Patsalis v Allstaff Australia Sydney Pty Ltd
[2024] NSWPIC 99
•1 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 99 |
| APPLICANT: | Andrew Patsalis |
| RESPONDENT: | Allstaff Australia Sydney Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 1 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding that he had suffered an aggravation, exacerbation or acceleration of his underlying disease of schizophrenia; application refused; Held – an award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was not injured in the employ of the respondent. The Commission orders: 1. An award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Andrew Patsalis (the applicant) is a single man. He was divorced in 2010. His wife has the care of his stepson and daughter. After his divorce he resided with his elderly mother until she died in 2019. He lives alone.
The applicant suffered a schizophrenic episode in 2005 and has had medical care for that condition.
In his working life he has performed a variety of work including as a clerk, teller, forklift driver and storeman.
In March 2012 the applicant commenced work through the respondent, as what he described as a voice picker, at Woolworths Distribution Centre at Yennora on the afternoon shift. He applied for and was appointed as a permanent employee after a period of four to six weeks. He worked at Yennora for approximately five months until mid July 2012.
The applicant alleges that he was subjected to harassment and bullying which included other employees calling him by insulting names, swearing at him, threatening him and driving at and very close to him in a near miss manner to intimidate him. He considered that these drivers were trying to dislodge his loads to intimidate and harass him. This latter conduct was dangerous, and he reported it to the agency and was told to watch his back. He was threatened by a person called Nick Allen. He reported that to the supervisor Alexandria.
The applicant alleges that, as a result of this conduct his health, which had otherwise been on an even keel, deteriorated. He became unwell and ceased work. He developed symptoms which involved hearing voices which were overriding the instructions he obtained through his headphones. Thereafter the applicant alleges he began to suffer a severe deterioration and sought medical attention.
In 2012 the applicant was placed on a Disability Support Pension.
On 17 February 2022 the applicant made a claim for compensation.
MATTERS IN DISPUTE
It is disputed that the applicant suffered an injury in the course of, or arising out of, his employment with the respondent as a result of bullying and harassment by fellow employees. The respondent also relies on the failure to provide notice of injury as required.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Hickey of counsel, instructed by Mr Heath of Boyd House and Partners, appeared for the applicant. Ms Goodman of counsel, instructed by Mr Webb of Hicksons Lawyers, 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
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application Reply) to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents, and
(c) Application to Admit Late Documents dated 15 February 2023 and attached documents.
The applicant’s submissions
Dr Dinnen, an independent medical examiner (IME), examined the applicant on behalf of the applicant’s solicitors. He provided a report dated 23 February 2023.[1] He diagnosed the applicant with paranoid schizophrenia identifying events in the respondent’s employ from March to July 2012 as the main contributing factor to the aggravation, exacerbation and acceleration of schizophrenia in the applicant which has been ongoing since July 2012.
[1] ARD page 7.
Dr Dinnen was asked:
“If not for any employment-caused aggravation, exacerbation and acceleration of the underlying schizophrenia in July 2012, is it likely that our client would have continued with work as a storeman and forklift driver with controlled schizophrenia, noting his medical history prior to July 2012?”
He responded:
“In my experience, many patients with chronic schizophrenia are able to hold down jobs of this nature, or in factory work, where the work environment is supportive and comfortable for them. The patient' s account is that he did continue to work from the first episode in 2005 until 2012. If the workplace at Woolworths in Yennora had been favourable, I would expect him to have continued to work there.”
The respondent’s submissions
The icare notice dated 14 June 2022 [2] succinctly sets out the respondent’s issues regarding the applicant’s claim;
[2] ARD page 15.
“We do not agree that your injury is covered by workers compensation as required by section 4 of the Workers Compensation Act 1987.
We do not agree that you have received a psychological Injury as required by section 11A(3) of the Workers Compensation Act 1987.
We do not agree that your injury is connected to NSW and is covered by workers compensation as required by section 9AA of the Workers Compensation Act 1987.
We do not agree that your injury arose out of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that your injury was received in the course of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the contraction of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that you are entitled to compensation because you failed to give notice of your claimed injury and make a claim for compensation within the time prescribed as required by sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998.
We also do not agree that you are entitled to weekly payments for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987.
We also do not agree that you are entitled to medical or related treatment for your claimed Injury because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.”Dr Judith Clarke (IME) examined the applicant for icare. She agreed that the applicant had no current work capacity. She was asked if the applicant would have likely experienced similar symptoms at or about the same stage of his life irrespective of the nature and conditions of his employment. She replied:[3]
“The chronicity and treatment resistance of Mr Patsalis’ reported symptoms over the past decade indicates that it is likely that this aggravation would have occurred regardless of workplace stressors.”
[3] ARD page 51.
A further report was requested. Dr Clarke was provided with the following documents:
“Letter of Instruction, 3 July 2023
• My Independent Medical Examination Report, 10 May 2022.
• Independent Medical Examination Reports of Dr Anthony Dinnen, 23 February, 2023(2 reports.)
• Clinical notes – Bankstown Mental Health Services.• Clinical notes - Dr K Y Wong.”
In that further report dated 8 August 2023[4] Dr Clarke provided the following diagnosis and opinion extracted below:
“It was today and in my previous examination asserted that Mr Patsalis experienced an index episode of schizophrenia in 2005 with a full remission after brief treatment, including a return to full function, caring for his mother and working, until he was bullied whilst employed by the insured, resulting in a relapse that has continued despite extensive treatment.
This history is completely disputed by the contemporaneous clinical documentation provided for the purposes of this examination.
Firstly, the Bankstown Community Mental Health service file indicates that Mr Patsalis had a much more severe and enduring pre-existing condition than has been represented, and that after the index admission he did not in fact regain occupational or significant social function. The condition is indicated to have had a prodrome or untreated psychotic period of up to a few years prior to the admission characterised by social withdrawal, his marriage ending, the removal of access to his daughter and cessation of work. He is described as being cared for by his mother rather than acting as her carer, and the family raised concerns on a number of occasions due to concerns regarding aggression mood symptoms and psychosis. There is no reference to him working at any point until late 2011, after he had commenced the depot medication.
The file indicates that the deterioration that has been described as being caused by employment with the insured occurred the year prior, and it was only after the commencement of the antipsychotic depot medication that he gained insight into the condition, was agreeable to engaging with services, and began employment again, initially as a storeman and then with the insured.
Contemporaneous clinical notes of Dr Liber, Consultant Psychiatrist, of August 2012, is included, where Mr Patsalis is documented to have ceased work due to underperformance and “otherwise enjoyed his work there and got on with staff fine”, which does not support bullying or a perception thereof.
Finally, a file review on 15 October 2012 identified that instead of being provided with his monthly antipsychotic depot injection, Paliperidone 25mg monthly, Mr Patsalis was instead being injected with Sustanon 250 mg, testosterone, from June until October 2012. He was thus both untreated and given a treatment that may have exacerbated some of his symptoms.It remains my opinion that Mr Patsalis has a DSM-5 diagnosis of schizophrenia, multiple episodes, currently in partial remission. The evidence provided to me today suggests that any experiences with the insured are rather incidental to this condition and have not had a significant impact on it.”[4] ARD page 53.
She expressed her opinion that:
“The new information indicates that Mr Patsalis has not suffered a work injury, but in fact had a pre-existing chronic and enduring schizophrenia. It is also evident that he suffered a medical error - receiving regular injected anabolic steroids for several months in lieu of his depot antipsychotic medication.
There is a temporal relationship between this medication error and Mr Patsalis ceasing work, although it is not possible to attribute occupational function to this on the information available.”
CONSIDERATION
There is no dispute that the applicant is incapacitated for work. The issue is whether there is any causal connection between the applicant’s employment with the respondent and his incapacity.
I have considered the material relied upon and the submissions made by counsel for the applicant.
The applicant did not give a history of bullying or other mistreatment at work, either when he ceased work with the respondent or during his long history of treatment, until he made this claim. My consideration of the applicant’s treatment history and clinical notes, including the treatment error which left him without medication appropriate to his condition, persuades me that the applicant’s current condition and incapacity is unrelated to any events which might have occurred in the respondent’s employ.
I have concluded that the opinion and diagnosis provided by Dr Judith Clarke in her second report is correct. Whilst the applicant suffers from a chronic disease and is entirely incapacitated for work, I am not persuaded that his condition and resultant incapacity is in any way related to the applicant’s employment with the respondent.
It is the applicant’s burden to establish that the incapacity from which he suffers arose out of or in the ordinary course of his employment. I am not persuaded that the applicant has discharged that burden.
Given my findings it is not necessary for me to deal with the question of notice.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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