Jack v Arbor Pride Pty Ltd
[2021] NSWPIC 194
•18 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jack v Arbor Pride Pty Ltd [2021] NSWPIC 194 |
| APPLICANT: | Robin Jack |
| RESPONDENT: | Arbor Pride Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 18 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for compensation for permanent impairment; worker suffered crush injury to right hand and subsequent amputation of the tip of one finger; no dispute as to physical injury; worker also claimed bullying and unfair treatment on return to work following surgery; dispute as to whether worker suffered primary psychological injury; Held- finding that the totality of the evidence supported the conclusion that the worker suffered a primary psychological injury; worker may have also suffered a secondary psychological injury but if so it was not compensable; matter remitted to the President for referral to a medical assessor for assessment of whole person impairment as a result of primary psychological injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained a primary psychological injury arising out of or in the course of his employment with the respondent on 10 February 2017. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of whole person impairment due to a primary psychological injury sustained on 10 February 2017. 3. The documents to be reviewed by the assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; and (c) Application to Admit Late Documents lodged by the applicant on 27 April 2021 and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Robin Jack (the applicant) was employed as a full-time arborist by Arbor Pride Pty Ltd (the respondent) on 10 February 2017 when he suffered a crush injury to his right hand.
Mr Jack was putting green waste into a chipping machine when a log became caught. While he was trying to move the log, it became jammed and crushed his right hand against the hopper area where logs are fed into the machine. He suffered lacerations to his third and fifth fingers, and the tip of his ring finger was amputated.
Mr Jack was taken to Royal North Shore Hospital by ambulance where he underwent amputation of his right ring finger at the distal interphalangeal joint, and middle finger laceration closure. He was off work for several weeks before being certified fit for light duties on 5 April 2017 and returning to work.
There is no dispute that Mr Jack suffered a physical injury in the course of his employment with the respondent on 10 February 2017 in the form of a crush injury to his right ring finger with subsequent amputation of the tip, and lacerations to adjoining fingers.
By an Application to Resolve a Dispute (ARD) lodged with the Commission on 13 April 2021, Mr Jack claims compensation for permanent impairment as a result of a primary psychological injury pursuant to section 66 of the Workers Compensation Act1987 (the 1987 Act).
The ARD describes Mr Jack’s psychological injury as follows:
“The worker was operating the chipper machine and feeding green waste through the feeder. A log became caught on the lip of the machine and the worker attempted to move the log. The worker sustained a crush injury to his right finger when the log moved and crushed his hand. The worker underwent surgery to amputate the tip of his right finger. The worker was diagnosed with post-traumatic stress disorder with depression and anxiety as a result of the workplace injury.”
By dispute notices issued on 23 October 2018 and 7 December 2020, the respondent denies liability to compensate Mr Jack. The respondent disputes that he suffered a primary psychological injury on 10 February 2017.
The respondent says, without conceding, that Mr Jack may have suffered a secondary adjustment disorder due to conflict with his employer on his return to work and difficulty adjusting to his injury but, even if he did, he is precluded from compensation for permanent impairment for a secondary psychological injury by section 65A of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether Mr Jack suffered a primary psychological injury arising out of the incident on 10 February 2017.
It is agreed that, if Mr Jack’s claim succeeds, the matter should be remitted to the President for referral to a Medical Assessor for determination of the degree, if any, of whole person impairment as a result of his injury.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration hearing on 9 June 2021. Mr Jack was represented by Mr Graham Barter of counsel. The respondent was represented by Ms Lyn Goodman of counsel.
There was some discussion at the start of the conciliation/arbitration as to whether Mr Jack was claiming a further primary psychological injury as a result of events that occurred after he returned to work. Mr Barter confirmed, however, that the claim remains as pleaded in the ARD, being a primary psychological injury arising out of the trauma of the incident on 10 February 2019.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents; and
(c) Application to Admit Late Documents (AALD) lodged on behalf of Mr Jack on 27 April 2021 and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross-examine any witness.
THE EVIDENCE
Mr Jack’s statements
Mr Jack provided written statements dated 5 October 2018 and 10 April 2021[1]. The following is a summary.
[1] ARD pages 1 and 5.
In his first statement, Mr Jack states that he was born in the United Kingdom and migrated to Australia in about March 2015. He did not have a pre-existing condition of anxiety, depression or panic attacks before his workplace injury.
Mr Jack describes how a log jammed in a chipping machine on 10 February 2017, crushing his right hand. He states he was in shock and a colleague administered first aid while he waited for an ambulance. He suffered lacerations to his “third and fifth ring finger, with my fourth right ring finger amputated at the distal interphalangeal joint”. He was taken by ambulance to Royal North Shore Hospital where he underwent surgery.
Following the surgery, Mr Jack saw Dr James Ledgard, a hand wrist and reconstruction plastic surgeon, and he was referred to a physiotherapist. He was off work for approximately four to five weeks. He was certified fit for light duties by his general practitioner, Dr Mahdi Taj, on 5 April 2017. He returned to light duties for one to two weeks then attempted to recommence his normal hours and duties.
Mr Jack states that, shortly after the accident, he began to experience anxiety and depression, and he was having nightmares about the accident. Every time he looked at his right hand he would experience flashbacks. His symptoms began to deteriorate especially once he returned to work.
On 27 April 2017, Mr Jack saw Dr Taj and reported symptoms of anxiety, depression, suicidal ideation and panic attacks. He was having nightmares and flashbacks. Dr Taj diagnosed him with post-traumatic stress disorder (PTSD) and referred him to a psychologist and psychiatrist.
On 4 May 2017, Mr Jack attended his first appointment with psychologist, Reg Davis. He told Mr Davis he had been experiencing anxiety since the injury and that he felt like his employer was asking him to complete tasks beyond his capacity and in what he now perceived to be a hazardous work environment. He saw Mr Davis weekly and then fortnightly until January 2018 after which Mr Jack relocated to Sydney.
On 10 May 2017, Mr Jack saw psychiatrist, Dr Sujatha Kalava, who diagnosed him with a major depressive disorder, adjustment disorder and panic disorder. She prescribed mirtazapine to alleviate symptoms of anxiety and depression. He switched to sertraline when mirtazapine had adverse side-effects.
Despite psychological and psychiatric intervention, Mr Jack states, his psychological symptoms continued to worsen. When he returned to work, he often became agitated and distressed at work, and unable to cope with the duties expected of him. He struggled with his duties and his perception of his ability to fulfil them. He describes having a panic attack when he climbed a tree. His fear of not being able to satisfactorily perform his duties to the same standard was debilitating, causing him further anxiety and depression.
Mr Jack states that his problems at work intensified and were compounded by his tense relationship with his supervisor. He perceived he was being treated differently from other employees, that his supervisor did not understand the limitations caused by his crush injury and was trying to push him back to pre-injury duties. He felt his supervisor was being excessively demanding, bullying and treating him unfairly. He was constantly worried that his physical limitations affected his skills as an arborist, and a similarly dangerous situation would arise and cause him further injury.
Mr Jack states that his fixation on the loss of his finger and fear of re-injury caused him to make mistakes. His concentration was severely impaired as he was constantly reminded of the accident every time he looked at his amputated finger. He did not think he was able to recover from the trauma of experiencing his right hand injury.
Mr Jack states that the severity of his anxiety, stress and depression pushed him to increase his alcohol and drug consumption which had the effect of worsening his symptoms. On 4 January 2018, he was admitted to Gosford Hospital for a bilateral pulmonary embolism after overdosing on drugs and alcohol.
Around April 2018, Mr Jack left his employment with the respondent and moved to Sydney where he started work in the gardening and maintenance industry. At the time of his statement, he said he continued to re-live his injury on a regular basis. He is reminded of the traumatic event every time he looks at his amputated stump. At times he is interrupted while going about his daily business by a vivid memory repeatedly replaying the accident in his mind. The constant reminder haunts him during the day and “seeps into” his consciousness when he is asleep. He has recurring nightmares of the incident.
Mr Jack describes the ongoing debilitating effect of the injury. He states that he considers himself lucky because he has relatively good range of motion in his right hand and can complete daily tasks without significant difficulty. His main concern is the scarring and remaining stump which at times causes a “feeling of uneasiness” when he looks at it and takes him back to the traumatic event that caused it.
In his second statement, Mr Jack describes an incident approximately 10 years earlier in when he was at work in the United Kingdom and witnessed a member of the public killed by a falling branch. He found the event distressing and he believed it was caused by poor work practices. He may have experienced some symptoms of depression and/or anxiety for a brief period afterwards but he does not recall having any psychological therapy or treatment.
Mr Jack again describes how, after the accident on 10 February 2017, he began to experience flashbacks to the accident along with feelings of worthlessness, hopelessness, low mood and suicidal ideation. He describes having difficulties with his memory, poor concentration and insomnia. He describes having had approximately 10 days off in the previous two years due to symptoms of depression and anxiety. He experiences symptoms fluctuating in severity on an almost daily basis.
Mr Jack states that he had attended psychiatric treatment and psychotherapy with Dr Alex Nash. He had been prescribed a number of antidepressant medications but they made him feel groggy and did not improve his symptoms. He states that he experiences panic attacks along with increased heart rate, sweating, nausea and clammy hands, and he had recently experienced a couple of panic attacks while at work. He describes the effects on his social and personal life, including increased alcohol use and drug use on a regular basis which, he says, he has reduced or quit altogether.
Treating doctors’ reports
Dr Ledgard
Dr James Ledgard provided a report to the insurer on 14 March 2017[2] that Mr Jack had presented to Royal North Shore Hospital on 10 February 2017 after he trapped his right ring finger between a log and a blunt metal strip on a stump chopper. He was taken to theatre where the wounds were debrided and washed out. The ring finger was “terminalised at approximately the DIP joint level with the neurovascular bundles being cauterized and the tendon being cut short”. An adjacent finger was explored but there was no injury to deeper structures.
[2] ARD page 51.
Dr Ledgard reported he had seen Mr Jack on a number of occasions since the operation. His wounds had completely healed. He was “very keen to return to his normal work” and there was no reason he could not do so, but he needed to be particularly careful in his line of work.
Reliance Medical Centre
Records from Reliance Medical Centre[3] date from 5 April 2017 when Mr Jack saw Dr Subhar Rajan. The notes for that date show only that he attended for a workers compensation certificate.
[3] ARD page 110.
On 27 April 2017, Dr Taj recorded, relevantly:
“amputation of right 4rht dip finger, can’t make fist and the work is treating him very badly asking him to do everything and now he feels he is consiumed [sic] by anxiety and stress
cant cope at work
anxiety, panc [sic] attacks++
WC still open
PTSD regarding hsi accident, nightmares, flushbacks [sic], low mood, suicidal ideation since the accident started crying
asked him if he has sucidal [sic] ideation to head to ED
was crying
prolonged counselling
took time to calm him down and explained techniques for panic attacks
…
the team leder is bollying him and part of his low mood and anxiety is that person, asked him to report this”
On 27 April 2017, Dr Taj referred Mr Jack to Dr Larissa Grund and Amanda Brown for opinion and management of “possible PTSD, panic attacks and depression since an accident at work in which his [finger was partly amputated]”. No reports from either are available.
On 4 May 2017, Dr Taj made referrals in the same terms Professor Carlos Zubaran and to Mr Davis. It does not appear that Mr Jack actually saw Professor Zubaran.
Notes of appointments on 4 May 2017 and 18 May 2017 refer to an exercise physiologist and a psychologist, but no details.
On 31 May 2017, Dr Taj noted:
“there has been rushing ups and he went to work with no rest enough and its now in lots of stress and anxiety
been talking very fast and apparently in lots of stress
plan
in lots of prblems [sic] at work and psychologically not capable at this stage
asked him to see reg and come 9/06 to see the effects
aggression and anger issue at work
aggression buildup at work”Notes of consultations on 9 June 2017,15 June 2017, 29 June 2017 record nothing of particular relevance. On 12 July 2017, Dr Taj noted that Mr Jack was “going to see the psychiatrist friday”.
On 27 July 2017, Dr Taj recorded “mediation at work” and “team leader very demanding”. He noted that Mr Jack’s medications needed to be reviewed, and “raised the concern about his mental stastus[sic]”. His notes indicate he was still waiting on a report from a psychiatrist, Dr Su Kalava.
On 3 August 2017, Dr Taj noted that Mr Jack was not ready to work and “boss called him and pushing him to work”. Notes for 11 August 2017 show further consideration of Mr Jack’s medication and, on 24 August 2017, discussion of “PID”. On 8 September 2017, Mr Jack was “much better” with the new medication. Notes for further consultations in September 2017 show nothing of particular relevance.
On 12 October 2017, Dr Taj noted, relevantly, “communication difficulty at work” and further discussion about medication. On 26 October 2017, he noted that “the psychiatrist” did not want to share information with Dr Taj’s clinic, “she said its not WC”, and Mr Jack paid privately.
It is not clear who is the psychiatrist referred to in Dr Taj’s note. I note that Dr Glen Smith took a history[4] from Mr Jack that there had been difficulties in communication between his general practitioner and Dr Kalava and she had reportedly refused to communicate with the general practitioner, but nothing turns on this.
[4] ARD page 27.
On 13 December 2017, Dr Kheirandish-Keralta at the same practice noted, relevantly:
“crying all the time during examination
had a work injury in last feb and since then thinks that he is treated unfairly in workplace”.
Under psychiatric history, Dr Kheirandish-Keralta noted a number of symptoms including panic attacks.
On 15 December 2017, Dr Branko Naumovski recorded the reason for visit as “Depression PTSD”. He noted, relevantly (obvious typographical errors in original corrected):
“Psychological problem following work injury Feb 207.
He has lost distal part of R 4th finger
He has been seeing psychologist and psychiatrist as well
Pt feels not safe at work because he is so stressed and constantly making a mistakes
He is very much anxiousness and focused on his loss of part of the finger which is constantly reminding him of injury because he is R handed and R 4th finger partial amputation is also psychological impact. He is unable to make a proper grip with R hand
….
Apparently distress
unable to concentrate
back flashes”
On 22 December 2017, Dr Naumovski recorded that Mr Jack “feels better now and feels he can go back to work”. He had had “great help” from a psychologist “in regards to issue last week”.
Notes in January 2018 refer to Mr Jack’s admission to hospital with pulmonary embolism and to increased alcohol intake and illicit drug use. On 23 January 2018, Mr Jack was “keen” to go back to work. On 24 January 2018, Dr Naumovski noted that he had advised Mr Jack to go on light duties at work. Further records through to 19 April 2019 have nothing of particular relevance to the present claim.
Dr Naumovski provided a report dated 20 December 2017 to the insurer.[5] He stated Mr Jack “has lost distal part of R 4th finger which is very likely cause of his mental health problem at this stage.” He did not feel safe at work because he was so stressed and constantly making mistakes. He was very anxious and focused on the loss of part of the finger which was “constantly reminding him and occupying his mind”. He said Mr Jack is right-handed and the partial amputation “is also psychological impact - probably more than if it was on [the left] hand”.
[5] ARD page 50.
Dr Naumovski said he would see Mr Jack on 22 December 2017 when he would review his condition “and possibility of PTSD”. He said:
“If he suffers from PTSD (very possible) it takes a time to appear and it’s about the time after the injury when symptoms are becoming more obvious and intense.”
Dr Kalava
Dr Sujath Kalava, psychiatrist, reported to Dr Taj on 4 August 2017[6] and 16 October 2017[7]. She stated she first saw Mr Jack on 10 May 2017.
[6] ARD page 140.
[7] ARD page 138.
On 4 August 2017, Dr Kalava provided a brief report to Dr Taj that Mr Jack “had an accident at work which caused problems with him being able to work and he developed some depressive symptoms”. Dr Kalava did not identify particular symptoms but said she diagnosed Mr Jack with major depressive disorder. She referred to his medication.
On 16 October 2017, Dr Kalava reported that she had been seeing Mr Jack “in the context of anxiety and low mood with some suicidal ideation on the background of work stress”. She said he lost part of his finger with significant loss in his ability to use his hand in the accident in February 2017. Since then, he had also suffered bullying at work and inability to return to work in a healthy and appropriate fashion, which had “caused a worsening of his mood with anxiety and panic attacks”. He denied any previous significant mental health problems but had “an episode of depression in the past when there was some bullying at work”.
Dr Kalava said she diagnosed Mr Jack with “adjustment disorder and panic disorder on the background of work related stress”.
On 18 January 2018, Dr Kalava reported to the insurer that initially, Mr Jack met the criteria for an adjustment disorder but his condition had evolved into a major depressive disorder with elements of significant anxiety. The symptoms he was displaying were “secondary to the work-related stress”. She referred to “ongoing problems at work including alleged bullying” which had made him more and more depressed over time.
In a further report to the insurer on 22 February 2018[8], Dr Kalava said Mr Jack was currently suffering symptoms of depression and anxiety which started after the injury. During the recovery period, he realised he was unable to do his job adequately which led to depressive symptoms and, during this time, there was escalating conflict between him and his managers. Thus, she said, she believed the symptoms were directly related to the injury on 10 February 2017. In a paragraph which is difficult to fully understand, Dr Kalava concluded:
“The current symptoms have a new diagnosis which is different from the diagnosis of his initial injury which was a hand injury. I do not necessarily think this is a new injury in terms of the new event causing the injury, but it definitely is a different illness as compared to what he originally suffered during the incident.”
[8] ARD page 46.
It is not clear what distinctions Dr Kalava is making, in particular whether she is referring to an initial psychological injury and subsequent psychological injury, or a physical injury and subsequent (secondary) psychological injury.
On 5 April 2018, Dr Kalava provided an unaddressed report in terms very similar to her report of 4 August 2017, adding that Mr Jack had a new job and was moving to Sydney and would benefit from ongoing review and supportive psychotherapy.
Mr Davis
On 11 May 2017, Mr Davis reported[9] to Dr Taj that Mr Jack presented with “anxiety reactive to a work incident on 10.02.17 when he suffered a crush injury to the ring finger on his right hand resulting in tendon damage and the amputation of the tip of the finger”. Mr Davis described Mr Jack’s loss of confidence in his ability at work and that it appeared his manager was not very sympathetic and he was “in conflict with one of his co-workers” who seemed to regard him as a “shirker”.
[9] ARD page 133.
Mr Davis reported on 9 August 2017 that he had seen Mr Jack for six sessions. He had made good progress and was working again. He had ongoing issues with what he regarded as unsafe work practices. He was feeling more confident about climbing and he was “close to pre-injury functionality”. Mr Davis said he was concerned about Mr Jack’s emotional volatility and his reaction to medication.
In a report to the insurer on 16 February 2018, Mr Davis stated that Mr Jack had “ongoing concerns about safety at work that he considered not being fully addressed”. He said “[a]s his physical workplace injury (10.02.17) triggered his current psychological distress he remains apprehensively anxious in the work environment” and distressed at what he regarded as disregard for employee safety.
As to diagnosis, Mr Davis said Mr Jack met the diagnostic criteria for Major Depressive Disorder and Generalised Anxiety Disorder, both in the severe range. His symptoms appeared to have been “triggered by his workplace accident that involved the removal of the end of one finger and his subsequent workplace issues” regarding safety that he felt had not been addressed. He remained fearful of further accidents and hypervigilant about workplace safety. He described sleep disturbances and a number of panic attacks while working at heights. Mr Davis said:
“[Mr Jack’s] working situation was the main contributing factor to his mental health condition. The onset of his anxiety appears to have coincided with his workplace physical injury and complicated further by subsequent workplace conflict.”
On 1 March 2019, Mr Davis provided an unaddressed report[10]. He said Mr Jack emigrated from the United Kingdom in 2015. He described a past history of anxiety and panic, and indicated he had previously been suicidal but not so now. He had previously been prescribed diazepam but no anti-depressant medication. Mr Davis said Mr Jack described in later sessions how he had been present at a worksite in the United Kingdom when a member of the public had been killed by a falling branch. He felt the accident was attributable to poor work practice. He felt this event had sensitised him to the need for stringent safety practices in his risky workplace environment.
[10] Reply page 25
Mr Davis described “subsequent findings” as “issues relating to his physical injury was complicated by subsequent dealings with his employer” who Mr Jack felt disregarded safety issues. Mr Davis said his “hypervigilance and apprehensive anxiety may also have been a result of PTSD from the workplace fatality in Britain”.
Mr Davis last saw Mr Jack on 21 February 2018. He said it appeared on this occasion his depression and anxiety were reactive to his injury and workplace issues relating to safety. He added that Mr Jack “is not very psychologically minded and comes to simplistic conclusions about his psychological distress, mainly attributing it to the behaviours of others.” Mr Davis said “there may be PTSD elements in his anxious presentation but this wasn’t pursued because of the late disclosure in our sessions.” He noted “[t]he injury itself was traumatic for Mr Jack and he describes flashbacks and hypervigilance around the use of the chipper.”
Daniel Rathbone
Psychologist, Daniel Rathbone, at the Church Street Medical Centre in Newtown reported to Dr Liu on 26 May 2018 that he had seen Mr Jack for an initial appointment that day. They discussed issues including his “traumatic work injury and the mental health and substance use issues” that followed. Mr Rathbone said Mr Jack presented as a distressed man who has experienced “significant psychological ramifications following his workplace injury, including anxiety, panic attacks, low mood, feelings of worthlessness, anger, trouble sleeping, and a tendency to drink alcohol and smoke cannabis excessively.”
Church Street Medical Centre
After moving to Sydney in early 2018, Mr Jack attended at Church Street Medical Centre in Newtown.
Dr Ran Liu reported to the insurer on 27 September 2018[11] that he saw Mr Jack once on 21 May 2018. He referred to correspondence from Dr Alex Nash and Mr Rathbone. Dr Liu said he diagnosed “Right 4th finger fourth finger amputation” and “Subsequent major depressive post return to work set off by actual or perceived bullying at the workplace”. Dr Lui said
Mr Jack met the clinical criteria for major depressive disorder but he would like to see him again to confirm this.[11] ARD page 171.
Dr Nash
Dr Alex Nash, psychiatrist, provided a number of reports and his clinical notes are in evidence.
Dr Nash’s clinical notes date from 18 June 2018 when they, show, relevantly:
“right ring finger – tip amputated early 2017
Hand surgeon
bullying from colleagues – not pulling weight”
Dr Nash noted a range of recent symptoms including “panic attack, breathing changes, palpitations nausea”. Mr Jack felt like he was being bullied by the couple he was living with. Under past psychiatric history, Dr Nash noted “Has felt depressed prior to 2017 – nil treatment”. He did not elaborate in notes of that visit or subsequent visits.
On 9 July 2018, Dr Nash noted his impression was “major depressive disorder – in remission”, “effective dysregulation/personal vulnerabilities” and “substance misuse”.
On 17 September 2018, Dr Nash noted “says he gets flashbacks of the accident, uses the substance to cover this up, it suppresses the anger and anxiety”. Under “Impression” he noted “PTSD, substance use disorder, affect dysregulation”.
In notes of three subsequent visits, Dr Nash notes “MDD – in remission” which I understand to mean major depressive disorder. On 18 February 2019 he again noted “MDD” and substance abuse, and added “PTSD” and “flashbacks about the accident most days” “nightmares about the accident a few times a week”. He again noted PTSD on 11 March 2019, and “PTSD and depression – now in remission” on 22 March 2019. On 13 May 2019, he noted PTSD and depression.
Dr Nash reported to Dr Liu on 11 September 2018 that Mr Jack presented for review of his mental state in the context of the workplace injury in early 2017. When he returned to work he felt bullied for not pulling his weight. Dr Nash said his impression was of substance use issues in partial remission and major depressive disorder in remission. He referred to “some intermittent non-specific anxiety symptoms including palpitations, nausea and breathing changes”.
On 20 September 2018[12], Dr Nash reported briefly to the insurer. He referred to the partial finger amputation in early 2017 and that Mr Jack “subsequently suffered from a depressive episode”.
[12] Reply page 45.
On 18 February 2019, Dr Nash reported “To whom it may concern” that he had seen Mr Jack for eight sessions since June 2018. He had a diagnosis of PTSD and suffered from nightmares and flashbacks related to an accident while working as an arborist with the tip of his finger was amputated.
On 22 March 2019[13], Dr Nash reported “To whom it may concern”. He said the workplace accident in February 2017 and the partial finger amputation “led to post-traumatic stress disorder and there was an associated depressive disorder”. The depressive disorder was in remission and his PTSD was largely in remission. He had been able to return to work and function there effectively.
Independent medical assessments
[13] AALD page 2.
Dr Smith
Dr Glen Smith, psychiatrist, saw Mr Jack for assessment on 26 June 2018[14]. He said Mr Jack denied a history of significant anxiety or depressive symptoms before the injury in February 2017 and, specifically, denied a history of pre-existing panic attacks or obsessions.
[14] ARD page 25.
Dr Smith took a history that Mr Jack immediately felt “shocked” when the accident happened. Mr Jack told him he experienced anxiety and depressive symptoms after the accident and he described:
“recurrent, intrusive memories and flashbacks of the incident, ‘like a video reel’ and he experienced nightmares of the incident, ‘my world crumbling away’”. He stated that he experienced panic attacks, ‘in the shower, hard to breathe, shaking’. He said that he felt depressed with suicidal ideation.” (italics in original).
Mr Jack told Dr Smith that his alcohol consumption had escalated in the context of his anxiety and depressive symptoms, and he had used cannabis to escape his feeling. On return to work, he felt fearful of climbing and he was crying because he could not do it. He described “bullying from his supervisor” and in that context he felt more anxious and depressed. Towards the end of 2017, he felt anxious and depressed at work and felt anything he did was wrong. He described having a panic attack while up a tree.
Mr Jack described symptoms including nightmares approximately twice a week, feeling distracted and dwelling on the incident. He tried to avoid thinking about the accident but he experienced recurrent intrusive memories on a daily basis “like a video loop, continuously”.
Dr Smith reviewed clinical notes and reports from Reliance Medical Centre, and reports from Mr Davis, Dr Kalava and Dr Ledgard. He made provisional diagnoses of PTSD, Major Depressive Disorder, Alcohol Use Disorder in early remission and Cannabis Use Disorder.
With respect to the diagnosis of PTSD, Dr Smith said Mr Jack described symptoms consistent with that diagnosis in the context of the injury suffered at work in May [sic] 2017 including “persistent nightmares and recurrent, intrusive memories of the incident on a daily basis” and avoidance of thinking about the accident. Although his symptoms had been worsened by alcohol and drug use, they had persisted despite his recent marked reduction in substance use. Mr Jack described a history of depressive symptoms developing in the context of the injury with limitation in functioning and post-traumatic anxiety.
Dr Smith concluded that Mr Jack described a “traumatic physical injury” since when he had suffered from “significant post-traumatic” symptoms as described. He assessed Mr Jack’s whole person impairment as 15%.
Dr Lee
Dr Leonard Lee, psychiatrist, saw Mr Jack for assessment on 23 August 2018 and 28 October 2020 at the request of the respondent. He took a history that Mr Jack was “in shock” after the incident at work on 10 February 2017. He was off work for five weeks and returned to light duties but a colleague accused him of being “silly”. There was “a big argument about one or two months after his accident” with the colleague, and further conflict to the point that Mr Jack was moved to a different gang under another supervisor.
Mr Jack told Dr Lee that he realised after a particular incident with his colleague that he was not coping. He revealed to his general practitioner that he had a lot of suicidal thoughts and was “feeling lost because he had apparently forgotten fundamental skills from his 15 years of work experience”. Dr Lee commented that it is unusual to lose fundamental skills unless one has suffered significant brain damage.
Dr Lee reported that Mr Jack said his psychological problems were “equally due to the accident and his subsequent treatment” including because his boss backed his colleague over him.
Dr Lee commented that Mr Jack “did not become agitated when describing the accident nor did he avoid discussing it as would have been expected for a diagnosis of [PTSD]”. He saw himself as having been victimised after the accident. Dr Lee said there was no objective evidence of anxiety or depression. Dr Lee observed that it “transpired that he had used substances for much of his life” and he continued to use alcohol and marijuana.
Dr Lee administered a Structured Inventory of Malingered Symptomology (SIMS) which, he said, is not designed to serve as a diagnostic test for feigning in isolation. He said Mr Jack’s total score was “significantly above the recommended cut-off for the identification of likely feigning”.
Dr Lee undertook a file review, noting reports from Dr Ledgard, Mr Davis, Dr Kalava and Dr Smith. He noted Dr Kalava’s and Dr Smith’s diagnoses. He also noted the symptoms which Mr Jack had reported to Dr Smith. He commented that, while nightmares and flashbacks are “cardinal symptoms” for PTSD, they were not reported by Dr Kalava or Mr Davis.
Dr Lee summarised that Mr Jack had a long history of substance use, that he returned to work after an amputation injury but experienced conflict with his team leader and other authority figures at work, that his substance use had increased, and that examination findings “revealed a strong possibility of feigning/exaggeration which makes a precise diagnosis difficult”. He commented “You may wish to consider referring him for more detailed psychometric assessment … to clarify diagnostic and personality issues”.
As to diagnosis, Dr Lee said that, on the basis of the history provided, Mr Jack may have previously suffered from an Adjustment Disorder, likely caused by conflict with his employer and difficulty adjusting to his injury with increased use of substances and affective features. There was no objective evidence of a psychiatric diagnosis based on the SIMS and his presentation, although he reported residual symptoms of anxiety, depression, frustration and bitterness. Non-work-related contributing factors were ongoing substance use and underlying personality issues. From a psychiatric perspective, Mr Jack had 0% whole person impairment.
Dr Lee saw Mr Jack for review on 28 October 2020[15]. Mr Jack described ongoing depressive symptoms and flashbacks which occurred every day and “wheel into my head”. He described behaviour at work including feeling like he would “vomit words”, “like his brain is short-circuiting and goes scatty”, behaviour which Dr Lee commented was inconsistent with PTSD.
[15] Reply page 59.
Dr Lee confirmed his opinion that he did not believe Mr Jack qualified for a psychiatric diagnosis. He noted he had been provided different diagnoses over time, indicating the nature of his symptoms was inconsistent. His presentation was inconsistent with reports of flashbacks and other symptoms of PTSD. Dr Lee disagreed with Dr Smith’s diagnosis of PTSD as he had not excluded malingering or explained why Mr Jack’s condition had exceeded the expected recovery time of six months to a year for PTSD.
SUBMISSIONS
Parties’ submissions were recorded and a transcript is available. The following is a summary.
The applicant’s submissions
Mr Barter submits that there is no dispute that the physical injury occurred on 10 February 2017 as Mr Jack describes. The only real issue is whether the psychological consequences of having his hand caught in the machine are a primary psychological injury or secondary.
Applying the common sense approach to causation outlined in Kooragang Cement Pty Ltd v Bates[16], Mr Barter submits, it makes sense that having a hand trapped in machinery will cause a psychological reaction.
[16] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Barter submits that Mr Jack describes in his statement the shock he felt when his hand became caught, that he was off work for four to five weeks and that, shortly after the accident, he began to experience anxiety, depression and nightmares, and, flashbacks every time he would look at his right hand.
Mr Barter submits that I can infer that the shock of the accident may have precluded any realisation of the psychological injury at that time but then it kicked in. Mr Jack describes seeing Dr Taj who diagnosed PTSD, and what followed were persistent and consistent complaints of psychological symptoms resulting from the accident. His symptoms continued to worsen despite psychological and psychiatric intervention, and he could not cope at work. His problems at work were compounded by problems with his supervisor.
Mr Barter refers to Mr Jack’s evidence that “the combined effect” of his symptoms limited his capacity to work and that he could no longer deal with pressure and adapt to problems in the workplace as he was once able to. At the time of his statement in April 2021, Mr Jack was still experiencing symptoms of anxiety and depression on an almost daily basis and was still having panic attacks.
In Mr Barter’s submission, the incident itself on 10 February 2017 was sufficient to create the contemporaneous psychological injury.
With respect to Dr Lee, Mr Barker submits that he found no psychological condition but the overwhelming medical evidence is against him.
The respondent’s submissions
Ms Goodman submits that the only doctor who says Mr Jack has PTSD is Dr Smith in his report of 27 June 2018, and I would not accept Dr Smith’s opinion. He got complaints from Mr Jack that are not dealt with in any contemporaneous medical evidence and he did not have a proper history of Mr Jack’s pre-existing condition.
With respect to Dr Kalava, Ms Goodman submits that Dr Kalava noted in her report of
4 August 2017 that Mr Jack developed “some depressive symptoms”. She mentions no symptoms in her report consistent with PTSD. In her report of 16 October 2017, which was still close in time to the accident, Dr Kalava refers to bullying that had caused worsening of his mood with anxiety and panic attacks. However, Ms Goodman submits bullying is not relied upon in the claim for primary psychological injury, and Dr Kalava’s report clearly concerns a secondary psychological injury.
Ms Goodman refers to the decision of Deputy President Roche in Cannon v The Healthy Snack People Pty Ltd[17] in which primary and secondary psychological injuries were analysed. Ms Goodman submits a worker can have both but medical evidence is required to support the claim. Bullying may cause primary psychological injury but that is not the case as pleaded here. Dr Kalava refers to ongoing and escalating conflict causing Mr Jack stress but these relate to a possible secondary injury. Dr Kalava makes no mention of PTSD or a primary psychological injury arising out of the original incident.
[17] Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32.
With respect to Mr Davis, Ms Goodman submits his reports refer in terms that are all about secondary rather than primary psychological injury. He refers in his report of 11 May 2017 to anxiety “reactive” to a work injury. He does not describe symptoms of a primary psychological injury. He does not record complaints of symptoms such as nightmares or flashbacks.
Ms Goodman submits that Dr Naumovski’s reports also go to a secondary rather than a primary psychological injury. On 20 December 2017, he referred only to the possibility of PTSD and that he would review Mr Jack at his next appointment. In his referral to Dr Kalava he makes no mention PTSD-type symptoms. He issued workers compensation certificate on 22 December 2017[18] certifying Mr Jack fit for pre-injury duties but leaving the description of diagnosis blank.
[18] Reply page 33.
Ms Goodman submits that Mr Rathbone saw Mr Jack on 26 May 2018 and noted he had a traumatic work injury and had panic attacks. This was the first reference to panic attacks but there is no record of flashbacks.
Ms Goodman submits that Dr Nash saw Mr Jack close in time to when Dr Smith saw him.
Dr Nash did not diagnose PTSD at that time. In contrast, Mr Jack saw Dr Smith on 27 June 2018 and described symptoms of nightmares and panic attacks that had not been articulated in any previous reports. Ms Goodman acknowledges that Dr Nash refers later to “back flashes” and PTSD but he does not develop either, and he did not refer to flashbacks in 2018.
With respect to Dr Lee, Ms Goodman submits he referred to Mr Jack’s prior history and history of substance abuse, and conflict at work following the accident. He noted that Dr Kalava did not diagnose PTSD. He considered Mr Jack’s presentation was inconsistent with PTSD and found a strong possibility that he was feigning which made a precise diagnosis difficult. To the extent that Mr Jack had any psychological injury, it was secondary to the incident. Ms Goodman submits that Dr Lee is more consistent with Dr Nash who found major depressive disorder and substance abuse in remission.
Ms Goodman submits that I would not give any weight to Dr Smith’s report because it is so at odds with the treating doctors’ reports. Dr Lee had a history of the incident in the UK whereas Dr Smith did not. Moreover, the symptoms that Mr Jack described to Dr Smith were so different that, even if they did happen occasionally, they came much later than the physical injury at work.
Submissions in reply
In reply, Mr Barter submits I only have to determine whether Mr Jack suffered a primary psychological injury. It is not necessary to find PTSD although that may be more consistent with a primary psychological injury.
Mr Barter submits it is not correct to say that Mr Jack gave inconsistent histories. On 27 April 2017 Dr Taj referred to symptoms and queried PTSD. Dr Nash says he diagnosed PTSD, not at the same time as his earlier reports, but he predicted the possibility of PTSD and it is not inconsistent that he made that diagnosis. Mr Rathbone on 26 May 2018 noted that Mr Jack experienced significant psychological manifestations following the accident. Mr Barter submits that the history taken by Dr Smith was consistent with those reports.
DISCUSSION
Section 4 of the Act defines injury as follows:
“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
….”
Section 65A of the 1987 Act makes special provisions for psychological and psychiatric injury.
Section 65A(1) provides that no compensation is payable in respect of permanent impairment that results from a secondary psychological injury. Section 65A(2) provides that, in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
By section 65A(3), no compensation is payable in respect of permanent impairment that results from the primary psychological injury unless the degree of permanent impairment resulting from that injury is it least 15%.
Section 65A(5) provides that:
“primary psychological injury” means a psychological injury that is not a secondary psychological injury
“psychological injury” includes psychiatric injury
“secondary psychological injury” means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.
Mr Jack bears the onus of establishing, on the balance of probabilities, that he suffered a primary psychological injury arising out of or in the course of his employment. I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[19]; Nguyen v Cosmopolitan Homes[20].
[19] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[20] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
In Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82, Deputy President Roche considered whether a worker’s psychological condition of PTSD with depression was a primary psychological injury or secondary psychological injury. The worker had been involved in a motor vehicle accident while driving home from work. At [56] Deputy President Roche said:
“Whether a worker has sustained a primary psychological injury depends on an assessment of all the evidence, lay and expert, in the particular case. It is not to the point that neither Dr Homsi nor Dr Oreb recorded that Mr Arsenovic complained of psychological symptoms in their initial consultations. Dr Oreb did record a diagnosis of “mental stress, anxiety and depression” and referred Mr Arsenovic to Dr Kecmanovic for treatment. It is of no consequence that neither general practitioner referred to Mr Arsenovic suffering a primary psychological injury.”
Deputy President Roche said at [62]:
“As with the question of whether employment is a substantial contributing factor to an injury, the question of whether a worker has sustained a primary psychological injury or a secondary psychological injury is a question for the Commission to determine on the basis of the whole of the evidence.”
In Department of Corrective Services v Bowditch [2007] NSWWCCPD 24, Deputy President Roche reviewed authorities on the meaning of psychological or psychiatric injury and the requirement that the nervous system be “so affected that a physiological effect was induced, not a mere emotional impulse”.[21] He said at [59]:
“The authorities of Tame and Smith are consistent with section 11A(3) of the 1987 Act where “psychological injury” is defined as “an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.” In light of the above authorities it should now be accepted that a worker has suffered a psychological injury under section 4 of the 1987 Act if he or she has sustained a psychological or psychiatric disorder in the course of or arising out of employment and employment has been a substantial contributing factor to the injury, and section 11A does not apply to prevent the recovery of compensation. Such a disorder will, almost invariably, result in a physiological effect (as it has in the present case) thus also satisfying the test propounded by Judge Neilson in Stewart. Compensation is not recoverable for an emotional impulse or mere anxiety state.”
[21] See Stewart v NSW Police Service[1998] NSWCC 57; (1998) 17 NSWCCR 202.
There is no dispute that Mr Jack sustained a physical injury at work on 10 February 2017, or as to the circumstances of his injury. There can be little doubt that the accident itself, in which his hand became caught in the chipping machine, was traumatic. Mr Davis says “the injury itself was traumatic”. Mr Rathbone describes it as a “traumatic work injury”. Dr Smith describes it as a “traumatic physical injury”. Mr Jack describes in his evidence that he went into “shock”.
Mr Barter submits that, applying the common sense test of causation outlined in Kooragang, I would find that Mr Jack suffered a primary psychological injury arising out of the incident on 10 February 2017.
In Kooragang, Kirby P described the test as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
Common sense cannot be simply intuited, or applied in isolation from the facts. The onus of proof for the common sense test of causation remains on Mr Jack. Merely because a physical injury occurs in traumatic circumstances, it does not follow that a worker suffered a primary psychological injury.
In Flounders v Millar [2007] NSWCA 238, Ipp JA said at [35]:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or clause ability. The choice between conflicting inferences must be more than a matter of conjecture.”
Turning to the evidence, there is no real dispute that, following the accident at work on 10 February 2017, Mr Jack suffered from a psychological condition. Dr Lee did not believe that he qualified for a psychiatric diagnosis but he was prepared to say Mr Jack may have suffered an adjustment disorder as a result of events when he returned to work. Dr Lee’s view was that Mr Jack did not suffer symptoms consistent with PTSD. On this basis, the respondent says that any psychological injury was secondary in nature and therefore not compensable.
I am not required to determine the precise diagnosis of Mr Jack’s condition. The authorities make it clear that I need to be satisfied of the existence of a psychological or psychiatric disorder arising out of or in the course of his employment and to which his employment was the main contributing factor.
Ms Goodman submits that Dr Smith got complaints from Mr Jack that are not dealt with in any contemporaneous medical evidence. However, examination of the evidence shows that is not so.
Dr Ledgard’s report is the earliest in time. It does not assist as to existence or causation of any psychological injury. As the treating surgeon, Dr Ledgard would not be expected to offer an opinion. He noted that Mr Jack was “very keen to return to normal work” and there was no reason he could not do so. However, given his field of expertise and that Dr Ledgard was essentially providing a post-surgery report, I do not think anything can be drawn from the comment that Mr Jack was keen to get back to work, or the absence of reference to psychological disorder.
It does not appear that Mr Jack saw his general practitioner between the date of the accident and 5 April 2017 when he saw Dr Rajan, possibly because he saw Dr Ledgard a number of times. In any event, Dr Rajan recorded only that he attended for a workers compensation certificate.
The next record is on 27 April 2017 when Dr Taj noted the amputation of part of Mr Jack’s right finger, that he could not make a fist, and that work was treating him very badly, and that he felt consumed by anxiety and stress. Dr Taj noted “PTSD regarding his accident” and panic attacks, nightmares and flashbacks. He also noted that Mr Jack’s team leader was bullying him and “part of his low mood and anxiety” was due to this.
On 31 May 2017, Dr Taj noted “lots of stress and anxiety” and lots of problems at work. On 12 July 2017 he noted that Mr Jack was to see a psychiatrist the following Friday. There are further references to problems with Mr Jack’s boss at appointments in July, August and October 2017.
On 13 December 2017, Dr Kheirandish-Keralta noted the history of panic attacks and also that Mr Jack felt unfairly treated at work.
On 15 December 2017, Dr Naumovski noted “back flashes”. On 22 December 2017, he reported that, if Mr Jack suffered from PTSD which, he noted, was “very possible” it was about the time after the injury when symptoms become “more obvious and intense”.
Courts have cautioned about the use of clinical notes of a busy medical practitioner which are rarely, if ever, a complete record of the exchange between the patient and the doctor.[22]
[22] Winter v New South Wales Police Force [2010] NSWWCCPD 121; Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122.
On 27 April 2017, Dr Taj noted what are commonly regarded as classic symptoms of PTSD, namely panic attacks, nightmares and flashbacks. He went further than simply describing symptoms, he recorded “PTSD regarding [his] accident”. Dr Taj is not a psychiatrist but, as a general practitioner, he is qualified to record reported symptoms and to make that initial assessment.
There is no reason to think that Mr Jack did not report those symptoms to Dr Taj. Given the nature of the accident itself, they appear entirely plausible. Moreover, they are more than a “mere emotional response”.
The clinical notes and the various reports suggest that Mr Jack may have suffered a secondary psychological injury as a result of this treatment on return to work. I am not required to determine whether he did and, even if so, it would not be a compensable injury, but it makes for some difficulty in determining whether there was a primary psychological injury arising out of the incident.
On 27 April 2017 and 4 May 2017, Dr Taj made referrals, including to Mr Davis, for opinion and management of “possible PTSD, panic attacks and depression” since the accident at work. Dr Taj evidently considered that Mr Jack showed symptoms of PTSD that warranted those referrals.
Mr Davis was the first to report to Dr Taj, on 11 May 2017. He noted that Mr Jack presented with “anxiety reactive to a work incident on 10.02.17 when he suffered a crush injury to the right hand… and the amputation of the tip of the finger”. He goes on to describe Mr Jack’s loss of confidence in his ability at work, the unsympathetic response of his manager, in conflict with one of his co-workers.
Mr Davis continued to see Mr Jack until February 2018. In January 2018 he reported that he diagnosed major depressive disorder and generalised anxiety disorder, both in the severe range, and said Mr Jack’s symptoms appear to have been “triggered by his workplace accident that involve the removal of the end of one finger and his subsequent workplace issues”. He remained hypervigilant about workplace safety and described a number of panic attacks while working at heights. Mr Davis said that the onset of his anxiety appeared to have coincided with the physical injury and was “complicated further by subsequent workplace conflict”.
Mr Davis’s reports support the finding that Mr Jack suffered psychological symptoms triggered by the workplace accident itself and complicated by workplace issues on his return to work. In his report of 1 March 2019, Mr Davis noted that “there may be PTSD elements” but this had not been pursued because of the late disclosure.
Mr Davis was the only person to take a history of the incident in the United Kingdom when
Mr Jack witnessed a member of the public killed by a falling branch. He thought this may have “sensitised” Mr Jack to safety issues. His report suggests that “PTSD elements” related to the incident in the United Kingdom. However he also noted “flashbacks and hypervigilance around the use of the chipper”.Ms Goodman submits that, without this relevant information, Dr Smith did not have a full and accurate history on which to base his opinion. However, according to Mr Jack, the incident in the United Kingdom occurred approximately 10 years earlier. The fact that no one else took that history might suggest that Mr Jack did not regard it of particular significance. Even if he did, it appears it was significant to his concerns about safety issues on his return to work. That may go to any secondary psychological injury but I do not see that it is relevant to whether Mr Jack suffered a primary psychological injury.
Dr Kalava saw Mr Jack in August 2017. She diagnosed “adjustment disorder and panic disorder on the background of work related stress” which evolved into major depressive disorder. She did not identify any symptoms in particular. She did not comment on any possible PTSD.
It is not clear to me what Dr Kalava meant by saying Mr Jack’s symptoms were “secondary to the work related stress”. She states his symptoms of depression and anxiety “started after the injury”. She states that “during the recovery period” he realised he could not do his job which led to depressive symptoms and escalating conflict. It is not clear what she means by saying his current symptoms had a new diagnosis different from the diagnosis of his original injury.
It appears that Mr Rathbone saw Mr Jack only once, in May 2018, when he described a range of symptoms following the injury including anxiety and panic attacks. Other than describing panic attacks which could be a symptom of PTSD, Mr Rathbone’s report does not assist.
Dr Liu’s report in September 2018 also does not assist. He saw Mr Jack once and wanted to see him again before confirming any diagnosis.
Dr Nash first saw Mr Jack approximately 16 months after the workplace injury. He noted both the injury and amputation itself, and “bullying from colleagues”. He also noted symptoms including panic attacks. On 9 July 2018, he noted “major depressive disorder – in remission” and “substance misuse”.
In his report dated 11 September 2018 to Dr Liu, Dr Nash did not recount the symptoms that Mr Jack told Dr Smith about at around the same time. However, a week later, on 17 September 2018, Dr Nash noted “flashbacks of the accident” and his impression of PTSD. He noted PTSD and flashbacks on 18 February 2019 and subsequent visits.
In his report to the insurer on 20 September 2018, Dr Nash stated only that Mr Jack suffered from a depressive disorder subsequent to the partial amputation. He did not mention that he had noted flashbacks and his impression of PTSD .
Whatever the reason Dr Nash did not include those symptoms in his report, in subsequent reports, he stated that Mr Jack had a diagnosis of PTSD and suffered from symptoms relating to the accident. He referred in his report on 22 March 2019 to the amputation which led to post-traumatic stress disorder and to “an associated depressive disorder”.
There are repeated references in the doctors’ notes to symptoms consistent with a diagnosis with PTSD or to PTSD itself. They also refer to symptoms of anxiety and depression. It is not clear the extent to which anxiety and depression was considered to be part of a primary psychological injury although, generally, those references are in the context of difficulties following Mr Jack’s return to work.
Dr Smith saw Mr Jack in June 2018. He took a history of symptoms consistent, in general terms, with those noted by Dr Taj, Mr Davis and Dr Nash, although it is fair to say that Mr Jack reported symptoms of an intensity and frequency not reported in other reports.
Dr Smith undertook a comprehensive file review and made provisional diagnoses of PTSD, major depressive disorder, alcohol use disorder in early mission, and cannabis use disorder. The symptoms of PTSD had persisted despite a reduction in substance use. He concluded that Mr Jack described a “traumatic physical injury” since when he had suffered from “significant post-traumatic” symptoms.
Dr Lee saw Mr Jack in August 2018 and October 2020. He took a history that Mr Jack was in shock immediately after the accident, that he was off work for five weeks, and there was conflict on his return. Mr Jack reported that his psychological problems were equally due to the accident and his subsequent treatment. That comment tends to underline the difficulty in this case of separating any primary psychological injury from any secondary psychological injury. However, even if the accident itself and subsequent treatment both caused psychological injury, that does not preclude a finding of primary psychological injury if that is what the evidence supports.
Dr Lee made a number of comments about Mr Jack’s presentation. He commented that Mr Jack did not become agitated when describing the accident and did not seek to avoid discussing it “as would have been expected” for a diagnosis of PTSD. I do not understand
Dr Lee to rule out a diagnosis on that basis.Dr Lee said in his first report there was no objective evidence of anxiety and depression. At the same time, he said Mr Jack reported residual symptoms of anxiety, depression, frustration and bitterness. It is not clear how those statements are reconciled.
Dr Lee commented that, while nightmares and flashbacks are “cardinal symptoms” for PTSD, they were not reported by Dr Kalava or Mr Davis. He did not comment on why he apparently gave no weight to the general practitioners’ records. It does not appear that Dr Lee had
Dr Nash’s reports. If he did, he does not explain why he disagrees with Dr Nash.
Dr Lee evidently placed considerable weight on the findings on SIMS testing. The courts have cautioned against over reliance on psychometric testing. However, it is fair to say that Dr Lee did not rely exclusively on the testing. He stated that it is not designed to serve as a diagnostic test for feigning in isolation, and he gave other reasons for his conclusion such as reporting of symptoms that he considered not consistent with PTSD. That said, Dr Lee evidently placed considerable weight on the results of testing.
Dr Lee also reported that the insurer might consider referring Mr Jack for more detailed assessment to “clarify diagnostic and personality issues”. That suggests his conclusion needs to be approached with some caution.
With respect to Dr Smith, Dr Lee disagreed with his diagnosis of PTSD because he had not excluded malingering or explained why Mr Jack’s condition had exceeded the “expected recovery time of six months to a year” for PTSD. It is relevant that none of the doctors or Mr Davis appears to have questioned the genuineness of Mr Jack’s presentation and description of symptoms, or how long they continued. Mr Davis reported their “may be PTSD elements” in Mr Jack’s presentation but he did not pursue that as it was disclosed late. I understand Mr Davis to refer to the incident some years previously in Britain. I did not understand him to reject PTSD as a possible diagnosis, and it is relevant that he refers to flashbacks and panic attacks in earlier reports.
Other than Dr Kalava, the treating doctors describe symptoms consistent with PTSD, or a diagnosis of PTSD. They also describe symptoms of anxiety and depression in the context of what happened when Mr Jack returned to work. Dr Smith’s opinion took a similar history and concluded, in effect, that Mr Jack had suffered a primary psychological injury.
Considering the totality of the evidence, I am satisfied that the weight of evidence supports the conclusion that, on the balance of probabilities, Mr Jack suffered a primary psychological injury arising out of or in the course of his employment on 10 February 2017 to which his employment was the main contributing factor.
It appears probable that Mr Jack also suffered a secondary psychological injury as a result of what he considered to be his treatment on return to work. However, that is not a matter I am required finally to determine and, in any event, it would not be an injury for which Mr Jack would be entitled to compensation for permanent impairment.
The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment due to a primary psychological injury arising out of or in the course of Mr Jack’s employment with the respondent on 10 February 2017.
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