Fisk v Ausgrid Management Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fisk v Ausgrid Management Pty Ltd [2022] NSWPIC 456
APPLICANT:	Neil Fisk
RESPONDENT:	Ausgrid Management Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	17 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for disputed primary psychological injury where no dispute regarding existence of a secondary psychological injury; lay and medical evidence considered; Greater Taree City Council v Moore, Kooragang Cement Pty Limited v Bates and AV v AW considered; Held — the applicant suffered primary psychological injury; referred to Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered primary psychological injury arising out of or in the course of his employment with the respondent, deemed to have happened on 27 January 2016. 2. Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment in respect of primary psychological injury deemed to have happened on 27 January 2016. Brief to the Medical Assessor is to include the Application and attached documents, Reply and attached documents, and Application to Admit Late Documents dated 6 June 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an Application to Resolve a Dispute by Neil Fisk (the applicant) claiming lump sum compensation in respect of primary psychological injury deemed to have happened on
27 January 2016 arising out of or in the course of his employment with Ausgrid Management Pty Ltd (the respondent).
The respondent issued section 78 notices dated 3 January 2020, 3 September 2020,
30 August 2021 and 6 December 2021. Issues raised included a section 11A defence. However, at the conciliation/arbitration hearing of this matter the section 11A defence was abandoned and psychological injury was not disputed. The only issue in dispute was whether the applicant had sustained a primary psychological injury.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 16 June 2022, the applicant was represented by Mr P Perry of counsel, instructed by Mr Dous, solicitor, and the respondent by Mr McMahon of counsel, instructed by Ms Beattie, solicitor. The respondent made oral submissions at the hearing. Following the hearing the applicant gave written submissions and the respondent made written submissions in reply.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admi Late Documents dated 6 June 2022, and attached documents.

Oral evidence

There was no oral evidence.

Certificate of Determination

The Workers Compensation Commission issued a Certificate of Determination by Senior Arbitrator Capel dated 13 October 2020, which relevantly determined and ordered:
“1.     The name of the respondent is amended to Ausgrid Ltd.
2.      The applicant sustained injury to his cervical spine arising out of or in the course of his employment on 27 January 2016 (deemed).
3.      The applicant’s employment was the main contributing factor to the injury to his cervical spine.
4.      The applicant developed a secondary psychological condition as a result of the injury situation to his cervical spine on 27 January 2016 (deemed).
5.      The applicant has had no current work capacity since 19 February 2016 due to the injury to his cervical spine and the secondary psychological condition.
6.      The applicant has not discharged the onus that he had no current work capacity due to the injury to his cervical spine and the secondary psychological condition in the period 27 January 2016 to 18 February 2016.
7.      The applicant requires medical treatment as a consequence of the injury to his cervical spine and his secondary psychological condition and the respondent is liable to pay reasonably necessary medical expenses.
8.      The surgery proposed by Dr Singh, namely a C3-C6 anterior cervical decompression and fusion, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment with the respondent on 27 January 2016 (deemed).
9.      The proposed anterior cervical decompression and fusion involves an artificial aid.
…
10.    Award for the respondent in respect of the claim for weekly compensation in the period 27 January 2016 to 18 February 2016.
11. The respondent to pay the applicant weekly compensation in accordance with the Workers Compensation Act 1987 as follows:
(a) $1,774.37 per week from 19 February 2016 to 31 March 2016 pursuant to section 36(1)(a);
(b) $1,784.13 per week from 1 April 2016 to 19 May 2016 pursuant to section 36(1)(a);
(c) $1,502.42 per week from 20 May 2016 to 30 September 2016 pursuant to section 37(1)(a);
(d) $1,507.98 per week from 1 October 2016 to 16 February 2017 pursuant to section 37(1)(a);
(e) $1,323.88 per week from 17 February 2017 to 31 March 2017 pursuant to section 37(1)(a);
(f) $1,359.44 per week from 1 April 2017 to 30 September 2017 pursuant to section 37(1)(a);
(g) $1,369.22 per week from 1 October 2017 to 31 March 2018 pursuant to section 37(1)(a), and
(h) $1,388.81 per week from 1 April 2018 to 16 August 2018 pursuant to section 37(3).
12.    No order in respect of the claim for weekly compensation from 17 August 2018.
13.    Liberty to the parties to apply with respect to these calculations within 14 days of this determination.
14. The respondent to pay the applicant’s reasonably necessary medical expenses, including the cost of the proposed C3-C6 anterior cervical decompression and fusion, pursuant to sections 59(A)(6)(a) and 60 of the Workers Compensation Act 1987.”
There were no submissions in these proceedings as to the name of the respondent. However, the parties have liberty to apply in respect of the name of the respondent, if necessary.

Applicant’s statements

The applicant provided statements dated 22 December 2021, 30 July 2020,
15 October 2018, 21 June 2018, and 2 March 2016.
In his statement dated 2 March 2016, the applicant said he experienced over the previous two and a half years a significant degree of stress, anxiety and insecurity about his working future, as a result of planned reduction in staff numbers and redundancies, as well as what he considered was poor communication from management in relation to these issues by way of generalised and piecemeal communications from management. He described discussions and rumours regarding linesmen being required to hold a trade certificate, when older staff such as the applicant held only a craft certificate.
The applicant also provided details of his loss of substantial overtime, following his agreement with officers of the respondent to do overtime in an area away from his home depot, resulting in his overtime being stopped and adversely affecting his finances.
He described the rejection of his travel claim from about 2014 on his return to the training school. He also described a disciplinary meeting with HR in November 2015, relating to an incident when, out of frustration with a sub-standard truck, he struck the Ausgrid truck with a shovel. The applicant also described the cancellation by his manager of a further meeting with HR in mid-January 2016, which had commenced, as protocols for the meeting had not been followed. He stated that he then went off work on 27 January 2016 and had been certified unfit for work since that time.
He stated that his current symptoms included anxiety, sleep disturbance and stress, and difficulty with focus and concentration, relating to the above matters. He said that he was taking medication to help with sleep, as well as anti-depressants. He said that he had chronic neck pain as a result of the nature and conditions of his employment and was looking into making a claim in this regard. He stated that he had not suffered any previous psychological illnesses, injuries or conditions prior to the matters that he described.
In his statement dated 21 June 2018, the applicant stated that on 25 November 2015 he made a workers compensation claim for a psychological injury he sustained in the workplace. He said that he continued to rely upon his statement of 2 March 2016. Also, on 2 March 2016 he made a workers compensation claim for his neck injury, including chronic headaches. He stated that he continued to suffer from anxiety and depression. He stated that his wife sometimes attends social functions on her own due to pressure of considering how long he can stay in one place without feeling extremely anxious and experiencing migraine pain and vomiting and having to reposition himself. He stated that he slept very badly because of neck and upper back pain and frequently waking experiencing feelings of dread, stress and anxiety.
In his statement dated 15 October 2018, the applicant described a number of incidents and issues in the course of his employment, including staffing changes, requirements for trade certificates for linesmen, which weighed heavily on his mind, rumours at work relating to these issues, and hoping that actions of others influencing whether he was asked to stay or leave. He said that he started to feel under pressure and wanted to give no one an opportunity to use something against him. He also recounted an incident relating to unsafe work activity by a borer operator who later yelled at the applicant as the operator left the site. The applicant said this weighed heavily on him and he had very mixed thoughts and emotions about things happening around him at work.
The applicant also described an incident when a fellow line worker grabbed the applicant by the throat and aggressively abused him. The applicant named a number of witnesses to the incident. The applicant also said that he had mentioned to workmates that dangerous incidents were happening too often, not being reported correctly and no improvement regarding safety.
He stated that that after the incident in which he was grabbed by the throat, the applicant attended his doctor, Dr Erasmus and he took time away from work and the stresses of work. He stated that the incidents described were a very small amount of the incidents and accidents and reportable breeches which were never reported or investigated. The applicant stated that:
“All of these factors above severely affected my physical and mental health overwhelming feelings of dread, stress, not being listened too or blatantly disrespected or ignored, personal physical and verbal abuse on what seemed like a daily basis, and these acts were brought on because everyone over a long period of time had there jobs hanging over their heads because of the extremeley [sic]long period it took for Ausgrid to come up with the formula as to who got to stay and those forced to leave.”
In his statement dated 30 July 2020, the applicant described his neck injury, treatment and effects on his life. He stated that he is severely limited the pain that he suffers in his neck and it affects his daily life, and, due to his neck injury, he had limited use of his hands and arms.
In his statement dated 2 December 2021, the applicant referred to the insurer’s denial of liability for a primary psychological injury. He stated that, while he suffers from depression as a result of his physical injury and limitations, his symptoms arose due to the nature and conditions of his employment over a number of years. He said that he was subjected to unfair treatment by his employer for a number of years, and he was alienated, threatened and unsupported, and his working environment was very hostile and volatile. He stated that there was growing tension between himself, management and his colleagues, who did not work together and failed to take instructions. He stated that “there was no regard for each other's safety and I was ignored when I requested colleagues below my chain of command to follow instructions regarding safe work practices”. He stated that since about 2012 monthly team briefings were conducted by management in which all staff were notified of job cuts in the company. He said he began to feel the onset of symptoms in about 2012 and his anxiety and stress were heightened following the issues at work regarding travel and overtime, redundancies and lack of support from management regarding redundancies. He said that his mental health deteriorated following many instances when he felt unsafe at work and he was disobeyed and ignored by colleagues and he felt unsupported by management when he raised grievances about these issues. He stated that there was no discipline at work and “it was chaotic and hostile”. He further detailed his difficulties with travel and overtime. He said that “the last straw” was the assault by his work colleague in January 2016. He stated that he struggled to breathe when he was grabbed by the throat, and he felt threatened and harassed and he feared for his safety. The applicant said he believed his psychological injury was due to constant bullying and harassment at work in a multitude of events when he was targeted and ignored by management.

Dr Goriparti

Dr Goriparti, consultant psychiatrist, provided treating reports dated 2 March 2016 and
11 March 2019, and a report to the applicant’s solicitors dated 17 November 2021.
In his report dated 2 March 2016 to Dr Erasmus, Dr Goriparti recorded that the applicant reported that he was:
“experiencing significant stress, anxiety and insecurity over the last 2 1/2 years at his work place. He reports that the management at Ausgrid has been Indicating that there will be redundancies due to planned privatisation of the organisation, He feels that the information that has been relayed to him has been inconsistent and Indecisive. There is also an ongoing battle with Ausgrid about unpald overtime and travel allowances which has been dragging on for more than 2 years. His Income has suffered significantly since the overtime payments were stopped. He reckons that the working conditions have deteriorated significantly over the years and the health and safety regulations have been stretched particularly over the last few years. He has been having recurrent thoughts about work which he is struggling to distract from. He said that he is unable to process his thoughts in a methodical manner. He has been angry, irritable and frustrated…All of this culminated in him suffering from persistent anxiety, sleep disturbance and stress regarding the above matters.”
Dr Goriparti noted a history of recurrent migraines and neck injury. Dr Goriparti recorded the applicant’s symptoms. He continued that the applicant “feels hopeless and helpless about his situation. This Is compounded by his physical problems which include recurrent migraines, neck injury, knee pain and gastritis secondary to NSAIDS”. It was Dr Goriparti’s impression that the applicant suffered from “mixed anxiety and depression secondary to multiple psychosocial stressors as mentioned above”.
In his report dated 11 March 2019 to Dr Ingram, Dr Goriparti noted the applicant reported that a recent specialist had recommended neck surgery and he continued to have recurrent headaches, pain shooting down his neck and radiating down his arms, burning sensation on the ulnar side of his arms and glassy vision if he tries to concentrate. Dr Goriparti recorded that this is exacerbating his symptoms, with depersonalisation and derealisation symptoms that are common in anxiety, and feelings of hopelessness and anxiety. Dr Goriparti diagnosed mixed anxiety and depression, chronic neck and back pain, and recurrent migraines.
In his report dated 17 November 2021 to the applicant’s solicitors, Dr Goriparti noted the history referred to in his report dated 2 March 2016. He reported that the applicant’s psychological symptoms included difficulty with sleeping, comfort eating with weight gain, and also weight loss, significant difficulties with attention and concentration, passive suicidal thoughts, poor energy and motivation, and feelings of hopelessness and helplessness about his situation. Dr Goriparti noted that the applicant came to see him several times after his initial assessment and he had seen the applicant regularly over the last five years and referred him to public mental health services after his admission to Gosford Mental Health Unit as Dr Goriparti found it difficult to manage the applicant’s risk by himself in the private sector. He noted that the applicant was also followed up by Suicide Prevention Outreach Team (SPOT) as he was considered a high suicide risk with the way he presented early that year.
Dr Goriparti was of the opinion that the applicant:
“sustained a psychological injury when he first presented to me in 2016 with features of mixed anxiety and depression. He reported that he has been struggling with these symptoms for two and half years before my initial assessment in March 2016. The main stressors were work related stressors which were all explained above. He had a very supportive wife who used to come to most of his appointments in 2016 and assisted him with all the paperwork. Unfortunately, his mental state over the last five years and decline in functioning led to separation from his wife and children. He suffered numerous losses over the last five years which were secondary to his psychological condition.”
Dr Goriparti was of the opinion that the applicant “sustained a primary psychological injury secondary to work related stressors”. He added that “other stressors like chronic pain and migraines have also contributed to his initial presentation but main stressors were work related”.
Asked to comment on Dr Vickery’s opinion that the applicant’s major depressive disorder was attributed to multiple personal stressors and was considered to be not work related,
Dr Goriparti stated that “there weren’t many personal stressors when he first presented to me with these symptoms. As mentioned above, he sustained all the losses since he was diagnosed with mixed anxiety and depression”.

Dr Lim

Dr Lim, the applicant’s treating general practitioner, provided a number of reports, including reports dated 9 September 2019 and 30 July 2020.
In his report dated 9 September 2019, Dr Lim noted that applicant initially presented on
6 September 2016 “for an injury to Neck & Psychological”. Dr Lim noted an “adjustment disorder as a result of chronic pain”. On examination he found “persistent neck pain with chronic pain disorder: depression; headaches”. He diagnosed “Chronic pain disorder causing Adjustment disorder with depression”. Dr Lim stated that the applicant had “developed depression due to the loss of his ability to work, and the chronic pain, due to his work Injury”.
In his report dated 30 July 2020, Dr Lim noted a history that on 23 September 2015 the applicant:
“reported that whilst at work he suffered a Neck injury following an attempted neck strangulation a few days previously, aggravating underlying degeneration from repetitive extreme movements of his neck working as an overhead linesman. A few days before he stopped working, a coworker came up to him distressed, because "he drove his truck", and grabbed him by his throat, and cut off his windpipe. In retrospect, his symptoms and signs were consistent with PTSD, which we had not previously discussed. This is common as he has repressed his symptoms to me, and resorted to taking narcotics at increasing doses to aid with sleeping.
Over the many years of treatment, he has reported his psychological symptoms consequential to his neck pain. However, in the context of the increasing narcotic use, commenced by a pain specialist, it became clear he was becoming dependent. We managed his dependency about 12 months ago, and he has now ceased narcotic use. This has enabled him to disclose more of his symptoms, and the ensuing history. He had previously discussed this with his treating psychiatrist, in the context of suicidal ideation prior to seeing me, but when he came to see me one year later, he presented with chronic pain.
…
However, the strangulation is what caused him to stop work, aggravating his neck, and precipitating the cascade of symptoms which constitute his repressed PTSD.”

Dr Lim diagnosed “cervical spine radiculopathy; Vertebrobasilar symptoms - ?subclavian steal; Chronic pain disorder causing Adjustment disorder with depression. Teeth grinding from stress. PTSD”.
Dr Lim observed that “…I do not think his condition in its entirety can be appreciated without a review of his treating psychiatrists clinical notes, which I have not even seen. Mr Fisk advised that he has reported the nature of his PTSD to his psychiatrist from the beginning…” [sic] and was of the view that “…he has developed depression due to the loss of his ability to work, and the chronic pain, due to his work injury”.

Dr Erasmus

In a mental health assessment dated 28 January 2016, Dr Erasmus, treating general practitioner, diagnosed depression, anxiety and stress and recorded a history that the applicant:
“Has worked with country energy. Now working with Ausgrid has been with them since 1999. Ausgrid are trying to get rid of older staff at present, wanting them to take voluntary redundancy, but they are trying to reduce that to a 13 week pay out. Outstanding travel claim from 2014 Union and solicitors involved. 1200 people will be laid off in February.”
In a clinical note dated 18 November 2013, Dr Erasmus noted chronic pain and difficulties sleeping. In a clinical note dated 19 August 2015, Dr Erasmus “[increased] headaches due to stress… Stress re [possible] redundancy”.
In another clinical note dated 23 September 2015, Dr Erasmus noted “stress… Work still hanging in balance… Retrenching 500 people in [next] 6 m… Has [difficulty] sleeping… Anxious… Feels pressure from anxiety”.
In a clinical note dated 1 December 2015, Dr Erasmus noted “continuing work stress… Poor sleep early [hours]… Unable to sleep till early morning then exhausted in mornings… Feels unsafe to work in that state… Aggravated by concerns of safety procedures at work… Has notified supervisor about safety concerns”. In a clinical note dated 27 January 2016,
Dr Erasmus noted “still under extreme duress… Has craft cert qualification; younger men have 4 year cert… Employer placing pressure on workers to resign to avoid having to pay retrenchment… On antidepressant still wakes early hours… Mood low… Constant pressure wants to place workers comp claim for mental…” The reason for the contact was given by
Dr Erasmus as “depression”.

Mr Neilson

Mr Neilson, psychologist, provided a report to the applicant’s solicitors dated 7 May 2020 and an Allied Health Request of the same date. In the latter document, Mr Neilson recorded that his services first commenced on 7 May 2020 and he recommended eight sessions.
In his report dated 7 May 2020, Mr Neilson recorded a history of the commencement of psychological symptoms in 2012-2013 after being informed in a general meeting that large numbers of workers had to go, and that criteria for choosing those workers was unknown.
Mr Neilson noted that rumours then circulated and workers turned against each other. He also noted a history of interpersonal issues with other workers and management when he informed them of their obligations, with tensions culminating when the applicant was physically and psychologically assaulted when a fellow worker grabbed him by the throat and abused him, following which the applicant left work three days later and had not returned since. Mr Neilson noted current symptoms, mental state examination and diagnosed
post- traumatic stress disorder.

Dr Bench

Dr Bench, forensic psychiatrist, provided a medico-legal report dated 6 March 2017 to the applicant’s solicitors. Dr Bench recorded a history of the applicant’s difficulties with his travel claim and overtime, uncertainty with his employment position, lack of training as well as significant mental health difficulties arising as a consequence of his physical injury. Dr Bench noted that on questioning as to what caused him to cease work on 27 January 2016, the applicant noted:
“there was no one particular incident. He stated, ‘I'd had enough . . . for three years, they'd threatened us with our jobs, there were redundancies of over fifty percent of the employees ... I went back to my depot. I saw some acts, duty of care stuff, WorkCover infringements…not following work, health and safety. I reported it ... more and more frequently things were happening.’ He noted in this context, he was getting increasingly anxious about being involved in the aforementioned unsafe work practices from the perspective of WorkCover, but also being fearful that he or one of his workers would be injured on the job. He noted he ceased work on 27 January 2016 as, ‘it was the combination of the bosses not acting on stuff, not following Work, Health and Safety and WorkCover infringements... just went, 'I've had enough of this, I'm not going to be a party to it'. He noted this further lack of support in the context of the pending redundancies caused his anxiety to spiral out of control.”
Dr Bench recorded that the applicant had the onset of mental health symptoms in about 2013, initially with insomnia, and then over the next three years with worsening anxiety and depression, being more isolated and withdrawn, loss of enjoyment and interest, suicidal ideation and irritability. Dr Bench noted the applicant had been compliant with his anti-depressant medication. Dr Bench was of the opinion that the applicant had suffered a psychological injury and diagnosed adjustment disorder with depressed and anxious mood. In respect of prognosis, Dr Bench noted that “there are a combination of factors contributing to his condition. Nonetheless, the most significant perpetuating factor is his chronic pain. …In this context, his chronic pain will continue to act as a perpetuating factor for his Adjustment Disorder…”
Dr Bench was of the opinion that the applicant:
“has elements of both a primary and secondary psychiatric injury. It is noted he had reported a number of factors contributing to his Adjustment Disorder with depressed and anxious mood including numerous workplace stresses prior to his leaving that have persisted for at least two to three years. He noted these factors included such things as a dispute over his travel entitlements and home depot location, loss of significant overtime, inability to partake in training activities or attain a fulltime permanent training position, and being exposed to repeated workplace safety issues with a failure of management to appropriately address same. These workplace stresses would thus be considered to have been caused by a primary psychiatric injury.”
Dr Bench disagreed with the assessment of Dr Rose that the applicant’s symptoms were simply that of anger and resentment with respect to his workplace. Dr Bench was of the opinion that the applicant had significant symptoms of anxiety and depression, including lethargy, low libido, poor appetite, suicidal ideation and anxiety.

Dr Rastogi

Dr Rastogi, consultant psychiatrist, provided a medico-legal report dated 18 June 2020 and a supplementary report dated 30 September 2021 to the applicant’s solicitors.
In her report dated 18 June 2020, Dr Rastogi diagnosed major depressive disorder with anxiety and chronic pain disorder. She noted that the applicant:
“reported onset of psychological symptoms with anxiety in 2012 following redundancies at workplace and unsupportive management. He reported multiple incidents of being unsupported, dismissal and subjected to verbal abuse and reprimanded by the management. He reported multiple breaches of safety but he was undermined and dismissed. He stated his travel claim since 2014 was still not addressed and he felt denigrated. The last straw was being assaulted by supervisor and intimidation in January 2018 [sic] resulting in rapid psychological decline and inability to work. He had work related physical injury with pain aggravation that perpetuated his depression.”
Dr Rastogi attributed the psychological injury to alleged bullying and alienation and being assaulted, worsened by chronic pain and functional limitations. She also stated that the psychological injury “stems from work related physical injury on 5th April 2016 culminating into chronic pain disorder following failed surgery and conservative treatment, lack of ability to do premorbid functioning, vocational losses and functional impairment”. She was of the opinion that the applicant had sustained a primary psychological injury and that his work was a major contributing factor to alleged psychological injury.
In her report dated 30 September 2021, Dr Rastogi maintained her opinion that the applicant’s psychological injury was due to a culmination of work related events, being “ongoing fractured relationship with his employer since 2012 with lack of support, alienation and dismissal of his grievances. The final straw was being subjected to assault and onset of physical deterioration”.
Dr Rastogi was of the opinion that:
“he sustained a primary psychological injury stemming from alienation, victimisation, dismissal at worm [sic] with enduring bullying over period of time that culminated into adjustment disorder with anxiety. He continued working till incident of assault where his psychological symptom amplified and perpetuated by pain.”

Dr Rose

Dr Rose, psychiatrist, provided a medico-legal report dated 23 February 2016 to the respondent. Dr Rose recorded a history that from 2012 the applicant’s claim for travel time and overtime was rejected and he lost two and a half years of overtime entitlements. He noted a meeting with a HR person, and a second meeting which was cancelled. Dr Rose noted that the applicant sustained increased anger and frustration as a result. Dr Rose also recorded safety issues with the operator of a crane, and the incident of striking a vehicle with the shovel. Dr Rose noted that since then, and even before this episode for some months, the applicant had been sleeping poorly, with irritability, loss of focus and negative thoughts about the group he had to work with. Dr Rose stated that he could find “no evidence of overt psychiatric illness, and that the applicant’s symptoms were merely those of resentment, anger and expectation”.

Dr Vickery

Dr Vickery, psychiatrist, provided a medico-legal report dated 10 August 2021 and a supplementary report dated 22 August 2021 to the respondent’s solicitors.
In his report dated 10 August 2021, Dr Vickery noted the applicant had been admitted to hospital six weeks previously, when his general practitioner contacted the Mental Health Unit at the Gosford Public Hospital. He noted “significant personal stressors” that were “associated with the breakdown of the marriage earlier this year and the sale of the family residence and his children disowning him”.
Dr Vickery noted a history of neck injury and recurring headaches. He recorded that the applicant:
“had been employed by Ausgrid and reported that “it became such a dangerous place to work as the workers were taking short cuts and my safety was an issue as there were three safety incidents when I was up a pole.”
There were several complaints made by two workers when ‘I made them accountable for their times at work and where they were at work, and I resigned from that positon and then I worked as a part of another team.’
Mr Fisk reported that in January 2018 one of the workers had assaulted him in front of sixty staff resulting in a rapid deterioration in his psychopathology.
Mr Fisk had discussed his complaints with a Manager and “I was given a disciplinary letter.”
Mr Fisk reported “the twelve month period of worrying about the safety issues and the lack of training and competence of the staff running the projects dragged me down physically and mentally.”
Dr Vickery diagnosed “Major Depressive Disorder with anxious distress due to multiple personal stressors”. Dr Vickery noted deterioration in marital relationship, separation and divorce. He was of the opinion that “the psychiatric disorders are Major Depressive Disorder and Somatic Symptom Disorder which are secondary to his work injury and to his multiple personal stressors”.
Dr Vickery noted the history that the applicant was given a disciplinary letter, that it was the report of the applicant that any action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and discipline was a form of harassment, and the opinion of Dr Rose. He was of the opinion that the applicant’s current condition was “not caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and discipline”.
Dr Vickery’s report dated 22 August 2021 was a response to a request for an assessment of permanent impairment. Amongst other matters, he stated that “the Major Depressive disorder is due to multiple personal stressors and is not work related”.

Other

In an incident report dated 28 January 2016, completed by Michael Duffy, the applicant’s supervisor, in respect of an “incident – medical treatment” dated 27 January 2016, a brief description of “anxiety and depression” was given and a “long description” was given that “the employee presented yesterday with a medical certificate stating… unfit for work due to anxiety and depression secondary to workplace… issues. Allegedly has had threats of termination due to organisational… restructure”.
Luke Sheridan provided an unsigned and undated statement which was attached to the Application to Resolve a Dispute. He stated that he was a fellow employee at Ausgrid. It purported to provide support to the applicant’s statements concerning the handling of the proposed job cuts from about 2014 and the ensuing uncertainty. I approach this statement with some caution. However, to the extent that it provides a short narrative of these issues, which is in accordance with the clinical notes of Dr Erasmus, noted above, in my view some weight is given to that statement.
Matthew Woods provided a short email statement dated 28 July 2020. I have approached that statement with some caution as it is also unsigned. He stated that he was a former employee of Ausgrid and he confirmed that he grabbed the applicant by the throat in relation to the use of a vehicle. However, he did not refer to a specific date or time period. I place little weight on this statement.
A hospital discharge of the Gosford Hospital dated 2 June 2021 noted a number of background issues of separation from his wife of 28 years a few weeks prior to surgery, ongoing pain and migraines, poor support, little contact from his adult children since separation and “very difficult workers comp journey”. It was noted that on admission the applicant had presented to the emergency Department at the insistence of his general practitioner who had concerns about suicidality and that Dr Goriparti had initially recommended private hospital admission but this was refused funding by Ausgrid. It was noted that the applicant was very reluctant to accept care and despite presenting with symptoms of low mood, overwhelming distress and suicidal ideation with a plan, he had insisted on discharge. Under the heading of “physical” it was noted that the applicant worked as a linesman for Ausgrid “– workers comp” and noted were ongoing cervical issues, neuropathy and persistent migraine secondary to neck issues and significant impairment in functioning as a result. It was noted that neck surgery was done in February 2021 and the applicant reported worsening of his symptoms.

Reasons

As the only claim by the applicant that is before me is for permanent impairment, the only issue to be determined is the dispute as to whether the applicant sustained primary psychological injury, deemed to have happened on 27 January 2016 [1].
[1] [2010] NSWWCCPD 49.
The applicant submitted that it does not deny that to a degree, his psychological impairment results as a consequence of, or secondary to, a physical injury which he sustained as a result of the nature of his work, and injury that led to his undergoing cervical spine surgery on 3 February 2021, but his case is that his psychological condition is also very much the result of the nature of his work and the events at his work, and that he should be found to have suffered a primary psychological injury.
The respondent did not dispute that the applicant had sustained psychological injury. However, it contended that the applicant’s psychological injury in its entirety was a secondary psychological injury, as defined in section 65A (5). At the arbitration hearing of this matter, the respondent also conceded that it did not rely upon a section 11A dispute.
The respondent submitted that if the opinion of Dr Vickery is accepted then the applicant suffers only from a secondary psychological condition, or in the alternative that the applicant has not established a causal link between the allegations made and the applicant’s condition.
In submissions by the respondent, emphasis was placed upon the lack of contemporaneous reference to the assault on the applicant in January 2016. There is no reference in the clinical notes of Dr Erasmus to such an assault at that time, as can be seen from the summary above. There is no reference to the assault in the histories taken by Dr Bench,
Dr Goriparti and Mr Nielsen, noted above, as well as that of Dr Rose. The respondent did not submit that the assault did not take place, rather, it was submitted that the emphasis placed by the applicant on the assault in the history recorded by Dr Rastogi and Dr Lim and in the applicant’s statement was not supported by the contemporaneous medical records of
Dr Erasmus, Dr Goriparti, Dr Bench, Dr Rose and Mr Nielsen, and indeed in the applicant’s statements prior to 15 October 2018. It was submitted that similarly there were no contemporaneous complaints of a toxic work environment or bullying and harassment. The respondent also pointed to a change in the histories recorded in 2020, such as that of
Dr Lim, with the early attendances on Dr Lim referring to adjustment disorder issues in relation to chronic pain, with a similar absence of history noted in the Gosford Hospital discharge notes. It was submitted that the applicant cessation of employment in 2016 should be treated with caution in the absence of reporting in the relevant period.
I do not accept these submissions by the respondent. The clinical notes of Dr Erasmus, the incident report of 27 January 2016 and the histories recorded by Dr Bench, Dr Goriparti and Dr Rose all point to workplace issues and in particular the uncertainty and anxiety arising from the handling of redundancies for a period of two and a half years as well as issues surrounding his difficulties with travel allowances and over time and also relating to the handling of safety issues. The absence of contemporaneous record of the assault in respect of the applicant’s cessation of employment and in respect of his symptoms in my view does not detract from contemporaneous workplace issues recorded above. The absence of such contemporaneous record of the assault, as asserted by the respondent, is but one of the workplace issues relied upon by the applicant and indeed did not form part of the history relied upon for the diagnosis provided by Dr Goriparti in 2016 and Dr Bench in 2017. It is the case that the applicant in his statement of 15 October 2018 and in his history provided to
Dr Rastogi did refer to the assault in respect of his cessation of employment. However, the applicant’s statements can be reconciled on the view of Dr Rastogi that the incident was “the last straw”, as indeed did the applicant, that is a relatively minor incident in terms of the applicant’s history of difficulties at work and symptoms over a long period of time. The applicant was diagnosed by Dr Erasmus as being depressed and anxious prior to January 2016, with symptoms of stress being noted by August 2015. To the extent that the applicant’s later statement of 15 October 2018 appears to place greater emphasis on the assault in January 2016, to which she had previously not referred in his statements, this in my view is more a difficulty with recollection as to the extent of symptoms following from that “last straw” incident. In my view the applicant’s statements prior to 15 October 2018 are a more accurate description of the workplace issues that were causing difficulties for him at the time of ceasing work in January 2016, and as supported by the medical and other records referred to above.

I do not accept the respondent’s submissions in relation to the records of the Gosford Hospital and the notes and reports of Dr Lim. The discharge notes of the Gosford Hospital were made in 2021 and are of little assistance in respect of whether or not the applicant sustained primary psychological injury in January 2016. The discharge notes did not record when and how and to what extent the other matters became an issue and the reference to workers compensation covered a very wide field in this case, for which the hospital did not provide details, probably understandably. Dr Lim provided treatment from September 2016. His reporting in 2019 of an adjustment disorder arising from chronic pain was brief and did not refer to other workplace issues, and expressed a caveat that a review of psychiatric notes would be of assistance. I prefer the histories recorded by Dr Bench, Dr Goriparti and Dr Rastogi.
In relation to the report and opinion of Dr Vickery, the applicant submitted that Dr Vickery’s diagnosis of major depressive disorder with anxious distress due to “multiple personal stressors”, included workplace issues as Dr Vickery have particular regard to the report of
Dr Bench in this regard. The respondent submitted that regard should be had to the totality of the report of Dr Vickery, which detailed the various personal stressors which were not work-related. The reasoning process of Dr Vickery did note the report of Dr Bench, and in my view implied that this was support for the conclusion at answer 9.6 that the applicant sustained a secondary psychological condition. However, it was the case that Dr Bench in his report at question 5 was of the opinion that the applicant had elements of both primary and secondary psychiatric injury and Dr Bench noted a number of factors contributing to the adjustment disorder including numerous workplace stressors prior to his leaving that had persisted for two to three years. If the opinion of Dr Bench were to be noted by Dr Vickery in his reasoning process in this regard then in my view there should have been some discussion of these matters. There was no discussion by Dr Vickery in this regard. In my view, the reasoning process of Dr Vickery was ambiguous and for that reason I do not prefer his opinion.
Dr Rose was of the view that there was no psychological injury. However, it was not submitted by the respondent that the applicant had not sustained psychological injury. I do not accept the opinion of Dr Rose, other than to note that history recorded by him provides support to the applicant’s history of workplace issues and difficulties.
As discussed above, the history recorded by Dr Goriparti was in accordance with the statements provided by the applicant prior to 15 October 2018 and were supported by contemporaneous records of Dr Erasmus and of the incident report referred to above.
Dr Goriparti in my view regarded the applicant’s later separation and losses over the years as the result of his psychological condition. Dr Goriparti was of the opinion that the applicant psychological condition resulted from workplace stressors that he had recorded, which he described as “psychosocial stressors”. I accept the opinion of Dr Goriparti.
Similarly, the history recorded by Dr Bench is in accordance with the statements of the applicant provided prior to 15 October 2018. As noted above, Dr Bench was of the opinion that the applicant had elements of both primary and secondary psychiatric injury with a number of enumerated workplace factors contributing to his adjustment disorder with depressed and anxious mood. Dr Bench was also of the opinion that the chronic pain suggested that there was a secondary component to the causation of his adjustment disorder. Although Dr Bench was of the opinion that the most significant perpetuating factor was the chronic pain, this in my view did not detract from his comments in relation to causation and primary and secondary psychological injury. Dr Bench was of the opinion, which I accept, that the applicant’s anxiety and depression was likely aggravating and perpetuating his chronic pain.
In relation to the opinion of Dr Rastogi, as noted above, she recorded a history that was in my view broadly consistent with the applicant’s statements. In my view there was a fair climate for Dr Rastogi to provide her opinion, having regard to my discussion of the “last straw” above. Dr Rastogi was of the opinion that the applicant psychological injury was due to culmination of chronic work-related events with reported ongoing fractured relationship with his employer since 2012 and the final straw being the assault and onset of physical deterioration. She was of the opinion that the applicant had sustained a primary psychological injury. I accept the opinion of Dr Rastogi.
I do not accept the respondent’s submissions that the applicant’s case can only be advanced as an aggravation type case pursuant to section 4 (b) (ii) of the 1987 Act, in light of the applicant’s long-standing mental health conditions and the finding of a secondary psychological condition. There was no opinion of any other long-standing mental health condition, that is other than in relation to the work-related stressors. The finding in the Certificate of Determination referred to above of a secondary psychological condition does not require that there be a finding as to primary psychological injury as an aggravation. Although I was taken to the 2013 clinical note with reference to chronic pain, there was no medical evidence as to the nature and extent of that pain and whether or not it was continuing after that time. I do not accept that the issues concerning the physical injury with a focus of complaints leading to the period of incapacity. There were separate and distinct complaints of work-related stressors, as recorded by Dr Erasmus and also as noted in the incident report referred to above.
In relation to the respondent’s submissions concerning a “shift in reporting” having regard to the pursuit of a claim for lump sum compensation which would otherwise not be available for a secondary psychological condition as being ground for questioning the shift in reporting, in my view this is an invitation to speculation and I decline to do so. There is no evidence to suggest whether or not that is the case.
It was submitted by the respondent that the applicant’s complaints in relation to his uncertainty of employment must be viewed in light of the consistent and extensive reporting concerning pain arising from the physical injury. I do not accept this submission. There was also clear and consistent reporting from at least September 2015 to 27 January 2016 of psychological symptoms in respect of the applicant’s workplace difficulties, including uncertainty of employment. Reporting of pain and disability arising from the physical injury does not preclude acceptance of reporting of workplace stressors, including uncertainty of employment, which I have accepted. If this submission implies that consistent later reporting of pain arising from physical injury took place when there was no such consistent reporting of workplace stressors, then I do not accept this implication. The task is to find whether the applicant sustained injury at the relevant date, in this case a date deemed to have been on 27 January 2016, not whether later reports of chronic pain are conclusive. In this case, the clinical notes of Dr Erasmus, the incident report of 27 January 2016, and the reports of
Dr Goriparti, Dr Rose and Dr Bench all support the finding that at the relevant time up to and on 27 January 2016 the applicant had been reporting the workplace stressors discussed above. It is a matter for a Medical Assessor to assess the degree of permanent impairment resulting from injury deemed to have happened on 27 January 2016, and the significance, if any, regarding any later complaints of chronic pain.
It was also submitted by the respondent that the evidence does not support that the applicant developed discrete and distinct psychological symptoms mainly caused by the factors raised by the alleged issues in the workplace. I do not accept this submission. As discussed above, the clinical notes of Dr Erasmus, the incident report and the histories and opinions of
Dr Goriparti, Dr Bench and Dr Rastogi all noted psychological symptoms with reference to the workplace stressors. Dr Goriparti on 2 March 2016 noted significant stress and anxiety with respect to the workplace issues and recorded symptoms of difficulty with sleeping, comfort eating and weight gain and weight loss, difficulties with attention and concentration and passive suicidal thoughts. Dr Erasmus in December 2015 noted poor sleep, difficulties with sleeping and feeling unsafe and anxious.
I find that the applicant has sustained a primary psychological injury within the meaning of section 65A(5) of the 1987 Act.
As indicated in the decision of Kooragang Cement Pty Limited v Bates[2], “what is required is a commonsense evaluation of the causal chain” when considering whether the primary psychological injury results from injury deemed to have happened on 27 January 2016. The causal chain includes the applicant’s evidence that from about 2013 he experienced psychological symptoms, including anxiety and depression, following from the uncertainty of his claimants, employers handling of redundancies, safety issues in the handling of safety issues by his employer and other workers, and issues in relation to travel allowance and over time, with the clinical notes recording the history taken by Dr Erasmus, including those commencing in August 2015 and going through to 27 January 2016, and the histories recorded by Dr Goriparti, Dr Rose, Dr Bench and Dr Rastogi, culminating in him ceasing work on 27 January 2016, with incident report of the same date referring to workplace stressors. I find that the applicant’s primary psychological injury resulted from injury arising from or out of the course of his employment, deemed to have happened on 27 January 2016.
[2] (1994) 35 NSWLR 452.
Dr Bench, Dr Goriparti and Dr Rastogi were all of the opinion that the applicant’s primary psychological injury was caused by the enumerated workplace stressors and none of those doctors pointed to any other causes. Dr Goriparti was of the opinion that the applicant had sustained psychological injury on first presentation in 2016 with features of mixed anxiety and depression and report that the applicant had been struggling with these symptoms for two and a half years previously. He was of the opinion that the main stressors were work-related stressors as he had outlined in his report. Both Dr Goriparti and Dr Rastogi were of the opinion that the applicant’s personal stressors were a consequence of his work-related primary psychological injury.
As was observed in AV v AW[3],
“…The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
[3] [2020] NSWWCCPD 9 at [78].
Although this is not an aggravation case, the above observation still applies. The evidence overall in my view supports a finding that employment was the main contributing factor to the applicant’s primary psychological injury. Dr Goriparti was of the view that the main stressors were work-related. Dr Goriparti, Dr Bench and Dr Rastogi were of the view that chronic pain, or issues arising from the applicant’s physical injuries, were not a factor in contracting the applicant’s primary psychological injury. There was no medical opinion, other than that of
Dr Vickery, which I do not accept, that there were factors other than work-related factors causing the applicant’s primary psychological injury. Indeed, the medical opinion of
Dr Rastogi and Dr Goriparti was that the personal stressors were the result of the primary psychological injury. I prefer the opinions of Dr Goriparti and Dr Rastogi. I find that the applicant’s employment was the main contributing factor to his primary psychological injury.
I find that the applicant sustained primary psychological injury, deemed to have happened on 27 January 2016, arising out of or in the course of his employment with the respondent, pursuant to section 4(b)(i) of the 1987 Act.

[2022] NSWPIC 456

17 August 2022