Guion v Remondis Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Guion v Remondis Australia Pty Ltd [2021] NSWPIC 178
APPLICANT:	Matthew Guion
RESPONDENT:	Remondis Australia Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	9 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits and medical expenses following primary psychiatric injury in the course of employment due to interactions and interpersonal conflict in the workplace deemed to have occurred on 14 January 2020 and 4 May 2020; dispute as to incapacity with respondent submitting that the condition had resolved; Held- applicant totally incapacitated between 30 July 2020 and 31 January 2021; Respondent ordered to pay weekly benefits under section 37 of the 1987 Act from 30 July 2020 to 31 January 2021 and section 60 expenses.
DETERMINATIONS MADE:	1. Respondent to pay the applicant weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $1,514.39 per week from 30 July 2020 to 31 January 2021(Noted that the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) was $1,893.11). 2. Respondent to pay the applicant’s reasonably necessary section 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant, Matthew Guion (the applicant), was employed by the respondent, Remondis Australia Pty Ltd (the respondent), as a truck driver. The respondent was insured by AAI Limited trading as GIO (the insurer) at all relevant times.
The applicant sustained a primary psychiatric injury in the course of employment due to interactions and interpersonal conflicts in the workplace with the deemed dates of injury being 14 January 2020 and 4 May 2020.
The applicant made a claim for weekly benefits and medical treatment.
The respondent disputed liability in respect of the claim for weekly benefits and medical expenses in a section 78 notice dated 21 July 2020.
The respondent issued a further section 74 notice dated 12 February 2021 withdrawing the
s 11A defence.

ISSUES FOR DETERMINATION

The parties agree that the following issues remained in dispute:
(a)    Whether the psychiatric injury deemed to have occurred on 14 January 2020 and 4 May 2020 had resolved?
(b)    The applicant’s entitlement to weekly compensation on and from 30 July 2020,
(c)    Whether s 60 expenses were reasonably necessary as a result of the primary psychiatric injuries deemed to have occurred on 14 January 2020 and 4 May 2020?

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration by telephone on 14 May 2021. Mr Guion was represented by Mr Dewashish Adhikary who was instructed by Ms de Freitas of Stacks/Goudkamp Lawyers. The respondent was represented by Mr Phillip Perry, who was instructed by Ms Dyson of Kemp & Co Lawyers. Ms Mallard from the insurer also attended the conciliation conference and arbitration.
Counsel could not complete their submissions in the arbitration on 14 May 2021 due to time constraints. A direction was issued following the arbitration as follows:
(1) Applicant to file and serve written submissions by 25 May 2021.
(2) Respondent to file written submissions in Reply by 4 June 2021.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    All documents attached to the Application to Admit Late Documents dated 6 May 2021 filed by the applicant;
(c)    Reply and attached documents, and
(d)    All documents attached to the Application to Admit Late Documents dated 11 May 2021 filed by the respondent.
The applicant raised a preliminary issue concerning whether the respondent had put into dispute the issue of whether the applicant had a total or partial incapacity for work resulting from the work injury.
In a section 78 notice dated 21 July 2020, the insurer noted that liability for the injury was disputed as they did not consider that Mr Guion currently had a diagnosable psychiatric injury and any injury he might have had was caused by reasonable actions of the employer in regard to transfer, demotion, or provision of employment benefits. Under “reasons for decision”, the claims advisor noted that:
“We do not agree that you are entitled to weekly payments for your claimed injury because you do not have total or partial incapacity for work resulting from the injury, as required by section 33 of the Workers Compensation Act 1987.”
In a review dated 29 October 2020 the insurer noted that the decision to dispute liability dated 21 July 2020 was maintained and amended. “Reasons for the review decision” were stated as follows:
“On 21/07/2020, the insurer disputed liability for your claim in a notice issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998, on the following grounds:
·You are not entitled to compensation because your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to transfer, demotion or provision of employment benefits under section 11A of the Workers Compensation Act 1987 (the 1987 Act).
·Your psychological injury has resolved and you do not have a diagnosable psychiatric injury as required by section 4 and section 11A(3) of the 1987 Act.
·You have no entitlement to weekly payments or medical or related treatment because you do not have a total or partial incapacity for work resulting from an injury as required by section 33 of the 1987 Act and because medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the 1987 Act.”
In the review notice the insurer noted that Mr Guion had been medically examined by Dr Whetton, who had provided a report dated 1 July 2020. The insurer wrote:
“In the alternative, while your IME has provided their opinion on the capacity and treatment, Dr Whetton has provided a different opinion, which supports that your work‑related psychological injury has resolved and you no longer have an incapacity for work or need for medical treatment for your injury.”
In a section 78 notice dated 12 February 2021, the insurer noted that the decision to dispute liability was maintained and amended. The insurer stated that as evidence indicated that the actions taken by the employer with respect to discipline, demotion or provision of employment benefits was not the whole or predominant cause of the injury, the defence raised pursuant to section 11A(1) of the 1987 Act was withdrawn. The insurer referred to a further report from Dr Whetton dated 18 November 2020 and noted that Dr Whetton did not believe that the actions taken by the employer with respect to discipline, demotion or provision of employment benefits were the whole or predominant cause of the injury.
I dealt with this application on an ex tempore basis and decided that I was satisfied that the section 74 notices and review notice did put in dispute the issue of whether the applicant had a total or partial incapacity for work resulting from the work injury.

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submitted that the primary psychiatric injury sustained by the applicant had resolved by about 30 June 2020 or even at some other point in time before the end of 2020. The respondent argued that there was no incapacity for employment past 30 June 2020.
The applicant submitted that the weight of the evidence including the medical evidence supported a finding that the injury had not resolved and the applicant was and remained totally incapacitated for work.
In the written submissions filed by the applicant dated 24 May 2021, the applicant amended the claim for weekly benefits to a claim for a closed period, that is, from 30 July 2020 to 31 January 2021.
In the written submissions filed by the respondent dated 4 June 2021, the respondent submitted that the applicant had not established that he was unable, beyond 29 July 2020, to be employed in employment that would entitle him to earnings equal to his pre-injury average weekly earnings.

FINDINGS AND REASONS

Evidence of Matthew Guion

In a statement dated 4 December 2020, the applicant stated that he commenced employment with the respondent in around September 2010 as a truck driver. He stated that he was on a base salary of $62,240.25 gross, but regularly performed 15‑17 hours of overtime and on average earned approximately $1,900 gross per week.
The applicant stated that in or around 2008 he consulted a psychologist as he was “down” due to a right elbow injury that he had sustained at work. He had one consultation with a psychologist who recommended that he get a hobby and go outside. He stated that he took up mountain bike riding and started to feel a lot better.
The applicant stated that in around 2015 he was prescribed Citalopram, 10mg. He said that at the time his daughter had to undergo, or had just undergone, open heart surgery and it was prescribed to him to help keep him calm. He stated that he continued to take Citalopram, mainly because his daughter had a number of ongoing health problems and she continued to require extensive weekly treatment, including physiotherapy, occupational therapy and speech pathology. He stated that she was diagnosed with cerebral palsy in 2017 and then a year later was diagnosed with Coffins‑Siris Syndrome.
The applicant stated that in or around 2016 he had consulted with a psychologist through the Employee Assistance Program (EAP) provided through work. He had discussed some of his father’s health concerns and he had one consultation with the psychologist. He did not recall being formally diagnosed with any psychiatric condition and did not require ongoing consultations.
The applicant stated that on 8 January 2020 he phoned his supervisor, Brett White, when on his way back to the work depot and requested the next two days off work so he could sort out “some mental health stuff”.
The applicant said when he arrived back at the depot the Operations Manager, Todd Herbert, asked to see him about his request for two days off work and asked him what was going on. The applicant said he told Todd that his grandfather had died in October 2019, followed by his best mate in December 2019 through suicide, and the death of another a mate on 26 December 2019. The applicant explained to Todd that given work had been so busy he could not even take time off to attend the funerals of his mates and he had worked throughout all of Christmas as he had been rostered on to do so. He explained to Todd that he just needed to have a couple of days off to get a few things sorted, to see his local GP and he also expressed his concerns about his non‑verbal daughter starting school and how she would cope. Mr Guion said that Todd replied by saying words to the effect: “You cannot just keep asking for days off.”
The applicant stated that he thought this was unfair because it was not as though he always had time off work and the last day that he had off was to attend the funeral of his grandfather in 2019. He said that Todd went on to say he could not have him off work as he had a business to run. Todd told the applicant that he needed to be strong and rise up. The applicant said he felt intimidated as Todd was sitting above him and was talking down to him and Todd treated his request as though it was completely unreasonable and was more concerned about the business, rather than him. The applicant stated that he started to feel helpless and started to worry that Todd would sack him. He felt he had no option but to agree to come in on Thursday and ask to have Friday off so at least he could see his GP. He stated that Todd responded by saying: “Fuck mate – that is the worst of all days. I already have 13 guys off.” The applicant said that it was clear from Todd’s tone that he was aggravated and annoyed.
The applicant stated he worked on Thursday 9 January 2020 as he felt he had no option. He said that he rang Human Resources where he spoke to Michael. He said he indicated to Michael that he felt bullied and being forced back into the truck by Todd and he could not have time off to sort out his health issues. He said he also advised Michael that he was fearful of losing his job.
The applicant said on 10 January 2020 he ended up going into work but at about 10.00am received a call from a friend advising him that one of his other mates had lost his life to suicide. The applicant said that he was in the middle of his run but only had three to four customers left in Cessnock and Hunter Valley region and he rang and advised Brett and Brad that he was not going to complete his run and he would not be available for work over the weekend. He returned to the depot to return the truck where he bumped into Brad, who he described as supportive about him finishing up for the day.
The applicant said that in the afternoon of 10 January 2020 he received a message from Brad asking him if he could start work at 9.00am on Monday so they could have a meeting before he commenced his work run. The applicant said that he arrived at work and went into Scott Smith’s office and noted that Todd Herbert was already in the room. Scott indicated that he was aware the applicant had phoned HR and had said that he felt bullied back into the truck by Todd after asking to have two days off work. The applicant confirmed that was the case. Scott Smith stated that they did not bully him back into the truck and the applicant responded by saying he was not there to talk about it but was there to discuss whatever he wanted to chat about. The applicant stated that Scott said he should have a couple of days off to get his mental health sorted and the applicant said he was shocked as it was a big turnaround from the response that he had the week before.
The applicant said that he attended his GP on either 14 or 15 January 2020 and advised his GP he was anxious at work and worried about the loss of his job. He said he explained to his GP about the events that took place on 8 January 2020. He advised his GP that his anxiety was heightened which led to his GP increasing his dosage of Citalopram from 10mg to 20mg, and a few weeks later his prescription was increased again to 40mg.
The applicant said his GP was concerned about his presentation and issued him with a doctor’s certificate certifying him unfit for work for two weeks.
The applicant stated that he started to consult with Jen Carter, psychologist, on about 20 January 2020 through the EAP system provided at work. He stated that he had eight sessions through EAP over a 12 month period but then started consulting with her independently in about April 2020.
The applicant said that around 21 January 2020 he returned to his GP and said he felt better and wished to return to work and was certified fit for full time work in his pre‑injury role. He said when he returned to work on 29 January 2020, he met with Scott who told him that he would work in the yard for one to two weeks to see how he was feeling before returning back to driving the truck. The applicant said he agreed and he performed general duties in the yard. He stated that before being able to return to truck driving, Scott had handed him a questionnaire for the psychologist to complete. The applicant said he gave the questionnaire to the psychologist but she indicated that it was against Assure’s policy, and her own to complete a questionnaire due to confidentiality as he had accessed her services through the EAP service provided by work. The applicant said he explained that to Scott.
The applicant stated he remained working in the yard for an additional 8 to 10 weeks and had been told that he could not get back in a truck due to work until the questionnaire had been completed by Jen. He said that on 28 March 2020 he saw Scott in the yard and told him that he was doing well and was ready to get back in the truck. Scott indicated that the applicant was required to submit to a driving assessment which he agreed to do. The applicant said that on 30 March 2020 he undertook the driving assessment and passed and was cleared to return back to driving truck on 3 April 2020.
The applicant stated that on 3 April 2020 he started his shift at 5:00am. He stated that it was the beginning of COVID ‑19 and the respondent had introduced new policies in respect of cleaning trucks after use and was taking extra precautions. He said that he went to his assigned truck, which had been the same truck he had previously used for every shift in the last two years and found it in a “complete pigsty”. He stated there were used gloves left in the truck, the truck was dirty and had not been cleaned after use and the cleaning products which he had purchased in February 2020 which included sanitiser and microfibre towels had been removed from the truck. He said he raised the state of the cleanliness of the truck with Brett White who responded saying that he needed to “Settle the fuck down.”
The applicant said he was taken aback by Brett’s response and the tone of his voice as he yelled at him and he responded by saying that he had a daughter who was in a high risk category if she got Coronavirus. He said that Brett responded by saying that he was not sure what exactly the applicant wanted him to do about it. The applicant said he did not want to engage or fight with Brett anymore and he walked away back to the truck. He said that Brett then approached him and said words to the effect: “Are you going to go home at the drop of a hat?”
The applicant responded by saying that he had never indicated he was leaving work but walked away because he was done arguing. He said that Brett responded by saying: “Just pack up your shit and fuck off home.” The applicant said Brett was getting more and more aggravated and aggressive towards him and he could not understand why he was reacting like this. He stated that he was following Brett’s order and started to pack up his things when his father, who also worked for the respondent, approached him after hearing Brett yelling at him. He said he explained to his father that it was fine for the truck to be left in a complete pigsty and proceeded to show his father the state of the truck. He said that Brett came round again and asked him if he was going home and he responded by saying: “What do you want me to do? You just told me to leave. You are my supervisor.”
The applicant stated that they continued to have an exchange and he said he would stay and do his job. He said that he turned away from Brett after the exchange and told his father who was standing beside him that he needed to get back into the truck before he did something. He said that at that stage he encountered Brett with his fists clenched as though he was going to fight him, with his face right in front of him. He said his father got in between him and Brett to stop Brett from hitting him. The applicant said at this point he was crying and emotional and felt totally humiliated and embarrassed and ashamed. He said Brett had yelled at him in the presence of 10‑15 of his fellow workers and also shared personal information relating to his mental health which he told him in confidence. He said he got into his truck and started the run for the day. The applicant said while on his run he became more aggravated and upset and about 2 to 2½ hours later he was so upset he stopped driving and parked on the side of the road and phoned his father and said he could not drive any further. He phoned his mother, who came to pick him up.

The applicant stated that on 4 April 2020 he attended his GP and obtained a medical certificate certifying him unfit for work until 7 April 2020. He said that on 4 April 2020 he was asked by Scott Smith to attend a meeting with him and Todd Herbert on 7 April 2020. The applicant said that on 5 April 2020 he was issued with another medical certificate certifying him fit to return to work on his normal duties. He stated that later that afternoon he received a text message from Brad Linerston advising him that the certificate was not good enough as it did not indicate that he had presented to his doctor and that he had been cleared of all COVID symptoms.
The applicant stated that he had to obtain a medical certificate from his GP on Monday 7 April 2020 so the proposed meeting did not go ahead. The applicant said he returned to work on 8 April 2020 and attended a meeting with Scott, Todd and the applicant’s father. He said the purpose of the meeting was to explain the circumstances surrounding the incident on 3 April 2020 and that after he explained what had happened, he was stood down without pay. He was told there was no alternative work for him to do due to his mental health and was advised that he needed to submit himself for a psychological review.
The applicant said that he was assessed by a psychologist, Brendan Turner, on about 14 April 2020 and Mr Turner assessed his suitability to return to truck driving. He stated that Mr Turner said he was fit to return back to work in his pre‑injury role as a truck driver. The applicant said that around 21 April 2020 he returned back to work feeling anxious and shaky. He said that despite being cleared to return to truck driving, he was placed on yard duties by Scott Smith who told him they wanted him to gradually return to driving duties. He said that following his shift on 21 April 2020 he attended the James Fletcher/Mater Hospital and was admitted for six hours of observation and then released into his mother’s care. He was issued with a certificate certifying him unfit for one week and was told to attend his local GP. He stated that his local GP did not issue WorkCover certificates and was only doing telehealth consultations, so he consulted with Dr Iain Stewart at the Goodhealth Medical Centre.
The applicant participated in a return to work conference with Mr Steve Hassett on 25 May 2020. He said he felt okay and thought he was ready to return to work, but Steve suggested he return to yard duties and see how went from there. The plan was for him to commence in the truck on reduced hours before returning back in a full time capacity. He was due to commence back in the yard on 31 May 2020.
The applicant said that on 31 May 2020 he was due to commence back at work but while on his way to work he had a full blown panic attack. He stated that his anxiety started to build, his legs jittered and his hands shook and voices in his head started to tell him he was not good enough. He stated he could not face the people who had put him through “hell” and did not feel mentally strong enough to confront them. He rang his wife in tears while he stayed in his car. He later called Steve Hassett and told him he could not do it and that he was having a panic attack.
The applicant stated he had not returned to work since 21 April 2020 with the respondent or any employer. He stated his employment with the respondent had not been terminated but he remained stood down. He said he had received weekly payments from the workers compensation insurer, but these ceased on 30 July 2020.
The applicant stated he was currently receiving treatment from Dr Ali (Dr Sigouradi) every three weeks, and Jen Carter, psychologist, on a fortnightly basis, and also recently started consulting with a psychiatrist, Dr Manoj Baruth. He stated that he was on medication, Venlafaxine 150mg (recently dropped from 300mg by Dr Baruth as he wanted to address his panic attacks first and then drop his medication).
The applicant said he continued to suffer from depression and panic attacks every 3‑4 days, had no interest in anything, his sleep was disturbed, he felt fatigued throughout the day, was unable to think straight on a daily basis, and struggled to concentrate. He stated that he snapped quickly and could not seem to keep his emotions in check and was irritable and angry.
The applicant stated that he couldn’t attend busy places for extended amounts of time because his anxiety and shakes becomes very noticeable. He stated that he had thoughts of suicide every couple of days.

Medical Reports

Medico‑Legal Reports

In a report dated 22 September 2020, Dr Glen Smith, consultant psychiatrist, noted that he had assessed the applicant via telehealth on 10 September 2020. Dr Smith stated that he had been provided with the medical records of Jennifer Carter, the psychological capacity evaluation report of 14 April 2020, medical records from Good Health Greenhills as of 5 August 2020, and the report of Dr Peter Whetton dated 1 July 2020.
Dr Smith noted that the applicant had developed anxiety regarding his daughter’s medical condition some years ago and his GP had prescribed Citalopram which had been beneficial. He reported that the applicant did not receive psychological therapy. The applicant said that in late 2019 his grandfather passed away, a friend passed away from a medical illness, and another friend committed suicide. The applicant told Dr Smith that he felt distressed by grief and low in mood and on 8 January 2020 asked for two days off work to see his GP to arrange a mental health care plan to receive grief counselling. Dr Smith noted that the applicant had been told he could not have the time off and that on 10 January 2020, a very close friend committed suicide and the applicant was extremely distressed and did not finished his shift at work due to his distress. The applicant later saw his general practitioner and was certified to have two weeks off work. Mr Guion organised psychological therapy with Ms Jennifer Carter through the EAP. The applicant stated that he saw Ms Carter weekly for the first month and then fortnightly. He stated that his GP increased his dose of Citalopram to 40mg daily.
Dr Smith reported that when the applicant returned to work, he was placed on yard duties and although that was only supposed to be for one week, it continued for 10 weeks. He noted that the applicant said that his manager told him a report was required from the psychologist in order for him to return to driving, but Ms Carter was not prepared to provide that report and so he continued yard duties. The applicant stated that he felt depressed and had to borrow money from his parents as he had no overtime payments and was being paid significantly less working on yard duties. The applicant said he felt angry and irritable, his sleep was affected by ruminations regarding his predicament and he experienced suicidal thoughts although he did not act on those thoughts.
Dr Smith noted that the applicant stated he had an independent psychological assessment and was deemed fit to return to work but he felt that the report of the assessment was “not how I told things were happening”. The applicant told Dr Smith that on his return to work his truck was extremely dirty with rubbish left in it and when he spoke to his supervisor, Brett, about the truck, Brett became aggressive and the applicant felt very anxious. The applicant said his father, who also worked for the respondent, overheard the altercation and intervened. The applicant said that Brett was yelling at him and talking about his situation in front of everyone and “it broke me”. The applicant said he experienced suicidal thoughts, felt anxious and depressed, and contacted his wife and went home. The applicant said that he was subsequently stood down due to his mental health and had attempted to return to work on two occasions but felt anxious returning to work and was unable to maintain work.
The applicant told Dr Smith that he continued psychological therapy on a fortnightly basis and his GP changed the antidepressant medication to Venlafaxine with gradual titration to 300mg daily. The applicant said that despite the treatment he continued to feel depressed with frequent ruminations regarding suicide and described feelings of worthlessness due to not being able to provide financially for his family.
Under “current symptoms”, Dr Smith noted that the applicant described his mood as low with no clear diurnal mood variation. The applicant reported sleep disturbance characterised by initial insomnia, often not sleeping before midnight and then early morning waking between 2:30am and 4:00am with difficulty returning to sleep. The applicant reported reduced appetite, loss of about 15kg in weight, difficulties with thinking and concentration and intermittent suicidal ideation every few days although he had not acted on those thoughts.
On “mental state examination” Dr Smith noted that the applicant described his mood as depressed and his affect was restricted to the depressed range with frequent tearfulness and minimal appropriate reactivity. Dr Smith reported that thought content was characterised by feelings of worthlessness and hopelessness regarding the future with intermittent suicidal ideation but no current plans to act on those thoughts. With respect to insight, the applicant stated that he had felt depressed in the context of the issues in the workplace and understood that he would require further treatment.
Dr Smith made a diagnosis of a major depressive disorder with anxious distress. He noted that the applicant had described the development of depressive symptoms “in the context of workplace issues after initially feeling a period of grief from late 2019 in the context of multiple personal losses”. He wrote:
“He described depressed mood, loss of interest and enjoyment of activities (anhedonia), sleep disturbance with early morning waking, reduced appetite, weight loss, feelings of worthlessness, hopelessness and suicidal ideation (criterion A). The symptoms have caused clinically significant distress and impairment (criterion B).”
Dr Smith expressed the opinion that the applicant had a history of anxiety developing around six years ago in the context of his daughter’s serious medical condition, but his GP had prescribed Citalopram and his anxiety had improved. The applicant then described multiple personal losses from late 2019 and in early 2020 feeling low in mood with feelings of grief he asked for time off work but this request was denied. Dr Smith noted the applicant felt harassed and bullied by his managers and this culminated in an altercation with his supervisor in April 2020 during which he felt markedly distressed at being verbally and physically intimidated. Dr Smith noted the applicant described the development of depressive symptoms with sleep disturbance characterised by early morning waking, reduced interest and enjoyment of activities. Dr Smith noted that the applicant had received psychological therapy and his GP had described Venlafaxine up to 300mg daily. He noted the applicant had recently been referred for psychiatric treatment but had not yet commenced that treatment.
Under “prognosis” Dr Smith noted the applicant had yet to receive psychiatric treatment but given his symptoms had persisted with Venlafaxine at an appropriate high dose it was likely that his depressive symptoms would be difficult to treat.
Dr Smith expressed the opinion that the applicant had suffered an impairment of his earning capacity and he presented as completely unfit for work at the time of examination due to his depressive symptoms with associated cognitive impairment. Dr Smith stated it was not clear how long he would remain unfit for work and that depended on his response to psychiatric treatment over the next six ‑ nine months. Dr Smith considered that psychological therapy and treatment with the GP had been reasonably necessary and the applicant also required psychiatric treatment due to his persistent depressive symptoms with associated suicidal ideation.
In a report dated 1 July 2020, Dr Peter Whetton, consultant psychiatrist, noted he had seen the applicant on 13 June 2020 for a telehealth assessment. Dr Whetton noted his report was based on the history provided by the applicant, the appropriate clinical examination and documentation provided. Dr Whetton did not identify the documentation provided.
Dr Whetton reported that the applicant was last at work in mid‑May 2020 and when he ceased work, felt disrespected, embarrassed and that his state of mental health, which he said had deteriorated earlier in the year and had been improving, had “slipped back”. Dr Whetton reported that the applicant described an altercation at work where he said his supervisor “yelled at him, was close up to his face with a fist clenched and that his work mates were around witnessing this and it led to significant embarrassment”. In this setting, the applicant said that he had “tears in his eyes, he wanted to get out, and particularly he said he was not there for a fight and wanted the matter resolved”. The applicant stated that he sat in his truck for some 30 minutes to try and settle himself down and commence the shift but about 2½ to 3 hours into the shift he said he could not persist and did not want to drive the truck any further. The applicant subsequently went to his general practitioner and said that he was still shaking and anxious but had no further thoughts of self‑harm. The applicant said that he felt defeated, having come “so far” in terms of deteriorated mental health early in 2020 and was distressed that he had been dealt with in the way that he described, particularly in front of work colleagues.
Dr Whetton noted the applicant’s GP recommended he continue seeing the psychologist he had been attending since early January 2020. He reported the applicant had previously been prescribed Citalopram and continued with this until three weeks ago when the GP changed his mediation to Effexor at the considerable dose of 225mg per day.
Dr Whetton wrote:
“He said that, over the last few weeks being on the Effexor, he feels better and more happy and more on top of his emotions and more in control. With this, he said he had had better energy and was relating well to his children and ‘I’m more myself’.”
Dr Whetton noted that in terms of employment the applicant stated he was due to have a return to work meeting the next day and was keen to resume his job.
Dr Whetton noted that the applicant first developed anxiety symptoms subsequent to the birth of his daughter who at the age of nine weeks had required open heart surgery and had a developmental delay which required around the clock care. The applicant said about 6 or 12 months after her birth he attended the general practitioner who prescribed Citalopram 20mg for his anxiety. The applicant said this controlled his anxiety well and he had remained on that with a prescription from his GP over subsequent years.
Dr Whetton noted that the applicant had been refused leave in January 2020 when he had requested two days compassionate leave following the death of his grandfather and two friends. The applicant said that he considered his previous mental health problems, which had been in good control, had become unsettled and he was also concerned about his disabled daughter who was about to commence school. The applicant had made an appointment to attend his GP on 10 January 2020 to request a mental health plan. The applicant said that he spoke to his supervisor, Todd, about this, but said that Todd did not understand. The applicant said that he worked on the Thursday but had to attend the GP on Friday afternoon. The applicant returned to work on Friday and was told that another friend had suicided. On hearing that news, he said he broke down in his truck and he indicated to the employer that he was not available to work. The applicant said that he started work the following Monday and explained how he was feeling and that his GP had advised time off work. After that, the applicant had two weeks off work, attended his psychologist and then wished to return work. On returning to work he was placed on yard work and continued to do that for some ten weeks although believing initially that it was only for a two weeks period. the applicant then recounted an incident on 2 May 2020 when he was back in his normal work truck but found it dirty after being used by another driver. He raised the issue with his supervisor, Brett, who responded by swearing and telling him that there were “bigger things in the world”. The applicant said that he believed the correct way to handle this and the way he had been instructed by his psychologist was to walk away and come back when matters were calmer. He said his father had been present in the yard and heard what had happened and came to speak to him and he showed his father the state of the truck. He said that Brett then approached and told him to go home and the applicant explained that he had been ready to return to work but a contention developed with Brett and it was in this setting that he became distressed, broke down crying, shaking, and embarrassed that this was happening in front of his colleagues. The applicant realised he needed to leave the environment and did. He could not persist with his run and did not feel well enough to drive the truck. This led to the described state of breakdown and attendance on his GP.
Dr Whetton wrote:
“With passage of time and treatment and he reports, particularly with the introduction of the Effexor some 3 weeks ago, Mr Guion has improved markedly and his anxiety symptoms are resolving well.”
Dr Whetton noted that on examination the applicant presented as a credible historian and gave a history in keeping with the development of an adjustment disorder with anxiety which has now resolved.
Dr Whetton stated that the alleged injury was development of an adjustment disorder with anxiety. He commented that the applicant had been involved in psychological treatment and attended his GP with a change in his longer term medication. He wrote:
“Particularly, with change in medication, he does report an improvement and resolution of his symptoms.”
Dr Whetton wrote:
“If examined earlier, he would have warranted a diagnosis of an adjustment disorder with anxiety. On examination on 30/6/2020, his symptoms are in good resolution and, at this stage, he would not warrant a psychiatric diagnosis.”
Dr Whetton considered that the behaviour and attitude of the employer had precipitated an exacerbation of his earlier symptoms and employment was a substantial contributing factor to his complaints. He considered there had been an aggravation of his previously diagnosed anxiety disorder and the grief reaction he was describing from January 2020. Dr Whetton concluded that the workplace injury was sufficiently resolved and, at this stage, the applicant was barely symptomatic and should have be expected to have a return to full duties as of now.
Dr Whetton commented that the applicant continued with Effexor but that was in keeping with his longer term treatment over the last five years and ongoing treatment was not particularly related to any work injury. He considered with his condition it was more likely that Mr Guion would continue on anti‑depressants long term, but further psychological treatment was not warranted.
In a supplementary report dated 18 November 2020, Dr Whetton noted that he was asked whether the injury arose due to reasonable actions of the employer with respect to transfer, demotion or promotion of employment benefits. Dr Whetton considered that the applicant had a pre‑existing condition and this condition could not be seen as wholly or predominantly due to actions taken by the employer in respect of performance appraisal and/or discipline. He was of the view that the immediate precipitation for the exacerbation of the pre‑existing condition was his argument with his co‑worker, Brett, concerning the state of his truck. Dr Whetton did not believe the injury arose due to reasonable actions of the employer with respect to transfer, demotion or provision of employment benefits.

In a report dated 14 April 2020, Mr Brendan Turner, provisional psychologist, injury prevention and management and health consultant, noted that he had assessed the applicant on 14 April 2020. Mr Turner was asked to provide a psychological capacity evaluation to determine whether the applicant’s current psychological health might impact on his ability to safely carry out full duties. Mr Turner expressed the opinion that the applicant had the capacity to return to his role as a front lift driver.
Mr Turner wrote:
“In my opinion, on 8 January 2020, Mr Guion was experiencing a normal grief reaction with loss of his grandfather and two close friends. In my opinion, the current stressor is Mr Guion’s perception of the treatment he has received from management, and is not related to the duties he is required to perform in that role. In my opinion, Mr Guion does not currently meet the criteria for a psychological disorder, and does not report any current symptoms which would impact on his ability to safely carry out his role. In my opinion, Mr Guion has acquired the tools and coping strategies needed to self‑manage any symptoms from his treating Psychologist. In my opinion, if Mr Guion is allocated a supervisor who communicates in a supportive and respectful manner, Mr Guion is not at risk of emotional overwhelm or developing a more serious psychiatric disorder.”
Mr Turner administered the depression, anxiety and stress scales in order to determine the severity of the applicant’s current symptoms and noted that the scores for depression, anxiety and stress were all within the normal range and risk was assessed as low. Mr Turner expressed the opinion that based on his assessment, the applicant had the capacity to return to his full-time role. He noted the applicant was to continue to be provided with counselling sessions through the EAP to support him with a successful return to work. Mr Turner recommended that the applicant be allocated a supervisor who had the capacity to provide the support and communicate appropriately with him, and to monitor that the applicant was coping well during his return to work. He recommended that the applicant be provided with a graduated return to full duties which included a combination of yard duties and truck driving duties, with progression to full time truck driving.
In describing the history, Mr Turner noted the applicant’s request for mental health leave on 8 January 2020 and feeling bullied by Todd Herbert, operations manager, and due to pressure from management, continued to work. He noted that the applicant ended up leaving work on the Friday during the shift due to emotional distress. Mr Turner also noted that the applicant was preparing to return to driving on 2 April 2020 when he noted the truck was in an unsanitary condition and he raised that issue with the operations supervisor, Brett White. Mr Turner noted the applicant reported that Brett responded in a highly aggressive way and displayed inappropriate, confrontational, bullying behaviour for no reason in front of a number witnesses. He noted that following that confrontation the applicant left the depot and drove for three hours in an emotionally distressed and teary state until he could not continue. Mr Turner noted that the applicant went on leave until 4 April 2020 and returned to work on 7 April 2020 doing yard duties. However, on 7 April 2020, Mr Guion attended a meeting with Scott Smith, Todd Herbert and Bill to discuss the incident and was sent home pending an investigation.
Mr Turner noted current symptoms included difficulty sleeping at night due to the constant monitoring of his daughter with a medical condition and mild anxiety due to the current work situation. He reported that the stressors or precipitating factors were unfair situations at work and bullying behaviour at work. He noted that the applicant reported he would like to return to work as soon as possible and felt confident in his ability to safely carry out his duties as a front lift operator and was not feeling any stress related to the role or duties required to be performed. The applicant reported that a graduated return to work plan where he was able to do a mix of truck driving and yard duties initially, and gradually build up to full time truck driving, would be helpful. The applicant reported that he would benefit from moving under Shannon Baron as his direct supervisor as Shannon had always been a good support and was understanding of his situation.

Records and Reports of Treating Doctors and Health Professionals

In a medical/attendance certificate dated 22 April 2020, Dr Peiris of Mater Mental Health Service certified the applicant as unfit for work from 22 April 2020 to 30 April 2020.
In a referral dated 19 April 202, Dr Sigaroudi, general practitioner, from Marketplace Medical Centre Rutherford, referred the applicant to Dr Jennifer Carter for an opinion and management. Dr Sigaroudi noted that the applicant had stated that “back in January and even before that he had been allegedly subject to being bullied at work, and since then had worsening depression and anxiety”.
In a case management review dated 10 June 2020, Dr Iain Stewart made a diagnosis of acute stress disorder which had triggered an acute panic reaction prior to entering the workplace. Dr Stewart reported that prior to this the applicant had every intention of returning to work as per the return to work plan. Dr Stewart noted that the injury/illness was initially triggered by his immediate supervisor not accepting the applicant’s need to take a two day break and this was later escalated by an open intolerance of his distress and inappropriate verbal bullying in front of a whole group of his colleagues. Dr Stewart believed the applicant still had a partially unresolved acute stress reaction to the workplace exacerbated by the panic reaction.
Dr Stewart noted that the applicant was taking Cipramil 40mg daily for anxiety/depression and was reluctant to change the medication as it had helped. Dr Stewart stated he was hopeful that this could be changed to Venlafaxine and that in changing the medication this would improve the applicant’s situational panic disorder.
In terms of regaining fitness for pre‑injury duties and hours, Dr Stewart thought that there was a good chance but the timeframe could not be guaranteed. Dr Stewart that once the applicant had changed his medication he should return to full duties in his previous job.
Dr Stewart was confident that the applicant could achieve that and in fact improve his previous performance. He was of the view that the applicant could best be helped if he had his full job back as soon as possible. He did add that the applicant’s anxiety needed to respond to the psychological treatment and change of medication instituted, and continued support from the employer was important.
In the clinical notes of Ms Jennifer Carter, psychologist, the following details were recorded:
(a)    In an entry dated 20 January 2020, Ms Carter noted she had a first appointment with the applicant, who was currently on leave without pay. She reported the purpose of the contact as:
“Grief/bereavement – multiple significant losses in short space of time – grandfather died in November – mate had heart attack 28 December – another mate died by suicide last year – another mate suicide on 9 January this year.”
She noted that the applicant also reported trauma in relation to the first daughter’s birth but had never sought help or discussed with anybody. She wrote:
“Client reports having noticed difficulties with mood and avoidance since mate’s death in December. Reports being more-short tempered and irritable generally, sleep disturbance and fatigue.
Client reports having asked work for time off (last 2 shifts of week) on 8 January to address grief issues and mental health in relation to same, but felt “bullied” into immediately returning to work.
Client was subsequently notified of most recent death of friend the next day while on shift on 9 January 2020 and had been on LWOP since then.
Client anger at workplace around experience of perceived lack of support and bullying current obstacle to address in traumatic grief experience. (Client having feelings of being “faulty/broken” in response to workplace reportedly dismissing raised mental health concerns.)
(b)    In an entry dated 30 January 2020, Ms Carter reported that she had provided psycho‑education in relation to the biology of anxiety/trauma and grief, and strategies were provided for managing mood and identifying triggers.
(c)    In an entry dated 7 February 2020, Ms Carter noted that no in‑session notes were taken. She reported building on strategies for self‑monitoring and self‑care.
(d)    In an entry dated 27 February 2020, Ms Carter noted she had discussed the request for a report and information received from the employer. She wrote:
“Explained to M the purpose of counselling under EAP and my requirement to check with Assure Programs, EAP provider will advise as to appropriate response.”
(e)    In an entry dated 6 March 2020, Ms Carter noted that the applicant spoke of his first daughter’s birth, traumatic medical condition and intervention. She wrote:
“In retrospect, M recollected little support from the workplace at the time. M reporting feelings of frustration with workplace:
·          When he had identified needing time off to process multiple grief events, he felt bullied into returning early;
·          Now that M feeling more on top of things, and progressing with managing grief, is feeling policed by workplace – still not allowed back to trucks.”
(f)    In an entry dated 20 March 2020, Ms Carter noted that the applicant was still not allowed to drive trucks at work and was missing the same. She wrote:
“M says that work performed in workshop is still requiring of responsible acuity (eg machine and truck replace). Reporting frustration at issues with workplace.”
(g)    In an entry 3 April 2020, Ms Carter noted the applicant reported hypervigilance around Covid‑19 restrictions primarily due to daughter with special needs. She wrote:
“Reports was allowed back on truck, returned to usual truck – found personal effects stolen and truck “unhygienic” (particularly in context of Covid‑19 restrictions).
Reports incident in that M reportedly reacted to state of truck and resulted in heated verbal conflict with the operative overseer.
M reacted to what he perceived as unnecessary provocation by overseer and then being subsequently punished.”
(h)    In an entry dated 17 April 2020 Ms Carter reported that the applicant said he had been stood down from work (due to mental health reasons) on the Tuesday before Easter. He reported seeing Brendan, a clinical psychologist, for a psychological assessment, and had a session of neuro‑feedback and found that helpful. She noted he reported frustration at the work situation but was equally relieved at not having constant conflict.
(i)    In an entry dated 11 May 2020, Ms Carter reported that the applicant said the case was moved to WorkCover. She noted he had returned to work for one day and noticed “self shaking in car park – went back to car and called wife”. She noted the applicant said he went back into the yard and said no‑one spoke to him. He attended for mental health assessment at Mater and was provided a WorkCover certificate. He saw his GP at Greenhills (regular GP doesn’t do WC), wife attended and WC certificate issued for 4‑18 May.
(j)    In an entry dated 28 May 2020, Ms Carter noted that she had provided grief support and “readying for work – resistance in overcoming”. She noted the biggest concern was the work environment and concerns about conflict.
(k)    In an entry dated 4 June 2020, Ms Carter noted the applicant reportedly attended work on Monday but “couldn’t go in”. She noted his feeling escalated to panic and he saw a GP and was prescribed 40mg of the antidepressant Citalopram.
(l)    In an entry dated 15 June 2020, Ms Carter reported that she focussed on grief and grief support. She noted that the GP had changed medication from Citalopram to 150mg Effexor. She noted there was to be a review with the GP on Friday and the next return to work meeting was on 6 July.
In the clinical notes from Marketplace Medical Centre Rutherford, the following entries were made:
(a)    In an entry dated 8 December 2017, Dr Abeysinghe noted “new patient” presented to review his health and medication for his depression and anxiety. She noted that mental health state examination was normal and planned a review after four weeks. She made a diagnosis of an anxiety disorder, anxiety/depression and noted that Mr Guion was on Citalopram 20mg tablet one daily.
(b)    In an entry dated 8 January 2018 Dr Kadambi noted that the applicant had attended for review and was feeling better. She reported that he had normal mood and thought was coherent. She prescribed Citalopram 20mg tablet one daily.
(c)    In an entry dated 14 January 2020 Dr Sigaroudi noted:
“Mental health plan – 37 year old truck driver and father of two, who has worsening anxiety and depression signs, triggered by loss of some of his friends and also his grandfather. …”
Following a brief mental status exam it was noted that the reason for visit was anxiety/depression. Actions included Citalopram 20mg tablet changed to Citalopram 40mg tablet, noting side effects especially suicidal ideas discussed and he was happy to increase. A letter was written concerning a mental health plan and crisis management was discussed. A medical certificate was given from 14 January 2020 until 19 January 2020.
(d)    In an entry dated 21 January 2020, Dr Sigaroudi noted the applicant had asked for a medical certificate. He wrote:
“Has organised the mental plan with the psychologist at work and has already started the relaxation techniques and breath control. Has also increased the Citalopram with proper effects. Feels very happy and has decent sleep at night. Nil panic attacks. Is happy to return to work as of next week. He was advised to stop work in case of any issues.”
(e)    In an entry dated 16 March 2020 Dr Sigaroudi noted the applicant had been well and had not had any suicidal ideas, thoughts of self‑harm or homicidal ideas. The applicant denied any manic episodes and Dr Sigaroudi prescribed Citalopram 40mg tablet once daily.
(f)    In an entry dated 2 April 2020, Dr Sigaroudi noted that the applicant had actually been having more anxiety recently and had not got the chance to touch base with his psychologist yet. The applicant said he had not had any suicidal ideas, thoughts of self‑harm or homicidal ideas and denied any manic episodes. Dr Sigaroudi wrote: “However this morning, states that had issues with a colleague of his and got angry without any physical violence and left work.” Under “reason for visit”, Dr Sigaroudi noted anxiety/depression. A medical certificate was given from 2 April 2020 to 3 April 2020. It was agreed that the medications not be changed and the applicant was encouraged to do relaxation techniques and also avoid triggers and take some days off work.
(g)    In an entry dated 6 April 2020 Dr Sigaroudi noted that the applicant said he had been significantly better and felt improved. The applicant was willing to return to work from today but was advised to take precautions.
(h)    In an entry dated 19 April 2020 Dr Sigaroudi noted that the applicant stated he had been stood down from work with no pay due to having mental health assessments. Dr Sigaroudi wrote:
“He states that back in January and even before that he had been allegedly subject to being bullied at work, and since then has had worsening depression and anxiety.
This was definitely worse, since some of his friends committed suicide, again allegedly due to being bullied.
He denies any active suicidal or homicidal ideas and has a good insight.
Has been seeing a psychologist and is keen on continuing this way and is clearly co‑operative with the treatment.”
Dr Sigaroudi noted that he advised the applicant that he was within his rights to apply for workers compensation. He advised him to do relaxation techniques and continue his medication.
(i)    In an entry dated 29 April 2020 Dr Sigaroudi noted that he required a health “summart” [sic] and also asked for workers compensation. Dr Sigaroudi noted that they were unable to do workers compensation and the applicant was happy to contact Rutherford North clinic for that matter. He noted the applicant had not had any suicidal ideas, thoughts or self‑harm or homicidal ideas and denied any manic episodes.
(i)    In an entry dated 15 May 2020, Dr Zhang noted the applicant’s mood was good. He provided him with prescriptions for Citalopram 40mg tablet one daily.
(j)    In an entry dated 7 September 2020 Dr Sigaroudi noted that the applicant had been under the care of Greenhills Psychology through WorkCover and seen another GP who had changed his Citalopram to Venlafaxine 300mg. He wrote:
“He states that has not felt any different and still feels anxious and low mood. Has not had any suicidal ideas, thoughts of self‑harm, homicidal ideas, denies any manic episode … Is on Job Seeker at the moment. Has insomnia.”
Dr Sigaroudi carried out a brief mental state examination and noted Citalopram 40mg tablet had ceased.
He noted the applicant was happy to see a psychiatrist and was to continue relaxation techniques but was not to change medications at this stage.
(k)    In an entry dated 19 October 2020 Dr Sigaroudi noted under “actions” the following prescriptions were printed: Venlafaxine 37.5mg capsule and Venlafaxine 75mg capsule. Dr Sigaroudi noted the applicant had been under the care of a GP with a mental health interest at Greenhills and had been on Venlafaxine 300mg. He wrote:
“However is unhappy about his treatment with them as he states that has been fidgety and shaky and his panic attacks are not controlled yet either. He also states that had been referred to a psychiatrist and has recently seen him, who organised to taper the Venlafaxine 37.5mg weekly and when gets to 75mg to swap to SSRIs. I also explained to him that given his HTM, SMRIs are not the best option for him…
Looking upon the assessment we had a long consultation and he is calm and co‑operative, however has low mood, … We had a long consultation and I wrote an action plan as per psychiatrist to taper down the Effexor and handed it to him, explained the risk of relapse and also not to drive if feeling fidgety or unwell. Safety net discussed and mental health numbers also written for him.”
(l)    In an entry dated 3 November 2020 Dr Sigaroudi noted that he had reviewed the tapering of the Effexor and the applicant stated that the 37.5mg cutting had been difficult for him and he preferred to taper it faster. Dr Sigaroudi wrote:
“Explained to him that withdrawal symptoms could be dangerous. Is currently on 187.5mg daily for the past 3 days, is happy to cut to 150mg from tomorrow, to continue 150mg daily for another week, then 75mg. Safety net discussed. He also states that initially was moody however he has started gym and feels much better. Reason for visit: Anxiety/Depression.”
(m)     In an entry dated 18 November 2020 Dr Sigaroudi noted there was a review of the Effexor and the applicant stated it was down to 37.5mg which needed to take another 4 days. He noted the applicant was seeing the psychiatrist at the end of November. He reported Mr Guion stated he had been slightly snappy, without any anger or violence. Dr Sigaroudi in regard to his mental health noted that the applicant stated he was happy with the plan to see a psychiatrist and was overall happy with his care.
In the clinical notes and records from Good Health Greenhills, the following entries were made:
(a)    In an entry dated 29 April 2020 Dr Sattaridibazar noted under the heading “history: psychiatric” that the applicant had poor sleep, early morning wakening, normal mood, anxious, stressed at work, no financial problems. A diagnosis of anxiety was made and with the reason for visit noted as “anxiety, work related bullying and secondary anxiety, recent multiple losses of close ones”.
(b)    In an entry dated 5 May 2020, Dr Iain Stewart noted that the applicant had been fronted by a manager, stalked by a manager “in front”, and had an anxiety attack. He wrote: “Put on lesser duties in yard 4-500 dollars down. Got in truck, booded [sic] on what he said very depressed.” Under “assessment” Dr Stewart noted does not have a psychiatrist – Jane Carter is a psychologist.
(c)    In an entry dated 12 May 2020, Dr Stewart noted under “Subjective” WorkCover”.
(d)    In an entry dated 20 May 2020, Dr Stewart noted: “Subjective – WorkCover” Letter written re WorkCover certificate claim.
(e)    In an entry dated 27 May 2020, Dr Stewart noted the applicant was presenting for WorkCover follow up consultation. Under “actions” he wrote: “Prescription printed: Citalopram 10mg tablet (Citalopram Hydrobromide) 1 in the morning.”
(f)    In an entry dated 5 June 2020, Dr Stewart wrote under “actions”:“Citalopram 40mg tablets ceased. Citalopram 10mg tablets ceased. Prescription printed: Citalopram 20mg table (Citalopram Hydrobromide) 1 daily. Prescription printed: Effexor XR 75mg capsule (Venlafaxine Hydrochloride) 1 daily.”
(g)    In an entry dated 12 June 2020, Dr Stewart noted that there had been a long consultation and the applicant was turning a corner “much more positive”. Dr Stewart noted the applicant was aware the company had listened to his grievance regarding discrimination and breach of privacy. Dr Stewart wrote:
“In middle of medication swap but he thinks he feels a little better already. Would prefer to get back in his truck and not do prolonged return to work schedule as he is physically capable of doing his job well. Had a fuzzy head 2 days ago, better today on Effexor 75mg only 2 days, will double it after Cipramil is ceased. … Provisional agreement he will try to get back to work a week on Monday, has an appointment with Alicia this Monday and will advise the company of his intentions. Appointment with me Friday pm hopefully to sign him back to full duties.”
(h)    In an entry dated 19 June 2020, Dr Stewart noted there had been a review after medication changes. He wrote: “Currently taking 150mg Effexor. Objective: A little edgy.” After assessment Dr Stewart noted the applicant felt good about going back to work. Dr Stewart provided prescriptions for Effexor XR 150mg capsules 1 daily and Effexor XR 75mg capsules 1 daily and noted that Citalopram 20mg tablet ceased.
(i)    In an entry dated 6 July 2020, Dr Stewart noted that the dose of Effexor XR 150mg capsule changed from 1 daily to 2 daily. He noted the Effexor XR 75mg capsule ceased.
(j)    In an entry dated 15 July 2020, Dr Stewart noted that the applicant had walked out of the meeting.

In a discharge summary dated 22 April 2020 from James Fletcher/Mater Mental Health Service, it was noted that the applicant had attended on 22 April 2020 and presented with significant work and grief stresses. The triage nurse noted:
“Had thoughts to harm self in early April, however nil since. Wanting to look at Med Cert / WorkCover choices. Currently medicated with Citalopram TC5.”
Under presenting problems and significant events she noted:
“Significant work related bullying and secondary anxiety - recent multiple losses of close ones - looking to get workers comp.”
A diagnosis of anxiety secondary to workplace bullying was made. The applicant was discharged home in the care of his mother and provided with a medical certificate for one week.
The discharge referral from James Fletcher/Mater Mental Health Service dated 23 November 2020, recorded that the applicant was admitted on 22 November 2020 and had reported a decline in mental state in the last 5/52. It was noted that a private psychiatrist was currently changing medications. Under “presenting problems and significant events” Dr Ejaz reported:
“37 year old male, presented with trouble sleeping which has been worsening in the last few weeks as has been weaning off from Venlafaxine 300mg to now down to 37.5mg through a private psychiatrist, and the next appointment is booked in 9 days time and current plan is to stop Venlafaxine in next 2 days and then commence new anti‑depressant after the next appointment with the psychiatrist.”
Under “assessment and management” it was noted that it was recommended that he try Quetinpin 25mg nocte prn and he was discharged home with his father. A primary diagnosis was made of a disorder of initiating and maintaining sleep.
In a mental health assessment dated 23 November 2020 Dr Ejaz noted that the applicant had referred himself as he was having trouble sleeping and anxiety and ruminations since weaning off Venlafaxine in the past few weeks through a private psychiatrist. It was noted he would wean off completely from 37.5mg to cease in the next two days as per plan and then would commence new anti‑depressants after the next appointment with his psychiatrist.
Under “history” Dr Ejaz reported the applicant had a prior history of diagnosed depression and had been on Citalopram 20mg since January 2020 when a bullying incident happened at work and he had to leave the job as described it to be in a very stressful situation. It was noted that depressive symptoms got worse around July 2020 when he switched anti‑depressants to Venlafaxine 150mg through a GP and then increased Venlafaxine to 300mg, but that did not help his symptoms so his private psychologist advised him to consult a psychiatrist and then the plan to wean off Venlafaxine was started.
A return to work plan by Procare was modified by Dr Stewart on 10 June 2020. He noted the plan needed to be modified and the return to full duties date fixed once the medication was sorted out.
In a WorkCover NSW – Certificate of Capacity dated 4 May 2020, Dr Sattaridibazar certified the applicant as having no current work capacity for employment from 4 May 2020 to 18 May 2020. He noted there was a need for the employer to engage with the applicant and return to work may be possible with improved relationships. Dr Sattaridivazar certified the applicant as having depression and anxiety exacerbated by alleged bullying, calling out in front of colleagues, unfair treatment by supervisor and lack of consideration for his home situation with a disabled child at home. He noted that any pre‑existing condition was satisfactorily managed for and the trigger for the current claim was alleged discrimination and bullying.
In a WorkCover NSW – Certificate of Capacity dated 20 May 2020, Dr Ian Stewart certified the applicant as having no current work capacity for any employment from 18 May 2020 to 27 May 2020. Under “factors delaying recovery” Dr Stewart noted: “Evidence of blatant discrimination in HR and at workplace.” Dr Stewart made a diagnosis of depression and anxiety, bullied at work.
In a WorkCover NSW – Certificate of Capacity dated 27 May 2020, Dr Stewart made a diagnosis of depression and anxiety, bullied at work and noted that the applicant had no current work capacity for employment from 27 May 2020 to 31 May 2020.
In a WorkCover NSW – Certificate of Capacity dated 5 June 2020, Dr Stewart noted the applicant had no current work capacity for any employment from 5 June to 6 July 2020.
In a WorkCover NSW – Certificate of Capacity dated 6 July 2020, Dr Stewart certified the applicant as having no current work capacity for employment between 6 July 2020 and 20 July 2020. Under “factors delaying recovery” he wrote: “Evidence of blatant discrimination in HR and at workplace.”
In an invoice for the period 1 February 2019 to 23 February 2021 from Blooms the Chemist in Maitland, various prescriptions were listed, including a prescription for Citalopram 20mg dispensed on 18 January 2021. It appears that the last Venlafaxine prescription was dispensed on 15 October 2020.
Receipts were also attached from Dr Manoj Baruah, consultant psychiatrist, of the Ozinet Mental Health Wellbeing Clinic for services provided on 2 October 2020 and 27 November 2020.

Discussion

The parties reached an agreement in the conciliation on 14 May 2021 that the Pre-injury average weekly earnings (PIAWE) were $1.893.11. As noted above, the applicant has amended the claim for weekly benefits to a claim for a closed period, that is, from 30 July 2020 to 31 January 2021.
The applicant has submitted that the psychological injuries have not resolved and he requires ongoing medical treatment.
The respondent submitted that as a result of events at work up to and including 21 April 2020, the applicant suffered an aggravation of a pre-existing psychological condition and as a result of that work aggravation had no capacity for work until a change in his medication at the recommendation of Dr Stewart on 5 May 2020. The respondent argued that the effects of the aggravation continued beyond 5 May 2020 but had significantly abated by 30 June 2020 at which time the applicant’s recovery was such that he was no longer incapacitated for his pre-injury duties.
In addressing the question of whether the applicant’s psychological injury had resolved, the respondent relied on the opinions of Dr Whetton and Mr Turner.
Mr Turner, who described himself as a provisional psychologist, evaluated the applicant’s fitness to return to work on 14 April 2020. Mr Turner expressed the opinion that the applicant had the capacity to return to his role as a front lift driver. However, it was significant, in my view, that this assessment was carried out before the return to work on 21 April 2020 and the incident on 31 May 2020.
On 21 April 2020 the applicant returned back to work feeling anxious and shaky and he was placed on yard duties by Scott Smith and told that they wanted him to gradually return to driving duties. Following his shift on 21 April 2020 the applicant attended the James Fletcher/Mater Hospital and was admitted for six hours of observation and then released into his mother’s care. He was issued with a certificate certifying him unfit for one week and was told to attend his local GP. The applicant then participated in a return to work conference with Mr Steve Hassett on 25 May 2020 and was due to commence back in the yard on 31 May 2020. On 31 May 2020 when the applicant was due to commence back at work he was on his way to work when he had a full blown panic attack and was unable to go to work.
I have concluded that little weight can be placed on Mr Turner’s evaluation of the applicant’s capacity to return to work as events following the assessment clearly demonstrated that
Mr Guion was unable to return to work in April and May 2020.
Dr Whetton, in his report of 1 July 2020, recorded a history that appears to have been inaccurate in some respects. While Dr Whetton noted that there had been an altercation at work with his supervisor, he reported that took place in mid May when it actually occurred on 3 April 2020. Dr Whetton also failed to refer to the unsuccessful attempts to return to work on 21 April 2020 and 31 May 2020. Dr Whetton was of the view that if the applicant had been examined earlier, he would have warranted a diagnosis of an adjustment disorder with anxiety. However, at the time of the examination on 30 June 2020, Dr Whetton was of the view that his symptoms were in good resolution and at this stage he would not warrant a psychiatric diagnosis. Dr Whetton concluded that the workplace injury was sufficiently resolved and, at this stage, the applicant was barely symptomatic and should have be expected to have a return to full duties as of now.
Dr Whetton did note that the applicant’s GP recommended he continue seeing the psychologist he had been attending since early January 2020. Dr Whetton also reported that the applicant had previously been prescribed Citalopram and continued with this until three weeks ago when the GP changed his mediation to Effexor at the considerable dose of 225mg per day. Dr Whetton noted that the applicant said that, over the last few weeks being on the Effexor, “he feels better, more happy, more on top of his emotions and more in control”.
Dr Whetton’s failure to record and take into account the unsuccessful attempts to return to work on 21 April and on 31 May 2020 have led me to conclude that little weight can be placed on his conclusion that the applicant should be able to have a return to full duties as of 1 July 2020. Further, the applicant had a recent change in medication to the considerable dose of 225mg Effexor per day only three weeks before Dr Whetton examined him, yet
Dr Whetton did not appear to take this into account. It is difficult to see how Dr Whetton could conclude that the applicant s psychiatric condition had resolved when the applicant was taking such a high dose of Efflexor and when an attempt to return to work on 31 May 2020 had resulted in a full blown panic attack.
The respondent also referred to the case management review dated 10 June 2020, in which Dr Stewart had made a diagnosis of acute stress disorder. Dr Stewart noted that this had triggered an acute panic reaction prior to entering the workplace. Dr Stewart believed the applicant still had a partially unresolved acute stress reaction to the workplace exacerbated by the panic reaction. Dr Stewart reported that the applicant was taking Cipramil 40mg daily for anxiety/depression and was reluctant to change the medication as it had helped. However, Dr Stewart was hopeful that the medication could be changed to Venlafaxine and the change would improve the applicant’s situational panic disorder. In terms of regaining fitness for pre‑injury duties and hours, Dr Stewart thought that there was a good chance but the timeframe could not be guaranteed. Dr Stewart considered that once the applicant had changed his medication he should return to full duties in his previous job. He added that the applicant’s anxiety needed to respond to the psychological treatment and a change of medication instituted, and continued support from the employer was important.
It is significant that Dr Stewart’s opinion that there was a good chance that the applicant would regain fitness for his pre-injury duties and hours, was qualified by his opinion that the applicant’s anxiety needed to respond to psychological treatment, a change of medication should to be made and there needed to be continued support from the respondent.
Dr Stewart certainly did not express the opinion that as of 10 June 2020 Mr Guion’s psychological condition had resolved, nor did he say that the applicant was at that time able to return to his pre-injury employment.
The applicant relied on the report of Dr Smith dated 22 September 2020. Dr Smith recorded a history that did include the altercation with the supervisor in April 2020 and two attempts to return to work when the applicant was anxious and unable to maintain work. Dr Smith noted that the applicant had been recently referred to a psychiatrist but had not commenced that treatment. Dr Smith noted that the applicant had received psychological therapy and his GP had described Venlafaxine up to 300mg daily. Under “prognosis” Dr Smith noted the applicant had yet to receive psychiatric treatment but given his symptoms had persisted with Venlafaxine at an appropriate high dose it was likely that his depressive symptoms would be difficult to treat.
Dr Smith expressed the opinion that the applicant had suffered an impairment of his earning capacity and he presented as completely unfit for work at the time of examination due to his depressive symptoms with associated cognitive impairment. Dr Smith stated it was not clear how long he would remain unfit for work and that depended on his response to psychiatric treatment over the next six to nine months.
I found Dr Smith’s opinions more persuasive than the opinions expressed by Dr Whetton.
Dr Smith’s report was more recent and he had obtained a more accurate history and also noted that there had been two unsuccessful attempts to return to work. In addition, it appears that when Dr Smith examined the applicant, the applicant had been recently referred to a psychiatrist for treatment. I would infer from the fact that a referral to a psychiatrist was made in August or September 2020 that the applicant’s condition had not resolved and, if anything, had deteriorated to the extent that he required psychiatric treatment.
I am satisfied on balance that the applicant’s condition had not resolved at the time when he was seen by Dr Whetton on 30 June 2020 and did not resolve during 2020 or before 31 January 2021.
The next matter to determine is the applicant’s entitlement to weekly compensation from 30 July 2020 to 31 January 2021.
There were a number of WorkCover NSW – Certificates of Capacity which certified the applicant as having no work capacity to work from 4 May 2020 up until 20 July 2020.
The applicant’s evidence, in his statement dated 4 December 2020, is that he has not returned to any form of employment since 21 April 2020. I also accept that he has not returned to work since 21 April 2020 and that he attempted on a number of occasions to return to his employment with the respondent, but these attempts were unsuccessful. Indeed, the attempt to return to work on 31 May 2020 resulted in the applicant having a major panic attack. I accept that the reason why these attempts to return to work were unsuccessful was his work-related psychological injury.
I also accept the applicant’s evidence that he experiences panic attacks every three to four days, has disturbed sleep and feels fatigued throughout the day, is unable to “think straight on a daily basis” and struggles to concentrate. I accept that the applicant cannot attend busy places for extended amounts of time because his anxiety and shakes become very noticeable and that he had thoughts of suicide every couple of days.
The clinical notes of Dr Sigaroudi provide some insight into the applicant’s condition during the latter part of 2020. In an entry dated 7 September 2020, Dr Sigaroudi noted that another GP had changed the Citalopram to Venlafaxine 300mg and the applicant said that “he had not felt any different and still felt anxious and had low mood and insomnia.
In an entry dated 19 October 2020, Dr Sigaroudi prescribed Venlafaxine 37.5mg capsule and Venlafaxine 75mg capsule noting that the applicant had been on Venlafaxine 300mg.
Dr Sigaroudi described the applicant as having “low mood” and reported that he was unhappy about his treatment with the other GP as he had been fidgety and shaky and his panic attacks were not controlled either. The applicant also stated that he had been referred to a psychiatrist and has recently seen him, and the psychiatrist organised to taper the Venlafaxine 37.5mg weekly and when gets to 75mg to swap to SSRIs. Dr Sigaroudi explained to him that given his HTM, SMRIs were not the best option for him and he wrote an action plan as per psychiatrist to taper down the Effexor and explained the risk of relapse.
In an entry dated 3 November 2020 Dr Sigaroudi noted that he had reviewed the tapering of the Effexor and the applicant stated that the 37.5mg cutting had been difficult for him and he preferred to taper it faster. Dr Sigaroudi explained to him that withdrawal symptoms could be dangerous. He noted that the applicant had been on 187.5mg daily for the past three days and was happy to cut to 150mg from tomorrow and continue 150mg daily for another week, then cut to 75mg. A safety net discussed.
In an entry dated 18 November 2020 Dr Sigaroudi noted there was a review of the Effexor and the applicant stated it was down to 37.5mg which needed to take another four days. He noted the applicant was seeing the psychiatrist at the end of November. He reported the applicant stated he had been slightly snappy, without any anger or violence.
Dr Sigaroudi did not issue Workcover medical certificates over this period but I noted that in the clinical notes dated 29 April 2020 Dr Sigouradi wrote “as per management we no longer do workers compensation, he is happy to contact Rutherford North Clinic for this matter”.
The applicant was admitted to the James Fletcher/Mater Mental Health on 22 November 2020 and had reported a decline in mental state in the last five weeks. Dr Ejaz noted that the applicant presented with trouble sleeping which has been worsening in the last few weeks as he had been weaned off from Venlafaxine 300mg down to 37.5mg through a private psychiatrist. In the mental health assessment dated 23 November 2020, Dr Ejaz noted that the applicant had referred himself as he was having trouble sleeping and anxiety and ruminations since weaning off Venlafaxine. Dr Ejaz also noted that depressive symptoms got worse around July 2020 when he switched anti‑depressants to Venlafaxine 150mg through a GP and then increased Venlafaxine to 300mg, but that did not help his symptoms so his private psychologist advised him to consult a psychiatrist and then the plan to wean off Venlafaxine was started.
The invoices from Blooms The Chemist Maitland for the period 1 February 2019 to 23 February 2020 indicated that the following antidepressants were dispensed: Venlafaxine SR 75mg on 11 June 2020, Venlafaxine SR 150mg on 21 August 2020, Venlafaxine SR 150mg on 4 September 2020, Venlafaxine SR 150mg on 18 September 2020, Venlafaxine XR (APO) SR 75mg and Venlafaxine XR (APO) SR 150mg on 15 October 2020, and Citalopram 20mg on 18 January 2021. It appears that by mid January 2021 the applicant was taking the same dosage of antidepressants that he had been taking before the work injury.
Dr Smith, in his report dated 20 September 2020, considered that the applicant had no work capacity due to his depressive symptoms with associated cognitive impairment. Dr Smith was of the view that it was not clear how long he would remain unfit for work and that depended on his response to psychiatric treatment over the next six ‑ nine months.
I am satisfied that there were significant problems in the applicant’s treatment and reaction to the change in medication between June 2020 and the end of 2020. Although there may have been an improvement in his condition when he saw Dr Whetton on 30 June 2020, it is clear from the Dr Ejaz’s mental health assessment that depressive symptoms got worse around July 2020 when the anti-depressants were changed and he was placed on a high dose of Venlafaxine. Dr Smith considered the applicant completely unfit for employment when he examined him in September 2020 and stated that it was not clear how long he would remain unfit for work as that depended on his response to psychiatric treatment over the next six ‑ nine months.
I accept that the applicant was then referred to a psychiatrist, Dr Manoj Baruah, who saw him on 2 October 2020 and 27 November 2020. I would infer from the applicant’s statement that he continued to see Dr Baruah after 27 November 2020. The applicant’s statement dated 4 December 2020 was evidence, that I accept, of ongoing symptoms including panic attacks, which would significantly impact his ability to work at that time.

On balance I am satisfied that the applicant was totally incapacitated from 30 July 2020 to 31 January 2021. In making this finding I have preferred the opinion of Dr Smith to that of
Dr Whetton and Mr Turner as Dr Smith’s conclusions were, in my view, supported by the clinical notes and records of his treating doctors referred to above.
The applicant appears to have been paid weekly compensation by the insurer from 4 May 2020 until and including 28 July 2020. These payments were made in the first entitlement period pursuant to s 36 of the 1987 Act. In the wages schedule attached to the ARD a claim is made on the basis of 80% of PIAWE, that is, a claim is made pursuant to s 37. Therefore, from 30 July 2020 to 31 January 2021 the applicant is entitled to receive payments pursuant to s 37 of the 1987 Act, such payments being 80% of the agreed PIAWE of $1,893.11, that is, $1514.49.
There will be an award of weekly payments of compensation to the applicant as folIows:
(a) $1,514.49 per week from 30 July 2020 to 31 January 2021 pursuant to section 37 (1) of the 1987 Act.
Finally, the question of whether s 60 expenses were reasonably necessary as a result of the primary psychiatric injuries deemed to have occurred on 14 January 2020 and 4 May 2020 needs to be determined.
In the ARD a claim was made for the payment of past medical expenses in the sum of $887.76 for consultations with Dr Baurah, Dr Stewart, Dr Sattaridibazar and for medication. Given the findings made above, I consider that there should be a general order for the payment of reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.
There will be an order that the respondent pay the applicant’s reasonably necessary section 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

[2021] NSWPIC 178

9 June 2021