Jeromin v Drake Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jeromin v Drake Australia Pty Ltd [2023] NSWPIC 328
APPLICANT:	Ramona Jeromin
RESPONDENT:	Drake Australia Pty Ltd
Member:	John Turner
DATE OF DECISION:	7 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury under section 65A; claim for permanent impairment compensation for psychological injury; dispute as to primary or secondary psychological injury; Austin; Thazin-Aye v Workcover Authority (NSW); Stewart v NSW Police Service; State of New South Wales (NSW Department of Education) v Kaur; and Kooragang Cement Pty Ltd v Bates considered and applied; Held – the applicant sustained a primary psychological injury arising out of the motor vehicle accident in the course of her employment with the respondent on 25 January 2021.
determinations made:	The Commission determines: 1. The applicant sustained a primary psychological injury arising out of the motor vehicle accident in the course of her employment with the respondent on 25 January 2021. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 25 January 2021 – Personal Injury. b. Body systems / parts: Psychological/psychiatric disorder. c. Method of Assessment: Whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. applicant’s Application to Admit Late Documents signed 14 June 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Ramona Jeromin, the applicant, was employed by Drake Australia Pty Limited, the respondent as a disability support worker. The applicant commenced employment with the respondent on 24 October 2016.
Whilst in the course of her employment with the respondent on 25 January 2021 the applicant was involved in a motor vehicle accident at the intersection of the Pacific Highway and Edgeworth David Drive, Hornsby, New South Wales. The applicant was the driver of a motor vehicle which was stationary when the rear of her vehicle was impacted by another vehicle. The impact(s) caused her vehicle to impact the vehicle in front.
The applicant has commenced proceedings in the Personal Injury Commission in which she seeks compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment for primary psychological injury sustained as a result of the motor vehicle accident on 25 January 2021.
The respondent disputes that the applicant sustained a primary psychological injury as a result of the motor vehicle accident on 25 January 2021.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a) that the applicant has sustained a primary psychological injury arising out of the motor vehicle accident on 25 January 2021, and
(b) the degree of any permanent impairment as a result of any primary psychological injury and the quantum of the compensation payable as a result of any permanent impairment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
20 June 2023. Mr Bill Carney, counsel, instructed by Ms Anita Roy, appeared for the applicant, who was present. Mr Paul Rickard, counsel, appeared for the respondent, instructed by Mr Peter McCarthy. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents signed 14 June 2023 and attached documents.
The respondent did not oppose the admission into evidence of the documents attached to the applicant’s Application to Admit Late Documents dated 14 June 2023. As those documents appeared to be potentially relevant to the issues in dispute between the parties those documents were admitted into evidence.
A brief summary of the evidence follows.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statements

The applicant has provided a statement made 23 March 2021. It is the applicant’s evidence that on 25 January 2021, whilst in the course of her employment with the respondent, she was involved in a motor vehicle accident at the intersection of the Pacific Highway and Edgeworth David Drive, Hornsby, New South Wales. The applicant was the driver of a motor vehicle which was stationary when the rear of her vehicle was impacted three to four times by another vehicle. Each impact caused her vehicle to impact the vehicle in front. Her neck was jarred backwards and forwards as a result of the impacts.
She had neck pain and was in shock following the accident. The vehicles in front of and behind her vehicle were able to be driven from the scene of the accident. The front and rear of the applicant’s vehicle was extensively damaged and it had to be towed from the scene. Her vehicle was subsequently written-off.
It is the applicant’s evidence that at the time of the making of the statement she was still in a great deal of pain and discomfort from her back and neck and suffered with headaches which required weekly visits to a physiotherapist.
The applicant missed her independence and her job, she also missed the clients that she worked with.
Prior to the accident she was not suffering from any injury or illness and had no external stresses or personal issues that affected her ability to perform her work duties.
She had not returned to work and was unsure when she would be able to.
The applicant provided a further statement dated 4 April 2023. It is the applicant’s evidence that immediately after the subject accident she was shaken and upset. She thought that this would disappear over time.
Following the accident, she sought treatment from her general practitioner (GP) and was referred to the psychologist, Mrs Chi Morris. She only saw Mrs Morris for a few months and was then referred to a psychiatrist. As the claim for psychological injury was denied, and as she could not afford the cost she had not seen a psychologist.

Treating medical evidence

The applicant has attended on a number of GPs from the same medical practice. The clinical notes in evidence from the medical practice commence on 30 November 2010.
Prior to 2019 the clinical notes contain the occasional reference to stressful non work-related issues and one reference to the applicant being depressed in December 2014 in relation to a personal issue.
On 8 May 2019 the applicant was diagnosed with anxiety and depression in relation to non-work-related issues and was to start on Cipramil and see a psychologist. The applicant was prescribed Cipramil from May 2019 with the last prescription being provided on
30 January 2020.
On 18 February 2020 the applicant attended on Dr Fonseka at which time she was emotional and crying, she reported that she couldn’t get out of bed and had no motivation. The doctor diagnosed anxiety and depression. The applicant was supplied with the contact details for a psychologist and started on Zoloft. On 6 March 2020 the applicant was provided with a repeat prescription for Zoloft.
Following her attendance on 6 March 2020 and prior to her attendance on 25 January 2021, following the subject motor vehicle accident, the GP clinical notes record no complaints in respect to the applicant’s mental health and no prescriptions were issued for either Cipramil or Zoloft.
On 25 January 2021 the applicant attended on Dr Amjad who took a history that she had been involved in a motor vehicle accident when her car was struck from the rear then hitting the vehicle in front. The doctor diagnosed whiplash and lower back and shoulder pain.
The applicant next attended on Dr Amjad on 27 January 2021 at which time the doctor recorded that the applicant was still having neck pain and stiffness, abdominal cramping and was “mentally affected”,[1] the applicant was feeling “anxious stressed”. The reason for the visit was anxiety / depression. The doctor diagnosed anxiety and depression. The applicant was provided with a prescription for Valium and was advised to return to see the doctor in two days or earlier if no better.
[1] ARD p 86.
The applicant next attended on Dr Amjad on 29 January 2021 and 5 February 2021 in respect to her physical injuries from the subject motor vehicle accident.
On 12 February 2021 the applicant attended on Dr Amjad at which time the doctor noted that in addition to her physical complaints from the motor vehicle accident the applicant was being affected mentally, not relaxing feeling anxiety.
The applicant attended on Dr Amjad on 19 February 2021 at which time it was noted that she needed to see a psychologist. The applicant was referred to Mrs Morris.
Dr Amjad in a letter of referral to Mrs Morris dated 19 February 2021 states that the applicant had been affected mentally by the motor vehicle accident.
The applicant attended on Dr Amjad on 31 March 2021 at which time she reported that she was still feeling miserable and was still in a lot of pain. The applicant wanted to see pain management. The doctor also noted that the applicant was still having issues sleeping “due to physical and mental reason as being very depressed”.[2]
[2] ARD p 90.
On 5 May 2021 the applicant attended on Dr Amjad at which time there was a discussion in respect to speaking to the psychiatrist, Dr Schelle. The reason for the visit was motor vehicle accident anxiety and depression.
On 7 May 2021 Dr Amjad had a telephone conference with the psychiatrist, Dr Schelle, who recommended that Cymbalta be tried for the insomnia and anxiety. The applicant being seen personally was also discussed as she had post-traumatic stress disorder from the motor vehicle accident. The reason for the visit was recorded as post-traumatic stress disorder from the motor vehicle accident.
On 12 May 2021 the applicant attended on Dr Amjad. The reason for the attendance was post-traumatic stress disorder from the motor vehicle accident which was also the diagnosis. The applicant was prescribed Cymbalta. The applicant had tried to drive locally and whilst driving had felt neck pain.
On 28 May 2021 Dr Amjad spoke to the applicant about seeing the psychiatrist as the Cymbalta was not agreeing with her. It appears that the applicant may have been given a referral to see Dr Schelle.
On 1 August 2021 the treating psychologist, Mrs Morris, reported that she had been treating the applicant for anxiety, depression, trauma and various personal life stressors. The applicant had reported to Mrs Morris feeling worried, intense stress, and depressed about the impact of the motor vehicle accident on her life and the enormous financial pressure the situation had put on her and her family. In her presentations, the applicant had reported physiological and psychological symptoms of anxiety and depression including sleep disturbance, racing thoughts, being socially withdrawn and strong feelings of hopelessness, worthlessness and continuing struggles with managing pain and migraines.
The results of testing indicated post-traumatic stress disorder which in the psychologist’s opinion was consistent with the clinical interviews.
In the opinion of Mrs Morris, the injuries sustained have been both physical and psychological with a diagnosis of mixed anxiety, depression disorder and post-traumatic stress disorder.
Mrs Morris observed that the applicant was continuing to have alterations in arousal that are associated with the traumatic event as well as difficulty sleeping, which exacerbated the anxiety and depression.
To manage stressors contributing to the anxiety and depression, Mrs Morris observed that it would be helpful if the applicant could find ways to reduce stress in her life as she was finding it difficult to perform day-to-day functions. Mrs Morris noted that the applicant described her lack of finances, her inability to work, and ongoing pain as a precipitating factor.
The GP clinical notes which were printed on 23 November 2021 record the medications which the applicant was taking at that time which included Cymbalta.
On 11 April 2022 Dr Guilerma De Leon referred the applicant back to Mrs Morris for CBT and counselling advising that the presenting problem was motor vehicle accident with multiple soft tissue injuries and reactive anxiety and depression.

Dr Ben Hooi-Beng Teoh

Dr Teoh, psychiatrist and physician in addiction medicine, provided a medico-legal report for the applicant dated 21 February 2022.
The doctor took a history of an episode of depression three years prior when an aunt died at which time the applicant was not coping and was prescribed antidepressants which she took for a short period.
The doctor records that the applicant had been preoccupied with chronic pain and physical disability. She had been worrying about her future and her physical condition. The applicant reported that she had been lacking motivation and interest in her usual activities. She had been an active person but had become socially withdrawn. She had been feeling depressed and had thought about “not waking up”.[3]
[3] ARD p 28.
The applicant reported anxiety and depressive symptoms. She had avoidant behaviour and had been anxious about driving. She reported insomnia, irritability and a sense of hopelessness.
In the doctor’s opinion the applicant’s presentation was consistent with a diagnosis of a major depressive disorder (DSM 5 Diagnostic Criteria). The doctor was of the opinion that the subject motor vehicle accident was the main contributing factor to the psychiatric condition.
Dr Teoh provided a supplementary report dated 10 June 2023 in which the doctor opined that the major depressive disorder is a primary diagnosis, as she developed significant depressive symptoms following the motor vehicle accident. She was anxious about driving, lost interest in her usual activities, and felt hopeless. In the doctor’s opinion the depressive symptoms were not directly related to chronic pain or physical injuries.

Dr Judith Clarke

Dr Judith Clarke, psychiatrist, provided a medico-legal report for the respondent dated
22 June 2022. Dr Clarke lists the documents which were reviewed which included a CORAL report of Dr Schell dated 12 May 2021 (not in evidence), a report of Mrs Morris dated
1 August 2021 and the report of Dr Teoh dated 21 February 2022. The GP clinical notes were not among the documents reviewed by Dr Clarke.
The applicant reported that prior to this injury she was mentally and physically well and had no stressors in her personal or professional life.
The applicant reported that she was “not the same since the accident” and attributed this to not being able to work, saying “it starts to get to you …you wonder what's happening with your life”. She described that this uncertainty, combined with the financial pressures of lower earnings on Workcover compared with working, were a significant worry to her and the thought decreased her mood, and had resulted in decreased self-esteem. She expressed that she felt a return to her pre-injury role would improve her mood substantially, and if she couldn’t, would like to look at alternate duties with the insured as work is important to her and not working had affected her self-esteem as well as her mood. The decreased income also limits her recreational activities, and she reported that on occasion she is “bored”, and this escalates to frustration and hopelessness about never improving and functioning again, resulting in her experiencing passive thoughts of death. When this occurs, she reported that she phones family or trusted friends and this resolves and has never escalated beyond escape fantasies. She said that her motivation had decreased quite significantly “recently” but couldn’t specify when.
Dr Clarke noted that applicant continued to drive. The applicant reported that she is now a more cautious driver but is not limited in her driving, although she feels anxious at times in the car.
The applicant described a history of a complex grief reaction in 2019 after the death of an aunt. The applicant reported that this was treated with the antidepressant, Cipramil, for a short time and a sleeping tablet, Imovane, for “a few months”. The applicant reported that she made a full recovery, and no psychological treatment was given. The applicant denied having any other mental health history.
The applicant expressed feelings of inadequacy and worries about finances and her long-term function, and a view that she may not recover adequately from her physical injuries.
In the doctor’s opinion the applicant presented with a DSM-5 diagnosis of major depressive disorder.
Dr Clarke observed that the applicant repeatedly identified her two main stressors as difficulties directly associated with her ongoing pain and with not being able to work. She elaborated that her pain was uncomfortable and restrictive in her activities and function, she worried it would never resolve and may have been mismanaged. She said that even if she were to regain motivation, she couldn’t physically do anything she enjoys due to this pain in her neck and back, and that at times this fact has led to her experiencing passive thoughts of death. She reported that not working has impacted her self-esteem, her finances, and the uncertainty of her future occupational capacity is highly distressing. Whilst she reported that she experienced anxiety whilst driving, the description was of a minor anxiety that does not impair function. She did not describe symptoms of re-experiencing.
Dr Clarke did not diagnose a primary psychological condition.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant’s submissions

In summary Mr Carney of counsel submitted on behalf of the applicant that it is the applicant’s evidence that prior to the subject accident she had no external stresses or personal issues that affected her ability to perform her role. In Mr Carney’s submission that could only refer to some type of psychological trauma or some sort of problem that would have affected her ability to do her job. In Mr Carney’s submission this is supported by the applicant’s evidence that she began to notice an onset of psychological injuries immediately after the accident. That she was very shaken and upset. That she thought that this would disappear over time, but she is still suffering from post-traumatic stress disorder, depression and anxiety.
Mr Carney submitted that the history taken by Dr Clarke that no medications other than a sleeping tablet had been trialled or discussed is incorrect. The GP clinical records which were printed on 23 November 2021 recorded the applicant’s current medications which included Cymbalta an antidepressant. Therefore approximately 10 months after the accident the applicant was taking an antidepressant. Mr Carney observed that are other mentions of Cymbalta in the clinical records and clearly the applicant was taking it.
Mr Carney observed that the first mention of the subject accident in the clinical notes is on
25 January 2021 at which time it was the physical injuries that were mentioned. However, when the applicant next attended on her GP, Dr Amjad, two days after the accident, whilst the applicant still complained of pain and stiffness in her neck the doctor noted that the applicant was also feeling anxious and stressed. The doctor made a diagnosis of anxiety and depression and the reason for the visit was recorded as anxiety and depression. Mr Carney submitted that the clinical notes are consistent with the applicant’s evidence that she had psychiatric symptoms soon after the accident.

Mr Carney observed that the GP clinical notes contain further references to the applicant’s mental state and then on 19 February 2021 the applicant was referred to the psychologist, Mrs Morris. Mr Carney submitted that at that point in time the doctor must have believed that the symptoms required the referral.
Mr Carney observed in respect to the GP clinical notes that on 31 March 2021 there is reference to the applicant’s mental condition including being very depressed. On
16 April 2021 she was seeing a psychologist and on 7 May 2021 the clinical note records that the applicant has post-traumatic stress disorder from the motor vehicle accident and that the reason for the visit was post-traumatic stress disorder from the motor vehicle accident. The diagnosis of post-traumatic stress disorder in the applicant’s submission supports a finding of primary psychological injury. In the applicant’s submission whether the GP has made the correct diagnosis or not, the nature of the diagnosis clearly indicates that something has been caused traumatically at the time of the accident.
In respect to the report of Mrs Morris dated 1 August 2021 Mr Carney observed that the report records that the applicant was being treated for being downcast, anxiety, depression, trauma and various personal life stresses. Mr Carney submitted that one would expect the treating psychologist to refer to a number of issues however Mrs Morris does state that the injuries sustained are both physical and psychological. In Mr Carney’s submission whilst that is clearly ambiguous and doesn’t address the test of primary or secondary psychological injury, one would have been surprised if it did.
Mr Carney conceded that Dr Teoh in his initial report does not address the issue of primary or secondary psychological injury however in his second report dated 10 June 2023 he states that in his opinion the major depressive disorder is a primary diagnosis as she developed significant depressive symptoms following the motor vehicle accident. She was anxious about driving. The doctor is of the opinion that the major depressive disorder is caused by the motor vehicle accident. Mr Carney observed that Dr Teoh and Dr Clarke agree on the diagnosis but disagree as to whether the condition is primary or secondary.
Mr Carney submitted on behalf of the applicant that Dr Teoh is unequivocal that the psychological condition is a primary condition based on the applicant’s fear of driving and complaints in respect to anxiety and depression shortly after the accident. It is submitted that this is a reasonable way of making the diagnosis as one would have thought that if it was a secondary injury there would have been a time lag whilst the effects of pain and the inability to work would take effect.
Mr Carney observed that Dr Clarke records what documents she had reviewed. In
Mr Carney’s submission it is significant that Dr Clarke had not reviewed the GP clinical notes observing that when Dr Clarke took a history some 18 months after the accident it is not surprising that the history is concerned with pain and a lack of work. What the doctor hasn’t considered in Mr Carney’s submission is the history of the applicant feeling anxious and depressed a couple of days after the accident and the fact that she had treatment fairly soon after the accident.
In Mr Carney’s submission there is evidence to support a finding of primary psychological injury. The GP clinical notes record that the applicant made a complaint of depression and stress within days of the accident. Shortly after the GP diagnosed a post-traumatic stress disorder which whilst not the diagnosis made by Dr Teoh and Dr Clarke points to a connection to the motor vehicle accident. Dr Teoh is of the opinion that the applicant has suffered a primary psychological injury whilst Dr Clarke has not been given the whole clinical picture. In the applicant’s submission the opinion of Dr Teoh should be preferred to that of Dr Clarke.

Respondent’s submissions

In summary Mr Rickard of counsel submitted on behalf of the respondent that Dr Clarke when asked her opinion in respect to primary or secondary psychiatric injury states that the applicant repeatedly identified her two main stressors as difficulties directly associated with her ongoing pain and with not being able to work. The applicant elaborated that her pain was uncomfortable and restrictive in her activities and function, she worried that it would never resolve and may have been mismanaged. The applicant reported that even if she were to regain motivation, she couldn’t physically do anything she enjoys due to her neck and back pain, and that at times this led to her experiencing passive thoughts of death. Furthermore, she reported that not working has impacted her self-esteem, her finances, and the uncertainty of her future occupational capacity is highly distressing.
Mr Rickard submitted that Dr Clarke deals with the issues that the applicant was experiencing in respect to driving with the applicant reporting that whilst she experienced anxiety whilst driving, the description was of a minor anxiety that does not impair function. She did not describe re-experiencing symptoms.
Mr Rickard submitted that all of that material is sourced in the report of Dr Clarke from the history that the doctor took from the applicant with the applicant reporting that she was “not the same since the accident” which she attributed to not being able to work saying “it starts to get to you…you wonder what’s happening with your life”. The applicant reported financial pressures and significant worry about that and decreased self-esteem. The applicant reported that her pain had changed minimally over the course of the injury despite attending physiotherapy. She reported that she was concerned that her injury had not been managed well and was concerned that she would never recover and that her neck and back will never be 100%. The applicant reported that the physical injuries resulted in impairment of many activities both enjoyable ones and more basic ones like sitting in one position.
In Mr Rickard’s submission that history unequivocally leads to the conclusion that Dr Clarke came to in relation to the undoubted psychiatric condition being secondary. It was put that this submission is supported by the GP’s clinical notes. Dr Clarke was aware of the applicant’s treatment as she was provided with a copy of the report of the psychologist
Mrs Morris dated 1 August 2021 which does contain suggestions of post-traumatic stress disorder. Mr Rickard observed that there is some confusion as to whether the applicant ever saw a treating psychiatrist.
In Mr Rickard’s submission when the clinical notes are reviewed it is clear that the condition is a secondary psychological condition. The accident was on 25 January 2021 and the applicant was seen by Dr Amjad who takes a history of the accident and physical injuries. The doctor obviously conducted an examination. At that time there was no physical manifestation of any traumatic anxiety and there was no history of such at that time. A history thereafter develops but it does so in the context of the physical symptoms flowing from the accident.
Dr Amjad does diagnose anxiety and depression on 27 January 2021 but does so in the context of still having pain in the neck, stiffness and abdominal cramping. That continues to be the combined history when the applicant sees the doctor.
On 29 January 2021 the doctor records that the applicant still had pain in her neck, back pain, pain neck to head and to lower gluteal region. The doctor was so concerned about these complaints that the applicant was referred for radiology. The next consultation on
5 February 2021 focused on the radiology findings which was such that the doctor felt that the applicant needed to see a spinal surgeon. The applicant then sees Dr Amjad on
23 November 2021 when there is reference to anxiety but once again in the context of the physical problems that she was suffering at that stage. This pattern continues on subsequent attendances.
In the respondent’s submission these are not two parallel conditions but rather they are very much interrelated. The physical consequences of the injury have manifested themselves in an extensive amount of physical treatment including pain management. It is the respondent’s submission that the history provides support for the conclusion arrived at by Dr Clarke of a secondary psychological condition.
Dr Teoh in a very short report disagrees and states that it is a primary psychological condition without any particular explanation and in the respondent’s submission it is a conclusion that is very much at odds with the material contained in his first report. In particular the psychiatric impairment rating scale (PIRS) assessment in respect to concentration, persistence and pace for which he gave a rating of three. Dr Teoh found poor concentration and persistent preoccupation with negative thoughts noting that the applicant had been worrying about her future and her physical condition. The applicant was preoccupied with chronic pain and physical disability. She reported anxiety and depressive symptoms. In the respondent’s submission that is sufficient to ground a finding of secondary psychological condition.
Dr Teoh’s subsequent report doesn’t address this material and fails the test in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita).
In the respondent’s submission Dr Clarke is correct and Dr Teoh’s explanation is unsatisfactory.

Applicant’s submissions in reply

The psychologist, Mrs Morris, did not only find a depressive condition but also post-traumatic stress disorder.

FINDINGS AND REASONS

Consideration and findings

It is not disputed that the applicant was involved in a motor vehicle accident whilst in the course of her employment with the respondent on 25 January 2021.
At the time of the accident the applicant was the driver of a vehicle which was stationary at the intersection of the Pacific Highway and Edgeworth David Drive, Hornsby, when her vehicle was struck from behind by another vehicle. The impact caused the applicant’s vehicle to impact the vehicle in front of hers.
The applicant alleges that as a result of the accident she sustained a primary psychological injury and claims permanent impairment compensation pursuant to s 66 of the 1987 Act for psychological/psychiatric disorder.
The respondent disputes that the applicant has sustained a primary psychological injury.
For there to be a psychological injury a worker needs to prove that there has been a physiological effect and not a mere emotional impulse[4] or the aggravation, acceleration, exacerbation or deterioration of a pre-existing condition.[5]
[4] See Austin; Thazin-Aye v Workcover Authority (NSW) (1995) 12 NSWCCR 340; Stewart v NSW Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202.
[5] See Stewart v NSW Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202.
There is no dispute that the applicant has suffered a psychological injury with both Dr Teoh and Dr Clarke diagnosing the applicant with a major depressive disorder. The dispute is limited to whether the applicant sustained a primary or secondary psychological injury.
No compensation is payable for permanent impairment which results from a secondary psychological injury.
Section 65A of the 1987 Act states:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) 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.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
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.”
Section 65A of the 1987 Act defines a secondary psychological injury as “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.
Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 considered the definition of secondary psychological injury and stated at [20]:
“I am of the view that the definition of secondary psychological injury in s 65A of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where “injury” appears in the phrases, “secondary psychological injury”, “primary psychological injury” and “physical injury” it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.”
Whether a worker has sustained a primary psychological injury depends on an assessment of all the evidence in the case. The applicant bears the onus of proving injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Carney submitted on behalf of the applicant that the opinion of Dr Teoh, that the applicant has suffered a primary psychological injury, should be accepted. In support of this submission emphasis was placed on the development of psychological issues immediately or shortly after the subject accident. The applicant submitted that if it was a secondary psychological injury then there would have been a time lag in respect to the onset of the condition as the pain from the physical injuries, the financial pressures, the loss of the ability to perform her job, the impact of the physical injuries on her ability to undertake activities would have taken time to impact her mental health. It was also submitted that Dr Clarke’s opinion is based on an incomplete and at times incorrect clinical history.
Mr Rickard submitted on behalf of the respondent that the opinion of Dr Clarke, that the applicant has suffered a secondary psychological injury, should be accepted. In support of this submission emphasis was placed on Dr Clarke’s observation that the applicant repeatedly identified her two main stressors as difficulties directly associated with her ongoing pain and not being able to work. That there was no physical manifestation of traumatic anxiety when the applicant attended on her GP on 25 January 2021 following the accident. That the psychological condition developed in the context of the physical injuries. As well as the lack of symptoms of re-experiencing and only minor anxiety in respect to driving. That the opinion of Dr Teoh is inconsistent with the doctor’s examination.
I prefer the opinion of Dr Teoh that the applicant has suffered a primary psychological injury due to the motor vehicle accident on 25 January 2021 for the following reasons.
There is no evidence that the applicant was suffering from any psychological condition of any significance directly prior to the subject motor vehicle accident. Mr Carney submitted on behalf of the applicant that prior to the subject motor vehicle accident the applicant was not suffering from any psychological problems which affected her ability to perform her work duties. I accept this submission. There is no evidence that the applicant was having any difficulties in performing her work duties for the respondent prior to the subject motor vehicle accident. Whilst the applicant was diagnosed with anxiety and depression in 2019 and received treatment including being prescribed the antidepressants Cipramil and Zoloft between May 2019 and 6 March 2020 the applicant did not receive any further prescriptions for antidepressants after 6 March 2020 and prior to the motor vehicle accident from her GP’s nor make any complaints in respect to her mental health to her GP’s during that period. There is no evidence that during the period May 2019 to March 2020 when the applicant was receiving treatment for mental health issues that the applicant’s work performance was affected. It is also the applicant’s evidence, which there is no reason to question, that prior to the subject motor vehicle accident she had no external stresses or personal issues that affected her ability to perform her work duties.
On the day of the subject accident the applicant attended on her GP, Dr Amjad, who takes a history of the accident and makes a diagnosis of whiplash and lower back and shoulder pain. Whilst the GP’s clinical note from the attendance makes no reference to any psychological complaints it is the applicant’s evidence that immediately after the accident she was shaken and upset. Given that the accident was of such severity that the applicant’s vehicle had to be towed from the scene and was subsequently written off and the complaints made in respect to the physical injuries suffered it seems likely on the balance of probabilities that the applicant was shaken and upset. I therefore accept the applicant’s evidence that she was shaken and upset immediately following the accident.
The applicant next attended on Dr Amjad on 27 January 2021 at which time the doctor recorded that the applicant was still having neck pain and stiffness, abdominal cramping and was “mentally affected”, the applicant was feeling “anxious stressed”. The reason for the visit was anxiety and depression. The doctor made a diagnosis of anxiety and depression. The applicant was provided with a prescription for Valium and was advised to return to see the doctor in two days or earlier if no better.

On 12 February 2021 the applicant attended on Dr Amjad at which time the doctor noted that in addition to her physical complaints from the motor accident the applicant was being affected mentally, not relaxing feeling anxiety and on 19 February 2021 Dr Amjad was of the opinion that the applicant’s psychological condition was such that she needed to see a psychologist and was referred to Mrs Morris. In the referral to Mrs Morris, Dr Amjad states that the applicant had been affected mentally by the motor vehicle accident.
Therefore, only two days after the accident the applicant is diagnosed with anxiety and depression, a diagnosis which was not applicable prior to the subject accident. At that time the applicant’s symptoms are considered significant enough to warrant the taking of Valium. The applicant’s psychological complaints as a result of the motor vehicle accident continued, and within one month of the accident those complaints warranted a referral to a psychologist.
On 31 March 2021 Dr Amjad noted that the applicant was very depressed and by
5 May 2021 a consultation with a psychiatrist was being considered. On 7 May 2021
Dr Amjad records for the first time a diagnosis of post-traumatic stress disorder due to the motor vehicle accident and on 12 May 2021 the applicant is prescribed the antidepressant, Cymbalta for the first time.
The applicant’s evidence and the GP clinical notes support that the applicant developed a significant psychological condition directly following the subject motor vehicle accident with the applicant first reporting psychological difficulties to her GP two days after the accident. The condition has not resolved or lessened with time but rather required referral to a psychologist within one month and consideration of referral to a psychiatrist and commencement of an anti-depressant within approximately 3.5 months.
I am of the opinion that the fact that the clinical note of the GP on 25 January 2021 does not record that there was a physical manifestation of traumatic anxiety is of no consequence. As noted above I accept the applicant’s evidence that she was shaken and upset by the accident and within two days she had been diagnosed with anxiety and depression.
Dr Clarke, who examined the applicant on 9 June 2022, in concluding that the applicant had suffered a secondary psychological injury observed that the applicant repeatedly identified her two main stressors as difficulties directly associated with her ongoing pain and with not being able to work. The applicant complained that her pain was uncomfortable and restricted her activities and function, she worried it would never resolve and may have been mismanaged and that she couldn’t physically do anything she enjoys. The applicant reported that not working had impacted on her self-esteem, her finances and she found the uncertainty as to her future occupational capacity highly distressing.
Dr Teoh who examined the applicant on 21 February 2022 also observed that the applicant was preoccupied with chronic pain and physical disability and worried about her future and her physical condition.
Dr Clarke examined the applicant just over 17 months after the accident and Dr Teoh approximately 13 months after the accident. By that time the applicant had been living with the physical consequences of her injuries and been out of employment for over a year. At the time that the applicant attended on Dr Amjad on 27 January 2021 and was diagnosed with anxiety and depression the applicant had only been living with the consequences of the physical injuries for two days. It is unlikely that by that time the applicant would have been under any significant financial distress as a result of the motor vehicle accident, that she would have suffered any loss of self-esteem as a result of not having worked for two days, would have been concerned that her condition had been mismanaged as treatment had only just commenced or been concerned that she would never recover.
That the psychological impact of not working developed over time is supported by the applicant reporting to Dr Clarke, in respect to not being able to work, “it starts to get to you …you wonder what's happening with your life.” [emphasis added]. It is also supported by the applicant’s evidence in her statement made on 23 March 2021 (approximately two months after the accident where she states that she missed her independence (which I take to mean financial independence), her job and the clients that she worked with. By the time the applicant makes her statement she has been off work for two months.
Whilst the evidence supports that the applicant would have been in some discomfort from her injuries directly following the accident and that this would have caused some functional limitations, the restrictions had only been experienced for two days by the time of the diagnosis of anxiety and depression was made on 27 January 2021.
Dr Clarke in reaching her opinion that the applicant was suffering from a secondary psychological condition also relied on the applicant’s description of minor anxiety whilst driving that did not impair function and the lack of re-experiencing symptoms. Whilst
Dr Clarke is of the view that the applicant’s description of minor anxiety whilst driving is significant, Dr Clark examined the applicant approximately 17 months after the accident.
[6] ARD p 93.
Dr Amjad on 12 May 2021 noted that the applicant had “tried to drive locally and while driving felt neck pain”.[6] Mr Rickard submitted that the clinical note of Dr Amjad confirmed that the applicant was driving and that her issue with driving was neck pain and not psychological. However, the clinical note is approximately 3.5 months after the accident and indicates that the applicant had only just attempted to drive and only in her local area. I am of the view that the clinical note of Dr Amjad supports that the applicant was avoidant and anxious of driving following the accident and the levels of anxiety which the applicant had experienced at least in the months following the accident had been greater than minor. I note that Dr Clarke did not have the opportunity to review the GP clinical notes. Dr Teoh observed that the applicant had avoidant behaviour and had been anxious about driving.
Mrs Morris to whom the applicant was referred on 19 February 2021 due to being affected mentally by the motor vehicle accident records in her report dated 1 August 2021 that she had been treating the applicant for anxiety, depression, personal life stressors and significantly trauma.
Mrs Morris undertook testing of the applicant which indicated post-traumatic stress disorder, which in her opinion was consistent with her clinical interviews. Whilst a diagnosis of post-traumatic stress disorder has not been made by Drs Clarke and Teoh, Mrs Morris clearly records that she was treating the applicant for trauma, was of the opinion that the nature of the applicant’s condition warranted testing for post-traumatic stress disorder and was of a view that a diagnosis of post-traumatic stress disorder was consistent with her clinical interviews. Mrs Morris also observed that the applicant was continuing to have alterations in arousal that were associated with the traumatic event. The report of Mrs Morris supports that the applicant suffered a primary psychological injury and was exhibiting symptoms related to the trauma of the motor vehicle accident.
The respondent submitted that the GP notes support a finding of secondary psychological injury as the psychological condition developed in the context of the applicant experiencing pain and functional restrictions as a result of her physical injuries and that the attendances on the GP’s in respect to the psychological condition also refer to the physical injuries. I do not accept this submission. It is to be expected that when the applicant attended on her GP that both her physical and psychological conditions would be discussed and that separate appointments would not have been conducted in respect to the conditions.
Mr Carney submitted on behalf of the applicant that Dr Clarke had based her opinion on an incomplete and at times incorrect clinical history. The GP clinical notes were not among the documents reviewed by Dr Clarke.
Dr Clarke attempted to take a history from the applicant however the applicant proved to be a poor historian. The applicant struggled to remember the trajectory of her treatment and the time frames for any changes in her symptoms. She could not recall when or in what circumstances she was referred to a psychologist and told the doctor that apart from a sleeping tablet no other medication had been discussed or trialled. The GP clinical notes evidence that applicant was prescribed Valium on 27 January 2021 and the antidepressant Cymbalta on 12 May 2021.
Dr Clarke did have access to the report of Mrs Morris dated 1 August 2021 but makes no reference to the report of any significance, relying almost entirely on her interview of the applicant. In any event the report of Mrs Morris does not record when the applicant’s symptoms commenced, when she first complained to her GP of psychological symptoms, when she was referred to Mrs Morris, when she was first seen by Mrs Morris, the nature of any changes in the symptoms overtime, the nature of the initial cause of the symptoms, the treatment received over time and the development of any further stressors over time.
Dr Clarke does not consider (and could not have due to the lack of history provided) the proximity of the onset of the psychological symptoms to the motor vehicle accident and the fact that within two days of the accident the applicant’s GP had diagnosed anxiety and depression and the subsequent clinical history of the condition and its treatment.
It is true that Dr Teoh in his first report dated 21 February 2021 does not consider whether the applicant had suffered a primary psychological injury. The doctor does not appear to have been asked to consider that issue.
Dr Teoh recorded that on examination the applicant had been preoccupied with chronic pain and physical disability. However, the examination occurred 13 months after the accident. The fact that applicant may have been preoccupied with chronic pain and physical disability at that point does not mean that the applicant had not sustained a primary psychological injury.
Dr Teoh in his supplementary report dated 10 June 2023 does turn his mind to whether the applicant has suffered a primary or secondary psychological injury and concludes she had sustained a primary psychological injury as she had developed significant depressive symptoms following the motor vehicle accident which were not directly related to the chronic pain or physical injuries and that she was anxious about driving, lost interest in her usual activities and felt hopelessness.
I am satisfied on the evidence, on the balance of probabilities, applying a commonsense evaluation of the causal chain that the applicant sustained a traumatic psychological injury and therefore a primary psychological injury as a result of the motor vehicle accident in the course of her employment on 25 January 2021.
I find that the applicant sustained a primary psychological injury arising out of the motor vehicle accident in the course of her employment with the respondent on 25 January 2021.

SUMMARY

I find that:
(a) the applicant sustained a primary psychological injury arising out of the motor vehicle accident in the course of her employment with the respondent on
25 January 2021.
The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of 1998 Act for assessment as follows:
(a)    Date of injury: 25 January 2021 – Personal Injury.
(b)    Body systems / parts: Psychological/psychiatric injury
(c)    Method of Assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents signed 14 June 2023 and attached documents.

[2023] NSWPIC 328

7 July 2023