Gamble v Campbelltown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gamble v Campbelltown City Council [2022] NSWPIC 33
APPLICANT:	Trent Gamble
RESPONDENT:	Campbelltown City Council
MEMBER:	Michael Wright
DATE OF DECISION:	25 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments as a result of psychological condition consequential to accepted back injury on 7 September 2020 and restricted duties arrangements in respect of the back injury; causation and consideration of Le Twins Pty Ltd v Luo, Kooragang Cement Pty v Bates, Murphy v Allity Management Services Pty Ltd and Comcare v Martin; applicant’s perception of real events and Attorney General’s Department v K; Held – applicant sustained psychological condition consequential to back injury on 7 September 2020; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological condition consequential to the injury to his back on 7 September 2020. The Commission orders: 2. Respondent to pay the applicant weekly payments of compensation: (a) from 11 January 2021 to 24 January 2021 pursuant to section 36(1) of the Workers Compensation Act 1987 (the 1987 Act), at the rate of $1225.14 per week, and (b) from 25 January 2021 and continuing pursuant to section 37(1) of the 1987 Act, at the rate of $1031.70, as indexed and increased in accordance with section 82A of the 1987 Act. 3. General order that the respondent pay the applicant’s medical, hospital and related treatment expenses in respect of his consequential psychological condition pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

This is an application by Mr Trent Gamble (the applicant) for weekly compensation and medical and treatment expenses in respect of a psychological condition said to be consequential to an accepted injury to the applicant’s back on 7 September 2020 as a result of his employment with the Campbelltown City Council (the respondent). The weekly compensation claim is for the period from 11 January 2021 and continuing.
The respondent issued a section 78 notice dated 2 March 2021 and a review notice pursuant to section 287A dated 13 July 2021. In the section 78 notice dated 2 March 2021 the respondent relevantly disputed that the applicant had sustained psychological injury as defined in section 4, substantial contributing factor in respect of section 9A and if injury was a disease within the meaning of section 4(b) whether employment was the main contributing factor to the contraction or aggravation of the disease, and whether there was incapacity for work as a result. In the review notice dated 13 July 2021, the respondent asserted, based upon the opinion of Dr Roberts, that the applicant had not sustained injury, consequential or otherwise, within the meaning of section 4. The respondent alleged that full-time suitable duties had been made available and continued to be made available.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 10 November 2021, the applicant was represented by Mr A Parker of counsel, instructed by Ms Nair, solicitor and the respondent by Mr Rickard of counsel, instructed by Mr M Lee, solicitor.
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.
Leave was given to the respondent to dispute the consequential psychological condition.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 7 October 2021, and
(d)    Application to Admit Late Documents dated 1 November 2021.

Oral Evidence

There was no application to cross-examine the applicant nor was there an application to give oral evidence.

The applicant’s statement

The applicant provided a statement dated 12 August 2021.
The applicant stated that following the injury to his back on 7 September 2020 he was able to return to work on restricted duties and hours. He stated that a workplace health and safety officer of the respondent kept calling his treating doctor and pushing for clearance to return to work. At that time the applicant was working normal hours on restricted duties.
The applicant stated that at that time he was effectively doing meaningless duties and his doctor agreed that he was not ready to go back to pre-injury duties as he would be at risk of further injury. He stated that his employer began to put pressure on his physiotherapist and the physiotherapist eventually upgraded the applicant’s restrictions from 10 kg of lifting to
20 kg of lifting. The applicant stated that he was not capable lifting this much and it was too much pressure on his back and he pleaded with his doctor and physiotherapist to certify capacity in accordance with their opinion and not with regard to pressure from the employer. The applicant stated that after further pressure from his employer, his physiotherapist cleared him to return to normal duties at work despite his ongoing concerns in relation to his back injury.
The applicant stated that he was growing extremely anxious about the ongoing pain in his back and his delayed recovery and continued physiotherapy but he could not do anything to relieve the pain. He stated that he was keen to return to pre-injury work but not too early as his doctor had advised that this may cause additional pain.
He stated that he was extremely frustrated and distressed by the pressure from his employer that that had been placed on him and his treating doctors.
The applicant stated that he reached “a breaking point around 9 January 2021” when
Dr Baddam, his GP, gave him a letter from the respondent dated 8 January 2021 in which it was suggested that his injury had resolved and he was expected to be back at work performing pre-injury duties. The applicant stated that he became “so anxious” that was placed by his employer upon him to return to work when he and his treating doctor considered that he was not fit to return to pre-injury duties due to his ongoing back problems. He said that he became “extremely overwhelmed and upset” and he could not sleep and had “constantly been anxious and distressed because [he] was being forced to go back to work”. He stated that his anxiety and distress became “too much” and he was certified totally unfit for work.
The applicant in his statement also acknowledged a prior diagnosis of post-traumatic stress disorder (PTSD) in about 1999 to 2000 with another employer to which he consulted a psychologist and psychiatrist. He stated that his injury was stable well before he commenced employment with the respondent although he remained reliant upon Zoloft medication which he said effectively managed his symptoms. He also outlined a previous workers compensation claim against the respondent in relation to bullying and harassment at work for which he consulted his current psychologist, Mr Woodhouse and his current GP, Dr Baddam. He stated that the latter injury had fully resolved although he relied upon Zoloft and was not seeing a psychologist immediately before 9 January 2021.
The applicant stated that he had returned to seeing his psychologist and continued to experience low mood and anxiety and his back was still sore. He said that he was anxious at the thought of returning to work as performing his pre-injury duties was likely to aggravate his back injury and he did not feel supported by the respondent and he remained totally unfit for work by reason of his psychological state.

Clinical notes and other documents of Dr Baddam

The clinical notes of Dr Baddam are discussed below. Relevantly there are entries for 11 November 2020, 13 January 2021, 19 January 2021 and subsequent entries in January 2021, February 2021 and thereafter.
There were also in evidence emails from the applicant to the respondent dated 11 January 2021, 19 January 2021 and 21 January 2021. These will be discussed below.
There is also a referral letter from Dr Baddam to Positive Affect Narellan dated 11 November 2020, which is discussed below. The presenting problem noted by Dr Baddam, was that the applicant had been feeling depressed “for many months” but wanted help as “memory, concentration and mood have deteriorated”. Dr Baddam requested counselling on a mental health plan.
Also attached to the ARD and Reply were medical certificates issued by Dr Baddam commencing 11 January 2021. These medical certificates will be relevantly discussed below.

Mr Woodhouse

Mr Woodhouse, psychologist, provided an undated report addressed to “to whom it may concern”. The applicant was referred to Mr Woodhouse by the applicant’s treating general practitioner, Dr Baddam.
Mr Woodhouse noted that the applicant was referred on 11 November 2024 dealing with depression which he had been suffering for many months with impacts on concentration, memory and mood. He noted the initial referral was via a Mental Health Plan and became a WorkCover claim in January 2021.
Mr Woodhouse noted a background of presenting issues in which the applicant had injured his back on 7 September 2020 and it was that injury that started this claim. Mr Woodhouse recorded that when the applicant presented for psychological treatment the major issues centred on the impact of chronic pain and managing at the workplace when on light duties.
Mr Woodhouse also provided his opinion that on the basis of his discussions during treatment with the applicant the impact of his back injury on his psychological health was significant. He noted anxiety in relation to the applicant’s uncertainty about returning to
pre-injury duties as they were a source of pain and also that he was experiencing anxiety related to how the injury was impacting on his relationship with the respondent.
Mr Woodhouse noted a history that the applicant said that the way his colleagues would interact with him as he wrestled with his back pain left him feeling judged and socially uncomfortable and he was aware of gossip and behaviour that left him feeling isolated and judged. Mr Woodhouse noted the applicant reported nightmares about returning to work and feelings of panic.
Also in evidence where the clinical notes of Mr Woodhouse commencing 4 January 2021. These will be discussed below.

Dr Chow

Dr Chow, consultant psychiatrist, provided a medicolegal report dated 11 June 2021 to the applicant’s solicitors.
Dr Chow recorded a history of lower back injury at work in September 2020. He noted that the applicant was soon back at work on restricted duties and hours. Dr Chow recorded that the applicant was doing normal hours but still restricted duties and the workplace and safety officer called his doctor and pushed the doctor to clear him to return to work. He noted that the applicant was often sitting in the ute or in the computer room the whole day as there were no duties for him.
Dr Chow also recorded that the applicant was having physiotherapy and the physiotherapist was also pressured by the employer to push the applicant to go back to work fully and the physiotherapist eventually upgraded restrictions from 10 kg to 20 kg, and with further pressure from the employer the physiotherapist cleared the applicant back to normal duties at work despite his ongoing concerns. Dr Chow noted that the applicant disagreed with his physiotherapist.
Dr Chow noted that the applicant returned to work in January 2021 after the Christmas and New Year’s holiday and was given a letter by his employer saying that he was ready to go back to full duties. Dr Chow noted that the applicant panicked and became anxious and saw his GP and was given Valium. He noted that the applicant said he was not ready to go back to full duties due to his concern of back pain and potential reinjury. He noted referral to a psychologist in February 2021 and the claim was denied after an IME in February 2021 and he was psychologically worse after February 2021 and became more depressed and suicidal but was able to contain his psychological state with support from family. Dr Chow noted that the applicant had being seeing the psychologist every three to four weeks in the last few months and had recurrent fluctuating low mood and anxiety and he still had a sore back.
Dr Chow recorded that the applicant said that he is sleeping poorly, his eating remains up-and-down and he worries about going back to work and his pre-injury duties would aggravate his back. He noted history that the applicant mostly stays at home and feels unsafe with people and has recurrent dreams of workplace difficulties and that he is getting more anxious and paranoid with people and has no interest to do things or see people. He noted that the applicant is skipping showers and neglecting hygiene, he can drive around by himself locally but mostly stays at home and does not go out of home much and is not seeing friends and family.
In respect of medications, Dr Chow noted that the applicant has been on Zoloft over the years and it has been increased to 150 mg since early 2021.
Dr Chow also noted a past psychiatric history including PTSD as a result of employment with another employer from 1994 to 1999 with psychiatric hospital admissions and prescribed medications. He noted that the applicant said he saw a psychologist and a psychiatrist for a few years afterwards and had remained on Zoloft over the years and had been off work for five years. Dr Chow also noted a history that a few years ago the applicant had difficulties with an acting manager of the respondent and he was off work for a few weeks and saw a psychologist for a few months to cope and he returned to work and remained well until September 2020.
On mental state examination, Dr Chow noted affect was restricted and mood described as anxious and the applicant reported ongoing fluctuating low mood, anxiety, sleeping disturbance, no interest in activities, fluctuating eating, paranoia and avoidance behaviours. Dr Chow noted that the applicant’s antidepressant medication had been increased and he had been seeing a psychologist.
In summary, Dr Chow noted that the applicant said that the current psychological episode stemmed from the back injury and he went off work in September 2020 initially on a physical claim but with not feeling supported by the workplace due to the pressure on him to return back to full duties the applicant had escalated anxiety and he eventually could not cope and went off work.
It was Dr Chow’s opinion that the previous episode of PTSD has been stable and the recent physical injury aggravated the psychological state leading to escalated anxiety, paranoia and interpersonal hypersensitivity.
Dr Chow stated that the applicant reported experiencing sufficient symptomatology to warrant a diagnosis of adjustment disorder. Dr Chow diagnosed the applicant psychological condition as an adjustment disorder. He disagreed that the applicant was suffering from a normative stress reaction and stated that it was his opinion that he considered that the applicant had suffered psychologically to a clinical level to warrant a psychiatric diagnosis leading to significant distress and impairment. Dr Chow noted that Zoloft was increased to 150 mg and that the applicant had been seeing a psychologist every three to four weeks in the last few months and he considered that the treatment had arisen as a consequence of the applicant’s work injury and that treatment is a reasonably necessary treatment expense.
Dr Chow agreed with Dr Baddam’s assessment that the applicant was incapacitated for work and considered that this incapacity for work had arisen as a result of the psychological injury due to the fact that the applicant had ongoing escalated anxiety and concerns relating to his back injury.
In relation to the opinion of Dr Roberts, Dr Chow disagreed with Dr Roberts that the applicant does not have a recognisable psychiatric condition. Dr Chow was of the opinion that the applicant had escalated psychological symptoms and the psychological symptoms have developed after the applicant’s back injury and during his subsequent return to work process and in his opinion the applicant psychiatric condition developed as a result of his back injury.

Dr Roberts

Dr Roberts, psychiatrist, provided a medicolegal report to the respondent dated 23 February 2021.
Dr Roberts referred to a covering letter of the respondent dated 8 February 2021 in which it was noted that the applicant on 7 September 2020 advised that he was working on a ride on mower when his back “jarred up”. Dr Roberts noted that the covering letter indicated that the applicant had been unable to return to his pre-injury duties and had been working mainly on restrictions of lifting and pushing and pulling up to 10 kg, more recently upgraded to 20 kg and 25 kg respectively. He also noted that the covering letter indicated that the applicant was examined by Dr Casikar who considered that any work-related aggravation of the pre-existing back condition had ceased. I note that the report of Dr Casikar was not before me.
Dr Roberts also noted that the covering letter indicated that the applicant felt betrayed by his physiotherapist on his views on his capacity to work “which is not consistent with the finding of his treating physiotherapist” and “alleges that he also has trust issues with his workplace, of him being ‘pushed’ into working in a hired [sic] capacity before he is ready and as such he is unable to return to work due to anxiety and stress reaction, effective from 11 January 2021”.
In respect of presenting complaints, Dr Roberts noted that in respect of psychiatric/psychological status the applicant said that he had thoughts in relation to his back, and that he had dreams which were weird and all to do with his job. Dr Roberts noted complaints related to a tendency to tremble, what the applicant described as an unusual underarm smell which was embarrassing, and that he was scared of losing his premises and that he stayed at home and that he listen to the radio and did stretches. Dr Roberts noted no other complaints were forthcoming. Dr Roberts noted that the applicant said that he had not recently undertaken recreational activities such as jet skiing and camping and taking photographs.
Dr Roberts noted a past medical history which included a diagnosis of PTSD while working for another employer in the period 1999 to 2000. He noted that the applicant said that he saw a psychiatrist, had been off work for five years and he had overcome his PTSD and had returned to work for the respondent where he had been employed for nine years. Dr Roberts also noted that the applicant said that he had been subjected to bullying and harassment with the respondent after being promoted to a team leader position but was bullied and harassed by those who did not get the job. Dr Roberts also noted history of instances of stress at some time in the past in relation to his partner, a neighbour and a grievance lodged by member of the public.
In respect of medication, Dr Roberts noted that medication at the time of attendance with
Dr Roberts was stated to include Zoloft, a selective serotonin reuptake inhibitor with antidepressant and axiolytic features at a dose of 150 mg per day and Valium, a benzodiazepine central nervous system depressant and axiolytic at a dose of 5 mg b.d.
Dr Roberts also recorded that he attempted to elicit from the applicant evidence of physiological concomitants of anxiety as such symptomatology would be present in someone who is suffering from significantly heightened anxiety regardless of cause. Dr Roberts noted the applicant’s responses to questions in relation to disturbance of memory and concentration, chest pain or discomfort, respiratory symptomatology, awareness of cardiac function, stomach pain or indigestion, appetite and weight, bowel and bladder symptomatology and perspiration. Dr Roberts discounted assertion of memory and concentration symptomatology.

Dr Roberts also stated that the level of symptomatology elicited would be consistent with mild to moderate anxiety levels “namely a level of anxiety that would enter awareness, cause minor discomfort and while make functioning more difficult, would not in isolation prevent functioning”. He also noted that if a depressive element was found to be present then the level of functionality may be further impacted upon.
In relation to self perception, Dr Roberts noted that the applicant stated that he kept away from people and would agree that he had problems in the areas of being nervous, tense, anxious or depressed. Dr Roberts also noted that the applicant said that he had problems in relation to his psychological state but was not sure what is going on and that he felt anxious and avoided contact with people.
In relation to mental status, Dr Roberts was of the opinion that there was no evidence of any abnormality of mood or affect, and thoughts either in form or content. He was of the opinion that there was no evidence of psychosis and the applicant was clinically cognitively intact.
Dr Roberts also recorded that the applicant said in response to questioning as to a post-traumatic stress disorder that he was experiencing PTSD because of bullying and harassment in the workplace. Dr Roberts thereafter engaged with this history with reference to a diagnosis of PTSD and dismissed PTSD as a diagnosis in the circumstances.
Dr Roberts was also of the opinion that a diagnosis of an acute stress reaction is not a “DSM”[1] diagnosis having regard to DSM criteria. He also did not agree with a diagnosis of an acute stress reaction as this diagnosis was not tenable and was contrary to the definition in the ICD code.
[1] Presumably the Diagnostic and Statistical Manual of Mental Disorders (DSM–5, DSM V or DSM as referred to by Dr Roberts)
Dr Roberts was of the opinion that the applicant was suffering a normative stress reaction as defined in DSM V, “which is a circumstance where ‘when bad things happen, most people get upset’”. He was of the opinion that as it was not an injury or illness he did not prevent activities and the applicant on psychiatric grounds had no symptoms or restrictions.

Findings and reasons

There was no dispute that the applicant sustained injury to his back in the course of his employment with the respondent on 7 September 2020. There was no dispute by the respondent as to liability for the injury to the applicants back on 7 September 2020. There was no dispute as to the amount of pre-injury average weekly earnings. There was no dispute that the applicant had sustained psychological conditions prior to 7 September 2020.
The applicant in his statement said that although he had returned to normal hours after the injury of 7 September 2020, he had not been provided with meaningful duties and he was spending most of his day sitting in a computer room or “on a ute”. He said that as he had been doing effectively meaningless duties, his doctor agreed he was not ready to go back to pre-injury duties as he would be at risk of further injury. He also said that he was becoming extremely anxious about the continuing back pain and delayed recovery and he was frustrated and distressed by the pressure placed upon himself and his doctors by his employer. He said that he “came to a breaking point” around 9 January 2021 when he was given a letter by his GP from the respondent dated 8 January 2021 in which it was suggested that the back injury had resolved and the applicant was expected to return to work performing pre-injury duties. He said that he became “so anxious” at the pressure placed upon him to return to work by the employer and he became overwhelmed and upset and couldn’t sleep and he had constantly been anxious and distressed because he was being forced to go back to work.
In my view, the emails of the applicant to the respondent dated 11 January 2021, 19 January 2021 and 21 January 2021 on balance supported the applicant statement and the history that he provided to Dr Chow and the notes and medical certificates of Dr Baddam. The email of 11 January 2021 referred to his change of circumstances where his ability to overcome the pain and the pressure to perform due to his disability and overcome the level of his mental status requiring his need for rest. The email of 19 January 2021 was somewhat convoluted, but he described “a brutal one-way street” in relation to “transparency regarding my ability to proceed positively toward my recovery it’s crazy and not normal in my opinion”. The email of 21 January 2021 discussed that due to his medication and the psychologist his anxiety and stress was very low, and he was feeling good, however “it will take a few days I’m guessing to really make a conclusion” but he was still having back pain.
The respondent’s submissions referred to a history of long-standing psychological difficulties, and referred to the referral by Dr Baddam of 11 November 2020. I have discussed these issues below and I have not accepted this submission. In relation to the history provided by the applicant, the respondent did not challenge that history other than somewhat indirectly by submitting that the referral letter of Dr Baddam of 11 November 2020 referred to depression of many months and the purported absence of explanation by Dr Baddam in relation to what the respondent described as his change of opinion that the matter was initially of no significance. I accept the applicant’s submission that Dr Roberts did not take issue with the history that he noted. Indeed, both Dr Roberts and Dr Chow noted a similar psychological history prior to 7 September 2020.
I accept the applicant’s statement and his emails as noted above. In my view, this evidence establishes that the circumstances described by the applicant in his statement and his emails and in the medical histories that he provided, this matter was of significance to the applicant.
The applicant submitted, in my view correctly, that the applicant’s perception of these matters came about as a result of his back injury and it would not matter whether or not the applicant was wrong in his perception[2]. Causation is discussed in more detail below.
[2] Attorney General’s Department v K [2010] NSWWCCPD 76 at [52]
In relation to the clinical notes and other treating documents, in my view the clinical note of Dr Baddam of 11 November 2020, about two months after the injury to the back, is significant because it indicates psychological distress relating to treatment for his back injury. That note indicated the applicant contemplated suicide following a missed appointment with the spinal surgeon the day before and the applicant said he was not in the right frame of mind and wanted a referral to a psychologist. Dr Baddam had previously noted on 3 November 2020 on a WorkCover appointment in relation to the back pain that there was a neurosurgeon appointment the next week.
The medical certificate of 11 January 2021, issued by Dr Baddam, commented that on 11 January 2021 the applicant felt betrayed by his physiotherapist as the applicant had explained his lift capacity was not at the level recommended; and the applicant also felt trust issues with the workplace, feeling that he was being pushed into working at higher capacity before he was ready. Dr Baddam diagnosed a low back injury with multiple lumbar disc prolapses and acute stress reaction and anxiety disorder and certified the applicant with no capacity for work from 11 January to 16 January 2021 and some capacity for his usual hours and usual days from 17 January to 30 January 2021.
I do not accept the respondent’s submission that it was not the opinion of Dr Baddam that the applicant’s anxiety was sufficient to certify him as having no capacity on a continuing basis, rather it was his opinion that the applicant should take one week off work. In my view, the medical certificate of 11 January 2021 should not be viewed in isolation and regard should be had to the subsequent medical certificates issued by Dr Baddam, which certified that the applicant had no capacity for work. The next certificate before me, dated 27 January 2021, noted that on 14 January 2021 among other matters discussed, the applicant felt very anxious about returning to work on 20 kg restrictions and had lost confidence in his physio. It also noted that on 27 January 2021 the applicant had been suffering psychologically since being told of the increase of duties to 20 kg and his psychological health was affected by being notified by the employer in that regard and that the applicant remained extremely anxious and needing Zoloft and Valium to control his feelings. The same certificate also certified various restrictions in relation to the applicant’s back, including maximum 10 kg capacity for lifting/carrying and pushing/pulling.
In a clinical note dated 13 January 2021, Dr Baddam recorded that the applicant was very distressed and was concerned that the respondent was trying to influence Dr Baddam and the physio to shorten the applicant’s rehabilitation, to which Dr Baddam explained that they were asking questions about recovery which was what most insurance companies do and they were interested in the applicant coming off WorkCover and getting into work quickly.
The clinical note of 19 January 2021, in which it was noted that the applicant was very agitated, had feelings that someone was trying to get him and noted that the applicant was unable to work due to this and that Zoloft was increased to 150 mg and Valium commenced, in my view supports the view that the applicant remained incapacitated for work at that time. That consultation also noted that the applicant was getting panic attacks and was unable to concentrate on the reason for the consultation was an acute stress reaction. I do not accept the respondent’s submission that it was not explained by report or otherwise by Dr Baddam how the acute stress response observed on 11 January 2021 which warranted one week off work was now an ongoing incapacitating condition. In my view, the clinical note of 19 January 2021 and subsequent medical certificates issued by Dr Baddam are sufficient for me to conclude that the ongoing incapacity was on a continuing basis from 11 January 2021.
I do not accept the respondent’s submission that the increase in the Zoloft dosage was not explained by Dr Baddam. In my view, the clinical entry dated 19 January 2021 was sufficient explanation. Dr Baddam noted the applicant had panic attacks, inability to concentrate, and was very agitated and was unable to work due to this and Dr Baddam prescribed the increase in Zoloft and the commencement of Valium. In my view, this is sufficient for me to conclude that Dr Baddam prescribed the increase in Zoloft and commencement of Valium for the treatment of the applicant’s presentation with psychological symptoms.
The respondent also submitted that there was no explanation from Dr Baddam as to why there was a continuing incapacity after 11 January 2021 in the context that he had referred the applicant on 11 November 2020 to a psychologist at Positive Affect Narellan, in which he recorded history that the applicant had been feeling depressed for many months but wanted help as memory, concentration and mood had deteriorated. I do not accept this submission. First, the clinical note of 11 January 2020, which also noted as an action a referral to Mr John Woodhouse of Positive Affect Narellan, provided the immediate context for the referral as noted above. The respondent did not take me to any clinical entries in relation to psychological symptoms in the months preceding the back injury of 7 September 2020 and there was no evidence of incapacity or treatment in that regard.
Second, the undated report of Mr Woodhouse noted the referral of 11 November 2020 with initial referral as a Mental Health Plan, becoming a WorkCover claim in January 2021.
Mr Woodhouse noted that following the back injury on 7 September 2020, which started the claim, the major issues of the applicant’s presentation centred on the impact of chronic pain and managing at the workplace when on light duties. In my view, the history taken by, and the opinion noted above of, Mr Woodhouse relates the applicant’s condition and incapacity to the injury to his back on 7 September 2020 and to the subsequent managing at the workplace when on light duties. The history recorded by Mr Woodhouse in my view did not refer to the applicant’s perception that he was being pushed or pressured return to normal duties. However the history recorded by Mr Woodhouse did note the applicant’s perception of his difficulties with his employer and colleagues in respect of isolation, being judged and gossip as he wrestled with his back pain. In my view, this history also relates the applicant’s psychological difficulties and distress to the accepted back injury and is not inconsistent with the history provided by the applicant and noted by Dr Baddam and Dr Chow of the applicant feeling under pressure from his employer to be placed on changed and reduced restrictions for work. This in my view supports the opinion of, and treatment by, Dr Baddam, as given in his medical certificates and in his clinical notes.
The respondent also referred to this as a change in the opinion Dr Baddam, that is from an insignificant injury or events resulting in a week off work, to a continuing incapacity. I do not accept this characterisation by the respondent. In my view, the clinical notes and documents referred to above, and also the subsequent clinical notes of Dr Campbell after January 2021, all indicate a condition which was not insignificant and did not reflect a change of opinion of Dr Baddam.
Given the report of Mr Woodhouse, and the clinical note of 11 November 2020, I place no weight on the initial referral by Dr Baddam being by way of Medicare.
The respondent also pointed to the clinical notes of Mr Woodhouse which were brief and took no history of the applicant prior to January 2021. The respondent submitted that an entry of 20 January 2021 by Mr Woodhouse referred only to a weekend panic attack and gossip and “Chinese whispers” and there was no reference to the events of 11 January 2021. I do not accept this submission. As noted above, in my view the report of
Mr Woodhouse provided a history and opinion which included workplace management of the applicant when on light duties. In my view, this is sufficient to include what the respondent described as the events of 11 January 2021, although the applicant, Dr Chow and
Mr Woodhouse did not characterise the context of the onset of the psychological symptoms in this way, rather than as pressure from the employer for return to a higher physical category of employment duties, or as described by Mr Woodhouse as management at the workplace on light duties.
The respondent submitted that the applicant has not satisfactorily established that any psychological injury can be related to the subject back injury having regard to the long history of psychological difficulties as demonstrated by the referral from Dr Baddam to
Mr Woodhouse. As noted above, the report of Mr Woodhouse relates the psychological condition of the applicant to the back injury of 7 September 2020 and to ensuing return to work management and issues. The clinical note of Dr Baddam of a consultation on 11 November 2020, on the same day as the referral, in my view indicates psychological distress relating to the back injury of 7 September 2020, matter which was discussed by
Mr Woodhouse in his report. Between referral and report of Mr Woodhouse the applicant in my view underwent the management issues in relation to light duties and increased capacity for work, for which he attended Dr Baddam and was certified unfit for work on 11 January 2021. In my view, the “long history of psychological difficulties” that was submitted by the respondent was not supported by the medical evidence. I was not taken to clinical notes to support this submission. Dr Roberts discussed this issue in an extended fashion and found that the applicant was not suffering from PTSD nor was he suffering from any psychological injury arising from conflict in the workplace at some period prior to September 2021. Dr Chow was of the opinion that the PTSD was stable and not causing the applicant any difficulties and he noted the interpersonal difficulties with an acting manager a few years previously which he saw a psychologist for a few months and was off work for a few weeks. There is no medical evidence before me that the applicant was suffering from psychological difficulties or injury prior to 7 September 2021. I do not accept the submission of the respondent in this regard.
In relation to the question of whether or not the applicant suffered a psychological injury, I do not accept the opinion of Dr Roberts that the applicant had sustained a normative stress reaction and applicant did not have the conditions diagnosed. In the context of the report of Dr Roberts, the phrase “conditions diagnosed” was a reference to a medical certificate issued by Dr Baddam which diagnosed an acute stress reaction and anxiety disorder.
Dr Roberts relied upon a letter of instruction dated 8 February 2021 from the respondent which purported to outline the background of the referral. Dr Roberts quoted that letter as indicating, among other matters, that the applicant felt betrayed by the treating physiotherapist upgrading his capacity for various physical activities in respect of capacity to work “which is not consistent with the finding of his treating physiotherapist” and that the applicant alleged that he also had “trust issues with his workplace” and of the applicant being pushed into working at a greater capacity before “he is considered ready” and he was unable to return to work due to anxiety and stress reaction.
However, Dr Roberts did not take a history from the applicant about the above matters.
Dr Roberts took a somewhat detailed “past medical history”. In comparison, Dr Chow, while noting the applicant’s disagreement with his physiotherapist as to clearance to return to normal duties, also noted the applicant provided a history that upon return to work in January 2021 he was given a letter by the employer stating he was ready to go back to full duties, following which he panicked and became anxious, saw his GP and was prescribed Valium and was referred to a psychologist in February 2021. Dr Chow also noted that the applicant said that he was not ready to go back to full duties due to his concerns regarding his back pain and potential reinjury. In my view, Dr Roberts did not engage with the applicant’s perception of what he saw as his employer’s pressure for return to normal duties and his ability to perform those duties, in considering whether the applicant sustained a psychological condition and incapacity.
Dr Roberts also noted the applicant’s current medication, which included Zoloft at a dose of 150 mg per day and Valium. Dr Roberts also noted that in a medical certificate dated 27 January 2021, issued by Dr Baddam, it was stated among other matters that the applicant remained extremely anxious needing Zoloft and Valium to control his feelings. Dr Roberts did not take a history from the applicant in relation to this medication nor did he make any comment in this regard in providing his opinion.
Dr Roberts characterised the diagnosis that he was reviewing as an “Acute Stress Reaction”, which was not a DSM diagnosis and did not meet the criteria outlined in the ICD Code for an “Acute Stress Reaction”. After dismissing a diagnosis of acute stress reaction on these grounds, Dr Roberts’s next step was to diagnose a normative stress reaction, which he said was not an injury or illness.
However, Dr Roberts did not explain how his finding earlier in his report that the level of symptomatology elicited from the applicant, consistent with mild to moderate anxiety levels, was taken into account in diagnosing a normative stress reaction. He did note that such mild to moderate anxiety levels cause minor discomfort but would not in isolation prevent functioning, although making functioning more difficult. There was no explanation from
Dr Roberts as to whether in the applicant’s circumstances such a level of anxiety was in isolation and whether or not functioning was made more difficult. Dr Roberts did note that the level of functionality may be further affected if a depressive element is found.

Dr Roberts did not give his opinion as to whether or not a depressive element was found.
Dr Roberts did assess mental status with no evidence of any abnormality of mood or affect. However, in the presence of his notation of the applicant currently taking antidepressant medication, in my view it was a matter for Dr Roberts to explain this issue, which he did not.
As noted above, Dr Roberts also noted a history of PTSD but dismissed this as a current diagnosis. Dr Chow noted a previous episode of PTSD following employment with another entity from 1994 to 1999. Dr Chow was of the opinion that that prior episode of PTSD was stable and had not troubled the applicant over the years. In my view, there is no medical evidence that the applicant had any incapacity relating to PTSD at the time of the back injury on 7 September 2020 and thereafter.
In relation to the opinion of Dr Chow, as noted above Dr Chow took a more detailed history in relation to the onset of the applicant’s psychological symptoms and provided greater details of the mental state examination. Dr Chow also noted the increase in dosage of the Zoloft medication after 11 January 2021 and the applicant’s consultations with a psychologist every three to four weeks, which he considered as treatment that arose as a consequence of the work injury. Dr Chow also considered and discussed the applicant’s previous psychological issues, as noted above.
In my view, the history recorded by Dr Chow and his view as to causation, are supported by the applicant’s statements and emails, the notes and medical certificates of Dr Baddam, and the report of Mr Woodhouse, all of which I have accepted. I have not accepted the opinion of Dr Roberts in relation to diagnosis and causation of the applicant’s condition in relation to his back injury of 7 September 2020 for the reasons noted above.
I accept the opinion of Dr Chow that the applicant’s current episode of psychological injury stemmed from his back injury of 7 September 2021 in the circumstances that the applicant sustained escalated anxiety when he felt not supported by the workplace due to pressure for him to return back to full duties. Dr Chow was of the opinion that the applicant had reported experiencing sufficient symptomatology to warrant a diagnosis of adjustment disorder.
Dr Chow disagreed with the opinion of Dr Roberts that the applicant did not have a recognisable psychiatric condition and he explained that the applicant had escalated psychological symptoms and those psychological symptoms have developed after the applicant’s back injury and during his subsequent return to work process. Dr Chow agreed with Dr Baddam as that the applicant was totally incapacitated for work.
At this point, I note that the clinical note of 19 January 2021 indicated in the circumstances outlined above that a medical certificate was issued on that day. I was not taken to that certificate in evidence. Dr Roberts recorded that that the respondent’s letter of instructions dated 8 February 2021 indicated that the applicant had said that he was unable to return to work due to anxiety and stress reaction effective from 11 January 2021. In my view, the evidence indicates that the applicant has had no capacity for work since 11 January 2021. This is also relevant to my view that Dr Baddam did not have a “change of opinion” in relation to the applicant’s incapacity for work.
I prefer and accept the opinion of Dr Chow.
The applicant submitted that the decision in Le Twins Pty Ltd v Luo[3] (Luo) confirmed that what is required for the determination of a consequential condition is not a determination of injury in relation to section 4 of the Workers Compensation Act 1987, but is in fact a determination whether the condition results from the primary injury, that is in this case the injury to the applicant’s back on 7 September 2020. It was submitted that the decision in Luo observed that, while the tests in this regard were the commonsense test in relation to the chain of causation, applying Kooragang Cement Pty v Bates[4] , and the material contribution test discussed in Murphy v Allity Management Services Pty Ltd[5], applying Comcare v Martin[6], regard must be had to the statutory test, in this case whether incapacity “results from” the injury to the back on 7 September 2020.
[3] [2019] NSW WCC PD 52
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796
[5] [2015] NSWWCCPD 49
[6] [2016] HCA 43; 258 CLR 467
The applicant submitted that in reality there is no other cause for the applicant’s psychological condition other than arising from the back injury of 7 September 2020. As noted above, Dr Roberts dismissed PTSD as a diagnosis for the applicant’s current condition. Dr Chow was of the opinion that the applicant’s PTSD had stabilised and was not causing him any difficulties. Dr Chow was of the view that the back injury of September 2020 had aggravated the applicant psychological state leading to escalated anxiety, paranoia and interpersonal hypersensitivity. However, in my view, taking Dr Chow’s opinion as a whole, this was not a diagnosis of aggravation of PTSD, rather it was aggravation of the applicant’s psychological state as it existed prior to the injury to his back on 7 September 2020. This psychological state was one in which the applicant said that he was functioning well and in which he was performing his normal duties and have been working with the respondent for a period of a number of years, other than an earlier episode from which he had recovered.
I accept the applicant’s submissions. I have not accepted the opinion of Dr Roberts as to diagnosis and incapacity and I have accepted the opinion of Dr Chow, as well as that of
Dr Baddam. I have accepted and found, as per Dr Chow, that the applicant has sustained psychological injury in the form of an adjustment disorder, and that such psychological condition has resulted from the injury to the applicant’s back on 7 September 2020. I find that there is no other cause for the applicant’s psychological condition, as discussed above in relation to the applicant’s statement and emails, the clinical notes and medical certificates of Dr Baddam, and the report of Mr Woodhouse. I find that the applicant has sustained a psychological condition in the form of an adjustment disorder, as a result of the injury to his back on 7 September 2020. I find that the applicant has sustained total incapacity, that is no current capacity, for work since 11 January 2021 due to his psychological condition and that such incapacity results from the injury to his back of 7 September 2020. I also find that the applicant has been unable to perform his pre-injury duties since 11 January 2021.
As noted above, there was no dispute that the applicant had sustained injury to his back on 7 September 2020. The respondent did not dispute liability in relation to injury to the applicant’s back on 7 September 2020. There was no dispute as to pre-injury average weekly earnings in the amount of $1,289.62. By my calculation, the applicant is entitled to an award pursuant to section 36 at the rate of $1,225.14 per week, being 95% of $1,289.62. The wage schedule contained in the ARD states that the section 36 period is 11 January 2021 to 24 January 2021. The award pursuant to section 36 will be for that period. By my calculation, the applicant is entitled to an award pursuant to section 37 at the rate of $1,031.70 per week from 25 January 2021 to date and continuing, being 80% of $1,289.62.
The applicant also submitted that a general order pursuant to section 60 would be appropriate if successful. In my view, a general order pursuant to section 60 in relation to the claim for medical and treatment expenses in relation to the applicant’s psychological condition is warranted.

[2022] NSWPIC 33

25 January 2022