Morrison v Queensland Property Investments Pty Ltd
[2021] NSWPIC 19
•12 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Morrison v Queensland Property Investments Pty Ltd [2021] NSWPIC 19 |
| APPLICANT: | Glenn Morrison |
| RESPONDENT: | Queensland Property Investments Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 12 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits compensation; accepted injury to left hip, left knee, lumbar spine in May 2012; consequential conditions in right knee and right hip; accepted secondary psychological injury due to chronic pain; worker certified fit for pre-injury hours and duties with some modifications from April 2020; meeting in August 2020 to discuss duties; whether worker suffered new psychological injury; if so, whether any injury was result of reasonable action in respect of employment; Held- finding that worker continued to suffer psychological condition as a result of the original injury; incapacity following the meeting was as a result of the original injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. The applicant suffered injuries to his left hip, left knee and lumbar spine, and consequential conditions of his right knee and right hip arising out of or in the course of his employment with the respondent on 23 May 2012. 2. The applicant suffered a psychological injury secondary to his physical injuries. 3. From 18 September 2020 the applicant had no current capacity for employment as a result of the workplace injury on 23 May 2012. |
ORDERS MADE | 1. Award for the applicant. |
STATEMENT OF REASONS
BACKGROUND
Glenn Morrison (the applicant) was working as a storeman and packer for Queensland Property Investments Pty Ltd (the respondent) on 23 May 2012 when he fell down a ramp and was pinned under a loaded wheelie bin. He suffered injuries to his left hip, left knee and lumbar spine, and consequential conditions of his right knee and right hip.
The respondent accepted liability for Mr Morrison’s injury.
Following his injury, Mr Morrison underwent various scans, and treatments including physiotherapy, cortisone injections, hydrotherapy, left knee arthroscopy and a left total hip replacement in 2018, all of which gave him limited relief from ongoing pain. He had intermittent periods off work, and periods when he worked reduced hours and on light duties.
Around late 2013 to mid-2014, Mr Morrison began to experience depression and anxiety on account of his ongoing pain. He was diagnosed with Adjustment Disorder with anxiety and depressed mood. He became increasingly frustrated and he self-harmed, or attempted self-harm, on a number of occasions. The respondent accepted liability for a psychological injury secondary to his physical injuries.
In May 2019, Mr Morrison resumed his usual hours and substantially full duties as a storeman and packer, working 10 hours a day, four days a week.
On 8 January 2020, the Workers Compensation Commission issued a Certificate of Determination by which the respondent was to pay Mr Morrison lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 15 per cent permanent impairment resulting from the injury on 23 May 2012.
In April 2020, Mr Morrison was certified fit to resume his usual hours, 10 hours a day, four days a week, with some modifications to his duties. The respondent accepts that Mr Morrison had some incapacity at this time because he was on modified duties, but says he was capable of at least 95 per cent of his pre-injury average weekly earnings.
On 18 August 2020, Mr Morrison attended a meeting with the respondent’s Return to Work Team Leader and Injury Lead staff member to discuss his duties. On 19 August 2020, the Cultural and People Operations Manager became concerned about Mr Morrison’s mental state after receiving text messages from him, and he called the police. Mr Morrison was taken to hospital by ambulance from his home. He has not worked since 19 August 2020. He claims weekly benefits compensation from 17 September 2020 on an ongoing basis.
By a dispute notice issued on 17 September 2020, the respondent asserts that Mr Morrison did not present with symptoms or a medical condition that rendered him with further incapacity as a result of a workplace injury and was not entitled to weekly compensation; that, if there had been a reduction in his capacity for work, there was insufficient evidence connecting it to his workplace injury on 23 May 2012; and, to the extent that further incapacity related to a further injury, it was wholly caused by the reasonable actions of his employer with regard to the provision of employment benefits.
The respondent concedes that Mr Morrison has no current capacity for employment due to his psychological condition. There is no dispute that, if he succeeds in his claim, he is entitled to 80 per cent of his pre-injury average weekly earnings of $1,124.40 from 17 September 2020.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Morrison sustained a psychological injury on 18 August 2020;
(b) if so:
(i)whether that injury was wholly or predominantly caused by what occurred on 18 August 2020;
(ii)whether the respondent’s action fell into the category of “provision of employment benefits” for the purposes of s 11A of the 1987 Act;
(iii)whether the respondent’s action was reasonable.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration hearing on 8 March 2021. Mr Phillip Perry of counsel appeared for Mr Morrison. Mr Tom Grimes of counsel appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents lodged by the applicant on 21 December 2020 and attachments;
(d) Application to Admit Late Documents lodged by the respondent on 2 February 2021 and attachments;
(e) Application to Admit Late Documents lodged by the respondent on 3 February 2021 and attachments.
Oral evidence
Neither party sought to reduce oral evidence or to cross-examine any witness.
FINDINGS AND REASONS
Mr Morrison’s evidence
Mr Morrison’s evidence is set out in written statements dated 30 September 2019, 22 May 2020 and 27 October 2020. The following is a summary.
At the time of the accident on 23 May 2012, Mr Morrison was working approximately 40 hours a week. Following the accident, he attended a company doctor. X-rays of his hips and pelvis did not reveal any fractures. He was advised to use crutches until the pain in the affected areas resolved. He was placed on light duties and continued working his usual hours. He experienced constant pain in his lower back, left hip and left knee. He walked with a limping gate and experienced intermittent numbness in his left leg.
In June 2013, Mr Morrison underwent an MRI of his hip. At the end of 2013, he started to experience flare-ups of pain in his left hip and he was walking with a limp. When the flare-ups occurred, the pain was unbearable. His mood was low, he was often upset and he was drinking heavily. Around the end of 2013, he was placed on light duties and diagnosed with Adjustment Disorder with anxiety and depressed mood. He was prescribed antidepressant medication.
Mr Morrison continued to experience severe flare-ups of pain in his left hip and left knee. Scans in mid-2014 revealed a labral tear in his left hip. An MRI of his lower back and pelvis in October 2014 revealed an annular tear and disc protrusion at L4/5, and a disc bulge at L5/S1. In December 2014, he had a cortisone injection in his left hip which temporarily relieved the pain.
In mid-2015, Mr Morrison underwent surgery to remove a brain tumour. He was off work for three months. By the end of 2015, his left hip was more painful than ever, and he had pain in his left knee, left leg and foot. He continued with his full duties at work and took medication to manage the pain.
In May 2017, Mr Morrison underwent a left knee arthroscopy and partial medial meniscectomy. He continued to struggle with pain which was frequently disabling. Around July 2017, he developed pain in his right hip and right leg, and struggled with stress and symptoms of anxiety and depression. In September 2017, he was diagnosed with chronic pain in his left hip. In September 2018, he underwent a total left hip replacement.
In May 2019, Mr Morrison resumed his usual hours and tasks. He reported to a Return to Work Coordinator. He explained to her that he would prefer to work as a forklift operator so as to better accommodate his injuries. However, he was asked instead to operate a ride on “Transporter” machine meaning he had to stand for the duration of his shift. The constant standing aggravated the pain of his injuries.
In October 2019, Mr Morrison says, he suffered bullying at work when the Return to Work Coordinator said, in front of others, that his supervisors could have put him on the forklift if they wanted to but “there was no chance of that ever happening”. He became upset, angry and frustrated, and went to another part of the staff area and cut his left forearm with a Stanley knife. He was found by colleagues and was taken by ambulance to Westmead Hospital. He was advised he could not return to work until cleared by his general practitioner and a psychologist.
In November 2019, Mr Morrison saw Leroy Onouha, psychologist, and was diagnosed with depression and anxiety. He was prescribed Efexor and was “signed off” from duty for two months. He continued to struggle with pain.
In April 2020, Mr Morrison was certified fit for full duties, 10 hours per day, four days per week. He was assigned to “sortation duties”. He struggled with this “repetitive and physically arduous task”. Around May 2020, he was allocated “Transporter” duties, operating a ride-on machine. Standing in the same position for 10 hours aggravated his pain and he felt as though he was being bullied by his supervisors. After his general practitioner, Dr Enas Youssef, issued a medical certificate stating he could only stand for up to five hours a day, he was assigned desk duties for five hours a day.
Prior to 19 August 2020, Mr Morrison states, he was working 10 hours a day, four days a week, driving a GPC machine. (It is not stated, but I understand this to be the same machine as the Transporter.) It was up to him whether to operate the machine while sitting or standing. He was given this job as a suitable duty following his work related injury. He “persevered with this job” and did his very best to keep it.
Mr Morrison states that, “for months”, he was “trying very hard to battle on with this role and push through the physical pain” but it was increasing and he was finding it more and more difficult to continue despite trying to rotate sitting and standing on the GPC machine. By 19 August 2020, he “just had to surrender”.
On 19 August 2020, Mr Morrison was extremely depressed. He had tried to continue doing his full-time duties but he could not physically or mentally cope any longer. Bill Anderson, the National HR Manager, could tell something was wrong and was aware of his previous self-harm incidents related to his work injury. That day, Mr Anderson called the police to Mr Morrison’s home. He was in a very bad mental state. He was taken by ambulance to Nepean Hospital where he had been admitted on about three other occasions due to self-harm on account of the psychological condition resulting from his physical injuries. When he was left alone for a time in the emergency ward, he used the casing on his phone to cut both his arms. He was taken to the mental health wing.
Mr Morrison was discharged the following day. On 21 August 2020, Dr Youssef diagnosed him with major depression. He has not worked since.
Statement of Bill Andrews
Mr Andrews has provided a statement dated 18 November 2020. He states that he is employed by Woolworths as the Culture and People Operations Manager in which role he has dealings with staff at the centre where Mr Morrison worked.
Mr Andrews states that he is aware of Mr Morrison’s existing claim for compensation due to injuries in 2012. He has seen Mr Morrison’s supplementary statement dated 27 October 2020 and Dr Khan’s second report. He notes that Mr Morrison refers in his statement to a “Bill Anderson” but he is certain Mr Morrison refers to himself.
Mr Andrews states that he received a couple of text messages from Mr Morrison on 19 August 2020. The first came in at 11.13 am. He had not responded to that text when he received a second at 6.23 pm which suggested to him that “something was wrong”. He replied immediately and apologised for not responding to Mr Morrison’s earlier message.
At 6.25 pm, Mr Morrison sent Mr Andrews a text stating that he should “just forget about him”. Mr Andrews replied saying “not at all” and sent a further message a few minutes later asking if they could chat the next day. At 6.29 pm, Mr Morrison sent a text saying “you cannot talk to a dead person”. Given Mr Morrison’s history and previous incidents on site, Mr Andrews called the police and subsequently called 000 three times until he had confirmation that the police had attended to Mr Morrison.
Melissa Turner: notes of meeting on 18 August 2020
Ms Turner’s notes of a meeting with Mr Morrison on 18 August 2020 show that she is the “[Return to Work] team leader”. The notes indicate that other team leaders may have been present.
Ms Turner recorded that Mr Morrison advised the team leaders that, from now on, he could only complete one function and not the other tasks on his RTWP (I understand this to mean his return to work plan.) They discussed that, as Mr Morrison “is on suitable duties and a workers compensation claim he has capacity to complete other tasks as provided by operations in line with his restrictions”.
Ms Turner’s notes show that Mr Morrison said he felt he was doing “meaningless tasks” and had “no place at the site”. He had discussed with his doctor that he would never return to pre-injury duties. The meeting discussed other tasks he could complete and it was agreed that his task sheet would be updated to show cleaning in the main canteen area for a couple of hours a day instead of rolling of labels.
According to the notes, Mr Morrison said he wanted his workers compensation claim to be closed and he felt like he was wasting everyone’s time. Holly Butler said the only way to close his claim was to obtain a final pre-injury duties certificate which he said he would not get as he will never be able to perform the pre-injury requirements of the role. There was discussion about the IME reports and Ms Turner said she would discuss the matter with Mr Andrews and get back to Mr Morrison.
Ms Turner records that they discussed that Mr Morrison’s next review with his doctor on 14 September would be a case conference with his psychologist and wife, and that Ms Turner would re-engage the rehabilitation provider to provide him with further support. Ms Turner records that Mr Morrison “was happy with his” [sic: presume “happy with this”].
Statements of Holly Butler
Holly Butler is employed by the respondent as the Injury Lead at the distribution centre where Mr Morrison worked since May 2020. She provided statements dated 12 January 2021 and 27 January 2021.
In her first statement, Ms Butler says that, for several years, the respondent has offered Mr Morrison suitable employment. The process has been complicated somewhat by conflicting evidence. For example, she states, Dr Nair had recently conducted a fit for work assessment and determined that Mr Morrison could work without any physical restrictions, but his treating doctors had always tended to disagree, and their prevailing opinion was that a full return to work would never be achieved.
Ms Butler states that, prior to 18 August 2020, she was not aware that Mr Morrison was having any difficulties working his suitable duties. She was present at the meeting on 18 August 2020. At the start of the meeting, Mr Morrison was not showing any signs of distress. He was “quite forthright in demanding he only complete certain tasks on his return to work plan”. He had to be reminded that his employer determined what duties he could perform in accordance with business needs, provided those duties were in keeping with his certified restrictions. They spoke about other suitable duties he thought he could perform, and he suggested cleaning, which was added to his suitable duties list for a couple of hours a day.
According to Ms Butler, at no point during the meeting did Mr Morrison say he was struggling with suitable duties from a physical standpoint. After being told he could not dictate what duties he would perform, it appeared to her that he “became dejected/upset”.
In a further statement dated 27 January 2021, Ms Butler states that Mr Morrison advised his team leader on the morning of 18 August 2020 that he was provided an upgrade and did not have to “roll labels any more” and from then on he would only be completing “coral (running pallets)” as his suitable duties. This prompted the return to work meeting [on 18 August 2020] where his suitable duties were discussed and where he was told he was not able to dictate his duties, that they were allocated as the business requires.
Dr Youssef
Dr Youssef’s clinical records are in evidence. His notes for 13 December 2019 show, relevantly:
“Very happy at work
Does 5 hours for 4 days
Says everyone treats him very well as a king
Was working four days 10 hours before injuryAsking to work full working hours”[1][1] ARD page 199.
On 16 March 2020, Dr Yousef noted:
“Happy to be back to pre-injuried [sic] duties”
On 25 June 2020, Dr Youssef recorded that Mr Morrison had had his functional assessment that day and he was “very happy” with his rehabilitation manager. He also noted that Mr Morrison had a work meeting with his boss Bill, his return to work manager Holly, and his case manager “and was stopped from going to work for stress leave for 2 weeks as he started to cry and was unable to talk.” He was to have another meeting on Monday.
Certificates of capacity dating from 16 July 2020 are in evidence. They show that, on 16 July 2020 and 7 August 2020, Dr Youssef diagnosed “Left hip and knee injury Anxiety/depression secondary to his physical illness”. He noted that Mr Morrison had been “seen by the independent psychiatrist who believe [sic] he has depression secondary to his work injury. Will continue psychologist as he is very depressed currently.” Dr Youssef certified Mr Morrison as having capacity for some type of work for 10 hours a day 14 [sic: 4] days a week.
A certificate dated 19 August 2020 records the same diagnosis and appears to show Mr Morrison as continuing to have capacity for some type of work but also as having no capacity for any work from 19 August 2020 to 26 August 2020.
A certificate dated 21 August 2020 records the same diagnosis and no current capacity for any work from that date to 20 September 2020. Dr Youssef commented:
“Seen today in major depression and never recall what happened in the past 2 days. Had few alcohol drinks after being unhappy at work on 19/08/20 (never been alcoholic before his work injury) which triggered his depression and been to hospital. Seems major depression and unlikely to be fit for work any more.”[2]
[2] ARD page 174.
Subsequent certificates through to 3 December 2020 continue to show the same diagnosis, and Mr Morrison as having no current capacity for any work through to 4 January 2021.
In a brief report dated 8 October 2020, apparently written to EML, Dr Youssef stated that he had advised Mr Morrison that “he will not be able to be back to work because of his major depression which is the result of his physical work injury which has had a great impact on his mental, personal and family life.”[3]
Dr Assem
[3] ARD page 59.
Dr Mohammed Assem, rehabilitation specialist, saw Mr Morrison for assessment on 10 May 2019 and 18 May 2020.
In his first report, Dr Assem took a history that Mr Morrison was able to return to work on suitable duties after his original injury, gradually upgrading to pre-injury duties several months later. He had persistent discomfort in his left hip that was treated with analgesia, physiotherapy and hydrotherapy. Dr Assem noted that, by 2017, Mr Morrison was struggling with left-sided hip pain causing him to limp, and he underwent a left total hip replacement in September 2018. He said that Mr Morrison believed he had “an excellent result after the operation” but “continued to have persistent pain and stiffness causing him to ambulate with a limp”[4].
[4] ARD page 27.
In his second report, Dr Assem noted that Mr Morrison continued to have intermittent discomfort in his left hip, and intermittent pain across his lower back that was worse when bending or stooping. He had managed to continue working as a storeman and packer with restrictions. He operated a GPC machine that allowed him to sit when necessary. He was “happy in his current role” and would like to continue working if his employer was able to accommodate his restrictions. He would also like to be able to drive a forklift if there was a position available.
Dr Assem said that Mr Morrison was continuing to have difficulty adjusting to his disability. He was teary at times during the consultation and reported episodes of self-mutilation. Dr Assem said he would require ongoing psychological support and counselling.
Dr Manjipudi
Dr Anup Manjipudi saw Mr Morrison for a functional capacity assessment on 11 May 2020 in relation to activities of daily living and domestic care assistance.
Dr Manjipudi reported that Mr Morrison was experiencing pain and discomfort in his left hip radiating to his left knee, ankle and foot. Mr Morrison reported the pain would also radiate to his lower back especially during prolonged sitting, standing or walking. He was emotional during the interview. He reported feeling angry, stressed, distressed and anxious after his injury. He was feeling hopelessness, experienced self-harm and suicidal ideations, and he would recall the events of the accident and required multiple sessions of psychological counselling. He was struggling to return to normal daily activities.
Dr Nair
Dr Anil Nair, consultant orthopaedic surgeon, saw Mr Morrison for a fitness for duty assessment on 23 June 2020.
Dr Nair reported that Mr Morrison was working on a full-time basis with lifting restrictions. The left total hip replacement had improved his symptoms although he had “mild pain in the left groin region” provoked by lifting objects. He was not on any current treatment. Dr Nair concluded that Mr Morrison was able to return to full time hours without restriction.
Dr Bhavanishankar
Dr R Bhavanishankar, psychiatrist, reported on 15 October 2020 that Mr Morrison “had to wait in agonising pain for 2 years” before undergoing a total hip replacement. He had been assessed as fit for pre-injury duties despite his “severe disabling pain difficulty mobilising and struggle to focus and concentrate”. He felt “let down by the system” and developed depressed mood.
Dr Bhavanishankar concluded that Mr Morrison now had a chronic pain syndrome that affected his quality of life and impaired his personal and social functioning. He was struggling to manage his transition in life as he felt disabled. He had developed a major depressive disorder with generalised anxiety secondary to his workplace injury.
Dr Khan: report dated 1 June 2020
Dr Abdal Khan, psychiatrist, saw Mr Morrison for assessment on 1 June 2020. Dr Khan had Mr Morrison’s statement of evidence dated 29 May 2020, reports from treating specialists, and clinical records of the general practitioners.
Dr Khan took a history of Mr Morrison’s injury on 23 May 2012. He recorded that Mr Morrison suffered from chronic pain and, as a result of the work related incident, experienced gradual deterioration in his mental state characterised by a range of symptoms.
Dr Khan said Mr Morrison described how his mental health difficulties were initially perpetuated by the impact of his physical injuries and subsequent chronic pain, but that most related to more than eight years of bullying in the return to work process. Mr Morrison described how he felt like an “invisible person” at work and that supervisors have no respect for people in his situation.
Dr Khan took a history of the comment Mr Morrison said was made in response to his request to drive a forklift. He felt bullied, unsupported, ignored, dismissed and belittled, and the comment led to his first instance of self-harm when he cut his forearm superficially with a box cutting knife. In 2018, Mr Morrison said he received a phone call from the return to work coordinator which made him feel bullied, unsupported, ignored and dismissed again. He felt “so angry” and threatened self-harm. Emergency services were called to his home and he was taken to hospital.
In late 2019, Mr Morrison again became agitated at work and cut his forearm with a knife. He was taken to Nepean Hospital, assessed and discharged. He required approximately two months off work following this incident. He returned to work “in full capacity” in April 2020 but was allocated duties that aggravated his work-related physical injuries and he felt he was once again being bullied in the return to work process.
Dr Khan noted Mr Morrison’s history of psychological treatment and that he was currently seeing his psychologist every four to eight weeks. He noted that Mr Morrison had been prescribed antidepressant medication and had required three psychiatric admissions to Nepean Hospital. On mental state examination, “intermittent tearfulness” was observed and Mr Morrison’s “thought content comprised depressive and anxious cognitions”.
Dr Khan diagnosed Mr Morrison as suffering “major depressive disorder with anxious distress” in accordance with diagnostic criteria in DSM-V. His prognosis remained guarded and he “continued to experience pervasive symptoms of depression and anxiety” in important areas of functioning.
As to causation, Dr Khan said Mr Morrison had suffered a secondary psychiatric/psychological injury caused by the subject accident. He had also suffered “a primary psychiatric/psychological injury that has been caused by psychological trauma from his employer in his return to work” and which had caused his mental health to deteriorate further.
Dr Khan: report dated 27 October 2020
Dr Khan saw Mr Morrison again for assessment on 27 October 2020. He took a history that, on 19 August 2020, Mr Morrison was “in a state of despair” and he experienced “further deterioration in his mental state characterised by a depressed mood, anxiety, agitation, feelings of hopelessness and worthlessness, and suicidal ideation.”[5] Mr Morrison described to him how Mr Anderson had noticed he seemed unwell, contacted the police, and how he was taken to Nepean Hospital. Dr Khan noted that Dr Youssef had downgraded his work capacity to no capacity.
[5] ARD page 131.
Dr Khan diagnosed Mr Morrison as suffering major depressive disorder with anxious distress. He said Mr Morrison’s presentation was:
“ … consistent with a secondary psychiatric/psychological injury consequential to his work related physical injuries. He work-related physical injuries have resulted in ongoing deterioration in his mental state, which in turn has perpetuated significant impairment in his social, occupational and other important areas of functioning.”[6]
[6] ARD page 134.
Dr Khan concluded that Mr Morrison’s employment was the main contributing factor to his “subject injury and psychiatric/psychological condition, subsequent total incapacity for work and ongoing need for mental health treatment.”
In response to matters set out in the dispute notice, Dr Khan said:
“The change in work capacity by Dr Youssef further described the acute deterioration in Mr Morrison’s mental state, which resulted in emergency services being called to his house by his employer and also resulted in a psychiatric hospital admission. Dr Youssef’s explanation is clinically plausible in that Mr Morrison was so psychologically distressed that day that he dissociated (as evidenced by the fact he ‘could never recall what happened in the last 2 days’ and ended up requiring a psychiatric hospital admission.”
Asked to comment on various matters in the dispute notice, Dr Khan offered a number of observations including that “the employer is not qualified to provide an opinion about Mr Morrison’s mental health and the reasons for the acute deterioration in his mental state”. He said:
“Furthermore, if there was a meeting on 18 August 2020 where Mr Morrison raised concerns about duties he was required to perform in his employment, this only serves to further emphasise Mr Morrison’s longitudinal interpersonal conflicts at work since the original date of injury in 2012 and how he had not been heard in relation to the impact of his allocated work duties, which continued to aggravate his work-related physical injuries and consequential psychiatric/psychological injury. Mr Morrison’s limited capacity to tolerate distress meant that any degree of workplace distress, including the ongoing aggravation of his work-related physical injuries, would have resulted in an acute deterioration in his mental state.”
Dr Khan said:
“I do not agree with the opinion provided in the [dispute notice]. This opinion from the insurer has been based on a misinterpretation of the assessments of Dr Youssef and subjective information from an employer that is not qualified to comment on the nature and condition of Mr Morrison’s work-related psychiatric/psychological injury that has developed as a significant secondary injury to his primary work-related physical injuries.”
Dr Khan concluded that Mr Morrison had suffered “a total incapacity for work as a consequence of the subject primary physical injury and secondary psychiatric/psychological injury”.[7]
[7] ARD page 136.
Dr Hong: report dated 12 July 2018
Dr Michael Hong, psychiatrist, saw Mr Morrison for assessment on 12 July 2018 at the request of the respondent. At the time of his report, Mr Morrison was waiting on a left total hip replacement.
Dr Hong took a history of Mr Morrison’s physical injuries and chronic pain consistent with other reports, and of the onset of depression and anxiety from around 2014 in the context of his ongoing pain. He recorded that Mr Morrison described intermittent depression and anxiety in the four weeks leading up to his report. He noted that Mr Morrison reported having had suicidal thoughts when in severe pain and when he was frustrated.
According to Dr Hong, Mr Morrison said he generally felt supported at work and said he was respected and had a good relationship with his supervisor and colleagues. In the long term, he preferred not to be on restricted duties and hoped he could perform all duties. He did not think there was much more assistance his employer could provide at that point. Dr Hong noted that Mr Morrison did not want further psychological treatment and had only started antidepressants medication around eight months earlier.
Dr Hong undertook a detailed file review. He concluded that Mr Morrison had an onset of depression and anxiety from 2014 in the context of not recovering from his injury and having persistent pain affecting his daily functioning. His psychological symptoms largely correlated with his pain level.
Dr Hong diagnosed Mr Morrison as having developed a chronic adjustment disorder in the context of a hip injury and chronic pain. The psychological injury was predominantly caused by his hip injury, the subsequent delay in diagnosis of labrum tear and lack of improvement over time, with severe pain affecting his daily functioning. He said that, if Mr Morrison’s hip injury was considered employment related, then the secondary psychological condition would also be attributed to his employment. From a psychological perspective, he thought Mr Morrison could perform full-time work within his physical capacity. The predominant barrier to return to full pre-injury duties related to his physical condition and not his psychological condition.
Dr Hong: report dated 25 January 2021
Mr Hong reviewed Mr Morrison on 18 January 2021. He was provided with Dr Khan’s reports, Dr Youssef’s report and certificates of capacity, and hospital admission notes from 19 August 2020. He also had Mr Morrison’s statements, and notes and statements concerning the workplace meeting on 18 August 2020.
Dr Hong recorded that Mr Morrison said he stopped work on 7 August 2020 because, psychologically, he decompensated and he had self-harmed a number of times; he gets angry because he is “not a man” and he cannot do anything. Dr Hong noted that Mr Morrison “may have had an admission in August 2020 and he did not recall this”. (It appears that Mr Morrison may have given Dr Hong the incorrect date in August 2020).
Dr Hong reported that Mr Morrison estimated he had cut himself with a knife maybe five times in all; his thoughts of self-harm were triggered when people did not help him or he felt that everything he did was wrong. Mr Morrison said there were no particular stressors at work, people treated him well and he had not encountered personal difficulties.
Dr Hong reported that he discussed with Mr Morrison a file note about a workplace meeting in August 2020 regarding changing his work but Mr Morrison had no recollection of it at all. He told Dr Hong there had been “no new stressors”.
Dr Hong reported that Mr Morrison continued to suffer from depression and anxiety symptoms, “and depression dominates his thinking every day”. He had been seeing Mr Onuoah regularly for two years now and was having one or two sessions every month. After the Nepean Hospital admission his antidepressant medication had been increased.
Dr Hong noted Dr Khan’s report of 1 June 2020 and his diagnosis of major depressive disorder secondary to physical injury. He noted that, on 7 August 2020, Mr Morrison was certified fit to work 40 hours a week in suitable employment up to 18 September 2020, that on 21 August 2020, he was certified unfit, the explanation being major depression, and that Mr Morrison did not recall what had happened in the previous two days but had been unhappy at work on 19 August 2020.
Dr Hong noted documents concerning a meeting between Mr Morrison and the return to work coordinator on 18 August 2020, which discussed “the need to perform numerous duties as part of suitable employment” but that Mr Morrison “wanted more restricted set of duties”. He noted that, based on the record of interview there was no evidence of psychological distress.
Dr Hong reported that Mr Morrison continued to suffer from major depressive disorder and exhibited melancholic features. He had had persisting depression and anxiety symptoms since 2014 which had “not ever substantially resolved”. There were no other relevant contributing factors away from his work. There may have been workplace dispute and claims of bullying in the period leading up to him going off work but, on 25 January 2021, Mr Morrison did not recall any mistreatment at work; if there was perceived bullying it was unlikely now to be relevant. Dr Hong said Mr Morrison described “ongoing physical pain, restrictions, inability to perform various tasks at work and at home, that maintain his ongoing psychological symptoms.” He did not believe Mr Morrison had any work capacity.
Dr Hong concluded that, based on available information, Mr Morrison’s current diagnosis was still related to the workplace incident on 27 [sic] May 2012 and he continued to suffer from the same secondary psychological injury. The history suggested that Mr Morrison suffered an aggravation around August 2020 but he could not be certain without collateral information. The meeting notes of 18 August 2020 suggested that was “the most significant triggering event leading to Mr Morrison’s psychological deterioration”. Dr Hong suggested the hospital notes might offer more information.
Dr Hong: report dated 2 February 2021
In a supplementary report dated 2 February 2021, Dr Hong reported that he had seen the clinical records from Mr Morrison’s hospital presentation on 20 August 2020 (see below). He noted that the file showed that Mr Morrison was brought to hospital by police after voicing thoughts of self-harm to a colleague at work, and said that “compensation was not helping him with management of his injury in severe pain”. Dr Hong noted reference in the file to “an important meeting at work in relation to rehabilitation” that Mr Morrison was “looking forward to”.
Dr Hong said:
“in my opinion, the meeting on 18 August 2020 was the predominant cause of the deterioration of Mr Morrison’s pre-existing psychological injury. As he has not recovered substantially since that meeting, it remains the substantial cause for his deterioration and for him being certified unfit to work.”
As to why Mr Morrison would not have remembered the August 2020 meeting at his appointment in January 2021, Dr Hong said it could have been because he had drunk excessive alcohol which affected his memory. It could also be because of an evolving neurological problem but, without a neurosurgical opinion, it was difficult to be certain why he did not recall it.
Nepean Hospital admission notes
Nepean Hospital records show that Mr Morrison was brought in by ambulance at 7.38 pm on 19 August 2020 “after voicing thoughts of self-harm to a colleague at work with his worker’s compo for allegedly not helping him with management of hip injury and severe hip pain due to workplace based injury that he sustained in 2012”.
The records show that, while awaiting assessment, Mr Morrison “found a small pieced [sic] of glass on the floor and used it to cut himself on forearm”. He was “quite teary during assessment and unable to provide full account.” His wife, Lisa, provided collateral information over the phone. The notes show:
“It is reported that he sustained injury in 2012 while at work following which he has suffered from severe hip pain and has been dealing with Workers compensation which has been protracted
He feels he is not getting the help that he requires. Kept saying ‘no one sees me’
Had hip replacement surgery two years ago after a long WC procedure and wait and is disappointed because he did not benefit significantly and dealing with ongoing hip pain
Still works full time at woollies warehouse. 4 10 hour shifts per week.
Wants to be admitted as does not feel safe”The notes show that Mr Morrison started self-harming following the injury “as a cry for help”. His wife reported:
“ … an important meeting was held at work in relation to his rehabilitation at work and Glenn was lookign [sic] forward to it however since the meeitng [sic] Glenn has been low and isolated. The current issue at work as reported by his wife is that Glenn is given menial jobs doing which pt does not feel accomplished further adding to his low self esteem”
According to Mr Morrison’s wife, he usually drinks only on weekends but came home on 19 August 2020 earlier than usual and started drinking and went to bed. She was surprised when police officers showed up later for a welfare check after he had sent a text to his HR manager.
Under Past Psychiatric history, the notes refer to “[p]revious presentations to TAC in 2018 and 2017 in similar context”. They refer to a diagnosis “at the time”, presumably meaning on those previous presentations, of “adjustment disorder with depressive symptoms secondary to chronic pain”. They also noted “Has cut himself three times”.
The Hospital notes record Mr Morrison’s diagnosis as “Severe major depression without psychotic features” and “Behavioural problem (ED suspected)”. He was discharged the following afternoon.
SUBMISSIONS
The respondent’s submissions
Mr Grimes submits that, by his own evidence, Mr Morrison was working 10 hours a day, four days a week prior to 19 August 2020. While he still had some residual physical symptoms, he was able to cope with performing suitable duties for 40 hours a week. The file notes of the meeting on 18 August 2020 support that he was coping physically.
According to Mr Morrison’s statement, dated 27 October 2020, he had been trying for months to battle on and push through the physical pain but he was finding it more and more difficult to cope; by August 2020 he “just had to surrender”.[8] Mr Grimes submits that there is nothing in Mr Morrison’s statement about the meeting on 18 August. It is possible that he does not remember the meeting but, to accept his case, I would have to accept the physical pain had become overwhelming. In Mr Grimes’ submissions, the contemporary records do not support that conclusion.
[8] Statement at [6].
Mr Grimes submits that, prior to the meeting in August 2020, Mr Morrison had been diagnosed with an Adjustment Disorder with mixed symptoms. Dr Hong noted on 12 July 2018 that he “generally feels supported at work”. Dr Youssef noted on 13 December 2019 that he was “very happy at work” and “everyone treated him very well.” On 16 March 2020, Dr Youssef noted that he was “happy to do his pre-injury duties”. On 18 May 2020, Dr Assem said he continued to have “intermittent discomfort” in his left hip. On 25 June 2020, Dr Youssef noted that he was “very happy with his rehabilitation manager”.
Mr Grimes says the respondent has always conceded that Mr Morrison has ongoing symptoms but submits that they do not accord with his statements. While Dr Nair’s report might be disregarded insofar as he found Mr Morrison fully fit for pre-injury duties, what Dr Nair recorded of his symptoms was not consistent with Mr Morrison’s statement in October 2020 that the pain increased to the point that he just had to “surrender to it”.
Mr Grimes submits that Mr Morrison suffered a new injury in August 2020. Ms Turner’s file note of the meeting on 18 August 2020 shows there was nothing to suggest that Mr Morrison had not been coping with the pain. Rather, he wanted as much of his pre-injury duties as possible because they went to his value as an employee.
In Mr Grimes’ submission, Mr Andrews’ statement supports the respondent’s position that the meeting on 18 August 2020 is the only explanation for the deterioration in Mr Morrison’s condition. Ms Butler’s statement records that he showed no signs of distress at the meeting. Mr Grimes submits that at no point did Mr Morrison say that he was struggling physically with his duties. Rather, he became upset because he could not dictate what his duties would be.
With respect to diagnosis, Mr Grimes submits that the hospital notes show that Mr Morrison was diagnosed with major depression, a far more serious condition than the adjustment disorder previously diagnosed. The notes show that he was working 40 hours a week at the time, and his wife, Lisa, reported that he was looking forward to the meeting on 18 August 2020.
Mr Grimes submits that, if I accept the history as recorded in the hospital notes, I would conclude that the meeting was the cause of a new injury, now diagnosed a severe major depression. In Mr Grimes’ submission, the meeting on 18 August 2020 was clearly the catalyst for the new diagnosis.
Mr Grimes submits that the certificate of capacity issued by Dr Youssef on 21 August 2020 refers to a new diagnosis, being major depression. Further, that Mr Morrison could not recall what had happened in the previous two days. Dr Hong also noted that Mr Morrison had no recollection of the meeting. Given that Mr Morrison had no recollection of the meeting, Mr Grimes submits that it is difficult for him to dispute the record of what happened at the meeting.
Mr Grimes submits that the meeting was clearly a significant event. It led to Mr Morrison’s hospitalisation and the new diagnosis, and is clearly the cause of his current incapacity.
Mr Grimes submits that Dr Hong had access to the notes of the meeting and the hospital notes for the purposes of his second report and, on that basis, fairly changed his opinion. Mr Grimes submits that I would prefer Dr Hong’s opinion that Mr Morrison’s injury was wholly or predominantly caused by the meeting. Further that, while there is nothing in the 1987 Act or case law on the meaning of “provision of employment benefits” in s 11A, I would accept that the meeting was concerned with the provision of employment benefits.
The applicant’s submissions
Mr Perry submits that there is no dispute as to Mr Morrison’s original injury and its ongoing consequences. It is not in dispute that he suffered a secondary psychological condition for which he started treatment in 2014. He had been diagnosed with depression, anxiety, and an adjustment disorder, and in June 2020, Dr Khan had assessed him as having major depressive disorder with anxious distress. Mr Perry submits there was no substantial change in diagnosis after August 2020.
In Mr Perry’s submission, the evidence shows a number of occasions when Mr Morrison self-harmed. There is no suggestion from Dr Hong that these incidents were anything other than the effect of the pain from Mr Morrison’s physical injury. Dr Khan also was clear that the psychological condition was secondary to the physical injury.
Mr Perry submits that Mr Morrison is totally incapacitated as an ongoing legacy of his physical and secondary psychological injuries. With respect to the submission that I would reject Mr Morrison’s supplementary statement of evidence, Mr Perry’s submits that I would accept his statement at [5] and [6] where he says it was up to him whether to drive the GPC machine standing or sitting, and he “persevered with this job” and did his very best to keep it. I would accept Mr Morrison’s statement that, for months, he was trying to “battle on” with the increasing pain but it was becoming more and more difficult.
Mr Perry submits that I would find that Mr Morrison was extremely depressed on 19 August 2020. The evidence shows that, in the period leading up to that time, he was struggling with the emotional effects of his injury. In May 2020, Dr Manjipudi recorded that he was emotional during the interview, he required multiple sessions of psychological counselling, and he was struggling to return to normal daily activities. Mr Perry submits there is no reason I would not accept Dr Manjipudi’s report.
Mr Perry submits that, while Dr Youssef recorded notes such as that Mr Morrison was very happy with his rehabilitation manager, he also noted on the same date that he had started to cry in a meeting and was unable to talk and had been told to take two weeks stress leave.
Contrary to what the respondent says, Mr Perry submits, the evidence shows that Mr Morrison was having difficulty coping. A clear picture emerges of a man with significant physical difficulties; he had friendly people at work but he was battling every day; his duties were not especially heavy but he could not cope with the pain and the emotional effects. Dr Khan noted his “depressive and anxious cognitions” and diagnosed major depressive disorder with anxious distress.
Dr Hong in his report of 25 January 2021, stated that Mr Morrison continues to suffer from the same secondary psychological injury. Mr Perry submits he is now totally incapacitated by the effects of that injury.
Mr Perry submits that Mr Morrison’s employer had been unable to give him the duties he wanted, he was unable to return to full pre-injury duties and suffered depression as a result. Mr Perry submits that there is a very strong causal chain between the original injury and his condition following the meeting on 18 August 2020. Despite Mr Morrison’s strong work ethic, he simply could not do the job. The fact that Ms Butler and Ms Turner brought this to his attention was upsetting but he did not suffer a fresh injury at all. His psychological condition deteriorated but the cause continued to be his physical injury.
Mr Perry relies on Murphy v Allity[9] and KooragangCement Pty Ltd v Bates[10] and submits that the question is whether the 2012 injury has made a material contribution to Mr Morrison’s incapacity for work after August 2020. If so, then he is entitled to compensation. Mr Perry submits that in fact, it has more than a material contribution and is the entire cause.
[9] Murphy v Allity [2015] NSWCCPD 49 (Murphy), esp at [57]-[58].
[10] KooragangCement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
With respect to the s 11A defence, Mr Perry submits that the respondent fails at the first hurdle. If the meeting on 18 August 2020 was a factor, it was a minor factor given the extent of the injury prior to that date; it was not wholly or predominantly the cause.
Mr Perry further submits that any action was not in respect of “provision of employment benefits”. He agrees with Mr Grimes that there is no known relevant case law but submits that the meeting was called because Mr Morrison had told his employer he was completing meaningless tasks and felt useless. The meeting was not to provide employment benefits. Mr Perry submits that management of an injured worker by providing suitable duties is not “an employment benefit”. In any event, Mr Perry submits, there being no new injury, the s 11A issue does not arise.
Mr Perry submits that the high point of the respondent’s case is Mr Morrison’s comment to his doctor that he was being treated like a king. His comment illustrates that he is not a whinger, he agrees his employer has been good to him, but he was still battling against the difficulties due to his physical pain and the psychological injury leading to the incidents of self-harm.
CONSIDERATION
There is no dispute that Mr Morrison sustained a workplace injury on 23 May 2012 or that it resulted in chronic pain and consequential physical and psychological conditions. He underwent a range of treatments over several years including surgery on his left knee in 2017 and the left total hip replacement in September 2018. He had been seeing a psychologist for approximately two years at the time of the meeting in August 2020.
Mr Morrison claims that the pain in his left knee and hip continued even after the surgery and that his physical pain and psychological condition worsened to the point that he could no longer carry on. As I understand his submission, it is that the meeting was just another in a chain of causation all stemming from the original injury.
Mr Morrison bears the onus of proof. The standard is on the balance of probabilities, which means I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[11]; Nguyen v Cosmopolitan Homes[12].
[11] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[12] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The respondent submits that Mr Morrison had been back at work for some time, effectively on full duties, before the meeting on 18 August 2020. The respondent submits there is no indication that he was not managing his duties prior to the meeting and that the notes of the meeting support this.
The evidence shows that, after the injury on 23 May 2012, Mr Morrison returned to work on selected duties. Apart from some relatively short periods such as in 2015 when he underwent surgery for a brain tumour, in 2017 when he underwent a left knee arthroscopy, and in 2018 when he had the left total knee replacement, he continued on modified duties up until August 2020. His evidence that, in 2020 he was trying to “battle on” and he “persevered” with his duties is consistent with the picture painted by the evidence of a worker who, for the most part, continued to work 40 hours a week even with chronic pain that eventually required surgery.
I accept Mr Morrison’s evidence that he suffered chronic pain, mainly in his left hip and left knee, as a result of the original injury. It appears that he had good results from the total hip replacement in September 2018 but not that he was pain-free.
Dr Assem reported in May 2019 that Mr Morrison was able to return to work on suitable duties after his original injury, gradually upgrading to pre-injury duties several months later, but he had persistent discomfort in his left hip. By 2017, he was struggling with hip pain causing him to limp, and eventually underwent the total hip replacement. Mr Morrison believed he had “an excellent result after the operation” but he “continued to have persistent pain and stiffness causing him to ambulates with a limp”.
In May 2020, Dr Assem noted that Mr Morrison continued to have intermittent discomfort in his left hip, and intermittent pain across his lower back that was worse when bending or stooping. Mr Morrison was continuing to have difficulty adjusting to his disability. He was teary at times during the consultation and reported episodes of self-mutilation. Dr Assem said he would require ongoing psychological support and counselling.
The evidence shows that, for much of the time following his original injury, Mr Morrison worked his full hours, on suitable or modified duties. At the same time, the evidence shows he was suffering chronic pain and he had three psychiatric admissions to Nepean Hospital prior to June 2020. The fact that he continued working is not evidence that he had recovered from either his physical or psychological conditions.
Dr Manjipudi reported in May 2020 that Mr Morrison was experiencing pain and discomfort in his left hip radiating to his left knee, ankle and foot. Mr Morrison reported the pain would also radiate to his lower back especially during prolonged sitting, standing or walking. He was emotional during the interview. He reported feeling angry, stressed, distressed and anxious after his injury. He was feeling hopelessness, experienced self-harm and suicidal ideations, and he would recall the events of the accident and required multiple sessions of psychological counselling. He was struggling to return to normal daily activities.
There are certainly references in Dr Youssef’s notes to Mr Morrison feeling happy with his employer. On 13 December 2019, Dr Youssef recorded he was “very happy at work” and “everyone treats him very well as a king”. On 16 March 2020, he was “happy” to be back to his pre-injury duties. However, the evidence shows that he continued to experience psychological symptoms as a result of his physical injury. I do not think those few references displace the weight of the evidence that Mr Morrison continued to struggle with his physical injuries and the psychological consequences.
For example, on 1 June 2020, Dr Khan described Mr Morrison’s psychiatric/psychological symptoms as symptoms as “pervasive”. On 25 June 2020 when Dr Youssef recorded that he was “very happy” with his rehabilitation manager, he also noted there had been a work meeting and Mr Morrison had been “stopped from going to work for stress leave for 2 weeks as he started to cry and was unable to talk.”
Mr Grimes submits that the meeting on 18 August 2020 was a significant event which led to the further injury and that, as he has no recollection of it, Mr Morrison is not in a position to dispute the notes of the meeting. That may be, but I am not persuaded that the notes really assist the respondent.
According to Ms Turner’s notes of the meeting on 18 August 2018, Mr Morrison said he “continues to feel like he is completing ‘meaningless tasks’” and that he had “no place at the site”; he was “feeling drained” and felt he did not belong. These parts of her note appear to be consistent with Mr Morrison’s evidence that he felt he had struggled with a “repetitive and physically arduous task”.
Ms Turner’s notes conclude that there was to be a further review and further support and that Mr Morrison was “happy” with this. I do not think it can be concluded from this that Mr Morrison was not struggling with his duties as he claims. I do not think it outweighs Mr Morrison’s evidence and the evidence in the medical reports and records about his ongoing psychological problems as a result of his physical injury.
Ms Butler states that, at no point did Mr Morrison say he was struggling with suitable duties for a physical standpoint and that it was after being told that he could not dictate his duties, he appeared to become “dejected/upset”. Again, I do not think it can be concluded from this note that Mr Morrison was coping with his duties without difficulty before the meeting. I accept that Ms Butler could make the same observation as any lay person about how Mr Morrison appeared to her, but I accept Dr Khan’s opinion that she is not qualified to comment on his psychological condition.
In my view, the hospital notes are of limited assistance in determining whether Mr Morrison suffered further injury. They show that his wife said he was “looking forward” to the “important” meeting on 18 August 2020 and felt “low and isolated” since it, and that the current issue at work was that he was given “menial jobs” which added to his “low self esteem”. If anything, they might be read to support Mr Morrison’s claim.
The Courts have cautioned about the use of clinical records which are “often written in the course of a busy practice” (Nominal Defendant v Clancy[13]; Davis v Council of the City of Wagga Wagga[14]; Mason v Demasi[15]). In the circumstances, I place no weight on the hospital records in determining whether Mr Morrison’s incapacity after 18 September 2020 was the result of further injury.
[13] Nominal Defendant v Clancy [2007] NSWCA 349.
[14] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[15] Mason v Demasi [2009] NSWCCA 227.
The respondent submits that Mr Morrison was diagnosed with a new condition following the meeting in August 2020, namely major depressive disorder. The respondent submits that the new diagnosis supports the contention that Mr Morrison suffered a new condition from that time.
I do not agree that the medical reports and records show a substantive change in diagnosis that supports a finding that Mr Morrison suffered a further injury in August 2020.
The Nepean Hospital records refer to diagnoses on previous presentations in 2017 and 2018 of “adjustment disorder with depressive symptoms secondary to chronic pain”. On 19 August 2020, they show Mr Morrison’s diagnosis as “severe major depression without psychotic features”. However, this was not the first time that Mr Morrison had been diagnosed as suffering from major depression or major depressive disorder.
The evidence shows that Dr Khan diagnosed Mr Morrison in June 2020 with “major depressive disorder with anxious distress” in accordance with DSM-5 diagnostic criteria. With respect to prognosis, Dr Khan noted that Mr Morrison “continued to experience pervasive symptoms of depression and anxiety” affecting important areas of functioning.
In his report dated 30 October 2020, Dr Khan again diagnosed Mr Morrison with major depressive disorder with anxious distress, in accordance with DSM-V diagnostic criteria.
The certificates of capacity issued by Dr Youssef before and after 18 August 2020 show the same diagnosis of “Left hip and knee injury Anxiety/depression secondary to his physical illness”. Dr Youssef noted on 16 July 2020 and 7 August 2020 that that Mr Morrison had been seen by “the independent psychiatrist”, presumably Dr Khan, “who believe [sic] he has depression secondary to his work injury. Will continue psychologist as he is very depressed currently.”
In fact, Dr Khan had diagnosed major depressive disorder with anxious distress. There is nothing to suggest that Dr Youssef disagreed with Dr Khan’s formal diagnosis. Further, Dr Youssef’s note on 16 July 2020 and 7 August 2020 that Mr Morrison was “very depressed currently” indicates that his condition was gradually worsening as a result of his physical injuries before the meeting on 18 August 2020.
Dr Hong diagnosed a chronic adjustment disorder in the context of a hip injury and chronic pain in July 2018. He next saw Mr Morrison on 12 January 2021 when, consistent with Dr Khan, he diagnosed major depressive disorder. Given that Dr Hong had not seen Mr Morrison in the two years before the meeting in August 2020, the change in diagnosis does not of itself indicate a further injury.
Dr Hong also said in his report of 12 January 2021 that Mr Morrison’s current diagnosis was still related to the workplace incident in May 2012 and that he continued to suffer from the same secondary psychological injury. That statement supports Mr Morrison’s claim. Dr Hong said the history suggested that Mr Morrison suffered an aggravation around August 2020 but he could not be certain without collateral information; the meeting notes suggested it was “the most significant triggering event” leading to Mr Morrison’s psychological deterioration but the hospital notes might offer more information.
Having read the hospital notes, Dr Hong believed that the 18 August 2020 meeting was the predominant cause of the deterioration of Mr Morrison’s pre-existing psychological injury. As set out above, I do not agree that such weight should be given to the hospital notes.
Whether Mr Morrison’s current incapacity is the result of his original injury is a question of causation and the common-sense evaluation of the causal chain discussed in Kooragang. Mr Morrison has to establish, applying the common-sense test of causation, that his incapacity after 18 August 2020 was as a result of his original injury, that is that the injury materially contributed to his incapacity (Murphy v Allity).
Considering all of the evidence, I am satisfied on the balance of probabilities that the chain of causation was unbroken. I am not persuaded that Mr Morrison suffered a further injury as a result of that meeting. I am satisfied that he continued to suffer a secondary psychological injury as a result of his physical injury on 23 May 2012 and that his incapacity from 18 August 2020 was the result of his original injury. I
There will therefore be an award for Mr Morrison.
Jill Toohey
MEMBER
12 March 2021
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