Lu v Randstad Pty Limited
[2021] NSWPIC 113
•10 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lu v Randstad Pty Limited [2021] NSWPIC 113 |
| APPLICANT: | Zhibin Lu |
| RESPONDENT: | Randstad Pty Limited |
| MEMBER: | Mr John Isaksen |
| DATE OF DECISION: | 10 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation, medical expenses and permanent impairment due to psychological injury that results from crush injury to hand and claim for injury to lumbar spine from the same incident; consideration of medical evidence in relation to several possible psychological conditions; whether the applicant sustained a primary psychological injury and/or secondary psychological injury; reference to State of NSW (Department of Education) v Kaur, Cannon v The Healthy Snack People P/L and RSL (Qld) War Veteran’s Homes Ltd v Watkins; whether weekly payments can be awarded for no current work capacity pursuant to section 38 of 1987 Act; Held – worker sustained a primary psychological injury and secondary psychological injury in the course of his employment; worker sustained an injury to his lumbar spine in same incident; worker has had no current work capacity since 16 July 2020 as a result of psychological injury; award of weekly payments of compensation for no current work capacity, medical expenses and referral to Medical Assessor for assessment of permanent impairment for primary psychological injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained a primary psychological injury in the course of his employment with the respondent on 4 June 2018. 2. The applicant sustained a secondary psychological injury as a consequence of a physical injury sustained in the course of his employment with the respondent on 4 June 2018. 3. The applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on 4 June 2018. 4. The applicant has had no current work capacity since 16 July 2020. |
| ORDERS MADE | 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $975.88 per week from 16 July 2020 to 25 November 2020 pursuant to section 37 (1) of the Workers Compensation 1987, and (b) $975.88 per week from 26 November 2020 to date and continuing pursuant to section 38 (2) of the Workers Compensation 1987. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for the injury to the applicant’s left middle finger, lumbar spine and psychological injury. 3. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 4 June 2018 4. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute (ARD) and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the respondent on 26 April 2021; (d) This Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Zhibin Lu, sustained a crush injury to his left middle finger on 4 June 2018 while employed with the respondent, Randstad Pty Limited.
At the time of the injury the applicant was working as a welder and was assigned by the respondent to work for Ideal Civil at Smithfield. The applicant was attempting to control about 16 steel pipes on a lifting device when he sustained a crush injury to the left middle finger.
The applicant was paid weekly payments of compensation as a result of the injury until 15 July 2020.
The applicant claims that he also sustained an injury to his lumbar spine from the same incident. This is disputed by the respondent.
The applicant claims that he also sustained a primary psychological injury as a result of the same incident. This is disputed by the respondent.
The applicant claims weekly payments of compensation from 16 July 2020. He claims that he has had no current work capacity due to his psychological injury.
The applicant also makes a claim for a lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) of 23% whole person impairment which results from the psychological injury he claims to have sustained, and an order for the payment of medical expenses for treatment for injury to his left middle finger and lumbar spine and psychological injury.
The respondent disputes that the applicant has a total or partial incapacity for work as a result of any of the injuries claimed by the applicant, that any medical treatment for those injuries are not reasonably necessary, and that permanent impairment has not resulted from an injury sustained by the applicant in the course of his employment with the respondent.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a psychological injury in the course of his employment with the respondent on 4 June 2018 (sections 4 and 9A of the 1987 Act);
(b) whether any psychological injury sustained by the applicant was a primary psychological injury or secondary psychological injury (section 65A of the 1987 Act);
(c) whether the applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on 4 June 2018 (sections 4 and 9A of the 1987 Act);
(d) whether the applicant has any incapacity for work as a result of the injury to his left middle finger and lower back and psychological injury (sections 32A, 33, 37 and 38 of the 1987 Act), and
(e) whether the medical expenses incurred for treatment for the, lumbar spine injury and/or psychological injury are reasonably necessary (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 30 April 2021. 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.
Mr Young appeared for the applicant, instructed by Ms Ross. Mr Robison appeared for the respondent, instructed by Ms Nichols, with Mr Wheeler from Allianz also in attendance.
The hearing was conducted by video link in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The applicant discontinued his claims of injury to the right shoulder, cervical spine and left lower extremity, his claim for a lump sum payment for any physical injuries which result from the incident on 4 June 2018, and his claim for an order pursuant to section 60 (5) of the 1987 Act for the payment of future medical expenses. The applicant amended his claim for weekly payments to commence from 16 July 2020, being the date after weekly payments were terminated by the respondent.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,219.85.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents,and
(c) Application to Admit Late Documents filed by the respondent on 26 April 2021.
Oral evidence
There was no application to cross examine the applicant.
The applicant’s spouse, Xiaoman Huang, gave some short oral evidence regarding deposits made into joint bank accounts held in her name and that of the applicant. There was no cross examination of Ms Huang.
The applicant’s evidence
The applicant has provided a statement dated 7 December 2020.
The applicant states that prior to the injury on 4 June 2018 he considered himself to have a happy and calm disposition with strong mental fortitude.
The applicant states that on 4 June 2018 he had the task of cutting steel pipes into various sizes. He states that he operated a lifting device to transport the steel pipes to a place where he could weld them. He states that about 16 pipes became unstable as they were being lifted by the device and he tried to use his left arm to stabilise the pipes. The applicant states that his left hand got stuck between the pipes and his left middle finger was crushed between two pipes. He states that he twisted his back in an effort to free himself.
The applicant states that he removed his glove after he freed himself and saw his left hand gushing with blood. He states that his boss drove him to Westmead Hospital and that Dr Nicholas Smith performed repair surgery on the left middle finger that day.
The applicant states that he consulted Dr Belinda Chung on 8 June 2018 and told her that he was suffering severe pain in the lower back and right hip.
The applicant states:
“Following my workplace accident, I began developing psychological symptoms. My mind would frequently trail off throughout the day and I would ruminate on my workplace injury. These flashbacks made me feel that I was reliving the events. I further started developing nightmares where I would be holding a bomb would be physically abused. I would wake feeling completely distraught and shaking. These symptoms were incredibly draining and I would regularly wake in the morning feeling absolutely exhausted. Thus, due to the persistence of these symptoms, I decided to inform my doctor of the psychological anxiety I was experiencing.
In or around early 2019, my psychological symptoms intensified dramatically. This was because I started hallucinating and hearing voices. The voices would present themselves at various times and places. For example, I was on a train and saw everyone as pipes. I felt like I needed to defend myself from the pipes that I should hurt those around me. Similarly, when I was at home, I would imagine that there were flying polls that were coming to impale me. On one occasion, I was out in public and I saw a man with a gun, shooting the pipes. At the time, someone near me had opened a can of soft drink and I thought it was a bomb. Despite it not being one, I instantly wanted to grab the bomb and throw it into the crowd. Furthermore, I heard God telling me to go and make bombs and use the weapon to clean the world.”
The applicant states that in March 2019 he was admitted to the psychiatric ward of Cumberland Hospital. He states that he continued to consult a psychiatrist and psychologist. after his discharge from hospital. He states that throughout 2020 his psychological symptoms continued to be volatile. He states that most days involve a mental battle as he constantly hears voices and is overwhelmed by feelings of fear, paranoia and hopelessness.
The applicant states that he continues to experience flashbacks of the actual workplace accident, nightmares of the workplace accident, a severely negative mood and sleep disturbance. He states that he struggles to focus for extended periods of time and that he believes that he has lost the social skills needed to fit into a working environment.
The medical evidence
It is apparent from a review of the material that the applicant went to a few different medical centres for treatment following the injury he sustained on 4 June 2018.
The applicant attended Dr Belinda Chung at Myhealth Medical Eastwood on 8 June 2018 and consulted her on multiple occasions thereafter until 2 November 2018. The notes from 8 June 2018 record three injuries from the incident on 4 June 2018 – an injury to the left middle finger, right groin pain and lower back pain. Dr Chung records: “Jarring motion as lost footing resulting in R groin and hip pain.” She also records that the applicant was in so much pain on the day from the injury to the finger that he did not mention the other injuries.
There are some 23 attendances at Myhealth Medical Eastwood, usually with Dr Chung, until 2 November 2018, with no mention any psychological problems that the applicant was experiencing following the work injury in June 2018.
The next record of the applicant attending Dr Chung is on 8 May 2019, which records the applicant having been “6 weeks at a hospital jail” and: “Will try to find out more about his hospital/jail admission from the registrar that wrote the MC ?involuntary psych admission.”
The clinical notes from Myhealth Medical Macquarie Park record that the applicant attended that medical practice from 29 August 2018 to 20 November 2018. The consultation with Dr Ong on 29 August 2018 is recorded as being for mechanical low back pain and includes: “on background of 2/12 of lower back pain – started after trying to stop a slipping pipe.”
On 11 October 2018 there are extensive notes from Dr Leung from “long consultation in Cantonese.” Dr Leung records details of the work injury on 4 June 2018. The notes include that in the last two months the applicant’s memory has worsened, “trouble concentrating”, “unhappy since the accident”, and “has asked wife to lock up the knives.”
The notes from Dr Leung on 19 October 2018 record anti-depressant medication being prescribed and a referral to a psychologist.
The notes from Dr Leung on 20 November 2018 record that the applicant has bought marijuana due to pain and was “smoking 1 every day”, although “has stopped more recently.” The notes also record that the applicant “should have a regular gp” and that the applicant had been attending Workers Doctors.
The notes from Workers Doctors indicate that the applicant first attended that practice on 30 October 2018. Dr Calvache-Rubio on that day records the applicant having multiple physical ailments, including lower back pain and left middle finger numbness, and also “trouble sleeping, anxious, worried, overthinking, irritable, frustrated, poor memory, poor concentration.”
The notes from Workers Doctors include consultations the applicant has had with Hansen Li, psychologist. The initial record made by Mr Li when he sees the applicant on 7 November 2018 is an Adjustment Disorder with depressed and anxious mood. However, the diagnosis recorded on 14 February 2019 is changed to “PTSD”.
Mr Li records on 27 March 2019 that the applicant has increased pain, is having nightmares about holding a live grenade of flying steel pipes trying to hurt him, and hearing voices encouraging violence. The notes from Dr Chatwin Lee later that same day record that the applicant is directed to attend hospital or there will need to be a call made to the police.
The applicant was admitted to Cumberland Hospital on 28 March 2019. The clinical notes for the applicant’s admission record the applicant having a workplace accident on 4 June 2018. The notes also include the following:
“THC – last used 6 weeks ago; prior to this, states he used once a week over a period of 4-5 weeks, when someone at Hurstville train station offered it to him – states he found it was very helpful with the pain he was experiencing. However, on informing his GP, was advised by GP to give it up – and therefore did so.”
The notes also include:
“PTSD symptoms noted; particularly flashbacks and nightmares – was experiencing flashbacks when he was talking about his delusions.”
A report from Dr Young Kwang Kim from Cumberland Hospital prepared for a Mental Health Inquiry and dated 10 April 2019 states that the applicant “sustained various musculoskeletal injuries from his workplace accident which has caused chronic pain issues.” The report refers to the applicant as having a six month history of psychotic symptoms which were finally divulged to a general practitioner, and that the applicant “disclosed ongoing visual hallucinations (about metal poles showering down and a dark figure being present) and paranoid thoughts about people who wanted to hurt him.”
The applicant’s treating psychiatrist since the applicant’s discharge from Macquarie Hospital in May 2019 has been Dr St George. There are reports from Dr St George in the ARD which confirm that the applicant attended Dr St George on a regular basis throughout 2019 and the early part of 2020.
Dr St George has provided a report to the applicant’s solicitors dated 10 January 2020 and provides the following history:
“Mr Lu had no previous psychiatric history prior to his workplace injury. He described how he was injured after 16 pipes that he was attempting to stabilise fell on his hand and body. He suffered physical injuries including skin tears, lower back pain, shoulder pain and upper limb paraesthesia, which have persisted and caused ongoing chronic pain and functional impairment. In addition, Mr Lu experienced significant psychiatric sequalae to his injury. He initially described symptoms of negativity, avoidance, intrusion and hyperarousal. These symptoms, however, worsened despite the commencement on the psychotropic medication and regular psychological therapy. Mr Lu began using cannabis in order to help with his chronic pain and trauma-related psychological symptoms. The combination of his post-traumatic stress disorder and cannabis use disorder resulted in Mr Lu experiencing a first episode of psychosis. He required a six-week involuntary psychiatric admission and was commenced on an antipsychotic medication, olanzapine. Mr Lu continued to experience residual psychotic symptoms and had partial insight into his condition.”
Dr St George makes a diagnosis of post traumatic stress disorder and major depressive disorder with mood incongruent psychotic features. He opines that the post traumatic stress disorder progressed to treatment refractory major depressive disorder with mood incongruent psychotic features, and that those conditions are a result of the work-related injury.
Dr St George states that the applicant has not developed schizophrenia, which is a diagnosis made by Dr Clayton Smith, who provided an expert opinion at the request of the respondent. Dr St George sets out reasons as to why the applicant does not meet the DSM V criteria for schizophrenia.
Dr St George states that in the absence of there being a dramatic change in the applicant’s psychological, physical and social functioning, it is unlikely that the applicant would have developed a cannabis use disorder and subsequent psychotic symptoms.
Dr St George opines that the applicant has suffered an incapacity for work and has not been able to work since the date of the injury. Dr St George writes:
“From a psychiatric perspective, Mr Lu's psychological injury has resulted in an incapacity to work. Although commenting on Mr Lu's physical injuries and chronic pain is not within the scope of psychiatric clinical practice, his physical injuries and chronic pain serve as a constant reminder of his workplace injury and exacerbate his psychological injuries.”
Dr Glen Smith, consultant clinical and forensic psychiatrist, has provided reports to the applicant’s solicitors dated 15 December 2019 and 4 September 2020.
In his first report dated 15 December 2019, Dr Glen Smith records that the incident on 4 June 2018 had “a big impact” upon the applicant. Dr Glen Smith records that the applicant would hear the sounds of pipes and see pipes with teeth in nightmares that he had on most nights following the work accident. He also records the applicant having intrusive visual images during the day of pipes coming towards him.
Dr Glen Smith records that the applicant felt better after his admission to Cumberland Hospital and Macquarie Hospital but that he remained depressed and experienced persistent auditory hallucinations.
Dr Glen Smith records that the applicant denied any history of psychological problems prior to the work injury in June 2018.
Dr Glen Smith makes a provisional diagnosis of the applicant having:
1. Posttraumatic stress disorder (PTSD)
2. Major depressive disorder, with anxious distress.
3. First episode psychosis.
Dr Glen Smith writes that the applicant reported symptoms consistent with a diagnosis of PTSD; reported depressive symptoms developing in the context of posttraumatic anxiety, pain and limitation in functioning; and presented with auditory hallucinations and bizarre delusions of control consistent with a first episode of psychosis. He opines that the applicant’s symptoms are consistent with PTSD and major depressive disorder with anxious distress in relation to the traumatic injury in June 2018, and that the applicant later developed an episode of psychotic illness.
Dr Glen Smith opines that the applicant was likely predisposed to experiencing psychotic symptoms in response to severe stressors but would not likely have developed an episode of psychosis without the injury.
Dr Glen Smith opines that the applicant’s use of cannabis did not appear to be a primary factor in the development of his psychotic symptoms because the applicant denied taking cannabis regularly and the urine drug test taken on admission to Cumberland Hospital was negative, suggesting there had not been substantial cannabis use by the applicant. He opines that significant regular cannabis use usually results in a positive result even after cessation of cannabis use for up to six weeks. Dr Glen Smith opines that any cannabis use by the applicant was “a minor factor at most.”
Dr Glen Smith also opines that the applicant has suffered complete incapacity to work due to his psychiatric symptoms and that he is not likely to return to work in the near future due to the marked impairments related to his psychiatric condition.
In his second report dated 4 September 2020, Dr Glen Smith is asked to respond to a further opinion of Dr Clayton Smith and writes:
“In my opinion, whether Mr Lu satisfies criteria for the diagnosis of schizophrenia or whether it would be more appropriate to consider the diagnosis of first episode psychosis is largely academic. More important, in my opinion, is the consideration of the diagnosis of PTSD. As noted in the cited clinical guidelines there is “good evidence that a history of trauma may influence the clinical presentation of FEP (first episode psychosis)…the actual content of…hallucinations and delusions…often relates directly or indirectly to the early trauma…the impact of comorbid PTSD on the clinical presentations is predictable…” (p.86). In my opinion, Mr Lu’s presentation was consistent with the development of an initial PTSD with the subsequent development of a psychotic illness. Dr Clayton Smith appeared to conclude this also but then later discounted the symptoms of PTSD, shooting them all to schizophrenia. Given that Mr Lu had not suffered from any psychiatric symptoms prior to the injury, it is appropriate to consider the injury had a substantial contributing role to the development of his psychiatric symptoms, noted by Dr Clayton Smith to have developed within 2 to 3 months of the injury.”
Dr Glen Smith also confirms the opinion he provided in his first report that:
“The absence of cannabis in the urine drug screen at Cumberland Hospital does in fact not only exclude recent cannabis use but it excludes recent moderate to heavy daily use that would be much more likely to have significantly contributed to psychotic symptoms.”
Dr Clayton Smith, consultant psychiatrist, has provided reports dated 12 August 2019 and 12 March 2020 at the request of the respondent.
In his first report dated 12 August 2019, Dr Clayton Smith also takes a history of the applicant having no psychiatric symptoms prior to the work injury. He records the applicant starting to have psychiatric symptoms two to three months after the injury. Dr Clayton Smith records the applicant having auditory and visual hallucinations, including seeing metal tubes being thrown at him and being told to make bombs and throw them at people.
Dr Clayton Smith records that the applicant now spends most of his day in bed or pacing in the lounge room, and that his mind is confused with “lots of thoughts inside.”
Dr Clayton Smith records that the applicant denied cannabis use, saying any references to cannabis use were a mistake because of the strong cigarettes he smoked at home.
Dr Clayton Smith concludes that the applicant developed anxiety and depressive symptoms soon after the work accident and at a later point developed psychotic symptoms. He concludes that the applicant has symptoms of Post Traumatic Stress Disorder but the primary diagnosis is Schizophrenia. Dr Clayton Smith opines:
“The nature, duration and intensity of his psychotic symptoms are not consistent with a brief stress-related psychotic disorder as may be found with a primary diagnosis of Post Traumatic Stress Disorder, nor are Mr Lu’s symptoms typical of a work-related injury. It is possible that symptoms of PTSD caused him to medicate himself with cannabis which then triggered a latent schizophrenia, consistent with the stress diathesis model of schizophrenia.”
Dr Clayton Smith opines that the applicant has no capacity to return to work due to his psychological condition as he remains a risk to himself and others due to his ongoing psychotic symptoms, cognitive symptoms, impaired judgement and side effects of medication.
In his second report dated 12 March 2020, Dr Clayton Smith records that the applicant continues to see metallic tubes daily and hears voices directing him to burn down buildings where tubes are hidden.
Dr Clayton Smith maintains his diagnosis of Schizophrenia because the applicant’s schizophrenic symptoms have extended for a period in excess of six months. He does not consider the applicant’s symptoms are consistent with a diagnosis of Major Depressive Disorder with Psychotic Features made by Dr St George because the applicant’s illness and the treatment provided by Dr St George (including antipsychotic medication) is inconsistent with this diagnosis.
Dr Clayton Smith also does not accept the diagnosis of First Episode Psychosis made by Dr Glen Smith.
Dr Clayton Smith opines that the applicant may have developed symptoms of PTSD and depression associated with his work injury but that the clinical documentation provided does not indicate any psychiatric symptoms prior to November 2018. He considers those symptoms coincide with the development of psychotic symptoms in the six months prior to his presentation at Cumberland Hospital.
Dr Clayton Smith opines that the applicant has Schizophrenia, which is a constitutional psychiatric disorder and is not attributed to the applicant’s employment. Dr Clayton Smith considers the most likely precipitating factor to the development of Schizophrenia was cannabis use. He states that a negative test does not necessarily rule out cannabis use over the period in which the applicant developed schizophrenia.
Dr Clayton Smith maintains his opinion that the applicant has no capacity for work.
FINDINGS AND REASONS
Whether the applicant sustained a psychological injury in the course of his employment with the respondent
Mr Young for the applicant submits that the evidence supports a finding that the applicant meets the criteria for a psychological injury being sustained in the course of his employment as provided for by sections 4 (a) and 9A of the 1987 Act.
Mr Young also submits that even if it is found that the applicant has Schizophrenia, the applicant had a predisposition to that disease which was aggravated by the traumatic incident on 4 June 2018, such that the applicant’s employment has been the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.
Mr Robison submits that the opinion of Dr Clayton Smith should be accepted and there be a finding that the applicant’s psychological condition is not work-related.
In the alternative, Mr Robison submits that any psychological injury which the applicant has sustained as a result of the incident on 4 June 2018 is a secondary psychological injury only as prescribed by section 65A of the 1987 Act and cannot provide for lump sum compensation pursuant to section 66. Mr Robison submits that the applicant’s rumination over a physical injury which is set out in the applicant’s statement and the details recorded by various doctors is the locus classicus of a secondary psychological injury.
The forensic enquiry as to what injury or injuries were sustained by the applicant as a result of the incident on 4 June 2018 is somewhat complicated by the applicant attending three different medical practices in the five months following that incident.
The first medical practice the applicant attended after the incident was Myhealth Medical Eastwood on 8 June 2018. As I have already observed, there is no clear reference to any psychological problems the applicant was having as a result of the incident on 4 June 2018 in some 23 attendances at that practice from 8 June 2018 to 2 November 2018. The notes made by Dr Chung on 8 May 2019 of: “Will try to find out more about his hospital/jail admission from the registrar that wrote the MC ?involuntary psych admission”, after having not seen the applicant for some six months, suggests some surprise by Dr Chung as to the applicant’s predicament.
However, the applicant also attended Myhealth Medical Macquarie Park from 29 August 2018 to 20 November 2018, and there are extensive notes made by Dr Leung on 11 October 2018 which include psychological problems complained of by the applicant.
The applicant also attended Workers Doctors on 30 November 2018, where in addition to multiple physical ailments being recorded by Dr Calvache-Rubio as a result of the 4 June 2018 incident, there is also a record of psychological problems complained of by the applicant.
The applicant does not provide an explanation as to why he chose not to disclose any psychological problems he was having with Dr Chung, although I note that the record made by Dr Leung on 11 October 2018 includes “long consultation in Cantonese” and it may just be that the applicant felt more comfortable speaking to Dr Leung about his psychological problems.
Although the first record of psychological problems is made by Dr Leung at that consultation on 11 October 2018, it is recorded that the applicant had been having those psychological problems for the previous two months, which goes back to August 2018, being just two months following the incident.
The report from Dr Young Kwang Kim that is prepared for a Mental Health Inquiry and dated 10 April 2019, refers to a six month history of psychotic symptoms prior to the applicant’s admission to Cumberland Hospital, which were finally divulged to the applicant’s general practitioner. So that history also confirms the onset of psychological symptoms a few months after the 4 June 2018 incident.
The records made by Dr Leung and at Cumberland Hospital challenge an assertion made by Dr Clayton Smith in his second report that the applicant’s symptoms following the 4 June 2018 incident were delayed and that “the clinical documentation provided does not indicate any psychiatric symptoms prior to November 2018.” Rather a review of the medical evidence reveals the applicant complaining of an onset of psychological problems within two or three months of 4 June 2018.
The applicant does not identify a specific time when he began to develop psychological symptoms, other than to state that these symptoms occurred “following my workplace accident.” However, I accept from the applicant’s evidence and the contemporaneous medical evidence that the applicant was having psychological symptoms soon after the incident on 4 June 2018 and there was not any significant delay between the incident and the onset of symptoms that would cast doubt on there being a connection between the incident and the onset of psychological symptoms.
There is then a preponderance of medical evidence which supports a finding that these psychological symptoms which result from the 4 June 2018 incident have caused the condition of Post Traumatic Stress Disorder (PTSD).
There is the opinion of the applicant’s treating specialist, Dr St George. Dr St George does not treat the applicant until after the applicant’s discharge from hospital in May 2019. However, Dr St George has had the benefit of seeing and treating the applicant on several occasions and is in a good position to provide a diagnosis of the applicant’s psychological injury. In his report dated 10 January 2020, Dr St George sets out the criteria for PTSD from the Diagnostic Statistical Manual of Mental Disorders Part V as it applies to the applicant. Dr St George opines that the condition of PTSD is a result of the applicant’s work-related injury.
Dr Glen Smith also considers that the applicant’s symptoms, including significant dissociative flashbacks, nightmares, avoidance, anxiety and hypervigilance after the traumatic injury in June 2018 are consistent with PTSD.
The notes from Mr Li indicate that he initially considered the applicant to have sustained an Adjustment Disorder but after having the benefit of several consultations with the applicant, Mr Li’s notes change to a diagnosis of PTSD.
The notes on the applicant’s admission to Cumberland Hospital also record PTSD symptoms of flashbacks and nightmares.
Dr Clayton Smith concedes in his first report that the applicant has symptoms of PTSD. He does not consider that the applicant has a primary diagnosis of PTSD because of the nature, duration and intensity of the applicant’s psychotic symptoms and opines that the “primary diagnosis” is Schizophrenia, but does not consider whether the applicant can have multiple conditions which include both Schizophrenia and PTSD. Furthermore, Dr Clayton Smith’s rejection of a diagnosis of PTSD is based on the applicant having no psychiatric symptoms prior to November 2018, whereas I have already found from a review of the evidence that the applicant was having psychological symptoms within two or three months of the 4 June 2018 incident.
I prefer the findings and opinions of those medical providers who have treated the applicant, along with the considered opinion of Dr Glen Smith and the partial concessions made by Dr Clayton Smith, to accept that the applicant has sustained PTSD as a result of the incident on 4 June 2018.
I also accept that the applicant has suffered a major depressive disorder as a result of the incident on 4 June 2018. Dr Leung records on 11 October 2018 that the applicant “is unhappy since the accident”, and records the prescription of an anti-depressant drug, escitalopram, on 19 October 2018.
Dr Calvache-Rubio records on 30 October 2018 the applicant being anxious, worried and frustrated. Mr Li records on 7 November 2019 that the applicant presents as fatigued and depressed. Mr Li records the applicant being depressed on a further eight occasions until 27 March 2019.
The notes on the applicant’s admission to Cumberland Hospital record a previous diagnosis of Major Depressive Disorder following the work accident on 4 June 2018.
There is then a consistent record made over a number of months in late 2018 and early 2019 of the applicant suffering symptoms of depression. Dr St George has the benefit of treating the applicant on a background of those symptoms and opines that the applicant suffers major depressive disorder and that this condition is a result of the 4 June 2018 incident. He sets out the criteria for major depressive disorder from the Diagnostic Statistical Manual of Mental Disorders Part V as it applies to the applicant. The diagnosis of major depressive disorder is supported by Dr Glen Smith.
I prefer the findings and opinions of those medical providers who have treated the applicant, along with the considered opinion of Dr Glen Smith, in accepting that the applicant has sustained a major depressive disorder as a result of the incident on 4 June 2018. I prefer that evidence over the opinion provided on this issue by Dr Clayton Smith.
Dr Clayton Smith rejects the diagnosis of major depressive disorder but that is based upon his understanding of the applicant’s illness and the treatment provided by Dr St George, which includes antipsychotic medication. However, I have already referred to contemporaneous notes over several months which confirm the applicant having symptoms of depression. Furthermore, although Dr St George has treated the applicant with antipsychotic medication, there has also been the prescription of anti-depressant medication. This is referred to in the report of Dr St George dated 10 January 2020 and the report of Dr Glen Smith.
As with the condition of PTSD, Dr Clayton Smith is not prepared to consider that the applicant suffers from multiple psychological conditions.
The causal connection between the applicant’s quite severe psychotic symptoms and his work injury is a more difficult issue. Dr St George links mood incongruent psychotic features to the applicant’s major depression, which in turn progressed from the applicant’s PTSD.
Dr Glen Smith provides a separate diagnosis of first episode psychosis which developed from the PTSD.
Dr Clayton Smith considers the applicant has Schizophrenia, being is a constitutional disorder which was likely precipitated by the applicant’s use of cannabis.
Although I have particular regard for the opinion of Dr St George, given his role as the applicant’s treating specialist, I prefer the opinion of Dr Glen Smith on the cause of these symptoms, rather than Dr St George or Dr Clayton Smith.
Dr Glen Smith provides a well-reasoned opinion as to why the applicant’s psychotic symptoms develop from the applicant’s initial PTSD symptoms. Dr Glen Smith notes that the applicant had not suffered psychiatric symptoms prior to his work injury, notes the onset of symptoms of PTSD within a few months of the work injury and refers to clinical guidelines to support his opinion. Dr Glen Smith also discounts the applicant’s use of cannabis in the development of psychotic symptoms by reference to the negative urine test and timeframes for the effect that cannabis use would have upon the applicant.
I prefer the opinion of Dr Glen Smith over that of Dr Clayton Smith. It has been accepted by all those doctors who have examined the applicant that he had no psychiatric problems of any nature prior to the incident on 4 June 2018. I have also already provided reasons as to why I accept that the applicant was experiencing psychological symptoms soon after the work injury, which makes it more likely than not that the psychotic symptoms developed following the work injury (which is the opinion of Dr Glen Smith) rather than being solely constitutional.
There is the issue of the applicant’s use of cannabis. Dr Glen Smith records that the applicant could not recall using cannabis and Dr Clayton Smith records that the applicant denied cannabis use, saying any references to cannabis use were a mistake because of the strong cigarettes he smoked at home.
However, there are records of cannabis use made by Dr Leung and at Cumberland Hospital. Dr St George records that the applicant used cannabis to help with his chronic pain and trauma-related psychological symptoms, and that it was the combination of post traumatic stress disorder and cannabis use which resulted in the applicant experiencing a first episode of psychosis.
The contemporaneous medical records support a finding that the applicant had ceased cannabis use well before his admission to Cumberland Hospital in late March 2019. Dr Leung records on 20 November 2018 that the applicant “has stopped more recently” his cannabis use. Dr Lim records the next day “taking marijuana from friend” but then the following day records “has stopped marigjuana now.”
The admission notes from Cumberland Hospital record the applicant last used cannabis six weeks before his admission, which would be mid-February 2019, but those notes also record that the applicant was advised by his general practitioner to give it up “and therefore did so.”
While the applicant has been less than forthright in informing some doctors of his use of cannabis, the records made by Dr Leung, Dr Lim and Cumberland Hospital allow me to accept that the applicant had ceased to use cannabis at least three or four months prior to the dramatic increase in psychotic symptoms in late March 2019. That is confirmed by the negative test recorded at Cumberland Hospital.
Dr Glen Smith then provides cogent reasons as to why cannabis use was not a primary factor in the development of the applicant’s psychotic symptoms. In contrast, Dr Clayton Smith does not explain his opinion that a negative test does not necessarily rule out cannabis use over the period in which the applicant developed Schizophrenia when he also states that daily use of cannabis can be detectable in a range of 10 to 15 days and more moderate use in an even shorter timeframe.
I prefer the opinion of Dr Glen Smith, which is supported by the cotemporaneous medical records which I have referred, in finding that the applicant’s cannabis use was not a primary or major factor in the development of his psychotic symptoms.
I am therefore satisfied that the applicant has sustained a psychological injury in the course of his employment as a result of the incident at work on 4 June 2018 by way of Post Traumatic Stress Disorder, Major Depressive Disorder, and the onset of psychosis. Those conditions satisfy the criteria for injury as provided for by sections 4 (a) and 9A of the 1987 Act because the applicant’s employment, wherein he sustained injury, was a substantial contributing factor to his psychological injury.
I would add that I do not agree with the submissions made by Mr Young that there can
be an alternative finding of injury pursuant to section 4 (b)(ii) of the 1987 Act. In
NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill), DP Roche said in relation to
section 4 (b)(ii) at [67]:“The critical point is that before a finding can be made that a worker has suffered an aggravation injury under s 4(b)(ii), it is first necessary to establish (among other things) that he or she suffers from a disease (Semlitch per Windeyer J at 638).”
From my review of the evidence the applicant was not suffering a psychological disease of any nature prior to the incident on 4 June 2018. The applicant may have had a predisposition or vulnerability to onset and development of psychotic symptoms but there was no indication of that before 4 June 2018. However, I have already found that the applicant has satisfied the requirements of sections 4 (a) and 9A of the 1987 Act.
Whether the psychological injury sustained by the applicant was a primary psychological injury or secondary psychological injury
The two dispute notices issued on behalf of the respondent which relate to the applicant’s psychological injury, dated 30 September 2019 and 21 April 2020, dispute that injury but do not raise any dispute as to whether the applicant only sustained a secondary psychological injury or both a primary psychological injury and secondary psychological injury. However, Mr Young raised no objection to submissions made by Mr Robison on this issue.
Section 65A (1) of the 1987 Act provides:
“No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.”
A primary psychological injury is defined in section 65A (5) of the 1987 Act to mean:
“…a psychological injury that is not a secondary psychological injury.”
A secondary psychological injury is defined in section 65A (5) of the 1987 Act to mean:
“…a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Campbell J in State of NSW (Department of Education) v Kaur [2016] NSWSC 346 (Kaur) at [22] said:
“…I should point out that in my judgment, the question of whether an injury is a primary or secondary psychological injury is one for the Commission to determine and not one that arises as a medical dispute as defined by s 319 of the 1998 Act.”
In Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 (Cannon), DP Roche said at [103]:
“…Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition.”
In RSL (QLD) War Veteran’s Homes Ltd v Watkins [2013] NSWWCCPD 44 (Watkins), the worker fell while working as a cleaner and injured her lower back. The worker also claimed a primary psychological injury by way of Post Traumatic Stress Disorder due to her exposure to the fall itself. DP Roche said at [113]:
“…The evidence was that the focus of Ms Watkins’ concern was ‘the incident of injury itself’. In other words, Ms Watkins’ psychological condition resulted from the trauma of the fall itself and not from the pain that was secondary to her physical injuries.”
I respectfully disagree with the submission made by Mr Robison that the applicant’s re-living of, and rumination on, the injurious event meets the definition of secondary psychological injury as opposed to primary psychological injury. The decisions of Cannon and Watkins make a distinction between a psychological condition which develops as a consequence of physical pain and loss of function of parts of the worker’s anatomy (being a secondary psychological injury) and a psychological condition which from results from the injurious event itself.
There is compelling evidence that the applicant has been psychologically traumatised by the experience of the injurious event itself and thereafter has ruminated over what occurred, which has in turn led to flashbacks, nightmares and hallucinations. The applicant’s vision of being confronted by metal pipes or poles in either nightmares or hallucinations is recorded by Mr Li (on 27 March 2019), on admission to Cumberland Hospital, and by Dr Glen Smith and Dr Clayton Smith. From my review of the evidence, the applicant’s psychological condition at least partly results from the trauma of the crush injury itself and can be regarded as a primary psychological injury.
Nevertheless, there is also evidence that the major depressive disorder which the applicant has suffered from as a result of the 4 June 2018 incident is at least partly due to physical pain and limitation of physical function, especially to the left hand.
The report from Dr Kim dated 10 April 2019 states that the applicant “sustained various musculoskeletal injuries from his workplace accident which has caused chronic pain issues.”
Dr St George writes that the applicant’s “physical injuries and chronic pain serve as a constant reminder of his workplace injury and exacerbate his psychological injuries.”
Dr Glen Smith concludes that the applicant’s reported depressive symptoms developed in the context of post traumatic anxiety, pain and limitation in functioning.
Neither Dr St George, Dr Glen Smith or Dr Clayton Smith provide an opinion on any difference between the applicant having a primary psychological injury and a secondary psychological injury as those terms are defined in section 65A of the 1987 Act. However, from the medical evidence that I have referred to, I conclude that at least part of the applicant’s psychological condition is a response to the pain and physical limitations he has experienced as a result of the work injury.
In accordance with the direction given by Campbell J in Kaur, I have determined that the applicant sustained both a primary psychological injury and secondary psychological injury. However, the extent to which any permanent impairment results from the applicant’s primary psychological injury is a matter for a Medical Assessor to assess.
The claim for weekly payments of compensation
I have accepted that the applicant has sustained a psychological injury in the course of his employment as a result of the incident at work on 4 June 2018 by way of Post Traumatic Stress Disorder, Major Depressive Disorder, and the onset of psychosis.
Dr St George, Dr Glen Smith, and Dr Clayton Smith all opined when they saw the applicant that he had no capacity for work. It may be that Dr St George continued to see the applicant during 2020, but the last report from Dr St George which I could locate is that dated 10 January 2020. The most recent report from those specialists who have seen the applicant is the report from Dr Clayton Smith dated 12 March 2020. In that report Dr Clayton Smith maintains his opinion that the applicant has no capacity for work.
Dr Lim has provided Certificates of Capacity throughout 2020, certifying that the applicant has had no current work capacity.
Given the pessimistic outlook provided by Dr St George, Dr Glen Smith, and Dr Clayton Smith, and the Certificates of Capacity issued by Dr Lim during 2020, I am satisfied that the applicant has had no current work capacity since weekly payments of compensation were terminated on 15 July 2020.
I was informed by Mr Wheeler at the hearing that the applicant has been paid 111 weeks. There will therefore be an award in favour of the applicant for a further 19 weeks pursuant to section 37 (1) of the 1987 Act. The award will be for the respondent to pay the applicant at the rate of $975.88 per week from 16 July 2020 to 25 November 2020.
The next issue is whether an award of weekly payments of compensation can be made in favour of the applicant pursuant to section 38 (2) of the 1987 Act. Section 38 (2) of the 1987 Act provides:
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”
The applicant has been assessed on two separate occasions by Dr Clayton Smith at the request of the respondent and Dr Clayton Smith has opined that the applicant has no capacity for work. There is also no indication from Dr Clayton Smith as to how or when the applicant’s psychological condition might improve, whereby the applicant will have some capacity for work.
I therefore consider that the applicant satisfies the requirements of section 38 (2) of the 1987 Act as the applicant has been assessed by Dr Clayton Smith at the request of the insurer and the medical evidence indicates that the applicant will have no current work capacity for an indefinite period. There will be an award in favour of the applicant at the
rate of $975.88 per week from 26 November 2020 to date and continuing pursuant to
section 38 (2) of the 1987 Act.
Whether the applicant sustained an injury to his lumbar spine in the course of his employment on 4 June 2018
The applicant states that on 4 June 2018 he twisted his back in an effort to free himself when his left hand was stuck between some pipes.
The first claim form completed by the applicant on 6 June 2018 makes no mention of an injury to the lower back, but the claim form completed by the applicant on 10 June 2018 includes “the back was also injured.”
The first entry made by Dr Chung on 8 June 2018 includes a reference to lower back pain. Dr Chung also records that the applicant was in so much pain on the day from the injury to the finger that he did not mention the other injuries.
On 18 June 2018 Dr Chung records the applicant having “Back pain on bending/lifting/certain positions.”
The first consultation recorded for the applicant at MyHealth Macquarie Park on 29 August 2018 is for acute mechanical back pain. Dr Ong records on that day: “on background of 2/12 of lower back pain – started after trying to stop a slipping pipe.” Dr Ong also records that on examination the applicant’s lumbar spine was tender over the L1/L2 midline and L5 bilaterally.
The mechanism of the injury on 4 June 2018 as described by the applicant was certainly capable of causing injury to the lower back. The applicant’s statement regarding that incident and the contemporaneous medical records made in the few months following the incident provide compelling evidence that the applicant did sustain an injury to his lumbar spine in the same incident that he injured his left hand.
However, the ongoing effects of the injury to the lumbar spine do not need to be considered any further because the claim for weekly payments of compensation is satisfied by the finding made that the applicant has no current work capacity as a result of his psychological injury, and the claim made by the applicant for a lump sum payment for his physical injuries was discontinued at the commencement of the hearing of this dispute.
The claim for medical expenses
In view of the findings that have been made in this decision, there will be an order that the respondent pay the applicant’s reasonably necessary medical expenses for treatment for the injury to his left middle finger, lumbar spine and psychological injury.
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