Gerard v Ina Operations Pty Limited ATF Ina Operations Trust
[2021] NSWPIC 262
•27 July 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Gerard v INA Operations Pty Limited ATF INA Operations Trust [2021] NSWPIC 262 APPLICANT: Dean Gerard RESPONDENT: INA Operations Pty Limited ATF INA Operations Trust MEMBER: Rachel Homan DATE OF DECISION: 27 July 2021 CATCHWORDS: WORKERS COMPENSATION- Claim for lump sum compensation pursuant to section 66 of the 1987 Act in respect of alleged primary psychological injury; accepted physical injury; applicant alleged bullying and harassment on return to work; lack of medical opinion on main contributing factor test; AV v AW and State Transit Authority of New South Wales v El-Achi applied; whether primary or secondary psychological injury; Cannon v The Healthy Snack People Pty Ltd applied; Held- applicant sustained a primary psychological injury; matter remitted to President for referral to a Medical Assessor for assessment of the degree of permanent impairment.
DETERMINATIONS MADE: 1. The applicant sustained a primary psychological injury pursuant to ss 4(b)(i) and 11A(3) of the Workers Compensation Act 1987.
ORDERS MADE: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 3 March 2020
Body system: Primary Psychological Injury
Method: Whole Person Impairment
3. The documents to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the documents attached to the Applications to Admit Late Documents lodged by the applicant on 12 July 2021 and the respondent on 19 July 2021.
STATEMENT OF REASONS
BACKGROUND
1.Mr Dean Gerard (the applicant) commenced employment as a grounds and maintenance officer with INA Operations Pty Limited ATF INA Operations Trust (the respondent) in December 2019. On the second day of his employment, the applicant sustained an injury when he rolled his left ankle on a banksia cone and fell. The applicant alleges that following his return to work he was subjected to bullying and harassment causing a primary psychological injury.
2.The applicant made a claim for compensation in respect of a primary psychological injury on 19 June 2020. Liability for the injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 3 September 2020.
3.A claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made on 2 March 2021. The applicant relied upon an assessment of 19% whole person impairment (WPI) made by consultant forensic psychiatrist Dr Thomas Oldtree Clark.
4.The applicant’s entitlement to lump sum compensation for permanent impairment was disputed in a further notice issued pursuant to s 78 of the 1998 Act on 23 March 2021.
5.The present proceedings were commenced in the Commission by an Application to Resolve a Dispute (ARD) lodged on 23 April 2021. The applicant seeks lump sum compensation pursuant to s 66 of the 1987 Act in accordance with Dr Oldtree Clark’s assessment.
PROCEDURE BEFORE THE COMMISSION
6.The parties appeared for conciliation conference and arbitration hearing on 19 July 2021. The applicant was represented by Mr William Carney of counsel, instructed by Mr James Counter. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Ron Galea. Representatives from the insurer were also present.
7.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.
ISSUES FOR DETERMINATION
8. The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a primary psychological injury pursuant to ss 4 and 11A(3) of the 1987 Act, and
(b) the degree of permanent impairment resulting from injury.
EVIDENCE
Documentary evidence
9.The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 12 July 2021, and
(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 19 July 2021.
10.Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
11.The applicant’s evidence is set out in a written statement which was adopted by the applicant on 27 October 2020.
12.The applicant stated that he commenced working with the respondent as a grounds and maintenance manager in December 2019. The applicant’s duties included mowing lawns, painting buildings, maintenance of holiday cabins, emptying rubbish bins and performing janitorial duties as well as cleaning communal barbecues and toilets. These duties required the applicant to engage in prolonged walking.
13.On 17 December 2019 whilst in the course of employment, the applicant was watering the garden. The applicant was carrying a hose over his left shoulder and walking down a pavement when he rolled his ankle on a banksia cone and fell to the ground. The applicant hopped back to the office and notified the injury.
14.After the accident, the applicant underwent x-ray investigations which did not reveal any fractures. The applicant was placed in a moon boot and told to follow-up with his general practitioner in three days. The applicant consulted his general practitioner, Dr David Rivett, who instructed him on 30 December 2019 to continue to wear the boot.
15.The applicant was referred to Dr Anil Goudar. Dr Goudar requested an MRI of the left ankle and further x-rays which revealed a complete rupture of one of the applicant’s ligaments. The applicant was referred for physiotherapy.
16.On 21 December 2019, there was an office Christmas party at a restaurant. The applicant was introduced by other people as the person who was injured on his second day of work. The applicant said he was made out to be useless.
17.The applicant returned to work on 23 December 2019 on light duties. The applicant was not able to lift, carry, walk or stand. The applicant was seated at a desk doing paperwork and taking phone calls. On 27 December 2019, the applicant was certified as having no capacity for work.
18.The applicant returned to work on 15 January 2020, working two hours per day five days per week. The applicant advised his manager, Ms Tess Clark that he was required to have his leg elevated and she told him to get a cardboard box. There were no cardboard boxes available as the recycling had already been collected. The applicant was left to sit with his left ankle dangling under the desk. The issue was never rectified.
19.After this confrontation, the applicant said he was exposed to ridicule by Ms Clark. The applicant was required to greet customers at reception and Ms Clark would come in and belittle him in front of the customers. Ms Clark would say things like “this is the guy who got injured on his second day of work” and “I don’t need another administration worker”. These comments were constant and happened multiple times per day.
20.The applicant said that in February 2020 he was directed by his physiotherapist, Hugh Buxton and Dr Goudar to only wear his moon boot to work.
21.On 25 February 2020, the applicant was outside his house at the letterbox not wearing his moon boot. Ms Clark drove past the applicant’s house, stopped outside the house and proceeded to abuse the applicant as to why he was not wearing the moon boot. Ms Clark’s husband was in the car and he also muttered a few things under his breath. The applicant told Ms Clark that he had been directed by his doctor to only wear it at work. Ms Clark raised her voice in a manner that made the applicant feel threatened and she took off down the road quite fast.
22.Later that day, the applicant received a phone call from a friend who worked at another holiday park owned by the respondent. The friend said that Ms Clark had told all the staff at the applicant’s place of work that she had seen him without his boot and that he was a liar and making a false claim against WorkCover.
23.On 26 February 2020, the applicant went to work and was left a handwritten note with a set of jobs that Ms Clark considered were appropriate for the applicant to perform. These jobs were not in accordance with the applicant’s certificate of capacity and required him to perform lifts and sweeping jobs. The applicant felt that the list was just a way of punishing him. The applicant was picked up from work by his partner and had a mental breakdown in front of his family.
24.On 27 February 2020 the applicant spoke to the general manager in respect of the treatment that he had received. The call was supposed to be confidential but a couple of hours later everything that the applicant had said was sent to the operations manager who was a good friend of Ms Clark.
25.On 2 March 2020, the applicant received a call from Sue Menzies who asked why the applicant could not use the lawnmower or put any weight on his ankle. The applicant felt he was being bullied out of the office and that she held the view that there was no reason that he was in the boot. The applicant sent all of the paperwork from his doctors to Human Resources but the behaviour persisted.
26.The applicant consulted with Dr Rivett in respect of the bullying and harassment on 3 March 2020 and had not returned to any gainful employment since then.
27.In May 2020, the applicant was at Woolworths with his partner and children when Ms Clark followed him into Woolworths. Ms Clark walked down the aisle staring at and intimidating the applicant. The applicant returned to his car and waited for his partner to finish shopping. When the applicant returned home he had another breakdown.
28.The applicant stated that due to his psychological injury he experienced a range of symptoms including impaired concentration, difficulty remembering to perform self-care tasks and forgetting to feed himself. The applicant said he had become significantly socially withdrawn and only left the house once or twice per week. The applicant felt that every time he left the house he was worried that Ms Clark would stalk and harass him. The applicant was unable to leave his property without a support person. The applicant had lost contact with quite a few friends and his relationship with his partner was strained. The applicant had not been able to return to activities including remote control cars, building and racing go-karts and volunteer firefighting.
29.Attached to the applicant’s statement was a typed document titled “Deans to do list”, which included a number of tasks including, cleaning and tidying, emptying bins, cleaning cabin exteriors, weeding, using a ride on mower, edging and restocking supplies.
Treating medical evidence
30.The applicant relies on various clinical records from the Batemans Bay Medical Centre.
31.On 20 December 2019 a clinical record was recorded by general practitioner, Dr David Rivett as follows:
“rolled ankle on pinecone On Tues pm at work 17th Dec seen BBH was back in then
Xray apparently no fracture LEFT ANKLE
felt it pop out was wearing work boots
PH partial dislocation 3x before first episode 10 yrs ago
No orthopaedic review No MRi done
second episode was off work 4-5 weeks 6 yrs ago
pain lat and medial aspect
walking in Moon boot
grounds maintainence officer INGENIA Holidays Broulee
Plan MRI and orthpaedic review”
32.The applicant was referred to orthopaedic surgeon, Dr Anil Goudar.
33.In a consultation on 30 December 2019, Dr Rivett noted:
“Office has him doing office work foot down on computer no room to elevate swollen ++ by end of day”
34.At a consultation on 6 February 2020, Dr Rivett noted that the applicant was seeing a physiotherapist and had a complete rupture of the lateral ligament of the left ankle. The applicant was performing light duties two hours daily. The applicant was still experiencing pain after work.
35.On 6 March 2020, Dr Rivett recorded a consultation as follows:
“Reason for visit:
Left Ankle injury
Acute Anxiety/DepressionActions:
Letter printed.WCC teleconference
little progress with 6 weeks physio
has tried mowing other activities at managers insistence
boss female park manager saw him in thongs at his home accussed him of fraud and said such to other employees despite physio advising him to trial boot off
some secondary depression feels like staying in bed all day very anxious very irritable with children on returning home from work has to be avoided not sleeping
Boss keeps belittling him in front of other people
Letter written re. NSW Workcover Certificate of capacity/fitness.”
36.A SIRA certificate of capacity was issued by Dr Rivett on 6 March 2020 in relation to the applicant’s left ankle injury. The certificate stated:
“In Moon boot only if standing for prolonged periods awaiting specialist review Seeing physiotherapist twice weekly
Major secondary anxiety -depression
graduated return to work is failing and now complicated by alleged workplace harrassment and bullying from Park Manager Tess Clarke who has he states accussed him of fraud and belittles him in front of others now major anxiety depressive symptoms fearful of workplace and unable to sleep at night irritable with family to a major degreeneeds psychologist support and to cease graduated return to work until these issues are sorted”
37.The certificate indicated that the applicant was to see Mark Manning, psychologist. The applicant was certified as having no current work capacity from 6 March 2020 to 6 May 2020 with the comment,
“Unfit for work. Workplace managerial behaviour has compounded the situation”
38.At a consultation on 11 May 2020, it was noted that a return to work list of duties had been prepared. Dr Rivett recorded that this was “not doable unless workplace bullying and harassment is sorted out”. It was recorded that this was being investigated.
39.On 18 June 2020, Dr Rivett recorded that the applicant’s solicitor wanted a letter regarding a psychological condition secondary to workplace bullying.
40.On 20 July 2020, Dr Rivett recorded:
“has not seen a psychologist as yet all booked out
ran into ex boss in supermarket kept giving him and family foul looks said nothing repeatedly this has excerbated his anxiety”
41.On 3 November 2020, Dr Rivett recorded:
“Depression PH tried Lovan Wife wants him back on meds
Try Cymbalta
Cymbalta 30mg Capsule changed to Cymbalta 60mg Capsule.
Prescription printed: Cymbalta 60mg Capsule 1 In the morning with meals review 1 month WCC Ins will only take 28 day cert”
42.On 29 January 2021, Dr Rivett recorded a consultation with regard to “secondary depression”. It was noted that the applicant was unable to see any benefit from Cymbalta but had taken Lovan in the past which helped.
43.A consultation was recorded on 26 February 2021 as follows:
“Lawyers want him certified permanently totally incapacitated
K10 Assessment: Score 43.
Letter written re. GP Mental Health Care Plan.
Letter written re. Referral Letter.”
44.On 23 April 2021, Dr Rivett recorded:
“Seeing Psychologist and Psychiatrist
Mood low Lovan no help ceased
wife back at work
he is honme caring for kids
poor sleep
fearful of going out meeting ex accussatory employer
seen with wife”
45.Dr Rivett prepared a handwritten response to a request for information from the insurer dated 29 April 2021. Dr Rivett stated:
“Mr Gerard’s ankle is steadily improving.
His depression anxiety and PTSD are however more severe and he is seeing a psychologist and psychiatrist for advice. (This relates to the alleged abuse from his employer and alleged accusations of malingering and inventing his injury).”
46.The applicant’s psychologist was identified as Ian Benjamin. The applicant’s psychiatrist was identified as “Dr Thomas Clark”.
47.Dr Rivett prepared handwritten response to a further questionnaire from the insurer, dated 27 May 2021. Relevantly, Dr Rivett made a diagnosis of:
“PTSD – anxiety/depression
seen 6/3/20- employer accused him of fraud/falsifying his injury
- … Anxiety and avoidance of others”
48.Dr Rivett indicated that the symptoms and diagnosis were consistent with the reported mechanism of onset of injury and referred to “K10 x 3”. Dr Rivett said the applicant had been referred to a psychologist at “Grand Pacific”.
49.On 18 June 2021, Dr Rivett recorded:
“Insurer not accepting PTSD Hydrotherapy nor ex physiologist
phoning Dean weekly at random times
worsening stress
curtail to designated day and time
Letter written re. NSW Workcover Certificate of capacity/fitness.
ex employer still driving slowly past his home ! ! !”
Dr Oldtree Clark
50.The applicant relies on a medicolegal report prepared by consultant forensic psychiatrist, Dr Thomas Oldtree Clark, dated 2 February 2021. Dr Oldtree Clark’s report indicates that he had before him the applicant’s statement, claim form and the certificate of capacity dated 6 March 2020.
51.Dr Oldtree Clark indicated that due to the COVID-19 restrictions, the applicant was seen by video consultation. Dr Oldtree Clark made a clinical judgement that he had been able to assess the applicant to an adequate standard.
52.Dr Oldtree Clark took a history of the applicant slipping on a banksia code and injuring his ankle and lumbar spine. Investigation by MRI showed a ruptured peroneal tendon. The applicant underwent full reconstruction on 6 March 2020.
53.The applicant reported:
“He returned to work on light duties before the operation and was subject to harassment by managers. He said a manager at his place of employment ‘stalked’ him. He said that she shouted at him in the street. She followed his family into Woolworths. He remembers he, his partner and children were in Woolworths, where she 'started' on them, publicly humiliating them. He complained to the general manager at work but this made things worse.”
54.Dr Oldtree Clark took a background history of dyslexia and the applicant not seeing his first two children as much as he should. The applicant’s second relationship was troubled by the stalking from his manager. The applicant and his current partner had twins, one of whom had Turner Syndrome. She had special needs but the family did not have any in-house help. The applicant was overweight, having gained 35 kg since his foot injury but did little about this.
55.Dr Oldtree Clark noted that the applicant had not been going out as he used to. The applicant was antisocial and could not leave the house unless he had his partner with him. The episode when he was harassed in Woolworths still stuck in his mind.
56.Dr Oldtree Clark made a diagnosis of major depressive disorder in accordance with DSM-V criteria for the condition.
57.Dr Oldtree Clark was not asked to and did not provide a specific opinion with respect to causation.
58.Dr Oldtree Clark made an assessment of 19% WPI.
Dr Whetton
59.The respondent relies on a medicolegal report prepared by psychiatrist, Dr Peter Whetton, dated 25 August 2020.
60.Dr Whetton took a history of the ankle injury and the applicant’s return to work doing light duties:
“He said that when in the office clients would come to book themselves into the holiday park, the park manager Ms Tess Clark would make comments ‘this is the guy who injured himself on his second day at work’. He said that she would make these remarks in a sniggering, laughing, joking manner. The response of the customers he said was mixed, some would laugh, and some made no response at all.
…
He said that around 22 or 24 February Ms Clark drove past his house. He said he had been told to take his Moon boot off when he could, by the physiotherapist and orthopaedic surgeon and when Ms Clark noticed that he was not wearing the Moon boot asked why he was not doing so and said that she then told the office that she had seen him without a Moon boot. He commented on the lack of confidentiality. There were further complaints about the way in which Ms Clark was relating to him and further comments about his lack of ability to complete duties.”
61.Further:
“He describes the behaviour of Tess Clark as being ongoing, critical, and downgrading and felt ‘a puppet on the end of her string’. He said that Ms Clark can be a ‘nasty person’ who can make life difficult for you ‘f you don't dance to her tune’.
He said that approximately eight or 10 weeks ago he was with his partner in Woolworths and Ms Clark came in after they had entered the store and gave them ‘filthy looks’. He said that he felt intimidated by Ms Clark and as a result of that did not want to go out from the house. With the investigation he said he had the idea that he was being watched but could not be sure that this was the case.”
62.The applicant said that he attended his general practitioner who suggested psychological treatment and put him off work. The applicant had not been able to access psychological counselling in his area and to date none had taken place.
63.Dr Whetton noted the surgery to the applicant’s ankle on 22 July 2020. The applicant said he had been physically limited since the time of the injury and could not walk or stand for more than 20 minutes. The applicant described ongoing pain and not being able to follow his usual outside activities, housework or lawnmowing.
64.The applicant reported becoming depressed and suicidal in 2010 or 2011 in the setting of a relationship breakdown. The applicant was in a significantly depressed state for six or nine months and continued with medication for about two years. He improved and there were no other instances of mental health problems.
65.With regard to the applicant’s current functioning, Dr Whetton recorded that the applicant’s mood was variable but he was irritable and may feel down and frustrated by his circumstances. The applicant was not able to drive a car with his Moon boot. The applicant went shopping with his partner. Self-care and personal hygiene were adequately attended to with the physical limitations of his ankle problems. The applicant maintained contact with friends and maintained his interests even though he was not able to participate in them because of his ankle problems. The applicant was able to concentrate on TV programs. The applicant’s partner was frustrated at having to do everything in the household. Dr Whetton noted the diagnosis of Turner Syndrome in one of the twins and her learning difficulties. The applicant’s partner also had a health condition which was a source of worry.
66.Dr Whetton concluded:
“On examination on 24/08/2020 he is not presenting with significant psychiatric symptoms to warrant a psychiatric diagnosis.
The essential problems are those of his physical injury from which one month after surgery he is still recovering.
He has been in a state of emotional upset, in regard to issues with the employer. This does not reach a level of psychiatric diagnosis and he does not present as psychiatrically ill.”
67.In response to specific questioning, Dr Whetton confirmed that the applicant’s complaints were within the realms of emotional upset, anger and frustration but did not warrant a psychiatric diagnosis.
68.Dr Whetton confirmed that there was no history of pre-existing psychiatric disorder although there was a significant history of previous depression around 2010/2011. With regard to causation, Dr Whetton stated:
“There is no psychiatric diagnosis however his state of emotional upset and distress is secondary to the physical injury and its consequences and the described issues with Ms Clark.”
69.In response to a question as to when the psychological injury was established, Dr Whetton stated:
“He specifically describes a state of upset in February when he said Ms Clark belittled him in front of a customer and it was subsequent to this that he said that he became upset, moody and tearful in front of his family lasting some three to four days.”
Respondent’s other evidence
70.The respondent relies on an email dated 13 July 2021 from Sue Menzies, Health, Safety & Environment (HSE) - Advisor for the respondent, responding to two questions as follows:
“Has Tess Clark driven past Dean’s place of residence recently, most notably in mid-June 2021? Mentioned in clinical notes for consult of 18/06/2021 – Tess advises she has not driven past Dean’s residence recently. She categorically denies she has any reason to be in that area. To support this please find listed below a screen shot of Tess’s timesheet demonstrating that Tess was at work on the 18th June 2020. In order to provide further evidence Dean would need to specify the date and time he alleges Tess was driving past.
Does Tess’ son still live in the local vicinity of Deans’ residence …? Tess’s son no longer lives in the area of […] Street – he moved to Broulee in 2020.”
71.Attached to the email is a screenshot of Ms Clark’s timesheets for the period 7 June 2021 to 20 June 2021.
Applicant’s submissions
72.Mr Carney referred to the applicant’s written statement. According to his evidence, the applicant was working for the respondent for a very short period when he rolled his left
ankle on a banksia cone in a driveway. The applicant returned to work on light duties on 23 December 2019. The applicant was unable to lift or carry, walk or stand and was assigned light duties sitting at a desk. The conduct alleged to have caused a primary psychological injury occurred whilst the applicant was on light duties.73.The applicant had been advised that he was required to have his leg elevated. The applicant was instructed by Ms Clark to obtain a cardboard box, however, there were none. The applicant claimed that he was subjected to ridicule by Ms Clark by her telling customers that the applicant was injured on his second day of work and that she did not need another administration worker.
74.The applicant gave evidence that in February 2020 he had been directed by his medical practitioners to only wear a moon boot while at work. On 25 February 2020, Ms Clark drove past the applicant’s house and stopped and asked about the moon boot using a raised voice and in a manner that made him feel threatened.
75.In May 2020, the applicant described Ms Clark following him and staring at and intimating him at a Woolworths store.
76.Mr Carney noted that in July 2020 the applicant underwent a complete reconstruction of the left ankle. This indicated that he had sustained a genuine and serious injury. This was said to be relevant in considering the allegations made against him by Ms Clark.
77.Mr Carney referred to the entry in Dr Rivett’s clinical notes on 18 June 2021 which referred to the applicant’s former employer still driving past his home. Mr Carney noted that according to the email correspondence from the respondent, Ms Clark did have reason for being in the applicant’s area previously as her son had resided there. The clinical note did not suggest that Ms Clark only drove past on the day of the consultation. Presumably it happened in the period prior to 18 June 2021. The request for further particulars suggested she may have been in the area at other times. Whether Ms Clark slowed down or not was another matter. The other incidents complained of by the applicant had not been denied by Ms Clark. Those other incidents were described as more significant and more confrontational.
78.Mr Carney observed that a clinical noted had been recorded in relation to the “moon boot incident”. On 6 March 2020 a clinical note referred to the applicant’s boss seeing him at home in thongs and accusing him of fraud and saying such to other employees. The same clinical note referred to the effect on the applicant and suggested a diagnosis of depression. In May 2020, it was recorded that the applicant had been referred to a psychologist although an appointment had not been arranged. On 11 May 2020, the applicant’s doctor considered that a return to work was not possible unless the bullying and harassment was sorted out.
79.In July 2020, the clinical notes referred again to the need for the applicant to see a psychologist but appointments were booked out. The incident in the Woolworths store was also noted.
80.Mr Carney observed that the applicant’s general practitioner had prescribed Lovan and Cymbalta.
81.Mr Carney referred to the doctor’s responses to questionnaires from the insurer. These referred to the applicant suffering from Post-Traumatic Stress Disorder (PTSD), anxiety and depression in the context of being accused of fraud or falsifying information. The applicant had been referred to a psychologist at “Grand Pacific”. In a second questionnaire, the applicant’s anxiety and depression was described becoming more severe.
82.Mr Carney submitted that the clinical records therefore revealed psychological symptoms, treated with medication and diagnosed as depression, anxiety or PTSD. The causal relationship between the applicant’s condition and work was also explained.
83.Mr Carney referred to the medicolegal report from Dr Oldtree Clark and the history obtained. Dr Oldtree Clark diagnosed a major depressive disorder. Mr Carney submitted that the diagnosis was supported by Dr Oldtree Clark’s assessment against the PIRS categories having regard to the effect on the applicant’s self care and hygiene and social and recreational activities. This assessment was contrasted with what was reported by Dr Whetton.
84.Dr Whetton suggested that the physical injury was the reason why the applicant was not going out. Mr Carney said Dr Whetton’s opinion was inconsistent with the applicant’s evidence that he avoided going out in order to avoid confrontation.
85.Dr Whetton found there was no psychiatric diagnosis and only a state of emotional upset and distress secondary to the physical injury and the described issues with Ms Clark. Mr Carney submitted that Dr Whetton’s opinion was at odds with the clinical notes which showed the prescription of medication and diagnoses. Mr Carney said Dr Oldtree Clark’s diagnosis was consistent with the clinical notes and Dr Rivett’s responses to the insurer’s questionnaires.
86.Mr Carney submitted that on the balance of probabilities the applicant had suffered a primary psychiatric condition in the nature of major depressive disorder as diagnosed by Dr Oldtree Clark. Dr Whetton’s opinion was not based on a full or accurate history. Most of the factual matters relied on by the applicant other than whether Ms Clark drove by at some time and slowed down or sped up were undisputed. The major allegations made against Ms Clark were not contested. Mr Carney submitted that these were the reason for the applicant’s psychological symptoms.
Respondent’s submission
87.Ms Goodman said there was a different flavour to the evidence which ought to be taken into account. Ms Goodman noted that there was no medical evidence to say the applicant suffered a psychological injury to which employment was “the main contributing factor” or “a substantial contributing factor”. Ms Goodman also noted some discrepancies in the evidence as to whether the applicant injured his lumbar spine in the fall on 17 December 2019 and the timing of the ankle surgery.
88.Ms Goodman submitted that the causative events relied on by the applicant were secondary to the physical injury. The applicant described a confrontation about elevating his ankle and comments made by Ms Clark about injuring his ankle on his second day of employment. The latter was described as a factually correct comment. Ms Goodman submitted that if there was any psychological condition in early 2020 it was secondary to the physical injury. The applicant’s general practitioner recorded that the applicant’s reported psychological symptoms were secondary also.
89.Ms Goodman noted that there was a complete absence of evidence from the applicant’s treating practitioners to confirm that he had been instructed to only wear a moon boot to work. The clinical notes demonstrated that the applicant was advised to wear a moon boot for three days. No evidence had been provided from any doctor that the applicant was to continue wearing a moon boot at particular times.
90.Ms Goodman submitted that the Commission would not accept the applicant’s evidence unless it was corroborated by some other evidence. Ms Goodman noted that the events reported in the clinical note on 18 June 2021 were directly disputed by Ms Clark.
91.Ms Goodman noted that no clinical record was made on 25 or 26 February 2020 with regard to events said to have occurred on that date, although an account was later given on 6 March 2020.
92.The applicant’s evidence was that on return to work he was given a handwritten note with a list of jobs to perform. The document attached to the applicant’s statement purporting to be the list of jobs was not handwritten. The applicant’s evidence in this regard was unclear and contradictory. The tasks the applicant was unable to perform related to the physical injury. Any psychological symptoms arising from this event would appropriately be described as secondary to the physical injury.
93.Ms Goodman noted the applicant’s assertion that he was given jobs which were not in accordance with his certificates of capacity. Ms Goodman observed that only one certificate of capacity dated 6 March 2020 was in evidence. That certificate referred only to a need to wear a moon boot if standing for prolonged periods. The certificate referred to physiotherapy but no evidence from a physiotherapist was in evidence. The same certificate referred to secondary depression. Although there was a reference to “harassment and bullying”, the other evidence indicated that what Ms Clark was accused of saying related to the condition of the applicant’s left ankle and inability to do the work he was expected to do, being matters secondary to the injury.
94.Ms Goodman observed that no report or document from the applicant’s psychologist Mr Ian Benjamin was in evidence. The applicant had asserted that he was not able to get those records but there was no evidence as to what steps he had taken, whether a Direction for Production was sought and if not, why not. The applicant had chosen to run his case with little or no evidence. Ms Goodman submitted that an inference should be drawn that information from Mr Benjamin would not have assisted the applicant’s case.
95.Ms Goodman noted that although the applicant claimed to have undergone arthroscopy and complete reconstruction of the left ankle performed by Dr Anil Goudar, no evidence had been provided from Dr Goudar.
96.Referring to Dr Oldtree Clark’s report, Ms Goodman noted that he took a history of Ms Clark staring at the applicant in Woolworths. Ms Goodman submitted that such staring would not constitute “public humiliation”. The applicant had made up the assertion that he was “publicly humiliated”.
97.Similarly, Dr Oldtree Clark referred to “stalking” but the applicant’s other evidence was that he was followed into Woolworths on one occasion and Ms Clark drove past the applicant’s house on the way to her son’s house.
98.Ms Goodman observed that Dr Oldtree Clark’s report identified a number of non-work related factors that could explain the applicant’s condition including not seeing his first two children as much as he should; one of his twins having Turner Syndrome; dyslexia; and weight gain.
99.Ms Goodman observed that Dr Oldtree Clark diagnosed major depressive disorder but submitted that he did not explain the relationship to either the injury to the ankle or the interactions the applicant had with Ms Clark. Dr Oldtree Clark did not consider whether employment was “the main contributing factor” or “a substantial contributing factor” to the injury. Ms Goodman submitted that the Commission would not be satisfied on this evidence that the applicant has suffered a psychological “injury”.
100.If the Commission were satisfied that there was some psychological injury, Ms Goodman submitted that it would be secondary to the physical injury. Ms Goodman referred to the report of Dr Whetton in this regard. Dr Whetton took a history of issues around the physical injury, including using crutches and a moon boot following the ankle surgery.
101.Ms Goodman submitted that Dr Whetton found the applicant’s psychological symptoms were secondary to the ankle injury but did not find those symptoms warranted a psychiatric diagnosis. The applicant had been in a state of emotional upset. This did not reach the level for a psychiatric diagnosis.
102.Ms Goodman noted that the first K10 assessment and GP Mental Health Care Plan were done on 26 February 2021. The clinical note on that occasion recorded that the applicant’s lawyers wanted him certified permanently totally incapacitated. The K10 assessment and mental health care plan were not amongst the materials in evidence suggesting that an incomplete set of clinical records had been lodged by the applicant. No workers compensation certificates were in evidence apart from that dated 6 March 2020. No records of attendances in relation to the ankle injury were in evidence either.
103.The doctor’s responses to the insurer’s questionnaires suggested that the applicant had been referred to a psychologist and psychiatrist. No evidence from any specialist had been lodged with the Commission.
104.Insofar as Dr Rivett made a diagnosis of PTSD, Ms Goodman noted that such a diagnosis would normally require evidence of some traumatic event. The physical injury in this case was not traumatic.
105.Ms Goodman submitted that Ms Clark staring at the applicant was not appropriately characterised as bullying or harassment. Some repetition of the behaviour was required. There was evidence of repeated behaviour of this kind.
106.Ms Goodman submitted that the Commission would not be satisfied that the applicant suffered a psychological injury either in the physically injurious event or in respect of any comments made by Ms Clark to the applicant or in front of him. Dr Oldtree Clark had not dealt adequately with causation and gave no opinion in relation to the main contributing factor or substantial contributing factor to the condition.
107.Noting the reference in the evidence to a previous significant depressive condition, Ms Goodman said it was likely that any condition would require determination against s 4(b)(ii), in which case employment was required to be the main contributing factor.
Applicant’s submissions on reply
108.Mr Carney submitted that the injury occurred after the applicant’s return to work. There was no evidence of a pre-existing condition at the time the applicant was employed by the respondent. Any previous condition had resolved many years before. The injury would therefore be one falling within s 4(b)(i).
109.In relation to the main contributing factor test, Mr Carney submitted that Dr Oldtree Clark did not identify anything other than conduct of Ms Clark as causative of the condition. The test required consideration of the totality of the evidence. The evidence only suggested one cause. Dr Rivett’s evidence was consistent with Dr Oldtree Clark’s opinion in identifying a diagnosable condition, relevant symptoms and their cause. There was no evidence to suggest that anything other than the conduct which occurred after the applicant returned to work on light duties was causative of the condition.
110.Mr Carney submitted that all of the conduct complained of was intended to humiliate the applicant. Abusing the applicant in the street, staring at him and following him around the aisles at Woolworths constituted stalking or at least intimidatory behaviour. The injury occurred following this course of conduct.
111.The applicant’s evidence was corroborated by Dr Rivett’s clinical notes. Although no psychologist’s evidence was before the Commission it was not known whether that would assist or not. The applicant was prescribed medication. The Commission would not have any doubt as to the existence of a diagnosable condition.
FINDINGS AND REASONS
112.Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
113.“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
114.In Attorney General's Department v K[1] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
[1] [2010] NSWWCCPD 76.
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
115.Further at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.”
116.It is the applicant who bears the onus of establishing on the balance of probabilities that he has sustained an injury for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
117.It is a notable feature of this case that much of the applicant’s evidence as to the events he claims to have experienced in the workplace is undisputed. No witness statements have been lodged by or on behalf of the respondent in these proceedings to cast doubt over the applicant’s allegations with regard to the conduct of Ms Clark and others upon his return to work after the left ankle injury.
118.In particular, there is no evidence to contradict the applicant’s claim that he was told by Ms Clark to use a cardboard box to elevate his leg and that the situation was never rectified when there were no cardboard boxes available. There is no evidence to contradict the applicant’s claim that Ms Clark would make comments about the applicant in front of customers such as “this is the guy who got injured on his second day of work” or that she did not need “another administration worker”. The applicant’s evidence is that these comments were constant and happened multiple times per day. There is no evidence to contradict the applicant’s claim that he was introduced at a Christmas party to other staff as “the guy who injured himself on the second day of work”.
119.No evidence from Ms Clark has been provided to contradict the applicant’s claim that she drove past the applicant’s house on 25 February 2020 and confronted the applicant about not wearing a moon boot when she saw him at the letterbox. There is no evidence to contradict the applicant’s claim that Ms Clark raised her voice in a manner that made the applicant feel threatened and took off quite fast down the street. The applicant’s claim that Ms Clark told others in the workplace that the applicant was a liar and making a false claim for compensation is also undisputed.
120.Ms Goodman has identified a possible inconsistency between the applicant’s evidence that he was given a handwritten note listing the jobs considered appropriate for him to perform and the typed document attached to the applicant’s statement. There is, however, no witness evidence to contradict the applicant’s claim that he was asked to perform jobs that were inconsistent with his certificate of capacity including lifting and sweeping jobs. There is no evidence to contradict the applicant’s claim that a conversation with the general manager which he considered to be confidential was disclosed to the operations manager who was a friend of Ms Clark. There is no evidence to contradict the applicant’s claim that the applicant was questioned on 2 March 2020 as to why he could not use a lawnmower or put any weight on his ankle by Ms Menzies.
121.The respondent has submitted that the applicant’s evidence would not be accepted in the absence of some corroborating evidence. This submission was made having regard to a number of other minor inconsistencies in the evidence and the apparent contradiction between the email evidence from the respondent dated 13 July 2021 and what was reported in a clinical record made by Dr Rivett on 18 June 2021 with regard to whether Ms Clark was still driving slowly past the applicant’s house.
122.I am not satisfied that these circumstances constitute a proper basis for discrediting the remainder of the applicant’s evidence in the absence of corroboration. The clinical record of 18 June 2021 does not state when Ms Clark was reported to have driven past the applicant’s home. It is not clear from the clinical note whether the applicant was even referring to Ms Clark or some other employee of the respondent. Whilst I would be prepared to accept that Ms Clark had not driven past the respondent’s residence “recently” or on the day of 18 June 2021, the content of the email dated 13 July 2021 suggests that she may have driven past his home on previous occasions. It is noted, for example, that Ms Clark’s son had lived in the same area as the applicant until moving to Broulee in 2020.
123.In any event, relatively contemporaneous accounts of the applicant reporting these events to his general practitioner, Dr Rivett, can be found in the clinical records. A clinical record dated 30 December 2019 referred to the applicant doing office work with his foot down with no room to elevate it and his foot being very swollen by the end of the day. The clinical record of 6 March 2020 referred to trying mowing and other activities at his manager’s insistence. The same record referred to a manager seeing the applicant in thongs at his home and accusing him of fraud. The record referred to the same manager saying the same to other employees. Reference was also made to the applicant’s boss belittling him in front of other people.
124.A consistent history of the same events has also been provided by the applicant to the medicolegal experts qualified by both parties in these proceedings
125.In all the circumstances, I am satisfied that real events of the kind described by the applicant in his written statement did in fact occur.
126.The next question which arises is whether those events were causative of a diagnosable psychological condition. The applicant’s evidence is that he viewed the conduct of Ms Clark as making him out to be useless, ridicule or belittling. The applicant said he felt threatened by Ms Clark’s comments in the incident on 25 February 2020. The applicant felt that he was being asked to do jobs that were inconsistent with his certificate of capacity as a way of punishing him. The applicant said that after receiving a call from Ms Menzies on 2 March 2020, he felt he was being bullied out of the office and that she held the view that there was no reason for him to be in a moon boot. Whether or not those perceptions were objectively sound, I accept that the relevant events were perceived in the manner described by the applicant.
127.The applicant’s evidence is that these events caused him to have a “mental breakdown”. The applicant’s evidence is consistent with the clinical record made by Dr Rivett on 6 March 2020. That clinical record described the reason for the applicant’s visit as being for “acute anxiety/depression” amongst other things. The applicant described feeling like staying in bed all day, being very anxious and very irritable with his children. The applicant described difficulty sleeping.
128.In the SIRA certificate of capacity issued on 6 March 2020, Dr Rivett stated that the applicant had major anxiety and depressive symptoms, was fearful of the workplace, unable to sleep at night and irritable with his family to a major degree. Dr Rivett felt at the time that the applicant required psychologist support and it appears that a referral to a psychologist, Mr Manning, was made. The applicant was certified as being unfit for work.
129.There is no evidence that the applicant saw a psychologist for some time. A clinical record made on 20 July 2020 suggested that this was because the psychologists in the applicant’s local area were all booked out. It is notable that the applicant resides in regional New South Wales and, having regard to the COVID-19 pandemic and bushfires in the same region earlier that year, this appears to be a plausible explanation. I would not infer from the applicant’s failure to see a psychologist that he was not experiencing significant psychological symptoms.
130.Consistently with the applicant’s own evidence, Dr Rivett referred to an exacerbation of the applicant’s anxiety by an event in which the applicant encountered Ms Clark in a Woolworths supermarket in May 2020.
131.At the time the applicant was assessed by the respondent’s medicolegal expert, Dr Whetton, on 25 August 2020, the applicant was recovering from an ankle reconstruction surgery performed on 22 July 2020. In those circumstances, it is perhaps unsurprising that Dr Whetton’s history took particular account of the consequences of the applicant’s physical injury. It was noted that the applicant was limited in his ability to stand or walk, the applicant had ongoing pain, was wearing a moon boot and his physical limitations prevented him from participating in certain activities. Dr Whetton formed the view that the applicant’s essential problems were those of his physical injury from which, one month after surgery, he was still recovering.
132.Dr Whetton did accept that the applicant was in a state of emotional upset and distress as a consequence of his issues with Ms Clark as well as the physical injury. He was not, however, satisfied at the time of his report that the symptoms were so significant as to warrant a psychiatric diagnosis.
133.Dr Whetton’s account of the applicant’s psychological functioning stands in contrast to that recorded by Dr Oldtree Clark several months later in February 2021. In the intervening period, the applicant had continued to consult Dr Rivett. The applicant was prescribed Lovan and Cymbalta but these did not appear to be assisting the applicant’s low mood.
134.Shortly after the examination by Dr Oldtree Clark, a GP mental health care plan was prepared and a K10 assessment administered, producing a score of 43. This is suggestive of a significant mental disorder. Those documents are not, however, in evidence. As it is not possible to discern with certainty the reasons why these were undertaken by Dr Rivett I decline to give the evidence of the mental health care plan and the K10 assessment significant weight. It is possible, for example, as suggested by Dr Whetton, that the applicant’s physical symptoms or the other stressors noted in the evidence were contributing factors.
135.There are other lacunas in the evidence. Whilst there is evidence that the applicant was subsequently referred to another psychologist, Ian Benjamin, there is no evidence from Mr Benjamin or any psychologist at “Grand Pacific” in evidence. Ms Goodman has suggested that it would be inferred that such material would not assist the applicant. It is, however, simply unknown whether the applicant in fact attended any appointments with Mr Benjamin or any other psychologist.
136.The respondent’s submissions also highlighted the absence of evidence pertaining to the applicant’s physical injury, including evidence, for example, as to whether he had been directed to wear a moon boot only at work. The relevance of such evidence is, however, unclear. No defence has been raised to suggest that the employer’s conduct fell within s 11A(1) of the 1987 Act. The applicant’s case is that he sustained a primary psychological injury due to bullying and harassment rather than the physically injurious event or some secondary condition. I am not persuaded that any adverse inference should be drawn from the absence of such evidence.
137.It was also noted that no SIRA certificates of capacity are in evidence other than the one dated 6 March 2020. The relevance of such evidence is, however, also questionable given that no weekly compensation is sought in these proceedings.
138.The reasoning of Dr Oldtree Clark is less than fulsome. I accept that Dr Oldtree Clark has not provided a direct opinion on the cause of the major depressive disorder he diagnosed. Dr Oldtree Clark has not addressed the impact of the applicant’s physical injury, which is a significant omission in the context of Dr Whetton’s report. The other possible personal stressors highlighted in the respondent’s submissions and noted by Dr Oldtree Clark are also not addressed. Dr Oldtree Clark has not said whether the events described by the applicant were the main contributing factor (or even a substantial contributing factor) to the diagnosis.
139.The history recorded by Dr Oldtree Clark was also the subject of some criticism with regard to whether the characterisation of Ms Clark’s conduct in Woolworths as “public humiliation” and “stalking” was accurate. The history recorded otherwise lacks the same level as detail as Dr Whetton’s. It is of note, however, that Dr Oldtree Clark recorded that he had before him the applicant’s written statement and the SIRA certificate of capacity dated 6 March 2020. I am prepared to accept therefore, notwithstanding the lack of precision of Dr Oldtree Clark’s recorded history, that he was apprised of the facts as found above.
140.Certainly, had Dr Oldtree Clark’s opinion been the only opinion on which the applicant relied to discharge the onus of proof, his case would have fallen short. I am, however, required to consider the totality of the evidence.
141.The applicant has submitted that the injury claimed is one falling within s 4(b)(i) of the 1987 Act. Whilst there is evidence of the applicant suffering psychological symptoms in the context of a relationship breakdown in 2010 or 2011 requiring medication, I accept that there is no evidence or indication that those symptoms were ongoing at the time of the applicant’s employment with the respondent. On the facts, the applicant is required to demonstrate that his employment with the respondent was the main contributing factor to the contraction of a disease for the purposes of s 4(b)(i).
142.In AV v AW[3] Snell DP commented at [78]:
“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.
143.In State Transit Authority of New South Wales v El-Achi[4] Roche DP, considering the application of the test in s 4(b)(ii), said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
[4] [2015] NSWWCCPD 71.
144.There is also before me evidence from Dr Rivett in the form of responses to questionnaires from the insurer. In response to the questionnaire dated 29 April 2021, Dr Rivett described the applicant as suffering from depression, anxiety and PTSD which was becoming more severe. This was said to relate to “the alleged abuse from his employer and alleged accusations of malingering and inventing his injury”. It is of note that Dr Rivett indicated in the same response that the left ankle injury was steadily improving.
145.In response to the questionnaire dated 27 May 2021, Dr Rivett again made a diagnosis of anxiety/depression/PTSD, which he referred back to the consultation on 6 March 2020 and the applicant’s employer accusing him of fraud/falsifying his injury.
146.Reading these responses together with the clinical records as a whole and the SIRA certificate of capacity, I accept that Dr Rivett has attributed the applicant’s psychological symptoms to the events relied on by the applicant in these proceedings. This finding is made, notwithstanding the references to “secondary” depression in the clinical record dated 6 March 2020 and in the certificate issued on the same date. Dr Rivett does not indicate in his response to either questionnaire that physical symptoms or disabilities arising from the ankle injury or any other personal stressors have contributed to the psychological condition diagnosed by him.
147.Similarly, I accept, notwithstanding the absence of a clear opinion on causation, that Dr Oldtree Clark’s report does not suggest that any factors other than those described in the applicant’s statement and recorded in Dr Oldtree Clark’s history were causative of the psychological condition diagnosed by him.
148.Having regard to the totality of the evidence, I accept that the evidence from Dr Rivett and Dr Oldtree Clark is consistent with the workplace events relied on by the applicant and accepted above being the main contributing factor to a diagnosable psychological condition.
149.In weighing the evidence from the applicant’s doctors against that given by Dr Whetton it is of note that Dr Whetton did not have the benefit of the evidence from Dr Rivett of the subsequent progression of the applicant’s symptoms and their treatment. Dr Whetton’s view also appears to have been coloured by the timing of his consultation, not long after the major surgery to the applicant’s ankle, when the restrictions and effects of the physical injury would have been more prominent. In all the circumstances, I prefer the evidence from Dr Rivett and Dr Oldtree Clark.
150.Having regard to the evidence as a whole, I am satisfied on the balance of probabilities that the applicant has sustained a diagnosable psychological condition. I am further satisfied that the workplace events occurring following the applicant’s return to work set out above were the main contributing factor to the condition. I am satisfied that the applicant has sustained a psychological injury pursuant to ss 4(b)(i) and 11A(3) of the 1987 Act.
151.Given that the applicant is seeking lump sum compensation under s 66 of the 1987 Act and having regard to the submissions made by the respondent, it is necessary to also address whether the psychological injury found above is a ‘primary psychological injury’.
152.Section 65A of the 1987 Act provides that no compensation is payable under Division 4 in respect of permanent impairment that results from a secondary psychological injury. A ‘secondary psychological injury’ is defined in s 65A to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”. A ‘primary psychological injury’ is defined to mean “a psychological injury that is not a secondary psychological injury”.
153.In Cannon v The Healthy Snack People Pty Ltd[5], the worker suffered a physical injury in the course of her employment. On her return to work on suitable duties, she suffered a psychological injury as a result of harassment over her “suitable duties”. Deputy President Roche held that her psychological condition was a primary psychological injury because the harassment was an event that was “extraneous or extrinsic” to the original physical injury and not part of the series of events that followed from the physical injury. It was not part of the causal chain. Therefore, the psychological injury had not arisen “as a consequence of, or secondary to, a physical injury” but had resulted from the harassment, which was a separate cause.
[5] [2009] NSWWCCPD 32.
“To say that a psychological injury that results from harassment while on suitable duties would not have happened ‘but for’ the physical injury is to ignore the fact that the harassment (if it occurred) is an event that is ‘extraneous or extrinsic’ (per McHugh J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 428) to the original back injury. It is not part of the ‘series of events’ that have followed from the back injury and it is not part of the causal chain.
To use the analogy referred to by Burke CCJ in Lawton v Star City Pty Ltd (No 36677 of 2001, unreported, 16 October 2002), the respondent’s argument is similar to saying, ‘if the worker had not gone to work on the day of his accident he would not have suffered an injury’. That is undoubtedly true, but the injury is not a consequence of the mere fact of going to work, it is a consequence of the injurious event or events that occur in the course of or arising out of the employment.
Therefore, if a worker on suitable duties, because of a work-related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed on suitable duties and, as a result of an ‘extraneous or extrinsic’ event, such as harassment or bullying while on those duties, develops a psychological injury.”
154.It may be the case that the applicant has from time to time in the period since his left ankle injury experienced psychological symptoms attributable to his physical injury. Dr Whetton’s report is consistent with that proposition. I am not satisfied, however, that the psychological injury found by me above has arisen as a consequence of, or secondary to, any pain and/or discomfort and/or loss or impairments caused by that injury. Rather, it has resulted from the extraneous events described at paragraphs 118 to 120 above.
155.I am satisfied that the applicant has sustained a primary psychological injury for the purposes of s 65A.
156.Having made the findings above, it is appropriate that I remit the matter to the President for referral to a Medical Assessor to make an assessment of the degree of permanent impairment resulting from the psychological injury.
157.No submissions were made with respect to deemed date of injury relied upon by the applicant, being 3 March 2020. This appears to be the date on which the applicant alleges incapacity first resulted from the injury. Although no claim for weekly compensation has been made in these proceedings, for the purposes of the referral, and in the circumstances, I will adopt the pleaded date of injury.
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