Minehan v Grasuz Pty Ltd t/as Harrisons Horse Pet and Rural

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Minehan v GRASUZ Pty Ltd t/as Harrisons Horse Pet and Rural [2024] NSWPIC 27
APPLICANT:	Lindsay James Minehan
RESPONDENT:	GRASUZ Pty Ltd t/as Harrisons Horse Pet and Rural
MEMBER:	Diana Benk
DATE OF DECISION:	22 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly benefits claim in relation to psychological injury; respondent disputes injury and alleges non work related matters were the main contributing factor to psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which employment was the main contributing factor under section 4(b)(ii); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained psychological injury in the course of his employment pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the Act). 2. That the pre-injury average weekly earnings figure (PIAWE) is $845 per week. 3. That the respondent is to pay weekly compensation to the applicant pursuant to ss 37/38 of the Act as indexed from 30 March 2023. 4. That the respondent is to pay reasonably necessary medical expenses pursuant to s 60 of the Act. 5. The matter is remitted for referral to a Medical Assessor to determine the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 17 December 2020, such injury consisting in the aggravation of a disease to which employment was the main contributing factor. The documents to be forwarded to the Medical Assessor are to include the complete Application to Resolve a Dispute and Reply and the documents attached thereto.

STATEMENT OF REASONS

BACKGROUND

On 17 December 2020, Mr Minehan (the applicant) witnessed the near fatality of a co-worker whilst employed by Grazus Pty Ltd t/as Harrisons Horse Pet and Rural (the respondent). He suffered psychological symptoms initially diagnosed as major depressive disorder and post-traumatic stress disorder. Liability was initially accepted by the respondent but subsequently denied with reference to s 4 and 4(b) of the Workers Compensation Act 1987 (the Act) when its qualified specialist, Dr Kaplan, determined ongoing symptoms and incapacity were reflective of schizophrenia – paranoid type, a diagnosis unrelated to the workplace injury either by way of causation or aggravation. Internal review was unsuccessful prompting an application to the Personal Injury Commission (the Commission) where the applicant now claims weekly benefits from 30 March 2023, medical expenses and lump sum compensation for permanent impairment.
The matter underwent the usual case management pathway ultimately proceeding to arbitration when the parties indicated a conciliation impasse.
At arbitration the applicant was represented by Mr Necovski of counsel instructed by Ms Kakala. The respondent was represented by Mr Baran of counsel instructed by Ms Kim. An insurer representative was present.

ISSUES FOR DETERMINATION

The primary issue is whether the applicant suffered injury in the course of his employment and finally whether any such injury results in benefits payable under the Act.

EVIDENCE

Oral evidence

The applicant was not cross examined. No witnesses were called.

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, and
(b) Reply and attached documents.

Applicant’s statement

The applicant states he was largely symptom free although admits to some anxiety as a result of the bushfires in 2019/2020 and other issues such as his parent’s separation and poor relationship with his father. He confirms on 17 December 2020, he witnessed his colleague/friend crushed by an industrial sized roller door and he was first to respond thinking his colleague had been killed but fortunately not so. The applicant resigned his employment on 9 January 2021 and in the interim reported symptoms of loss of appetite, anxiety and panic attacks, rumination, poor sleep ultimately culminating in two suicide attempts.
The applicant provides details of multiple mental health admissions with treatment both as an inpatient and outpatient and he had various medications with ongoing monthly review by his general practitioner. He was seeing a psychologist every three weeks.
Despite treatment he continues to experience what he describes as panic attacks, anxiety and self-blame lack of concentration, insomnia, hypervigilance, impaired memory and concentration. An attempt to return to work was successful for almost a year but ultimately failed.

Discharge summary – Goulburn Base Hospital

The applicant was admitted as a voluntary patient on 3 February 2021 following two suicide attempts. The “impression of symptoms” recorded was “moderate major depressive disorder co-concurrent with anxiety single episode”. Possible contributing factors were recorded as “parent separation, 2019 bush fires that affected their family property, poor relationship with father who lives close by, witnessed a workplace injury recently and current difficulties with relationships.”[1] The entry was completed by visiting medical officer, Dr Timothy Berry.
[1] Folio 61 Reply.
Prior to discharge the clinical impression was recorded as “improving major depressive episode, probable cluster C personality vulnerabilities, low current risk of harm to self and others”.[2] Medications on discharge were recorded as fluoxetine. Relevantly the notes record “plan to stop olanzapine – likely change to alternative antipsychotic medication to non-sedating medication’”.[3]
[2] Folio 167 Reply.
[3] Folio 113 Reply.

Dr Nina Lees, consultant psychiatrist

Given suicide attempts, the applicant was referred for psychiatric assessment on 13 April 2021. Dr Lees takes a consistent history of the injury and symptoms already recorded and concluded (unedited):
“In summary, Mr Minehan is a 26yr old man who presents with a combination of major depressive episode and PTSD occurring within 3 months of his exposure to a life threatening event at work. It is possible that his exposure to family violence and the devastating bushfire events of 2019/20 predisposed him to a more serious post traumatic episode following the workplace stressor…”[4].
Dr Lees recommended the continued use of Fluoxetine for a period of 12 months.
[4] Folio 70 ARD.

Mr Jeremy Cowden, treating psychologist

Mr Cowden reported (unedited):
“While Lindsay’s residual anxiety is largely specific to his former work environment, it is clear that the incident is the cause of Lindsay’s symptoms. These symptoms may have been worse than they otherwise would have been, as a result of previous trauma from the Bushfires. This position is supported by Dr Nina Lees, the Consultant Psychiatrist who reviewed Lindsay following his Psychiatric admission.
Lindsay described a brief period of anxiety hypervigilance and difficulty sleeping following the 2020 bushfires that resolved after a period that may have predisposed him to traumatic responses to future events such as the incident in his workplace”.[5]
[5] Folio 76 ARD.

Dr Les Roberts-Thomson

In a referral letter to the South Coast Private Hospital, Dr Roberts-Thomson on 22 September 2021 recorded:
“Thank you for reviewing Lindsay, with a view to acute admission for what appears to be prodromal psychosis’
Lindsay had an extremely traumatic event at work in December 2020, when he observed a roller door crush a work colleague who suffered an arm injury….
In the past 3 weeks, Lindsay has deteriorated again. The only trigger has been planning to get him back to work, at a different workplace. Lindsay has now developed sleep disturbance and is becoming withdrawn again. His mother recognises this as being the same as his decline, which led to a suicide attempt and admission in the first few days of February 2021. Lindsay lives on a rural property, and mum is unable to guarantee his safety, with lots of bush and lots of equipment around… we are hoping to step in before another self-harm attempt, and hope you could consider admission.”[6]
[6] Folio 82 ARD.

Batemans’ Bay District Hospital

A discharge summary on 25 September 2021, by attending medical officer, Dr Kumar Muthiah diagnosed the applicant with delusional thoughts and auditory hallucinations being then transferred to the mental health unit at South East Regional Hospital.[7]
[7] Folio 85 ARD.
In the letter of referral on the same date by Dr Aravavali Kumar, attending medical officer to Dr Bronwyn Henderson, the following was recorded:[8]

“Summary of care
26yo male
BIBA because of concerns from his mother that he is disengaged and withdrawn and has been getting worse over the past 3 weeks”.
[8] Folio 85 ARD.

A further discharge summary was issued on 29 September 2021, by Dr Jun Chen where the following was recorded:[9]
“Summary of care
26 y.o. man with over 12 month history of PTSD/? Complex personality trait disorder, whom apparently had auditory hallucination (hearing friends talking frequently when they are not around) + some delusional thoughts developed over the course of last 2 weeks following some recent social stressors. …
He stated that he smoked marijuana very occasionally in past (a total of around 5 times) last smoked it 8 months ago. He denied any other illicit substance use history, never used nay (sic) IV drugs before…No Phx or Fhx of schizophrenia.”
Impression –
“…recent onset of psychosis symptoms for voluntary psychiatry admission at Bega mental health work for further diagnosis and Mx.”[10]
[9] Folio 88 ARD.
[10] Folio 89 ARD.

SNSW Mental Health Services

In a report by social worker Donna Figliomeni, dated 30 September 2021 it was recorded:
“Lindsay was seen at home by CMH post discharge from Batemans Bay Emergency Department. On assessment he was presenting with a mental state consistent with psychosis including ideas of reference, magical thinking, somatic delusions and describing perceptual disturbance including seeking and speaking with deceased people, multiple narrations of events by other people in his mind, believing he is able to read other minds, has the power to influence events and expressed a concern on one occasion that perhaps some of the messages were arising from his mobile phone, but this was not explored in detail. He also believed that he is able to stop/start his heart, and feeling as he if had a surgical procedure performed on him at home. He described feeling as if he was an observer standing outside of his body witnessing his experience.
Formulation/overall clinical impression
26 year old single male residing with family… presenting on Ax today with psychotic symptoms including, voices, ?visual hallucinations, delusions, depersonalisation…significant deterioration in MS for the past 4 weeks on background of return to work plan. At risk of further deterioration and harm to self without treatment. Reluctantly agreed to inpatient admission for diagnostic clarification and medication management.”
Discharge record on 7 October 2021[11] Philippa White, psychologist, recorded (unedited):
“Situation
26 year old single male residing with family presenting on ? psychotic symptoms including voices, ? visual hallucinations, delusions, depersonalisation, and derealizastions experiences. On further exploration with client post acute episode symptoms possibly dissociative in nature rather than frank psychosis…. Since discharge has now ceased all psychotrophics with concurrent improvement in functioning with no obvious emergence of psychosis or decline in mood.”
[11] Folio 110 ARD.
A telehealth assessment by Dr Xavier Malanga on 12 November 2021 recorded:[12]
“Had depressive features – presented earlier in the year with short term memory issues, low mood, and disassociation and attempted to gas himself. Later discharge with fluoxetine and considered depression with ?complex PTSD symptoms.
Second admission was psychotic episode and treated with olanzapine and aripiprazole.
In retrospect, prodromal episode has been starting since late 2020.
Impression – First episode psychosis? Prodromal psychosis/schizophrenia.”
[12] Folio 105 ARD.

South East Regional Hospital

Following discharge after an eight day inpatient stay, it was recorded (unedited):
“…in the past 4-5 weeks, he reported having some strange experiences on and off which were worrying him. He reported that he could think about someone strong enough and was able to see their face in front of him. He stated his ability to communicate with them during that time. Denied hearing voices in head. Claimed he was able to communicate with deceased people he knew in the past. 2-3 days ago, he experienced and almost felt that he was having a heart surgery whist he was in bed. Reported to have really felt the pain and pulling etc. during the surgery”
….
“His symptoms resolved quickly, with nil further depersonalisation experiences or pre occupations. He developed some insight about his symptoms and was accepted of his treatment. The clinical impression was documented as ‘acute schizophrenia-like psychotic disorder’”.[13]
[13] Folio 95 ARD.
On 15 November 2021 following a telehealth review by the mental health unit, it was recorded (unedited):
“spoke about diagnosis as psychotic episode however could potentially be in a prodromal phase of schizophrenia either way advised anti-psychotic medication required. ‘impression’ suggests psychotic depression? Prodromal psychosis and progression to schizophrenia…”[14]
[14] Folio 104 ARD.
A further admission is recorded on 19 September 2022[15] and reported a clinical impression of “relapse of psychotic episode, in context of non-adherence with medications and lack of sleep/social stress.”
[15] Folio 123.

Dr Andrew Wilson, consultant psychiatrist

In the report dated 8 December 2021,[16] he opined:
“…He has been on workers compensation for 12 months following the accident and was involved as a first responder providing first aid. He had previously been working on the roller shutter. Prior to this he had no major mental health problems and finished a degree in equine science. Following the accident, it appears that he became significantly depressed and was admitted to the Goulburn psychiatric unit for three weeks in early 2021. He was placed on fluoxetine 40mg and olanzapine, the latter of which was not helpful. There was also an attempt to self harm through an attempted gassing. During this period, he reports depressed mood, anhedonia, poor sleep and most likely some auditory hallucinations although this is not clear. There was also significant anxiety.
I think he has a clear diagnosis of major depressive disorder most likely with psychotic features and associated symptoms of post traumatic disorder”.
[16] Folio 107 ARD.

Dr Abhishek Nagesh, consultant psychiatrist

Dr Nagesh was qualified by the applicant. He makes the following diagnosis (unedited):[17]
“…In the past during his admissions, he has developed psychotic symptoms and has been given various diagnoses, which include major depressive disorder with psychotic symptoms and also acute schizophrenia-like disorder.
In my opinion, because of his alleged symptoms and having reviewed the documentation provided to me, I am of the opinion Mr Lindsay Minehan meets the criteria for major depressive disorder of severe degree with anxiety features and posttraumatic stress disorder under the DSM 5 criteria. I note that during one of his hospitalisations, he has been labelled to have suffered from acute schizophrenia-like syndrome and commenced on antipsychotics. In my opinion, Mr Lindsay Minehan does not suffer from a schizophrenia-like illness. His psychotic symptoms are part of his major depressive disorder. Also, during the admission, it was unclear whether Mr Lindsay Minehan was having panic attacks, which was misinterpreted as psychotic symptoms and also there was reference to Mr Lindsay Minehan having had a dissociative episode which in all probability was labelled as psychosis. But, I have referred to the documentation of two of his treating psychiatrists which include Dr Andrew Wilson and Dr Nina Lees, who both have diagnosed Mr Lindsay Minehan as to be suffering from major depressive disorder and posttraumatic stress disorder and in my opinion his diagnosis is consistent with major depressive disorder and posttraumatic stress disorder and Mr Lindsay Minehan does not suffer from an acute schizophrenia-like syndrome.”
[17] Folio 155.
In a supplementary report dated 26 June 2023, Dr Nagesh opined(unedited):
“I have reviewed the report of Dr Kaplan and I respectfully disagree with his diagnosis of schizophrenia paranoid type. My rationale is, Mr Minehan did not harbour any persecutory delusions or auditory hallucinations, there was no formal thought disorder or disorganised behaviour. During my review, Mr Minehan reported that he was having panic attacks and out of bodily experiences which could be dissociative episode as well, which probably was misinterpreted as psychotic symptoms. Mr Minehan was having severe panic attacks where his heart was pounding during his admission to Bega where he had his heart coming out which was mislabelled as a psychotic symptom. His first admission to Goulburn Base Hospital culminated in a diagnosis being provided as major depression and his subsequent admission to Bega Hospital where things were not clear, he was labelled to have psychotic symptoms which was a provisional diagnosis. During my review with Mr Minehan, there was no evidence of negative symptoms and there were no positive symptoms. He did have depressive anxiety and PTSD symptoms, which is consistent with this work-related injury diagnosed. Dr Kaplan has diagnosed Mr Minehan with schizophrenia and hence he has opined that Mr Minehan’s schizophrenia is not work-related. I also note from Dr Kaplan’s report who has stated that Mr Minehan did not have any prodromal symptoms and there was no family history of mental illness, which made him vulnerable to develop a psychotic illness like schizophrenia. Hence on the balance of probability, I respectfully disagree with Dr Kaplan with regards to his diagnosis of schizophrenia and I am of the opinion and agreement with his treating psychiatrist, Dr Wilson, who has diagnosed Mr Minehan with major depression and posttraumatic stress disorder which is consistent with his work-related injury.;….
…Dr Kaplan has reported no prodromal and familial history of Schizophrenia in his report and hence with no prodromal and familial history of Schizophrenia, Mr Minehan has not had any vulnerability to develop a Schizophrenic illness and one cannot develop a Schizophrenic illness due to a work related injury and hence I am of the opinion he has not developed Schizophrenia and his condition is constant with one of Major depressive disorder and PTSD.”

WorkCover Certificates

Following the denial of liability in early 2023, multiple medical certificates indicate no capacity for work from 30 March 2023, the most recent dated 30 August 2023.

Clinical notes

Over 990 pages of clinical notes were attached to the ARD,[18] many repeated in the Reply.[19] These include notes from the Goulburn Base Hospital, Moruya District Hospital, SNSW Mental Health Services, South East Regional Hospital and Queen Street Medical Centre. Close review confirms the various admissions and symptoms already reported and the bulk of the notes consist of day to day nursing and medication summaries whilst an inpatient at the various facilities.
[18] Folios 176 to 1,167 ARD.
[19] Folios ARD 41 to 384.
With reference to the “schizophrenia” the notes of the Moruya Hospital[20] record “? Prodromal psychosis and progression to Schizophrenia” on 18 September 2022.”
[20] Folio 570 ARD.

The notes of South East Regional Hospital dated 19 September 2022 record “? Prodromal psychosis and progression to Schizophrenia”.[21] There is a further entry “acute schizophrenia like psychotic episode”.[22]
[21] Folio 662 ARD.
[22] Folio 831 ARD.
Surgery consultations recorded at the Queen Street Medical Centre confirm as early as 12 October 2021 that the applicant does not have a current diagnosis of schizophrenia.[23]
[23] Folio 1195 ARD.
Relevantly, there are no clinical entries of any pre-existing mental health presentations.

Respondent’s medical evidence

Dr Kaplan

Dr Kaplan was qualified by the respondent. On 5 December 2022[24] he recalled his earlier diagnosis of adjustment disorder doubting that the applicant suffered post-traumatic stress disorder. (It was on the basis of his earlier opinion that liability was accepted by the respondent.)
[24] Folio 25 Reply.
He continues (unedited):[25]
“repeated reports of psychosis, mostly listed as schizophrenia…The recent admissions to Bega Hospital suggests this (seeing his heart through his stomach)…
Taking these issues into account, the diagnosis is Psychotic disorder NOS which is likely, when fully confirmed, to be consistent with Schizophrenia…
The only way to confirm this finding is to view his records from the Bega Hospital admission, GP files and report of Dr Andrew Wilson….
On the basis that Mr Minehan has a psychotic disorder, it must be considered whether the subject event at work caused or triggered this condition. The role of traumatic events in psychotic disorders has led to much debate, but the consensus is that they do not cause such disorders although they may worsen pre-existing conditions, especially in predisposed individuals…
As there is no indication (without his medical file) that Mr Minehan was symptomatic prior to the incident, it cannot be shown that the work incident triggered his condition, but rather became incorporated into his thinking as an example of effort-after-meaning, a non-uncommon reaction in such circumstances….
He has no capacity to work at present.”
[25] Folio 30 Reply.
In a supplementary report dated 18 April 2023 Dr Kaplan diagnosed “schizophrenia, paranoid type”. He concludes that there was no work related injury[26] and further stated:
“there is no indication that he displayed any prodromal signs of schizophrenia. …there may be some indications of prodromal symptoms if the full medical files can be obtained.”[27]
[26] Folio 34 Reply.
[27] Folio 34 Reply.
In an attempt to clarify the diagnosis, the respondent asked Dr Kaplan to comment whether “on balance the worker was misdiagnosed from the outset and Schizophrenia should have been diagnosed instead?” In response, Dr Kaplan stated:
"No. First presentations are notoriously difficult to clarify and it often takes several assessments over time before the diagnosis is confirmed. In this case the different diagnoses made appear to be reasonable before the evidence for schizophrenia became overwhelming”.
In making the assessment of schizophrenia, Dr Kaplan referred to various reports including but not limited to (unedited):[28]
o   Dr Les Roberts-Thomson (November 2021); Suicidal with psychotic depression
o   Dr Ian Smith (November 2022); Schizophrenia requiring confirmation following downgrade in capacity
o   Dr Neeta Pramanik (October 2022); Diagnosis initially listed as depression, ECT and dissociative phenomena. Referred to psychiatrist diagnosis then listed as schizophrenia.
o   Jeremy Cowden (July 2021); MDD (resolved) with PTSD and suicidal ideation.
[28] Folio 29 Reply
As regards to these references I note, there are no records by Dr Les Roberts-Thomson dated November 2021 either attached to Dr Kaplan’s report or in the evidence before the Commission.
The report of Dr Ian Smith does not form part of the evidence before the Commission. It was not served as part of the s 78 notice.
Dr Neeta Pramanik’s diagnosis of October 2022 is correctly recorded as “depression and PTSD and schizophrenia”. [29]
[29] Folio 1,329 ARD.
Jeremy Cowden report dated 26 July 2021[30] states “I feel that Lindsay’s depressive episode has resolved, however he is still experiencing some trauma symptoms”. (The report does not say that the MDD (Major Depressive Disorder) has resolved but rather the depressive episode had resolved. The report only records past diagnosis of PTSD and suicidal ideation on presentation to the Chisolm Ross Centre. Jeremy Cowden does not independently diagnose PTSD and suicidal ideation).
[30] Folio 75 ARD.
Importantly, Dr Kaplan specifically indicated he required the notes of the Bega Hospital and Dr Andrew Wilson to confirm diagnosis. None of his reports, including his supplementary reports refer to such notes and specifically the report of Dr Wilson.

Applicant’s submissions

When summarised these were:
(a)    the primary claim is that the injury was contracted in the course of employment but alternatively given Dr Lee’s opinion, the injury may have aggravated an underlying condition, previously asymptomatic and such injury is the main contributing factor to the aggravation of the disease;
(b)    the applicant has been mismanaged and misdiagnosed over the years as there has been no consistency in treatment during his multiple mental health admissions. The applicant cannot be said to have schizophrenia and any episodes of psychosis are part and parcel of his major depression, anxiety and post-traumatic stress disorder;
(c)    the report of Dr Nagesh clearly excludes the diagnosis of schizophrenia and his report is consistent with the opinion of Dr Wilson and Dr Lee, and
(d)   there is no dispute amongst the medical practitioners that the applicant is totally incapacitated for work.

Respondent’s submissions

When summarised these were:
(a)    this is a tragic case and there must be great attention given to the medical evidence which now reveals the correct diagnosis is schizophrenia;
(b)    the mention of psychosis in the clinical records is significant as this term is not used lightly. The evidence reveals the applicant is paranoid which is a classic sign of psychotic illness as opposed to a feature of trauma from witnessing an injury;
(c)    the only person who could rebut the assertion made by Dr Kaplan is the applicant’s mother who described the behaviour of the applicant as ‘deranged’[31] and it is open for a Jones v Dunkel[32] reference to be made regarding the applicant’s prodrome;
[31] Folio 85.
[32] [1959] HCA 8. 101 CLR 298.
(d)    it is well known that Olanzapine and Risperidone are treatments for schizophrenia;
(e)    that “in 32 years as a barrister”, this is the first case where it has been nominated that major depression or post-traumatic stress disorder have been responsible for symptoms of psychosis including “ideas of reference, magical thinking, somatic delusions, speaking with dead people”. Such symptoms are classically confined to schizophrenia;
(f)    there has been a “whole cocktail” of different diagnoses and it cannot be proven on the evidence that the applicant has sustained a trauma induced psychological injury, a weakness in the applicant’s case but a strength in the respondent’s case and nor does the evidence show that there has been an aggravation to any condition by trauma where employment was the main contributing factor;
(g)    the applicant’s evidence is unreliable, for example he has informed doctors that he has not used cannabis but the records show that there has been sporadic use over the years, such being relevant in the assessment of credibility but also due to the psychosis inducing effects of cannabis;
(h)    Dr Nagesh has not dealt with the clinical material whereas Dr Kaplan has;
(i)    that the evidence will lead to a finding that the applicant suffers from schizophrenia, the accident was innocuous, employment is not a substantial contributing factor to the contraction of injury nor the main contributing factor to any aggravation of a disease, and
(j)    the pre-injury average weekly earnings (PIAWE) are not disputed at $845 gross per week.

Submissions in reply

(a)    the common side effect of fluoxetine medication is hallucinations and delusions;
(b)    all presentations to the hospital were recorded by registrars and so not much reliance can be placed on these notes;
(c)    the applicant had returned to work for a period of eight months and had no symptoms of psychosis during that time;
(d)    the evidence reveals that the use of cannabis was infrequent, and
(e)    The overwhelming evidence is that the applicant has had psychotic symptoms but these were part and parcel of his diagnoses of major depression, post-traumatic stress disorder and anxiety.

Findings and reasons

Throughout the course of submissions, counsel emphasised their knowledge of the diagnosis, treatment and impact of schizophrenia and encouraged factual findings to be made on that basis. I decline to do so. Without doubt, a decision maker is entitled to make common sense findings, however such findings must be based on the evidence. It is a well-known principle that a party is denied procedural fairness when a decision maker makes findings of fact based on purported knowledge or within the realm of common knowledge or experience.[33] So whilst I acknowledge the impressive knowledge and submissions of counsel on the condition of schizophrenia, I can give little weight to them.
[33] ACW v ACX [2022] NSWPICPD 19.
The respondent encouraged me to apply a Jones v Dunkel inference as the applicant’s mother failed to give evidence regarding her son’s “deranged” behaviour, referring to folio 85. Careful review of that document does not reveal the use of the word “deranged” and the clinical entry cannot infer such behaviour. What is recorded, is that his mother said the applicant is disengaged (my emphasis) and withdrawn and has been getting worse over the past three weeks. Given this, I find no basis to apply such inference.
The respondent emphasised that the only finding that could be made is that the applicant’s current incapacity, treatment needs and impairment arise out of a diagnosis of schizophrenia, a condition that was not contracted or aggravated in the course of his employment and it is clear that the entire case will turn on findings relating to diagnosis.
Without doubt the applicant witnessed injury in the workplace and the statement and medical evidence confirm the profound impact to his mental health. The respondent has since denied liability on the basis symptoms are properly referrable to a diagnosis of schizophrenia. Careful review of the clinical and hospital admissions notes refers to psychosis and schizophrenia but these diagnoses have generally been queried, sent for further assessment and not consistently applied or treated. There is much confusion and the respondent was certainly accurate in its description of a “cocktail of diagnoses”.
There is no dispute initially the applicant was certified with a major depressive episode and concurrent anxiety in February 2021 following admission to Goulburn Base Hospital. Dr Lees in April 2021 diagnosed “combination of major depressive episode and PTSD occurring within 3 months of his exposure to a life threatening event at work”. In September 2021, Dr Les Roberts makes a referral for admission to a mental health admission with concerns about “what appears to be prodromal psychosis”. Admission to Bateman’s Bay Hospital in September 2021 records “PTSD/complex personality trait disorder” suggesting voluntary admission to the Bega Mental Health Unit for “further diagnosis”. SNSW Health Services admission also in September 2021 records delusions and magical thinking but again makes recommendation for admission for “diagnostic clarification and medication management”. On discharge from that Unit, psychologist Philippa White in October 2021, records the symptoms concluding “post acute episode symptoms possibly dissociative in nature rather than frank diagnosis.”
Dr Mulenga following a telehealth assessment in November 2021 considered the applicant had a first episode “psychosis? Prodromal psychosis and schizophrenia”. The records show this is the first and only assessment of the applicant by this doctor.
Finally in December 2021, the applicant is reviewed by Dr Wilson, psychiatrist who states he has a “clear diagnosis” of major depressive disorder likely with psychotic symptoms and associated post traumatic disorder and the applicant received treatment on that basis.
Following assessment and treatment by Dr Wilson, notably the applicant returned to work for almost one year with a new employer in January 2022. He commenced gradually, initially at four hours per week ultimately upgrading to 32 hours per week, ceasing when required to undertake a safe practices course which caused him to have flashbacks to the incident, again resulting in admission to hospital at which point the clinical impression seems to again be “? Prodromal psychosis and progression to Schizophrenia”.
Dr Kaplan was qualified by the respondent and reviewed the applicant on two separate occasions and provided a supplementary report. At first instance he made a diagnosis of adjustment disorder but on second examination considered a likely diagnosis “Psychotic Disorder NOS, which is likely, when fully confirmed, to be consistent with Schizophrenia”. Importantly, Dr Kaplan does not confirm this diagnosis following assessment of clinical material. In his supplementary report he states:
“there is no indication that he displayed any prodromal signs of schizophrenia. …there may be some indications of prodromal symptoms if the full medical files can be obtained.”[34]
[34] Folio 34 Reply.
In an attempt to clarify the diagnosis, the respondent asked Dr Kaplan to comment whether “on balance the worker was misdiagnosed from the outset and Schizophrenia should have been diagnosed instead?” In response, Dr Kaplan stated:
“No. First presentations are notoriously difficult to clarify and it often takes several assessments over time before the diagnosis is confirmed. In this case the different diagnoses made appear to be reasonable before the evidence for schizophrenia became overwhelming”.
Here, Dr Mulenga, made a diagnosis – “First episode psychosis? Prodromal psychosis/schizophrenia… In retrospect, prodromal episode has been starting since late 2020”. This according to the records was made following a single telehealth assessment and so applying Dr Kaplan’s reasoning, such a diagnosis could not be confirmed until after several assessments. In any event, the entry questions the diagnosis and does not offer it is a certainty.
Dr Kaplan states that the evidence for a diagnosis of schizophrenia became overwhelming. Paragraph 37 of these reasons refers to medical evidence that he considered. Paragraph 38 to 42 of these reasons summarise the deficiency that I find in that evidence. Further, his opinion suggests the requirement for the reports of Dr Wilson and Bega Hospital to confirm diagnosis but this has not eventuated. His report further offers a likely diagnosis of “Psychotic Disorder NOS” which when confirmed is likely to be schizophrenia. I understand the term Psychotic Disorder NOS is no longer used in DSM V instead being it since being recategorized.[35] Nothing turns on this as Dr Kaplan concludes the diagnosis was not fully confirmed and excluded prodromal findings. He concludes symptoms are consistent with schizophrenia but does not make a formal diagnosis. Dr Kaplan refers to “overwhelming” evidence for a diagnosis of schizophrenia but on my reading it is underwhelming. This is because most of the entries are either impressions or presumptive, requiring further elucidation and/or medical review or have been misinterpreted by Dr Kaplan (paragraph 38 above). Further, I am not satisfied that Dr Kaplan has had the opportunity to consider Dr Wilson’s opinion or the records of Bega Hospital which he suggested were necessary to confirm the diagnosis. Certainly, the episodes of psychosis could infer such a diagnosis but this has been explained by Dr Kumar and others as being either an element of the major depression or alternatively dissociative episodes.
[35] >
The respondent emphasised that the applicant’s medication regime of olanzapine and risperidone were for the treatment of schizophrenia. I have not disregarded this but cannot ignore when the applicant ceased that medication and once diagnosed by Dr Wilson with depression and engaging in treatment for that diagnosis, he was successful in returning to the workplace ultimately upgrading to 32 hours per week for the better part of a year and was largely symptom free.
I also cannot ignore that throughout the clinical notes, with the exception of Dr Mulenga, the diagnosis of schizophrenia always appeared to be an impression or a diagnosis to be confirmed or queried. I also cannot ignore that the tentative diagnoses or impression of prodromal psychosis and schizophrenia is only made whilst an inpatient, with formal diagnoses of major depression and post-traumatic stress disorder being offered by psychiatrists who have examined the applicant, that is Dr Lee, Dr Wilson and Dr Kumar.
Dr Kumar’s report was criticised by the respondent who maintained he failed to take into account the history particularly of prodromal symptoms. I disagree. Dr Kumar has noted the clinical notes and the presentations of psychosis resulting in hospitalisation but concludes that such episodes were a feature of his major depressive disorder, a similar conclusion was reached by Dr Wilson with the same diagnosis offered by Dr Lees along with post-traumatic stress disorder. Dr Kumar acknowledges the dissociative episodes were labelled as psychosis which he considered inaccurate. This appears also to be consistent with the opinion of Philippa White, psychologist who reported “post-acute episode symptoms possibly dissociative in nature rather than frank psychosis”. I also note that Dr Kaplan excluded prodromal symptoms pending further evidence.
Overall, I prefer the opinions of Dr Wilson, Dr Lee and Dr Kumar. The opinion with regards to the diagnosis of schizophrenia is incomplete and suboptimal and I am not persuaded given the gaps in the evidence, that this condition is the cause for the applicant’s incapacity. I accept the opinions of the treating psychiatrists and Dr Kumar that the applicant has a diagnosis of “major depressive disorder with psychotic features and associated symptoms of post traumatic disorder”.
I have not disregarded the respondent’s submission that the applicant has been less than candid about his cannabis abuse, which is known to induce symptoms recorded. There are some records in the clinical notes of past use (no more than 5 occasions) but there is no evidence that would lead me to conclude that this substance abuse was responsible for any symptoms recorded.

Injury

Section 9 of the Act provides that a worker who has received an “injury” shall receive compensation from the employer. The term injury is defined in s 4 of the Act as either injury arising out of or in the course of employment. It includes disease injury which means either the disease is contracted in the course of employment but only if the employment was the main contributing factor to the disease and aggravation, acceleration, exacerbation, or deterioration in the course of employment but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. (s (4(b)(ii) of the Act).
The application of section 4(b)(ii) of the Act was slavishly considered by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78], with the following key take aways;
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

The first issue is whether the applicant sustained psychological injury within the above definition.
On the basis of the evidence, findings and case law summarised above, I find that the applicant has discharged his onus on the balance of probabilities that he has sustained injury by way of an aggravation of a disease injury and in the absence of any evidence to the contrary, that his employment was the main contributing factor to the aggravation – s 4(b) (ii) of the Act. The evidence confirms a history of anxiety due to personal stressors (family breakdown and reaction to the unrelenting bushfires) which was ultimately aggravated by the workplace evident which led to significant symptoms and incapacity. Although none of the doctors have expressed an opinion in the precise language of s 4(b) (ii), in particular with the requirement that employment be the “main contributing factor” to an aggravation of a disease, I am satisfied that their opinions are consistent with that test. In any event, it is largely a legal question.
All the treating specialists and medical certificates certify no capacity for work since the denial of the claim. It follows that the respondent is liable to pay the applicant weekly compensation at the PIAWE of $845 per week from the date of cessation of payments (30 March 2023) as indexed pursuant to ss 37 and 38 of the Act and reasonably necessary treatment expenses. Given my finding of injury the respondent is also liable for any whole person impairment arising therefrom.

SUMMARY

For the reasons above, I find the applicant has sustained injury in the course of his employment and that his employment is the main contributing factor to the aggravation of the disease condition. I accordingly make the orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 27

22 January 2024