rowe’s report of 2 January 2020 as being in the “middle period” between the section 78 notice and the termination of benefits.
Mr Robison submitted that the applicant’s major psychological response occurred after the resolution of the work injury and without a relevant connection to work. There is a distinction between the claim and the work. What has not been adequately explained in the applicant’s case is the sudden decrease in capacity to no capacity. Mr Robison submitted that the most straightforward explanation is that it was the result of having her benefits terminated and financial stress. This is a claims issue, not a legal issue.
The respondent relied on the decision of McGrath J in Karathanos v Industrial Welding Co Ltd (1973) 47 WCR 79 (Karathanos), in which it was held that “a ‘straight litigation neurosis’ is not compensable”. It submitted that, applying the “common sense” test referred to in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), there is nothing else but the denial of liability to explain the change in the applicant’s condition.
Mr Robison finally submitted that the evidence showed that the effects of the work injury had ceased at an early stage; and the applicant could only succeed on a closed period basis.
For the applicant, Mr Parker submitted that the respondent’s defence was limited to causation, either on the basis that the applicant’s condition had resolved, or on the basis of novus actus interveniens. It could not discharge its onus with respect to the latter.
Mr Parker relied on the presumption of continuance. The applicant’s medical certificates certified her as having post traumatic stress disorder and depression; and as totally incapacitated for work. Nothing relevantly had changed. The applicant was not to return to work for the respondent. Her condition had never resolved. The clinical records from February 2019 onwards show numerous consultations.
Mr Parker referred to the report of SIS, which recorded Dr Sokolovska’s prognosis for the applicant returning to employment with the respondent or within aged care services as poor. The applicant’s psychosocial factors do not sound like a person whose condition had resolved.
Mr Parker submitted that the applicant’s evidence is that she had not had adequate treatment because she could not afford it. Her condition never went away. She presented at The Wollongong Hospital on 29 December 2019 and at other times. Ms Rowe opined that her suicidal ideation was exacerbated by the cessation of her payments. There is nothing to say it resolved or is purely due to litigation neurosis. She reacted, “on the back of” someone who was disturbed.
Mr Parker submitted that Dr Whetton took a “pretty lax history”. The applicant was tearful during the examination; and “suddenly” she was only emotional. The conclusion that her condition had resolved was inconsistent with the clinical records and the need for treatment. Dr Whetton is the only one to have said the applicant’s condition had resolved. Dr Allnutt had taken an extensive history. He took the unusual step of writing to the Hospital.
Mr Parker submitted that the applicant need only prove that the injury is a material contributing factor to her symptoms, relying on Wyllie-Gray v Fitness First Australia Pty Ltd [2019] NSWWCCPD 32 [at 32].
The applicant relied on the decision of Deputy President Roche in State of New South Wales v Rattenbury [2015] NSWWCCPD 46 (Rattenbury), in which it was held that the exacerbation of symptoms by the denial of liability went only to incapacity. The only distinguishing factor is that in her case, incapacity has been conceded.
Mr Parker referred to the decision of the Court of Appeal in Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 (Aboushadi), which considered the case of a worker who was involved in two accidents, and the later accident reactivated his symptoms. It was held that the additional damage resulting from the aggravated injury should be treated as being caused by the defendant’s negligence. Mr Parker submitted that Aboushadi has been applied in the Workers Compensation Commission.
In reply, the respondent submitted that it need not succeed in establishing both that the applicant has recovered from the injury; and that there is an extraneous cause of her condition. If I am satisfied of either, she does not have a compensable injury. If she had recovered, there must be pure litigation neurosis, as there was nothing to aggravate.
Mr Robison finally submitted that I would not be assisted by an examination of the facts in cases of novus actus interveniens. There is no precedent value in facts.

SUMMARY

The respondent concedes that the applicant has sustained a psychological injury arising out of or in the course of her employment, the date of injury having been accepted as 20 June 2019. The respondent also concedes that the applicant has been totally incapacitated for work since 6 January 2020.

The only issue to be determined is whether the applicant recovered from the effects of the injury, so that her incapacity for work is not related to the injury but to a novus actus interveniens.
I do not accept that the applicant has recovered from the effects of the injury; and I determine that she has not.
The only evidence that the applicant has recovered from the injury is that of Dr Whetton. He opined in September 2019 that she still had emotional upset, but her symptoms of Adjustment Disorder with Anxiety had resolved; and her state was more in keeping with a normal reaction to a stressful situation.
Dr Whetton’s opinion is at odds with the contemporaneous medical evidence.
The records of the Family Medical Practice show that on 17 August 2019, the applicant had “continuing symptoms of PTSD”; and was “unable to speak about the workplace without crying”.
On 5 November 2019, Ms Rowe recorded that the applicant had symptoms of anxiety and depression. She was observably anxious, somewhat fidgety and shaking. She was extremely emotional and at times somewhat incoherent. It was quite distressing for her to discuss events in the workplace and she felt unable to return.
On 20 November 2019. Ms Rowe recorded that the applicant was extremely emotional and anxious. She was unable to leave home; and was avoiding answering the phone or responding to emails. She was to have a phone consultation with her return to work coordinator the next day but perceived herself as unable to return to Marco Polo. She was having quite severe and vivid nightmares and severe anxiety in the presence of stimuli associated with the workplace trauma.
On 12 December 2019, the Family Medical Practice recorded that the applicant had had a conference with SIS. She was tearful and very stressed/depressed.
None of these interactions with treating practitioners suggests that the applicant was reacting normally to a stressful situation. She was tearful, extremely emotional, shaking and at times incoherent; having severe nightmares; and not complying with her obligations to iCare. If her reaction was “normal”, it would be expected that she would at least be able to answer the phone or respond to emails, particularly if she believed that her compensation benefits may be at risk if she did not do so.
The respondent maintains that the applicant’s incapacity for work, which it concedes exists, is due to her reaction to her benefits being cut off, and financial concerns.
The respondent submitted that the applicant was suffering from a straight litigation neurosis, relying on the decision in Karathanos. However, in the matter of Manpower Pty Ltd v Harris [2011] NSWWCCPD 10, Roche DP said [at 137]:
“In the light of Kooragang Cement Pty Ltd v Bates…I doubt that Karathanos is good law…”

More recently, in C Reagh Pty Ltd v Gaydon [2020] NSWWCCPD 63, Snell DP observed that neither party had challenged the arbitrator’s acceptance of a submission that Karathanos is no longer good law.

A novus actus interveniens cuts the chain of causation, to which reference was made in Kooragang. It draws a clear line between the injury being considered and the subsequent state of affairs, so there is no “common sense” causation from one to the other.

In Council of the City of Sydney v Estate of Belinda Jane Griffey and Anor (No.1) [2008] NSWWCCPD 114 (Griffey), Roche DP said [at 85]:
“What needs to be established to give rise to a novus actus interveniens, is, upon a common sense evaluation of the causal chain in the instant case, a ‘new cause’ which has disturbed the sequence of events, and which can ‘be described as either unreasonable or extraneous or extrinsic’…Before the novus actus can be regarded as the sole cause of the ultimate incapacity, it must be demonstrated that the incapacity that would have resulted from the motor vehicle accident has been replaced by a different and intervening cause that produced the ensuing incapacity.”(emphasis in original).

In the matter of Rattenbury, Roche DP said [at 89]:
“The fact that Mr Rattenbury’s symptoms might have been ‘exacerbated and maintained’ by ‘the denial of his workers compensation and the appeal’…does not undermine the finding on injury, which was established well before the denial of his claim, but goes only to the cause of his incapacity…”

The evidence to which I have referred above, which supports the conclusion that the applicant has not recovered from the injury, is relevant to the defence of novus actus interveniens and a consideration of the common sense causal chain.
The applicant continued to experience significant psychological symptoms before she received the notice, which was dated 12 December 2019, that compensation was to cease.

The applicant’s general practitioner had certified on 12 December 2019 that she had capacity to work for 40 hours per week but was not able to work for the respondent. Her reaction to the receipt of the dispute notice was at least in part because she perceived she would have to return to work for the respondent, as well as understandable financial concerns. She has stated that in December 2019 (it appears this was on 12 December 2019) her case manager said she had to return to work for the respondent and gave her a date to return to work. There is no evidence on this matter from the case manager; and I accept the applicant’s evidence.
The applicant had not been certified fit to return to work with the respondent. On the contrary, Dr Sokolovska had specified that she was not to work at Marco Polo.
Ms Rowe recorded on 18 December 2019 that it had come as a shock to the applicant that she was due to return to work on 7 January 2020. She felt unable to return to the workplace due to the level of stress and anxiety she experienced. The applicant’s mother confirmed that she was struggling with having to go back to work on 7 January 2020.
I find that the applicant’s reaction to what she had been told was a requirement to return to work with the respondent was the reason for the reduction in her capacity for work after 12 December 2019.
Ms Rowe also recorded on 2 January 2020 that the applicant experienced an exacerbation of suicidal ideation after the cessation of payments. This does not suggest that the cessation of payments was a “new cause” that had replaced the injury as the reason for the applicant’s incapacity.
The evidence does not support the proposition that the applicant is suffering from a “straight litigation neurosis”; and in any event I accept that Karathanos is no longer good law.
The incapacity for work that would have resulted from the applicant’s psychological injury was not replaced by a different and intervening cause, as referred to by Roche DP in Griffey. The receipt of the dispute notice was not a “new cause” that disturbed the sequence of events. It did not break the chain of causation. The applicant’s psychological condition was well-established and continuing at the time the notice was issued. Dr Allnutt opined that she continued to experience the symptoms that led her to go off work in the first place.
I therefore determine that the applicant’s conceded incapacity for work is not the result of a novus actus interveniens.
There will be an award for the applicant pursuant to section 37 of the 1987 Act at the rate of $842.63 per week from 6 January 2020 to date and continuing.
There will be an award for the applicant pursuant to section 60 of the 1987 Act.

Kerry Haddock

MEMBER

8 March 2021