Price v Ausgrid

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Price v Ausgrid [2021] NSWPIC 350
APPLICANT:	Benjamin Price
RESPONDENT:	Ausgrid (formerly Energy Australia)
MEMBER:	Anthony Scarcella
DATE OF DECISION:	15 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Accepted injuries to the bilateral shoulders; whether the applicant suffered psychological condition as a consequence of the accepted bilateral shoulder injuries; disputed travel expenses between the Central Coast and metropolitan Sydney for treatment; section 60(2B) of the Workers Compensation Act 1987 (1987 Act); Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), Munce v Thomson Cool Rooms Pty Ltd, Stewart v New South Wales Police Service and NSW Police Force v Hahn considered and applied; Held - the applicant suffered a consequential psychological condition as a result of the accepted injuries to his bilateral shoulders in the course of his employment with the respondent; the travel expenses claimed by the applicant necessitated more travel than was reasonably necessary to obtain the treatment or service within the meaning of section 60(2B) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant suffered a consequential psychological condition as a result of the accepted injuries to his bilateral shoulders in the course of his employment with the respondent on 1 September 2014. 2. The travel expenses claimed by the applicant necessitated more travel than was reasonably necessary to obtain the treatment or service within the meaning of section 60(2B) of the Workers Compensation Act 1987.
ORDERS MADE:	3. By and with the consent of the parties, the claim for weekly benefits compensation is discontinued. 4. By and with the consent of the parties, the claim for courier costs for the delivery of pharmaceuticals is discontinued. 5. Award for the respondent in respect of the claimed travel expenses under section 60 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 1 September 2014 under section 60 of the Workers Compensation Act 1987.
NOTATIONS:	A. The respondent agrees to pay the applicant, on a voluntary basis, weekly compensation at the rate of $880 per week from 5 October 2019 and ongoing. B. The payments referred to above represent the applicant’s full entitlement to statutory weekly payments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Benjamin Price, is a 44-year-old man who was employed by the respondent, Ausgrid, formerly Energy Australia (Ausgrid), as a linesman.
On 1 September 2014, Mr Price suffered injuries to both shoulders in the course of his employment with Ausgrid.
On 10 September 2014, Mr Price lodged a Claim for Workers Compensation[1] with Ausgrid under the Workers Compensation Act 1987 (the 1987 Act).
[1] Application to Resolve a Dispute at pages 6-7
On 10 August 2016, Ausgrid issued a Dispute Notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury in the form of a bilateral thoracic outlet condition.[2]
[2] Application to Resolve a Dispute at pages 8-13
On 22 March 2019, Ausgrid issued a Dispute Notice under section 78 of the 1998 Act denying secondary injuries to Mr Price’s neck and back and denying that he sustained a secondary psychological injury.[3]
[3] Application to Resolve a Dispute at pages 14-20
On 5 July 2019, Ausgrid issued a Work Capacity Decision (WCD) under section 43 of the 1987 Act.[4] The WCD determined that Mr Price was not a worker with high needs as defined in section 32A of the 1987 Act; that Mr Price currently had full capacity for employment; and that Mr Price’s weekly compensation payments would cease from 5 October 2019.
[4] Application to Resolve a Dispute at pages 21-38
On 23 July 2019, Mr Price lodged a claim for permanent impairment compensation with Ausgrid under section 66 of the 1987 Act based on the report of Dr James Bodel dated 13 May 2019.[5]
[5] Application to Resolve a Dispute at pages 49-50
On 29 October 2019, Ausgrid issued a Dispute Notice pursuant to section 78 of the 1998 Act denying Mr Price’s entitlement to permanent impairment compensation under section 66 of the 1987 Act.[6] Ausgrid also maintained its denial of liability for the claimed secondary psychological, neck and back injuries.
[6] Application to Resolve a Dispute at pages 39-48
On 17 June 2020, Mr Price lodged an amended claim for permanent impairment compensation with Ausgrid under section 66 of the 1987 Act based on the reports of Dr Bodel dated 13 May 2019 and Dr Sikander Khan dated 7 April 2020.[7]
[7] Application to Resolve a Dispute at pages 55-56
On 22 September 2020, Ausgrid issued a Dispute Notice pursuant to section 78 of the 1998 Act denying Mr Price’s entitlement to permanent impairment compensation under section 66 of the 1987 Act.[8] Ausgrid also maintained its denial of liability for the claimed secondary psychological, neck and back injuries.
[8] Reply at pages 1-14
Mr Price lodged an Application to Resolve a Dispute (ARD) dated 23 December 2020 in the Workers Compensation Commission claiming weekly compensation from 5 October 2019 and continuing under section 38 of the 1987 Act; medical and related expenses under section 60 of the 1987 Act; and lump sum compensation under section 66 of the 1987 Act as a result of the injuries sustained in the course of his employment with Ausgrid on 1 September 2014. The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the Workers Compensation Commission was abolished by the Personal Injury Commission Act 2020. I am a General Member of the Workers Compensation Division of the Commission and the Personal Injury Commission Regulation 2020 designates this application as pending proceedings and empowers me to determine the claim.
On 31 March 2021, Mr Price discontinued the claim in respect of the neck/cervical spine and the matter was remitted to the President for referral to a Medical Assessor to assess whole person impairment in respect of the right upper extremity (right shoulder); the left upper extremity (left shoulder); the digestive system (lower digestive tract); and the skin (scarring – TEMSKI).
On 10 June 2021, Medical Assessor Dr SK Cyril Wong issued a Medical Assessment Certificate (MAC), wherein he assessed Mr Price’s whole person impairment at 23%.
On 14 July 2021, the Commission issued a Certificate of Determination – Consent Orders in the following terms:
“1. The respondent pay to the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $38,500 in respect of 23% permanent impairment assessed as a percentage of whole person impairment attributable to the injury of 1 September 2014 as assessed by Medical Assessor Dr SK Cyril Wong in the Medical Assessment Certificate dated 10 June 2021.”

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:

(a) whether Mr Price suffered a consequential psychological condition as a result of the injuries on 1 September 2014, and
(b) whether Mr Price’s medical and related treatment expenses are reasonably necessary as a result of injury within the meaning of sections 59 and 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the Dispute Notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by telephone on 11 August 2021. Mr Craig Tanner of counsel appeared for Mr Price instructed by Mr Fady Dous, solicitor and Mr David Saul of counsel appeared for the respondent instructed by Ms Laura Beattie, solicitor.
During the lengthy conciliation phase the parties narrowed the issues for my determination by agreeing on the Consent Orders and notations contained in the Certificate of Determination attached to this Statement of Reasons and thereby limiting the issues for my determination to those referred to above.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD dated 23 December 2020 and attached documents (with the exception of the report by Dr Paul Hitchen dated 11 December 2018 at pages 161-165, which is to be excluded);
(b)    Reply dated 21 January 2021 and attached documents;
(c)    Ausgrid’s Application to Admit Late Documents (AALD) dated 19 March 2021 and attached documents (with the exception of the report by Dr Paul Hitchen dated 11 December 2018 at pages 28-32, which is to be excluded);
(d)    MAC issued by Dr SK Cyril Wong dated 10 June 2021, and
(e) Ausgrid’s schedule of disputed expenses under section 60 of the 1987 Act dated 12 August 2021 admitted as an aide-memoire.

Oral Evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Benjamin Price’s evidence

In evidence, there is a statement by Mr Price dated 26 October 2020.[9] I will now refer to the relevant parts of that statement.
[9] ARD at pages 1-5
Mr Price stated that he resides with his partner and their seven-year-old daughter.
Mr Price stated that he commenced his employment with Ausgrid as a linesman in January 2002. His duties required him to work on low-voltage power lines. He worked mainly out of elevated platforms, known as bucket trucks. The work he was required to perform was heavy and frequently required working with his arms above his head.
Mr Price stated that, on 1 September 2014, whilst building up multistranded aluminium cables in order to make connection in a junction box on the top of a telegraph pole, he experienced a sudden pain in his right shoulder. He also recalled that prior to feeling the pain, he had lifted wooden cross arms to exchange them or install them on the top of a telegraph pole. The wooden cross arms could weigh up to 45 kg.
Mr Price stated that the pain in his right shoulder worsened and he consulted his general practitioner, Dr Poh Ng, who referred him for scans of the right shoulder, prescribed medication and referred him for physiotherapy. He had time off work and was eventually cleared to return to suitable duties.
Mr Price stated that he underwent cortisone injections into his right shoulder and was referred to Dr Matthew Sherlock, Orthopaedic Surgeon for treatment and management. On 15 July 2016, Mr Price underwent a right shoulder arthroscopy, biceps tenodesis and subscapularis repair by Dr Sherlock. Mr Price stated that the surgical procedure did not improve his symptoms.
Mr Price stated that, in mid-2017, he underwent a repeat right shoulder arthroscopy by Dr Sherlock. Following surgery, he noticed a decrease in symptoms but the pain persisted and activity caused inflammation and increased pain. He also noticed the development of pain in his left shoulder.
Mr Price stated that, in about 2017, he commenced consulting a general practitioner in Parramatta, Dr Eric Lim. Dr Lim referred him to an orthopaedic surgeon, Dr Mark Perko in respect of his left shoulder symptoms.
Mr Price stated that, on 15 May 2018, he underwent a left shoulder arthroscopy, subacromial decompression and surgical repair by Dr Perko. The surgery provided temporary relief.
Mr Price stated that, in or about September 2018, he returned to work with Ausgrid on suitable duties. However, he found the work difficult because it aggravated the symptoms in both shoulders. He was heavily dependent on medication to getting through each day.
Mr Price stated that Dr Michael Neale, Vascular Surgeon, diagnosed him as suffering from thoracic outlet syndrome. Dr Neale resected Mr Price’s first rib bilaterally. The surgical procedure did not relieve his bilateral shoulder symptoms.
Mr Price stated that he continued to experience pain in both shoulders, with the left shoulder being worse than the right. He experiences difficulties pushing, pulling, lifting or using his arms above his head. He has a driving limitation of one hour.
Mr Price stated that in about 2016/2017 he commenced experiencing difficulties with his stomach. He experienced bleeding. His general practitioner at the time arranged for him to undergo a colonoscopy and he was diagnosed as suffering from a polyp in his stomach. He now takes Metamucil regularly to contain his stomach issues. He noted that the ingestion of Celebrex affected his stomach from time to time.
Mr Price recalled that, following the first operation to his right shoulder, he returned to work on suitable duties and experienced a lot of difficulties with his injury case manager. The injury case manager would constantly hound him for not working fast enough. Mr Price’s manager complained that the upgrading of his hours was too slow.
Mr Price stated that prior to the subject work-related injury, his mental health was always good and he had never experienced any major issues. Since the injury in 2014, he had developed issues with his mental health and experienced anxiety and difficulty sleeping. He was diagnosed with depression. Dr Lim initially prescribed him Valdoxin for depression in 2017 and in 2018, prescribed him Lovan.
Mr Price stated that he felt that his depression and anxiety was due to his frustration about not being able to do the things he once used to do and due to his ongoing restrictions. He also had a lot of difficulties with the workers compensation insurer because they were constantly delaying or denying approvals for treatment. This caused him a lot of unnecessary stress. Mr Price felt that his mental health was also affected by the treatment he received from Ausgrid following his injury. Ausgrid were not accommodating of his requirement to work suitable duties and made things very difficult for him. His financial circumstances caused by the injury also played a significant part in his psychological distress.
Mr Price stated that Ausgrid doubted the extent of his injuries and despite undergoing surgery, they made him feel as if he was a burden on the company. Following his first surgical procedure, Mr Price undertook suitable duties in the redeployment room at Tuggerah from late 2016 to late 2018. Following his third surgical procedure, Ausgrid wanted him to go back to the Ourimbah site. He requested to be assigned to Wallsend but his request was refused. He did not like working at Ourimbah because of the way he was treated by the employees at that site. They would question him about his injury and his claim. He raised the issue with Ausgrid and it was never really addressed.
Mr Price stated that he was eventually sent to Wallsend but he was unable to cope with the prolonged drive because of his injuries. Despite taking rest breaks during the drive to and from work, he found that the long drive aggravated his condition.
Mr Price stated that he no longer felt he was the same person he used to be and that he was now a burden on everyone. In late 2018, he was referred to a psychologist, Ms Erin Carmody of Workers Doctors. He now consults another psychologist of Workers Doctors, Mr Carl Nielsen in respect of his psychological state. He has found that his consultations with the psychologist are vital to assist him with the management of his mood. He has also consulted a psychiatrist, Dr Nirejen St George. He found this treatment, supported by the prescribed medication, to be beneficial.
Mr Price stated that he experiences a lot of highs and lows and finds it difficult to enjoy the things he used to or the company of other people. He suffers from poor concentration and memory. He finds it hard to motivate himself. He feels tired a lot of the time. He becomes easily frustrated and angry and takes out his frustration on those closest to him. This was in contrast to his pre-injury situation when he was very fit, enjoyed working and being active with family and friends.
Mr Price stated that he was taking Gabapentin, Valdoxan, Lovan and Celebrex and that he also took Panadol Osteo when required. He regularly suffers from debilitating headaches that, at times, bring him to tears. He is affected by his symptoms every day. He relies heavily on Panadol, stretches, a massage ball, amongst other remedies and medications to assist him with his pain. He suffers from disturbed sleep because he is constantly uncomfortable and in pain.
Mr Price stated that he worked in suitable duties with Ausgrid until about October 2019 when his linesman position was made redundant because Ausgrid did not want to retrain him in a new position.
In respect of the Procare surveillance reports, to which I will refer later, Mr Price stated:
“I have had the opportunity to review the Procare surveillance footage which show [sic] me carrying my small daughter on my shoulders and performing some light gardening work. I have never stated that I could not do this. Simply put, if I undertake this, my condition is aggravated and I rely on pain relief medication. There is nothing in my restrictions which state I can’t do these things for short periods of time. When I undertake is, this cause [sic] increased pain and restricted movement. I tried to undertake this so my daughter felt a sense of normality in her upbringing.”[10]
[10] ARD at page 5 at [43]

The treating medical evidence

In evidence, were Mr Price’s clinical records produced by Dr Ng on 1 August 2017.[11] The first entry in the clinical records was dated 3 September 2014 and amongst other things, referred to positive impingement in the right shoulder, pain, tenderness and limited movement. The last entry in the clinical records was dated 4 July 2017 and related to Mr Price requesting a letter in relation to medication. The last consultation with Dr Ng appeared to be on 18 August 2016, where it was noted that Mr Price wanted to make a claim for his left shoulder on the basis that it had worsened over time whilst the right shoulder was painful and put more load on his left shoulder. There was no reference to any psychological symptoms or the prescription of any antidepressants in Dr Ng’s clinical records.
[11] ARD at pages 437-459
In evidence, were Mr Price’s clinical records produced by Dr Lim of Workers Doctors on 18 April 2019. The first entry in the clinical records was dated 25 August 2016 and referred to a bilateral shoulder injury from repetitive lifting in the workplace as a line worker on 1 September 2014. Dr Lim recorded, amongst other things, persistent bilateral shoulder pain, sleeping issues and chronic pain.
In the entry dated 1 November 2016 in the Workers Doctors clinical records, Dr Lim diagnosed an adjustment disorder and prescribed Mr Price Valdoxan at a dosage of half a tablet nightly. In the entry dated 22 December 2016, Dr Lim increased the dosage of Valdoxan to one tablet nightly. Thereafter, the clinical records recorded regular prescriptions of Valdoxan.
In the Workers Doctors clinical records entry dated 12 April 2018, Dr James Longmore recorded a diagnosis of moderate depression and increased Mr Price’s dosage of Valdoxan to one and a half tablets nightly. On 12 June 2018, Ms Carmody, Psychologist, recorded in the clinical records, Mr Price’s presenting problem to include sleep disturbances; stress; low mood; depressed mood; social withdrawal; appetite changes; chronic pain; poor concentration; and memory impairments. Ms Carmody recorded a provisional diagnosis of adjustment disorder. On 3 July 2018, Ms Carmody recorded Mr Price’s ongoing concerns around pain and functional capacity; anger issues due to stress; financial worries; conflict with wife due to being unable to do things around the house and to work; and not knowing what role he will be able to perform at work. She confirmed her diagnosis of adjustment disorder. On 14 August 2018, Ms Carmody recorded that Mr Price complained of regularly waking in pain, feeling depressed and suffering from low mood and low motivation. On 21 September 2018, Ms Carmody recorded that Mr Price was not sleeping without medication; experienced feelings of frustration; experienced conflict with his wife; experienced low mood due to being unable to move his left arm; and an inability to undertake outdoor activities without pain and restricted mobility. She discussed coping strategies with Mr Price.

In the Workers Doctors clinical records entry dated 29 October 2018, Mr Nielsen, Psychologist, recorded Mr Price’s symptoms as disturbed sleep, insomnia, despair, uncontrollable worry and catastrophic thinking. He diagnosed an adjustment disorder with depressed and anxious mood and somatoform symptoms disorder with predominant pain. Mr Nielsen noted that Mr Price was scared of not getting results in recovery. He recommended a trial of Lovan half a 20 mg capsule each morning and then progress to one capsule after a week. In the entries dated 29 October 2018, 12 November 2018, 6 December 2018, 21 December 2018, 17 January 2019, and 8 February 2019, Mr Nielsen recorded Mr Price’s presentation as having a blunted affect; a depressed mood; and delayed speech. Mr Nielsen also referred to the difficulties in managing his chronic pain. In the entries dated 15 February 2019, 1 March 2019, 15 March 2019, 28 March 2019 and 12 April 2019, in addition to the matters referred to above, Mr Nielsen observed that Mr Price’s appearance was fatigued.
There were numerous further consultations with Mr Nielsen and the occasional consultation with Ms Carmody between 12 April 2019 and 19 October 2020 recorded in the Workers Doctors clinical records with similar observations as in the entries referred to above.
On 6 June 2016, Dr Neale performed a thoracic outlet decompression to relieve Mr Price’s symptoms in respect of the complete obstruction of both subclavian arteries and vein with minimal provocative manoeuvres bilaterally.[12]
[12] ARD at page 122
On 15 July 2016, Mr Price underwent a right shoulder arthroscopy, biceps tenodesis and subscapularis repair by Dr Sherlock.[13]
[13] ARD at pages 125-126
On 28 July 2017, Mr Price underwent a right shoulder arthroscopy, acromioplasty and subacromial bursectomy by Dr Sherlock.[14]
[14] ARD at pages 214-215
On 15 May 2018, Mr Price underwent a left shoulder arthroscopy and capsule repair by Dr Perko.[15]
[15] ARD at pages 135-136
On 28 March 2019, Dr Gavin Soo, Orthopaedic Surgeon, reported to Dr Lim.[16] Dr Soo took a short history from Mr Price which was consistent with the evidence. Mr Price reported that his left shoulder pain had worsened following surgery and that the severe pain affected his normal day-to-day activities. Dr Soo reported that he had had a long discussion with Mr Price about non-operative and operative options and that Mr Price wanted time to give things further thought prior to making any decisions.
[16] ARD at pages 364-365
In evidence, there is a report by Mr Nielsen to Mr Price’s lawyers dated 21 June 2019.[17] I will now refer to the relevant parts of that report.
[17] ARD at pages 103-106
Mr Nielsen reported that Mr Price had consulted him for psychological treatment on 14 occasions between 29 October 2018 and 14 June 2019. The Workers Doctors clinical records evidenced numerous further consultations after the latter mentioned date. Mr Nielsen took a history from Mr Price that was, in the main, consistent with the evidence.
Mr Nielsen reported Mr Price’s current symptoms as insomnia; disturbed sleep; anxiety; avoidant behaviour; hypervigilance; decreased stress tolerance; depressed mood; helplessness; difficulties communicating; uncontrollable worry; loss of confidence; poor concentration; low self-esteem; social withdrawal and anhedonia.
Mr Nielsen diagnosed Mr Price as suffering with DSM-5 adjustment disorder with depressed and anxious mood. He opined that the prognosis was guarded given Mr Price’s current psychological condition.
In respect of causation, Mr Nielsen opined that the substantive causative factor culminating in Mr Price’s psychological condition, on the balance of probabilities, was due to his workplace and specifically, in relation to the incident which occurred on 1 September 2014. Later in his report, he clarified that Mr Price’s injuries were a consequence of his employment with Ausgrid.
In respect of treatment, Mr Nielsen opined that all treatment to date had been reasonably necessary.
On 5 July 2019, Dr Lim reported to Mr Price’s lawyers that Mr Price had chronic pain and incapacity causing an adjustment disorder and added that he had become depressed as a result of not being able to function due to his long-standing neck and shoulder dysfunction.[18]
[18] ARD at pages 107-109
On 10 July 2020, Dr Sebastian Calvache-Rubio, General Practitioner of Workers Doctors referred Mr Price, who he noted suffered from chronic pain with psychological distress, to Dr St George for treatment and management.[19]
[19] ARD at page 312
On 30 July 2020, Mr Price consulted Dr St George, who took a history that was, in the main, consistent with the evidence. Dr St George reported to Dr Calvache-Rubio that Mr Price reported current symptoms of low mood, amotivation, poor concentration, social isolation and sleep disturbance with insomnia. Dr St George noted that Mr Price experienced a significant loss of his identity and self-esteem as a result of his worsening pain and functional issues. Further, Mr Price described anticipatory anxiety about the future, catastrophic thinking and persistent negative ruminations. Dr St George diagnosed an adjustment disorder with mixed anxiety and depressed mood. He recommended management in the form of medications (Fluoxetine and Valdoxan), ongoing psychological therapy and further review in four weeks.[20]
[20] ARD at pages 310-311
On 15 October 2020, Dr St George reported to Mr Price’s lawyers.[21] I will now refer to the relevant parts of that report.
[21] ARD at pages 99-102
Dr St George took a detailed history from Mr Price which included the ongoing issues of chronic pain, limited mobility and functional impairment. In addition, there was a deterioration in his mental state for which he had required psychological therapy as well as antidepressant medications. Dr St George reported Mr Price’s symptoms as including low mood, amotivation, poor concentration, social isolation and sleep disturbance with insomnia. Further, he noted Mr Price’s report of significant loss of identity and self-esteem as a result of his worsening pain and functional issues. Mr Price described anticipatory anxiety about the future, catastrophic thinking and persistent negative ruminations.
In respect of causation, Dr St George opined that Mr Price suffered a consequential psychological condition in the form of an adjustment disorder with mixed anxiety and depressed mood as a result of his workplace injuries.
In respect of future work capacity, Dr St George opined that Mr Price’s chronic pain stressors with limitations in functionality and mobility continued to aggravate and perpetuate his symptoms of low mood, difficulty concentrating, anergia, irritability with angry outbursts and insomnia. These were significant barriers in his ability to find and sustain work. Dr St George opined that from a psychiatric perspective, Mr Price was not fit to work and did not have a work capacity. In respect of future occupations, Dr St George observed:
“While his workplace injury is physical in nature, his major return to work barrier remains his ongoing adjustment disorder with mixed anxiety with depressed mood. Mr Price previously attempted to return to work and experienced deterioration in his mental and physical state during the extended process on limited duties and his ongoing chronic pain with limitations in mobility and functionality are unlikely to improve. He has been unable to engage in work or retraining since being made redundant in late 2019 and remains limited in his ability to do household tasks involving physical activity or communicate effectively even with close supports. He is not likely to return to work in any occupation within his education, training and experience.”[22]
[22] ARD at page 101 at [8(c)]
In respect of future treatment, Dr St George reported that Mr Price was likely to require further psychological therapy every two weeks; psychiatric consultations every four to six weeks; general practitioner counselling every two to four weeks; and antidepressant medications such as Fluoxetine 20 mg daily and Agomelatine 25 mg nightly.

The forensic medical evidence

Dr Doron Samuell

On 14 January 2019, Mr Price consulted Dr Doron Samuell, Clinical and Forensic Psychiatrist at the request of Ausgrid. In evidence, there is a report by Dr Samuell dated 14 January 2019.[23] I will now refer to the relevant parts of that report.
[23] Respondent's AALD dated 19 March 2021
In the introductory paragraphs of his report, Dr Samuell noted that Mr Price commenced the examination by expressing his dissatisfaction with Ausgrid and the manner in which his claim had been handled. Mr Price believed he had been harassed throughout his claim.
Dr Samuell noted Mr Price’s current medications. He also noted no history of psychological difficulty or family psychiatric history. There were no other contemporaneous stressors or difficulties in Mr Price’s life.
Dr Samuell took a history that Mr Price was first injured in 2014 due to the physical nature of his work. He was bending cables and initially experienced problems in his right shoulder and then, in his left shoulder due to a compensating function. People at work started to question the veracity of his injury. He became angry when there was a significant delay by Ausgrid in approving right shoulder surgery. He underwent right shoulder surgery and later underwent another surgical procedure to the right shoulder because the first was unsuccessful. Mr Price first became aware of having significant psychological difficulty after the surgery to his left shoulder in about April 2017, when the surgeon informed him that the shoulder was in a worse condition than he expected. Later, an independent medical examination confirmed that Mr Price could not work as an electrician, which upset him tremendously as he was hoping that work as an electrician would be an appropriate career transition for him. He now did not know what to do and was understandably concerned.
On mental state examination, Dr Samuell observed that Mr Price was a pleasant and cooperative man, whose psychomotor functioning was normal. Mr Price’s speech and affect were normal. The content of his speech was frequently focused on his anger and frustration with Ausgrid. He did not appear depressed or disordered. Mr Price’s cognitive function was grossly normal, although many questions return to his frustration and it was unclear if this reflected his general cognitive abilities. There was no evidence of psychosis.
Dr Samuell noted that Mr Price had consulted two psychologists and had been treated with antidepressants. At the time he assessed Mr Price, his mental state findings were largely normal. Whilst Dr Samuell considered it appropriate for Mr Price to consult a psychologist, he stated that there did not appear to be much evidence that the treatment was terribly helpful or that the medication had provided any overall benefit.
In his concluding remarks, Dr Samuell opined that Mr Price was angry and frustrated but that such emotions, whilst being understandable, did not reflect a mental health condition. Dr Samuell observed that, in mental health conditions, individual’s thinking and feelings are typically mismatched to their circumstances. However, in this case, Mr Price’s emotional response to the alteration in his circumstances was understandable and appropriate. Dr Samuell concluded that Mr Price did not suffer from a condition within the area of his expertise for the reasons he had expressed in his report.
In respect of medical treatment, Dr Samuell opined that the treatment received by Mr Price was not inappropriate but did not appear to have been terribly helpful. On that basis, he would restrict ongoing treatment to around six sessions. He opined that the antidepressant medication may be helpful for both sedation and pain management but that it was unlikely to impact on his mood.

Dr Michael Hong

On 17 June 2019, Mr Price consulted Dr Michael Hong, Consultant Psychiatrist at the request of his lawyers. In evidence, there is a report by Dr Hong dated 17 June 2019.[24] I will now refer to the relevant parts of that report.
[24] ARD at pages 74-87
In the early part of his report, Dr Hong identified the documents provided to him by Mr Price’s lawyers.[25] Dr Hong recorded a detailed history of Mr Price’s physical injury that was consistent with the evidence.
[25] ARD at page 75
In respect of the development of psychological symptoms, Mr Price reported to Dr Hong that he started developing anxiety and sleep disturbance in the context of his physical injury soon after the 1 September 2014 injury. Gradually, he became more and more anxious and depressed. Mr Price stated that he had been consulting Dr Lim, initially at the latter’s Wyong surgery and later, at the Parramatta surgery. He confirmed that he was taking the antidepressant, Valdoxan, prescribed to him by Dr Lim since 2017. He referred to Valdoxan as being no magical cure. In December 2018, Dr Lim introduced the antidepressant, Lovan, which Mr Price described as not being significantly helpful.
Dr Hong reported that Mr Price identified the main driver of his depression, anxiety and frustration as his physical injury and the process of returning to work.
Dr Hong reported that Mr Price complained of symptoms, including, variable and reactive emotions with elements of anxiety, depression and anger; reduced enjoyment and motivation; somewhat reduced concentration and short-term memory; low energy levels; fatigue; difficulty sleeping; and social withdrawal.
Dr Hong reported that Mr Price advised that he had not had any prior significant psychological problems, nor ever had psychological treatment or psychiatric medications.
On mental state examination, Dr Hong observed that Mr Price appeared to be in pain; was casually attired; had reasonable self-care; maintained good eye contact; did not demonstrate psychomotor disturbance, abnormal movements or stereotype behaviours; gestured regularly; was not thought disordered; was moderately restricted in his affect range and reactivity; was generally anxious; and there was no overt cognitive disorder.
Dr Hong provided what he referred to as a file review on the documents that were provided to him.
Dr Hong reported that, Mr Price described gradually becoming anxious and depressed because of his chronic pain, the impact of his physical injury on his lifestyle, his inability to do most of the things he used to do, as well as experiencing some difficulties when returning to work.
Dr Hong provided a diagnosis of an adjustment disorder in accordance with DSM-5.
In respect of Dr Samuell’s report, Dr Hong commented that Dr Samuell’s reasoning in not diagnosing a disorder may not be accurate. Dr Hong observed that, generally, a psychiatric disorder is diagnosed, if the psychological symptoms are significant and cause functional impairment or need additional treatment beyond simply addressing the cause of the person’s distress.
Dr Hong opined that, in reviewing the medical records of Mr Price’s treatment providers, there was evidence of wide-ranging depressive and anxiety symptoms that affected Mr Price’s capacity to function. He was noted to be overthinking and was struggling with his psychological functioning. Dr Hong noted that, in his assessment, he took a similar history where Mr Price described the gradual onset of depression, anxiety and irritability problems that had become chronic. Mr Price described feeling that he was not in full control; was short tempered; had a poor frustration tolerance; was excessively worried about everything, especially his physical injury and his future. In Dr Hong’s opinion, there was sufficient evidence to confirm that Mr Price has a distinct psychiatric disorder.
Dr Hong opined that Mr Price’s work-related physical injuries were the primary driver of his psychological symptoms and therefore, he has suffered a consequential psychological injury.
In respect of treatment, Dr Hong opined that the alternative medications of Endep or Cymbalta may be preferable to Mr Price’s current combination of Valdoxan and Lovan, as the former have more robust evidence in terms of managing depression and anxiety in the presence of significant pain symptoms. He opined that Mr Price would benefit from further psychological treatment, in particular, a psychologist based at a pain clinic and in addition, a review and change in his antidepressant medication undertaken under the supervision of a psychiatrist.

The MAC

Dr Wong issued a MAC dated 10 June 2021 following an examination on 28 May 2021.
Dr Wong took a history relating to Mr Price’s injuries that was, in the main, consistent with the evidence.
Dr Wong noted Mr Price’s current symptoms as constant mild pain in the right shoulder, increasing to a moderate level of pain on movement of the shoulder; similar symptoms in the left shoulder but the pain was more severe; constipation was well managed by daily Metamucil with intermittent bleeding on defaecation, with the need to apply cream fortnightly.
Dr Wong conducted a physical examination and reviewed the medical imaging made available to him. He found no inconsistency in his examination of Mr Price. Dr Wong summarised the injuries and his diagnosis as follows:
“Mr Price is a 44-year-old man who had soft tissue injury [sic] to both shoulders from work. He had multiple operations to his shoulders with no success. Mr Price continues to suffer pain and stiffness in his shoulders affecting many aspects of his daily activities and his capacity to work. He suffers from constipation with intermittent anal bleeding and pain.”[26]
[26] MAC at page 4 at [7]
Dr Wong assessed Mr Price’s whole person impairment at 23% with 10% being attributed to the right upper extremity (right shoulder); 14% being attributed to the left upper extremity (left shoulder); and 1% being attributed to the digestive system (lower digestive tract).

The Procare report

In evidence, there is a surveillance report from Procare to Ausgrid dated 30 November 2018 with attached photographs.[27]
[27] Ausgrid's AALD dated 19 March 2021 at pages 1-27
The surveillance of Mr Price was conducted on eight separate occasions commencing on 24 October 2018 and ending on 21 November 2018.
At various times, Mr Price was observed reversing his motor-vehicle out of a driveway and parking it on the street; carrying sacks of pebbles or soil in his right arm; watering plants with a watering can in the front yard; driving his motor vehicle; refuelling his motor vehicle at a service station; crouching down to pull some weeds on his property; driving to Bunnings; carrying his daughter in his right arm in Bunnings; walking around Bunnings with his daughter being carried in one arm and later, sitting on his shoulders; walking to the main shopping centre; driving to and entering a Coles store and exiting carrying bread and milk in his arms and then driving home; retrieving items from the back seat of his motor-vehicle; and bending at the waist to look at something on a motor vehicle.
The photographs attached to the surveillance report related to the activities described above.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

FINDINGS AND REASONS

Did Mr Price develop a consequential psychological condition?

The legal principles

It is unnecessary for me to determine whether Mr Price’s alleged psychological condition is an ‘injury’ pursuant to section 4 of the 1987 Act: Moon v Conmah Pty Ltd (Moon),[28] Kumar v Royal Comfort Bedding Pty Ltd[29] (Kumar) and Bouchmouni v Bakos Matta t/as Western Red Services[30].
[28] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50]
[29] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61])
[30] Bouchmouni v Bakos Matta t/as Western Red Services [2013] NSWWCCPD 4

Further, section 9A of the 1987 Act does not apply to a condition that has resulted from an injury: Tiritabua v Bartter Enterprises Pty Ltd[31].
[31] Tiritabua v Bartter Enterprises Pty Ltd [2008] NSWWCCPD 145 at [47]
The onus of establishing a consequential condition as a result of an accepted injury falls on Mr Price and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[32] (Ireland) and Nguyen v Cosmopolitan Homes[33] (Nguyen).
[32] Department of Education and Training v Ireland [2008] NSWWCCPD 134
[33] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
I am required to conduct a common sense evaluation of the causal chain to determine whether the psychological condition complained of by Mr Price has resulted from the accepted injury to his shoulders on 1 September 2014: Kooragang Cement Pty Ltd v Bates[34] (Kooragang). This requires a careful analysis of the evidence and a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[35] (Kirunda). The causal relationship must be established on the balance of probabilities from evidence in an acceptable form: Munce v Thomson Cool Rooms Pty Ltd[36] (Munce).
[34] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
[35] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136]
[36] Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 at [101]

Mr Price’s submissions

I will now refer to Mr Price’s principal submissions in relation to this issue.
In the MAC dated 10 June 2021, Dr Wong attributed 10% whole person impairment to Mr Price’s right shoulder; 14% whole person impairment to his left shoulder; and 1% whole person impairment for the consequential digestive system condition. Dr Wong recorded Mr Price’s present symptoms to include constant mild pain at the right shoulder and constant more severe pain in the left shoulder. Dr Wong noted that Mr Price underwent multiple operations to his shoulders without success and continued to suffer pain and stiffness in the shoulders affecting many aspects of his daily activities and his capacity to work. There was no inconsistency found on examination.
The failed surgical procedures to his shoulders would explain Mr Price’s depression.
Mr Price was a man who was actively engaged in manually and physically demanding activities in the course of his employment. He suffered injuries to his shoulders and underwent operations that failed to relieve him of his symptoms or restore his function. As a consequence, he has continued to suffer pain, he has been unable to return to the workplace and many aspects of his daily activities have been affected. It is a matter of common sense that such consequences would cause him to suffer a psychological condition.
There is a preponderance of medical opinion that supported the case that Mr Price’s physical injuries on 1 September 2014 resulted in a consequential psychological condition.
Dr Hong diagnosed an adjustment disorder with anxiety and depressive symptoms under DSM-5. Dr Hong recorded a history of the gradual onset of depression, anxiety and irritability problems that have become chronic. Mr Price felt that he was not in full control. His frustration levels and tolerance levels were poor and he worried excessively about everything, especially his physical injuries and about his future. Dr Hong opined that there was sufficient evidence to confirm that Mr Price had a distinct psychiatric disorder.
On 15 October 2010, Mr Price’s treating psychiatrist, Dr St George, reported a history of injury that included ongoing chronic pain, limited mobility, functional impairment and a deterioration in mental state. He reported current symptoms of low mood, amotivation, poor concentration and sleep disturbance with insomnia as well as a significant loss of identity and self-esteem as a result of worsening pain and functional issues. Dr St George opined that Mr Price’s adjustment disorder with mixed anxiety and depressed mood was the result of his workplace physical injuries, that is, a consequential psychological condition. A similar diagnosis to that which was reported by Dr Hong.
Dr St George, as the treating psychiatrist, would have had the opportunity to review Mr Price on a number of occasions and reach a more reliable conclusion as to the nature of Mr Price’s condition and its cause, as opposed to the one-off opinion of Dr Samuell. The opinion of a treater is offered with the responsibilities that attach to the treatment.
Mr Price's treating psychologist, Mr Nielsen, was properly placed to offer an opinion having regard to numerous consultations with Mr Price. In his report, Mr Nielsen recorded a number of current symptoms experienced by Mr Price, all of which would provide a foundation for a diagnosis under DSM-5 of an adjustment disorder with depressed and anxious mood. Mr Nielsen opined that, on the balance of probabilities, Mr Price’s psychological condition was related to the work incident on 1 September 2014.
Dr Soo’s report dated 28 March 2019, provided the Commission with the context of Mr Price’s psychological condition. The report demonstrated that the pain experienced by Mr Price has been all consuming and affected everything he had been doing. His life has been disrupted.
Dr Bodel’s report dated 13 May 2019 recorded Mr Price’s current complaints of pain in both shoulders and that any attempt to push, pull, lift or use the arms overhead aggravated the pain.
The evidence referred to above comprehensively confirmed Mr Price’s consequential psychological condition.
Part of the history recorded by Dr Samuell in his report dated 14 January 2019 was that Mr Price became aware of having significant psychological difficulty after the surgery to his left shoulder in about April 2017, when he was informed by the surgeon that the shoulder was in a worse condition than he expected. The latter would obviously be cause for stress, demoralisation and depression. Dr Samuell also noted that an independent medical examination confirmed that Mr Price could not work as an electrician and that this upset him tremendously because he was hoping that it would be an appropriate career transition for him. Dr Samuell reported that Mr Price did not know what he would do in the future and that it was understandably concerning.
Dr Samuell’s assessment that Mr Price presented as largely normal on the day of assessment did not coincide with the findings of the treatment providers in numerous consultations over a long period of time. The treatment providers found that Mr Price had an adjustment disorder that was causally related to the physical injuries and the pain and dysfunction that had resulted.
Dr Samuell opined that he considered it appropriate for Mr Price to consult a psychologist. He opined that Mr Price’s anger and frustration was understandable but that such emotions did not reflect a mental health condition. Dr Samuell concluded that there was no psychological injury at all. He made light of Mr Price’s chronic pain condition, loss of function, loss of employment and loss of the ability to enjoy normal activities of life.
In a report dated 5 July 2019, Dr Lim concluded that Mr Price had chronic pain and incapacity causing an adjustment disorder and depression as a result of not being able to function.
Mr Price’s general practitioners at the medical practice known as Workers Doctors at Parramatta, all recorded psychological symptoms in the clinical records. Mr Nielsen also practices under the aegis of Workers Doctors, as do Dr Soo, the physiotherapists and others as evidenced in the clinical records. There are many references to anxiety, depression and adjustment disorder in the clinical records.
Mr Price’s certificates of capacity all include depression as a work-related injury.

Ausgrid’s submissions

I will now refer to Ausgrid’s principal submissions in relation to this issue.
The issue is whether Mr Price has a psychological condition.
Dr St George was in no better position than Dr Samuell, as Mr Price only consulted him on three occasions prior to his report dated 15 October 2020. Dr St George was sparse in his reasoning and was out of kilter with the evidence.
Mr Nielsen’s evidence should be treated with caution. It was old (21 June 2019). Mr Price’s last attendance on Mr Nielsen was on 14 June 2019. Mr Nielsen did not explain why he believed there was a psychological condition. His conclusion was merely an ipse dixit.
Dr Hong was scant in his reasoning. The questions posed to him were not really answered.
The contest in respect of the issue to be determined is between Dr Hong and Dr Samuell. Dr Samuell concluded that Mr Price’s emotions, that included anger and frustration at being harassed by Ausgrid, did not reflect a mental health condition. As such, it was not compensable.
In order to prove that a psychological injury occurred an injured worker must prove either, that the nervous system was so affected that a physiological effect was induced, or that there had been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, an anxiety state, frustration and emotional upset, or a straight litigation neurosis do not constitute psychological injury: Stewart v New South Wales Police Service[37] (Stewart). The latter symptoms are precisely what Dr Samuell got out of his consultation with Mr Price. Dr Samuell is an experienced psychiatrist.
[37] Stewart v New South Wales Police Service (1998) 17 NSW CCR 202
Some regard should be had to the observations of Mr Price in the Procare surveillance reports dated 4 November 2018 and 30 November 2018, which were produced at around the same time Mr Price was receiving psychological treatment from Mr Nielson. Further, regard should be had to the reports in the context of Dr Samuell’s report. The observations demonstrated a man who was attending to his normal daily activities including playing with his young daughter, driving and gardening.

Mr Price’s submissions in reply

I will now refer to Mr Price’s submissions in reply.
Ausgrid’s submissions ignored any recognition of Mr Price’s impairments, pain and incapacity. A 23% whole person impairment is significant and not common.
Ausgrid’s submissions did not address the fact that a multitude of medical practitioners noted Mr Price’s experiences of significant pain, incapacity and dysfunction. All of those factors would explain the diagnosis that has been provided by everybody except Dr Samuell.
Contrary to Ausgrid’s submissions in respect of Stewart, in this case, it was quite clear that all of the symptoms recorded by the treatment providers were symptoms that warranted a diagnosis under DSM-5. It was not mere emotional upset.
Dr Samuell examined Mr Price on a single occasion and sought to make light of the psychological reaction to his misfortune in respect of pain, incapacity and dysfunction. Dr Samuell was well aware of the failure of Mr Price’s shoulder surgery and his physical condition. Dr Samuell’s report was superficial and essentially a collection of one-liners. He did not engage with Mr Price’s evidence or the evidence of Dr St George or Dr Hong. Whereas Dr Hong did address Dr Samuell’s report and rejected the opinions expressed therein. Moreover, there was the evidence of the various practitioners in the Workers Doctors’ medical records that recorded Mr Price’s symptoms in respect of his physical condition, which laid the foundation of his psychological condition.
One needs to compare the psychological condition to the undisputed level of impairment and pain.

Consideration and findings

I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
I accept Mr Price as a witness of truth, who did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his various treating doctors and the forensic medical specialists. The histories he provided of injury, treatment and complaints of symptoms were, in the main, consistent over a long period of time.
There is no dispute that Mr Price sustained bilateral shoulder injuries in the course of his employment with Ausgrid and a consequential condition to his lower digestive tract. Medical Assessor Wong issued an MAC on 10 June 2021 that assessed Mr Price’s whole person impairment in respect of the injuries he sustained in the course of his employment with Ausgrid at 23%. A significant impairment.
On 6 June 2016, Mr Price underwent thoracic outlet decompression surgery to relieve his symptoms in respect of the complete obstruction of both subclavian arteries and vein with minimal provocative manoeuvres bilaterally. The surgical procedure failed to relieve the pain and loss of function experienced by Mr Price in his right shoulder when using his hands and arms above head height.
On 15 July 2016, Mr Price underwent a right shoulder arthroscopy, biceps tenodesis and subscapularis repair. The surgical procedure failed to relieve the pain and functional impairment in his right shoulder.
On 28 July 2017, Mr Price underwent a right shoulder arthroscopy, acromioplasty and subacromial bursectomy. Whilst the surgical procedure resulted in a decrease in symptoms, it failed to relieve the pain and functional impairment in his right shoulder. Soon after this surgical procedure, Mr Price experienced pain in his left shoulder. Such complaint was supported by the entry in the Workers Doctors clinical records dated 25 August 2016.
On 15 May 2018, Mr Price underwent a left shoulder arthroscopy and capsule repair. The surgical procedure failed to relieve the pain and functional impairment in his left shoulder, having only provided temporary relief. The right shoulder pain and functional impairment was still present.
Mr Price, to his credit, made attempts to return to suitable employment with Ausgrid. I accept his evidence that he found that the work aggravated the symptoms in his shoulders. The unchallenged evidence is that he was taking strong medications (initially, Lyrica; then Gabapentin, Celebrex and Panadeine Forte) to relieve the pain in his shoulders.
Dr Lim, Dr Calvache-Rubio, Dr St George and Dr Hong all referred to Mr Price’s bilateral shoulder pain as chronic. I accept and find that Mr Price has chronic bilateral shoulder pain.
On 1 November 2016, Dr Lim diagnosed an adjustment disorder and prescribed Mr Price Valdoxan.
On 12 April 2018, Dr Longmore diagnosed moderate depression and increased Mr Price’s dose of Valdoxan.
On 12 June 2018, Ms Carmody recorded Mr Price’s presenting problems to include sleep disturbances; stress; low mood; depressed mood; social withdrawal; appetite changes; chronic pain; poor concentration; and memory impairments. She diagnosed an adjustment disorder.
On 21 June 2019, Mr Nielsen reported Mr Price’s current symptoms as insomnia; disturbed sleep; anxiety; avoidant behaviour; hypervigilance; decreased stress tolerance; depressed mood; helplessness; difficulties communicating; uncontrollable worry; loss of confidence; poor concentration; low self-esteem; social withdrawal and anhedonia. Mr Nielsen diagnosed Mr Price as suffering with DSM-5 adjustment disorder with depressed and anxious mood. Whilst Mr Nielsen’s opinion on causation lacked clarity in his report dated 21 June 2019, his entries in the Workers Doctors clinical records were clearer on the issue of causation. Mr Nielsen referred to Mr Price’s difficulties in managing his chronic pain.
On 5 July 2019, Dr Lim opined that Mr Price had chronic pain and incapacity causing an adjustment disorder and added that he had become depressed as a result of not being able to function due to his long-standing neck and shoulder dysfunction.
On 15 October 2020, Dr St George opined that Mr Price suffered a consequential psychological condition in the form of an adjustment disorder with mixed anxiety and depressed mood as a result of his chronic pain stressors and limitations in functionality and mobility that continued to aggravate and perpetuate his symptoms of low mood, difficulty concentrating, anergia, irritability with angry outbursts and insomnia.
I disagree with Ausgrid’s submission that Dr St George was sparse in his reasoning and was out of kilter with the evidence. Dr St George engaged with Mr Price’s evidence as to his psychological reaction to the chronic bilateral shoulder pain, resultant incapacity, loss of function, loss of mobility and their effect on his work capacity and activities of daily living. He engaged with Mr Price’s significant level of physical impairment. Dr St George clearly exposed his path of reasoning. In NSW Police Force v Hahn, [38] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[39] makes it clear that Heydon J in Makita (Australia) Pty Ltd v Sprowles[40] should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely, on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Doctors do not need to provide elaborate or detailed explanations for their conclusions. However, more than a mere “ipse dixit” (an assertion without proof) is required. This common sense approach leads to the view that Dr St George’s opinion is a satisfactory one and in any event, to my mind it is expressed as much more than an ipse dixit.
[38] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60]
[39] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
[40] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Dr Hong provided a diagnosis of an adjustment disorder in accordance with DSM-5. He opined that, in reviewing the medical records of Mr Price’s treatment providers, there was evidence of wide-ranging depressive and anxiety symptoms that affected Mr Price’s capacity to function. Mr Price described to Dr Hong his feelings that he was not in full control; suffered from a short temper; experienced a poor frustration tolerance; excessively worried about everything, but especially his physical injuries and his future. In Dr Hong’s opinion, there was sufficient evidence to confirm that Mr Price has a distinct psychiatric disorder and that it was as a consequence of the injuries he sustained in the course of his employment with Ausgrid.
Ausgrid relied on the expert evidence of Dr Samuell, who opined that Mr Price was not suffering from a psychological condition as a consequence of his accepted bilateral shoulder injuries in the course of his employment with Ausgrid on 1 September 2014. Dr Samuell was the outlier in this regard. The preponderance of the medical evidence supported that Mr Price had sustained a diagnosable psychological condition and that it was as a consequence of the accepted bilateral shoulder injuries sustained on 1 September 2014.
Dr Samuell did not identify the documents with which he was provided by Ausgrid in preparation for his examination of Mr Price. If he did have the clinical records of Dr Ng and Dr Sherlock, he did not refer to them. It appears that he did not have the benefit of the Workers Doctors clinical records, the reports of Dr St George or the report of Dr Hong, all of which post-dated his examination of Mr Price. There was no supplementary report from Dr Samuell to deal with those clinical records and reports. Dr Samuell did not engage with Mr Price’s evidence as to his psychological reaction to the chronic bilateral shoulder pain, resultant incapacity, loss of function, loss of mobility and their effect on his work capacity and activities of daily living. He did not engage with Mr Price’s significant level of physical impairment.

Dr Hong had the benefit of having had the substantial documentation he identified in his report available at the time of his examination of Mr Price and referred to it in his report. Dr Hong, unlike Dr Samuell took a comprehensive history from Mr Price. Unlike Dr Samuell, Dr Hong engaged with Mr Price’s evidence as to his psychological reaction to the chronic bilateral shoulder pain, resultant incapacity, loss of function and significant physical impairment. Dr Hong clearly exposed his path of reasoning.
I agree with Mr Price’s submission that Dr Samuell’s assessment that Mr Price presented as largely normal on the day of assessment did not coincide with the findings of the treatment providers in numerous consultations over a long period of time.
I prefer the opinions expressed by Mr Price’s treatment providers and Dr Hong over that of Dr Samuell for the reasons stated above.
I found the Procare surveillance report of no assistance in determining the issue before me and I gave it no weight.
I find that Mr Price’s condition was not a mere emotional impulse response, an anxiety state, frustration or an emotional upset. Mr Price’s symptoms, as presented to his treatment providers and Dr Hong, demonstrated that his nervous system was so affected, that a physiological effect was induced. The symptoms that induced a physiological effect were insomnia; disturbed sleep; anxiety; avoidant behaviour; hypervigilance; decreased stress tolerance; depressed mood; helplessness; difficulties communicating; uncontrollable worry; loss of confidence; poor concentration; low self-esteem; social withdrawal and anhedonia. I find that Mr Price has a distinct psychiatric disorder in the form of an adjustment disorder with mixed anxiety and depressed mood as a result of his chronic pain stressors, limitations in functionality and mobility and their effect on his work capacity and activities of daily living.
Applying a common sense test to the whole of the evidence and for the reasons referred to above, I am satisfied that Mr Price has discharged the onus of proving, on the balance of probabilities, that there is a sufficient causal chain connecting the development of a psychological condition to the accepted injuries to the bilateral shoulders sustained in the course of his employment with Ausgrid on 1 September 2014 and I find accordingly.

The disputed medical and related expenses
The legislation and legal principles

Section 59 of the 1987 Act provides definitions of certain medical and related treatment, services and rehabilitation.
Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service be provided, then a worker’s employer is liable to pay the cost of such treatment or service.
In addition, section 60(2) of the 1987 Act relevantly provides that, if it is necessary for a worker to travel in order to receive treatment or service, the related travel expenses the employer is liable to pay are the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service. However, section 60(2B) of the 1987 Act relevantly provides that the worker's employer is not liable to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.

Mr Price’s submissions

I will now refer to Mr Price’s principal submissions in relation to this issue.
Mr Price has been treated by a variety of treatment providers in varying specialty areas in the medical practice known as Workers Doctors. All of this is evidence that becomes relevant to Mr Price’s decision to rely on this multidisciplinary medical practice in securing his treatment. This is a work-related injury that requires treatment by a variety of practitioners, who all have access to the same database of treatment records. For that reason, it is reasonable and within Mr Price’s rights to use the medical practitioners he has chosen. It makes sense for Mr Price to be treated there.
On 17 June 2019, Dr Hong opined that consulting a psychologist and undertaking medication trials had been reasonable.
On 7 April 2020, Dr Khan, reported that Mr Price was taking Celebrex tablets, Valdoxin tablets, Lovan tablets and Gabapentin tablets.
On 15 October 2020, Dr St George reported that Mr Price was likely to require further psychological therapy every two weeks; psychiatric consultations every four to six weeks; general practitioner counselling every two to four weeks; and antidepressant medications such as Fluoxetine 20 mg daily and Agomelatine 25 mg nightly.

Ausgrid’s submissions

I will now refer to Ausgrid’s principal submissions in relation to this issue.
Mr Price moved to the Central Coast in 2017. Mr Price’s claimed travel expenses between his home on the Central Coast and Workers Doctors in Parramatta, being a 100 km journey, was not a reasonable expense under section 60 of the 1987 Act.
As Mr Price chose to consult with the practitioners at the Workers Doctors in Parramatta, then he ought to pay for the cost of travelling between his home on the Central Coast and Parramatta.
Ausgrid relied on its schedule of disputed expenses under section 60 of the 1987 Act dated 12 August 2021, which was admitted as an aide-memoire.

Mr Price’s submissions in reply

I will now refer to Mr Price’s submissions in reply.
There were many practitioners at the Workers Doctors who treated Mr Price. The treatment he required would be enhanced by a team that had knowledge of Mr Price’s condition as borne out by the clinical records of their colleagues.
In such circumstances, it was open to Mr Price to utilise the expertise of that medical practice and Ausgrid should pay the cost of travel between Mr Price’s home on the Central Coast and the medical centre in Parramatta.

Consideration and findings

I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
Mr Price began consulting Dr Lim at his Wyong medical practice. Dr Lim moved his practice to Parramatta in about October 2017. Thereafter, he did not have consulting rooms in Wyong.
Ausgrid submitted that the travel expenses claimed by Mr Price were unreasonable because he moved to the Central Coast and was travelling distances in contradiction to his medical certificate; he could have been referred for treatment by medical specialists located on the Central Coast; and the travel expenses were not reasonable and necessary within the meaning of section 60 of the 1987 Act.
According to Ausgrid, the travel expenses claimed itemised travel to and from the consulting rooms of Dr Perko in Wollstonecraft and the Workers Doctors in Parramatta. There were another seven trips to and from an unknown destination. The total amount claimed by way of travel expenses amounted to $2,720.
Ausgrid declined liability for Mr Price’s claimed attendances on the Workers Doctors in respect of the alleged secondary psychological injury based on the opinion of Dr Samuell.
Ausgrid conceded that Mr Price’s claimed attendances on Dr Dickinson, Dr Khong and Dr Calvache-Rubio of the Workers Doctors were reasonably necessary under section 60 of the 1987 Act and would be met unless they had already been paid by Ausgrid.
Ausgrid conceded that Mr Price’s claimed pharmaceutical expenses relating to neuropathic pain and anti-inflammatory medication were considered reasonably necessary under section 60 of the 1987 Act and would be met unless they had already been paid by Ausgrid.
Accordingly, the only matters for my determination were the travel expenses claimed by Mr Price and the cost of treatment and pharmaceutical expenses claimed in respect of the consequential psychological condition.
I will firstly deal with the claimed travel expenses because the cost of treatment and pharmaceutical expenses claimed in respect of the consequential psychological condition will be covered by the general order I propose to make below.
I acknowledge that Mr Price has been treated by a variety of treatment providers in varying specialty areas in the medical practice known as Workers Doctors. Mr Price has elected to rely on this multidisciplinary medical practice in securing his treatment. I understand that it makes sense to do so. I also understand that it was open to Mr Price to utilise the expertise of that medical practice and the team who has treated him over the years. However, it was Mr Price’s choice to do so. Despite it being an understandable choice and, as Mr Price submitted, his right to do so, that does not mean Ausgrid should pay the cost of such travel. Section 60(2B) of the 1987 Act clearly provides that the worker's employer is not liable to pay travel expenses related to any treatment or service, if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service. The driving distance between Mr Price’s home, Parramatta and return is about 162 kms. The driving distance between Mr Price’s home, Wollstonecraft and return is about 106 kms. I find that such travel necessitates more travel than is reasonably necessary to obtain the treatment or service.
Accordingly, there will be an award in favour of Ausgrid for the claimed travel expenses.
In respect of the claim for pharmaceutical expenses and consultations with psychologists, psychiatrists and general practitioners relating to Mr Price’s psychological condition, I am satisfied on the preponderance of the medical evidence that such expenses were reasonably necessary within the meaning of section 60 of the 1987 Act.
On the evidence and having received an award in his favour in respect of the claim for a consequential psychological condition, Mr Price is entitled to recover the cost of reasonably necessary medical, hospital and related expenses under section 60 of the 1987 Act and I make a general order in this regard.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2021] NSWPIC 350

15 September 2021