Sarangan v State of New South Wales (Sydney Local Health District)

DECISION OF PRESIDENT’S DELEGATE
Citation:	Sarangan v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 100
APPLICANT:	Shobana Meera Sarangan
RESPONDENT:	State of New South Wales (Sydney Local Health District)
PResident’s Delegate:	Parnel McAdam
DATE OF DECISION:	13 March 2023
CATCHWORDS:	Workers Compensation Act 1987; Work capacity dispute; whether applicant suffered a secondary psychological injury; whether motor vehicle accident after work injury constituted a novus actus interveniens; whether medical opinions provided in a fair climate; whether Kooragang Cement Pty Limited v Bates and State Government Insurance Commission v Oakley can sit together; Held – applicant suffered a secondary psychological injury; motor vehicle accident did not break the chain of causation; applicant had capacity for eight hours per week
Orders made:	INTERIM PAYMENT DIRECTION The Commission determines: *1. The applicant suffered a secondary psychological injury arising out of the physical injury suffered on 8 April 2021.* *2. The motor vehicle accident that occurred on 20 March 2022 was not a novus actus interveniens.* *The President directs:* 3. The respondent is to pay the applicant weekly benefits at the rate of $576 per week pursuant to s 37 of the Workers Compensation Act 1987 from 15 August 2022 to date and continuing. 4. The above amount is to be indexed in accordance with the legislation from time to time.

STATEMENT OF REASONS

BACKGROUND

Dr Sarangan first qualified as a dental surgeon in India. She came to Australia and qualified as a dentist here, practising since 2002. She worked as a dentist with the respondent from about 2003 till the time of her injury.
Dr Sarangan was injured during a consultation on 8 April 2021. The work chair she sat down on broke, causing her to collapse backwards onto her right arm. She suffered immediate injuries and consequential conditions to her right arm, left shoulder, cervical spine and lumbar spine.
Dr Sarangan’s poor luck continued following her injury at work. On 20 March 2022, she was involved in a motor vehicle accident. Her car was struck from behind by another vehicle in a hit and run incident. She suffered new injuries as a result of that incident, and also claims she aggravated her existing injuries suffered in the workplace.
On 21 April 2022 the respondent issued a s 78 notice, bringing weekly payments to an end. Dr Sarangan commenced proceedings in the Personal Injury Commission (the Commission) challenging that decision. The matter proceeded to a conference via teams and the parties were unable to resolve the dispute. A number of preliminary issues were decided during the proceedings, and I issued a direction calling for submissions, which the parties have now complied with.

Issue in dispute

The proceedings concern a s 78 notice issued on 21 April 2022 putting in dispute work capacity. However, there are some other issues that must be determined in the context of determining Dr Sarangan’s capacity, due to the intervening motor vehicle accident. The respondent’s sets out their position in their submissions, disputing that:
(a) the applicant suffered a secondary psychological injury, and
(b) they are liable to pay weekly compensation from 15 August 2022, as the motor vehicle accident suffered on 20 March 2022 is a novus actus interveniens, breaking the chain of causation from the work injury suffered on 8 April 2021.
The parties agree that the role of a telehealth dentist is “suitable employment” in accordance with s 32A of the Workers Compensation Act 1987 (the 1987 Act). The applicant’s case is that she can work in this suitable employment for eight hours per week. The respondent’s case is that she has capacity for 24 hours per week, as any incapacity that occurred after the motor vehicle accident is not connected to her employment.

The evidence

I have reviewed all of the evidenced lodged by the parties attached to the Application for Expedited Assessment (the Application) and Reply to Application for Expediated Assessment. The key documents relevant to the determination of the issues in dispute are discussed below.

The dispute notice

The dispute notice issued 21 April 2022 makes a determination that Dr Sarangan is capable of working in suitable employment for eight hours a day, three days per week. Three roles were identified as being suitable, but due to the agreement of the parties outline above, the roles themselves are not particularly relevant. The parties agree that Dr Sarangan is capable of work as a telehealth dentist. The capacity issue in dispute is whether she can work in that employment for 24 hours per week, as set out in the s 78 notice, or eight hours per week, as claimed in the Application.
The applicant sought a review of the s 78 Notice. The review request is not before me but a notice issued under s 287A is. That notice refers to a statement of 18 July 2022 raising the issue of the motor vehicle accident. It appears that this is when the issue was first raised with the insurer, although I am not certain. The respondent sought and was granted leave to raise the issue of the motor vehicle accident during these proceedings. The s 287A notice states: “Any incapacity that arose from this incident is unrelated to your incapacity as a result of injuries sustained on 8 April 2021”.

Vocational assessment of Rocket Rehab

This vocational assessment was prepared on behalf of the insurer and is dated 14 February 2022. It thus predates the motor vehicle accident. At the time of the report, Dr Sarangan had capacity for three hours, two days per week, but acknowledged that A/Prof Miniter had determined that Dr Sarangan was fit for her usual duties. The role of telehealth dentist was approved by Dr Kheray (the applicant’s treating doctor) as “can be done with flexibility”.

Report of Dr Greg Cameron

Dr Cameron saw Dr Sarangan in November 2021 and issued a report as an IMC dated 1 December 2021. The reason for referral was said to be that she was “at risk of delayed recovery”. Again, this report predates the motor vehicle accident. In terms of capacity, Dr Cameron states that “I cannot see why she cannot do 4 hours 3 days a week”. He did not believe pre-injury duties was a realistic goal. He thought she was quite pain focussed.

Report of Dr Raymond Wallace

Dr Wallace reports as part of the “ARC Shoulder Team”. His report is dated 13 December 2021. Dr Wallace opines that “She is currently fit to return to work at part time light duties at her pre-injury hours of 24 hours per week with due consideration given to restrictions on her activities details above”.

Report of A/Prof Miniter

A/Prof Miniter provides a report dated 11 January 2022, after he saw the applicant on 6 December 2021. He opines:
“This lady has had a long history of chronic pain which has not been well managed in the past. I could see no evidence of injury. Granted, she may have fallen over heavily after the workplace injury but I could not see any evidence to suggest that there is any local pathology of significance that explains her presentation.”
He found “marked inconsistencies” and determined that “she is fit for her usual duties”.

Reports of Dr Herald

Dr Herald is the applicant’s treating specialist. Attached to the Application are various clinical notes outlining treatment undertaken on Dr Sarangan and communications with Dr Dowla. In a report dated 18 November 2021, which appears to be the first interaction with Dr Herald, it is recorded under the heading “plan”:
“I have explained to Shobana she has predominantly neck pain and back pain with non-verifiable radicular complaints to the right upper limb and to some degree the lower limb. She is developing secondary impingement syndrome in the right shoulder and elbow and inflammation in her right wrist. I have given her some anti-inflammatory tablets and changed her to Celebrex as well as giving her some Endep to help her with her neurological symptoms and also to help her sleep at night. I will see her again with the MRI scans of her shoulders, but have suggested if she has exhausted physiotherapy it may be worth trying hydrotherapy and hire the help of an exercise physiologist. She will organise this and I will keep you informed of her progress.”
Dr Herald saw Dr Sarangan again on 16 December 2021, following a series of MRI scans she undertook, which record “MRI scans of the shoulder show subacromial bursitis, MRI scans of the elbow show effusions in her elbow joint and as you know she has synovitis in her wrist”. Dr Herald notes that the applicant is “continuing to have bilateral shoulder pain”.
Dr Herald saw her again on 17 February 2022. He records that “She says her lack of treatment is giving her depression”. Dr Herald suggested light duties and a rehab program, and notes “I am hoping with appropriate rehab we will be able to return her to work”.
Dr Herald also provides what he describes as a “medicolegal report” dated 6 October 2022. He outlines the history of injury and the treatment he provides to her. He notes that “Her progress however was slow and when I saw her on 17 February 2022 and this was a phone consult, she says she was starting to develop depression from her lack of treatment”. He records at that time she was on Lexapro as well as other medications relating to her physical symptoms. He proposed exercise physiology, but “before I got to see her again, she had a motor vehicle accident”.
Dr Herald then goes on to outline the history of injury related to the motor vehicle accident. He saw Dr Sarangan on 26 July 2022. He records:
“She saw her GP the next day and had neck pain, back pain and bilateral shoulder pain as well as left elbow pain and bilateral wrist pain. She had undergone some scans at that stage including MRI scans of both shoulders which showed now a new partial thickness rotator cuff tear on a background of previous rotator cuff tendinitis and impingement syndrome which was pre-existing. The MRI scan showed a C4/5 disc prolapse with right sided C5 neural compression which was the same as the previous scans and a lumbar spine L4/5 disc prolapse with right L5 neural impingement which I thought may have been relatively new.”
Dr Herald responds to a series of questions regarding the connection between the motor vehicle accident and the workplace injury. He first opines that:
“There is no evidence that the physical condition that she was in as a result of the workplace injury on 08 April 2021 would have made her in anyway more susceptible to a motor accident on 20 March 2022.”
He goes on to say:
“As mentioned above, the injuries she sustained as a result of the motor vehicle would have happened whether she was of normal health or whether she was still recovering from her preexisting injury. However at this stage based on the amended report that has been provided by the radiologist, Shobana's pathology includes an aggravation of a pre-existing pathology that was there from the workplace injury. A comparative assessment of the radiological films can be performed by the radiologist if necessary. Thus her aggravation from the motor vehicle accident may have been a temporary aggravation and the originally injury occurred as a result of the workplace injury.”
He concludes that “it would appear that the motor vehicle accident provided an aggravation of her underlying workplace injury”.
What Dr Herald ultimately concludes is that the motor vehicle accident aggravated her workplace injury. Nothing in this report supports a conclusion that there was a breaking of the chain of causation.

Dr Sangeeta Jain

Dr Jain is a clinical psychologist who began seeing Dr Sarangan on referral from her treating general practitioner on 1 November 2021 “for treatment of Adjustment disorder and psychoeducation in pain management and depression following a workplace incident on the 08/04/2021”. Clinical notes from the sessions attended are attached to the Application.
Dr Jain provides a report dated 9 September 2022. She refers to the workplace injury and states:
“This incident also led to the onset of mental health issues in relation to this pain. She was diagnosed with Adjustment Disorder with Anxiety and Depression following this incident”.
In relation to the motor vehicle accident, Dr Jain states:
“The client also experienced more severe anxiety and exhibited signs of trauma. She has been diagnosed with Adjustment Disorder with Anxiety and Depression with the addition of mild Post-Traumatic Stress Disorder (PTSD).”
She discusses her prognosis and notes that the treatment plan following the workplace injury was effective and her capacity improved, but “due to her pre-existing injury, her recovery from the car accident has been difficult”. She goes on to state: “She is still experiencing daily dysfunction due to her anxiety and depression, which arose from the workplace incident and have been built upon by the motor accident and the continued issues with insurers”.

Report of Dr Porteous

Dr Porteous provides a medicolegal report on behalf of the applicant dated 24 October 2022. He saw Dr Sarangan via video conference. He takes a comprehensive history of the initial injury, discusses the treatment and radiological evidence, as well as the reports of Dr Herald.
In discussing the diagnosis, Dr Porteous discusses the historical symptoms Dr Sarangan experienced, and states “that was starting to all settle when she had an aggravation with the subsequent motor vehicle accident”. When asked about the connection between her condition and employment, he states:
“It is evident from the history that a degree of her ongoing symptoms relates to the workplace accident. It is clear that she had regular musculoskeletal complaints in all of these areas prior from 2006 on. It is also clear that the motor vehicle accident also aggravated all of these to a degree and has also contributed.
I therefore believe that a degree of her symptoms can be related to the subject accident and her employment in Sydney Dental Hospital and particularly the event on 8 April 2021 when the dental chair broke.”
In relation to capacity, he discusses her physical capacity and concludes that “In my opinion, she is clearly physically restricted from that type of work and incapacitated from it eight hours a day, three days a week or 24 hours a week”. He opines that there has been an error in the s 78 notice as the insurer has overlooked her physical restrictions and the inherent requirements of the jobs. He also opines that “Clearly, they have overlooked her psychiatric reduced capacity”.
He was also asked a series of questions about the motor vehicle accident and whether the injuries that occurred there would have occurred regardless of the workplace injury. He answers, in essence, that he cannot comment as he cannot predict that. His opinion is somewhat equivocal – it does not reject a causal connection between the workplace injury and the motor vehicle accident, but essentially states that it is unable to be determined.

Dr Kiran Nair

Dr Nair is a consultant psychiatrist that provides a report on behalf of the applicant dated 22 November 2022. Dr Nair discusses the work injury and provides the following history:
“Soon after the injury, within the first couple of weeks, Dr Sarangan reported her mood was impacted. She started to experience mood fluctuations, initially periods of irritability and anger, resulting in persistent low mood throughout the day. This was associated with poor sleep, characterised by early morning awakening and difficulty falling asleep. Dr Sarangan also described a history of associated fatigue, poor concentration and motivation, anhedonia, and increasing social isolation.”
She records a history of Escitalopram and regular psychological therapy with Dr Jain since 17 November 2021.
Dr Nair also discusses the motor vehicle accident that occurred on 20 March 2022. The accident is described as “traumatic” and includes a history of nightmares, flashbacks and memory issues, as well as hypervigilance when driving. In relation to her previous psychological issues, Dr Nair reports:
“The above also resulted in exacerbating her pre-existing mood symptomology, characterised by low mood with periods of irritability, where she finds that she tends to lash out at her son more after the accident. This is associated with poor sleep, low motivation and concentration, poor energy, and poor food habits, where she eats a lot of takeout food. She described increasing social isolation where she does not want to talk to anyone, including her parents.”
In regards to treatment, it is recorded:
“Dr Sarangan is engaged in ongoing psychological therapy with Dr Sangeeta Jain, in the form of CBT and interpersonal therapy. Following the car accident, she sought the aid of a psychiatrist and is now under the care of Dr Jaspreet Singh (Psychiatrist), whose working diagnosis is Major Depressive Disorder with Anxious Distress and the possibility of PTSD, as per the correspondence received. As per Dr Singh's recommendations, she was initially initiated on Prazosin (Minipress) 1mg BD, which was switched to 2mg nocte with the addition of Agomelatine (Valdoxan) 25mg nocte with the continuation of Escitalopram at 20mg as previous.”
It is recorded that Dr Sarangan “admits her self-care was better after the initial workplace injury than after the recent motor vehicle accident”. Dr Nair provides a diagnosis of post-traumatic stress disorder with co-morbid major depressive disorder. The development of the disorder is outlined:
“However, following a motor vehicle accident, this resulted in further exacerbation of her pain issues, which resulted in worsening her pre-existing mood symptomatology. The mood symptoms became more chronic in nature, persistent with increasing intensity resulting in the development of Major Depressive Disorder.”
Dr Nair opines that Dr Sarangan sustained a psychological injury due to the work incident, which is a secondary psychiatric injury as a result of the physical injuries she endured from the fall. She also opines that Dr Sarangan sustained a primary psychological injury from the motor vehicle accident, being post-traumatic stress disorder, but that her pre-existing mood symptoms were exacerbated.
Dr Nair disagrees with the insurer’s conclusion that Dr Sarangan has capacity for 24 hours per week, concluding that she has capacity to continue light duties as previously, a minimum of four hours a day for two to three days per week which can then be gradually increased. Dr Nair criticises the work capacity decision for failing to engage with her mood symptoms as well as the exacerbation of symptoms following the motor vehicle accident.

Submissions

At the conference a number of preliminary issues were raised by the respondent. The first concerned the inclusion of four medical reports attached to the Application, being the reports of Drs Porteous, Nair, Herald and Singh. That issue was dealt with at that time and I determined that the material would be admitted into proceedings.
The second issue was in relation to the existence of the motor vehicle accident and how it might relate to the determination I would be required to make. I raised the fact that the issue had not been previously raised and the respondent would require leave to argue that there had been no psychological injury or that the motor vehicle accident had broken the chain of causation. Again I heard submissions on this point and based on the applicant’s lack of objection, I granted leave for the respondent to raise the dispute.
There was insufficient time to deal with the remaining issues and accordingly I called for written submissions from the parties. Due to the respondent seeking to raise liability issues, I directed the respondent to file submissions first relating to those liability issues, with the applicant to file submissions in response to the liability issue and work capacity, and the respondent filing submissions in response to the work capacity question.

Respondent’s submissions

With regard to the alleged major depressive disorder, the respondent submits that the applicant must establish a causal connection between the injury on 8 April 2021 and the secondary psychological injury. The respondent refers to the decision of Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) in which it was held that what is required is a common sense evaluation of the causal chain. The respondent also acknowledges that the applicant only needs to establish that she suffered psychological symptoms arising from her physical injuries, as opposed to a psychological injury (Moon v Conmah Pty Limited [2009] NSWWCCPD 134).
The respondent then outlines the history of the applicant’s psychological complaints, some of which predate the workplace injury. The respondent submits that the applicant was suffering from psychological symptoms from the domestic issues with her husband, including a domestic violence threat.
The respondent then turns to the report of Dr Nair and submits that the opinion did not properly consider the significant domestic issues faced by the applicant, which predated the injury and continued for some time following the injury. The respondent submits that Dr Nair took an inaccurate history that her domestic issues were “on and off for the past 15 years”, inconsistent with the clinical records of Dr Kheray and Ms Jain, who recorded ongoing complaints. I do not accept that this is an inaccurate history. The respondent’s submissions do not suggest that the domestic issues had not been ongoing for a period of 15 years, but rather that Dr Nair did not properly give weight to the more recent domestic events, including an admission to hospital in the middle of the night. The history here is not inaccurate, Dr Nair has just recorded a broader, but still correct, history of domestic issues over a long period.
The respondent goes on to refer to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, which concerns expert opinion and whether there is a proper basis for the founding of an opinion. The respondent submits that Dr Nair failed to consider that the applicant’s psychiatric symptoms were caused by her domestic issues and were not based on a ‘fair climate’ (with reference to Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58).
The respondent’s second dispute relates to the motor vehicle accident that occurred on 20 March 2022. The respondent submits that the accident amounts to a novus actus interveniens, breaking the chain of causation. The respondent refers to a number of cases in support of their submissions, including Council of the City of Sydney v Estate of Belinda Jane Griffey and Anor (No. 1) [2008] NSWWCCPD 114 (Griffey) and Bailey & 1 Ors v Redebi Pty Limited & 1 Ors [1999] NSWSC 918 (Bailey). The respondent submits the Commission must ask itself whether the chain of causation was broken to render it inoperative, and secondly, whether the injury was still in operation and the subsequent part of the history of the operative cause. These are questions of fact.
The respondent submits that prior to her motor vehicle accident, she had regained the capacity to work 24 hours per week. The respondent submits that there was a clear decrease in her capacity following the motor vehicle accident, as demonstrated by the medical evidence available. The motor vehicle was a novus actus interveniens, since there was a new cause to the applicant’s incapacity. The respondent refers to the various medical opinions about this issue and submits that the motor vehicle accident was in no way a foreseeable link in the chain of causation, meaning it was extrinsic. The respondent submits that it is analogous to a random event that no one could have seen coming. There is nothing in the motor vehicle accident related to a workplace injury other than potential aggravation of some pathology.

Applicant’s submissions

In response, the applicant submits that Dr Nair did properly consider whether the applicant’s psychiatric symptoms were caused by domestic issues, and his history is consistent with the clinical notes of Drs Kheray and Jain. It is submitted that the facts Dr Nair took into consideration did form a proper foundation for the opinion reached, which was reached in a fair climate. The applicant submits that a common sense evaluation of the causal chain shows that there is a connection between the injury and the secondary psychological injury.
In relation to the respondent’s novus actus argument, the applicant submits that the motor vehicle accident does not amount to a novus. The applicant refers to State Government Insurance Commission v Oakley (1990) Aust Torts Rep 84-003; 10 MVR 570 (Oakley) and the three categories outlined in that case, submitting that the applicant’s case falls within the second proposition.
The applicant refers to the opinion of Dr Porteous, who acknowledges that some of her symptoms relate to the subject injury and “the motor vehicle accident also aggravated all of those to a degree and has also contributed”. Dr Herald’s opinion is that “her aggravation from the motor vehicle accident may have been a temporary aggravation”, and “it would appear that the motor vehicle accident provided an aggravation of her underlying workplace injury”.
The applicant submits that the third element in Griffey is not satisfied, and that prior to the motor vehicle accident she had not attained full pre-accident work capacity, this incapacity was aggravated by the motor vehicle accident on 20 March 2022.
The applicant submits that she does not have capacity to return to her full pre-injury hours and that she has capacity for eight hours work per week in suitable employment. The applicant claims weekly payments of $576 per week in accordance with the statutory formula in s 37 of the 1987 Act.

Respondent in response

The respondent maintains its primary submission and asserts that Dr Nair’s opinion is not based on a fair climate. There are said to be significant errors in the history.
The respondent submits that the applicant’s reliance on Oakley is misguided, and there is an inconsistency between Kooragang and Oakley. The respondent submits that Kooragang calls for the identification of instances where the causative connection has been snapped, where Oakley suggests that in no circumstances could this occur.
The respondent submits that Kooragang should be preferred as:
(a) Oakley is a decision of the Supreme Court of Western Australia, whereas Kooragang is a decision of the NSW Court of Appeal, and
(b) the “only” authority to suggest Oakley applies in NSW are the Court of Appeal decisions of Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson) and Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan), which deal with assessments of permanent impairment.
The respondent submits that the second category in Oakley does not apply to the present matter. The respondent refers to the summary of the Oakley principles in Johnson, which it is said includes an additional consideration. The respondent submits that the evidence does not support that the second category in Oakley, as clarified in Johnson would apply. The respondent submits that they are only liable for the effects of injury suffered on 8 April 2021, and at the time of the motor vehicle accident, the applicant had capacity for 24 hours per week.
In relation to capacity, the respondent submits that Dr Wallace’s opinion that Dr Sarangan could work 24 hours per week should be accepted, and this is supported by Dr Kheray. It is submitted that no weight should be given to the reports of Drs Porteous, Nair and Singh as they do not consider the applicant’s capacity immediately prior to the motor vehicle accident and subsequent to it.
I simply cannot accept this submission. Dr Nair takes a comprehensive history of symptomatology pre and post the motor vehicle accident. Dr Singh records a history of symptoms observed following the workplace incident and notes that “the client also experienced more severe anxiety and exhibited signs of trauma”. Dr Porteous takes a clear history of the motor vehicle accident and notes she was “starting to make a partial recovery and had started back at work”.

Discussion

There are two index issues that must be determined before coming to Dr Sarangan’s work capacity. The first is the existence of the secondary psychological injury. The second is whether the motor vehicle accident is a novus actus interveniens. Finally, based on the above findings, I must determine what capacity Dr Sarangan’s has for suitable employment.

The secondary psychological injury

The respondent’s submissions in relation to this issue largely concern whether I can accept the medical evidence relied on by the respondent. That is understandable, as there is no conflicting medical opinion that the applicant suffered a secondary psychological injury.
I do not accept that the opinion of Dr Nair was not made in a ‘fair climate’ or that there was no proper basis on which to found the opinion. Dr Nair has not taken an inaccurate history. He records a history of domestic issues related to IVF and miscarriages:
“Dr Sarangan reported a history of mild depression in the past for which she was initiated on Escitalopram (Lexapro) on and off for the past 10 to 15 years for a few months at a time. The doses have been variable from 10mg to 20mg. This was in the context of recurrent miscarriages requiring IVF and relationship issues with her separated partner.”
He describes Dr Sarangan as being “able to return to a stable state in terms of her mood”. He also takes a history connected to her relationships including that with her separated husband:
“Dr Sarangan described having a very good relationship with her parents and her siblings. She reported that she was in a relationship with her ex-partner in 2003. They officially married in 2004 where she reported ever since they got married their relationship has been volatile in nature. They are now separated for the past 2 years, however, they have not officially divorced.”
I do not accept that Dr Nair failed to consider whether the psychiatric symptoms were caused by domestic issues. It was open to him to reach the conclusion he did, having considered the history and material before him. He was aware of the domestic issues and took a relevant history of same. The fact that he gave less weight to those issues, in comparison with the issues arising from her work injury, does not mean the opinion is invalid or that I can give it no weight. It means that it is an opinion that supports the applicant’s case. Not every opinion that does not support one or another’s case is invalid because it provides evidentiary support. The present matter is far removed from what occurred in Paric, in which the applicant gave no history of any trauma prior to a work injury. Here, Dr Nair had that history, but chose to place greater weight on the symptoms arising out of the work injury.
The respondent also refers to the clinical notes and submits that those records do not assist Dr Sarangan’s case. The respondent submits that Dr Jain’s records attribute the psychiatric symptoms to insurer delays and pressure to return to work. The respondent submits that the report of Dr Singh also connects the applicant’s psychiatric condition to the workers compensation claim rather than the physical effects of the injury itself. The respondent refers to a number of clinical notes that link psychological issues to her relationship with her partner and the claim process with the insurer.
On 5 May 2022, Dr Jain records:
“She feels very sad and scared about the fact she can’t work as a clinician. She tries to be positive, but the letter made her scared once again. She couldn’t eat/do anything after that, cried a lot (hid from her son in the bathroom – said she had a cold). Very upsetting.”
On 12 May 2022, Dr Jain had a “discussion around father and son’s relationship”.
It is acknowledged that there are multiple factors present and contributing to the applicant’s psychological difficulties that have been discussed in her sessions with Dr Jain. However, the respondent’s submissions focus on a small aspect of those sessions to ultimately posit that Dr Sarangan is suffering from “straight litigation neurosis” with reference to Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32 and Stewart v NSW Police Service [1998] NSWCC 57. I do not accept this submission.
When one looks at the full history of clinical notes taken by Dr Nair, it is clear that Dr Sarangan had significant and ongoing psychological problems arising from the pain consequent of her physical injuries. She records on 16 March 2022: “She feels very limited by her physical ailments, but says her motivation is to be there for her son”. On 9 March 2022, it is recorded: “The client expressed that she has been feeling quite low due to her physical pain and lack of capability, but that she still wants to try and improve”. On 2 March 2022 she records:
“The client is thinking a lot about what she can no longer do due to her injury. Sadness at not being able to play with her son like she used to and that he continues to complain about this. She is unable to complete much housework. She says she cleaned a little bit yesterday but was then unable to sleep the entire night due to the physical pain it causes. She has “crunching” back pain, shoulder and wrist pain. She is unable to carry heavy things or to sleep on her side. Focused on practicing breathing relaxation strategies and on revisiting the goal of making friends and socialising again to build a support network.”
On 8 February 2022, it is recorded that “Further, she identified that her depression and anxiety symptoms are exacerbated by her physical pain”. On 2 December 2021, it is recorded:
“The client also explained that she is not sleeping well, and that she feels continually depressed and anxious. She is still trying deep breathing and relaxation methods but expressed frustration due to the pain. Psychoeducation and CBT around pain management conducted.”
The report of Dr Jain dated 9 September 2022 directly connects the psychological symptoms to the work injury. It is stated:
“This incident also led to the onset of mental health issues in relation to this pain. She was diagnosed with Adjustment Disorder with Anxiety and Depression following this incident.”
Dr Sarangan’s symptoms following the work injury are recorded:
“Following the incident, Dr Sarangan experienced mood fluctuations, persistent low moods, insomnia, fatigue and exhaustion, anxiety, anger and irritation. Her physical pain and numbness caused emotional sensitivity as she was less able to regulate her emotions. The incident also impacted her ability to maintain her self-care routines, to manage the home environment, or to care for her young son as a single parent. She experienced subsequent feelings of low self esteem and isolation. The client’s pain was consistent, but she found some relief following a cortisol injection to her right shoulder in December 2021 and was hopeful that continued physiotherapy /hydrotherapy alongside psychological assistance for pain management would improve her capability. The client was seeing improvement in her capabilities. She is also seeing a psychiatrist for her depressive disorder.”
The above are just some references throughout the clinical notes of Dr Jain, the applicant’s treating psychologist, that connect the psychological symptoms to pain arising from the work injury. To some extent, the majority of the notes refer to pain, CBT for pain, or pain management in some way. The notes paint a clear picture of ongoing and continuing psychological issues due to the consequences of the physical injury, Dr Sarangan’s inability to resume a normal life, and the difficulties she faced with every day activities due to pain. There are minor references to concerns with insurance, but nowhere near “litigation neurosis”. I do not find this submission at all persuasive. It is barely arguable and ignores the extensive clinical notes supporting the opposite conclusion.
Ultimately, the respondent’s case on injury suffers mostly from a lack of evidence. The respondent’s submissions attempt to pick apart medical evidence provided to assert that it cannot be accepted. However, there are no contradictory medical opinions that show that Dr Sarangan did not suffer a secondary psychological injury arising from the physical injury suffered on 8 April 2021. It is clear why objection was taken to the admission of the report of Dr Nair and Dr Singh. These reports provide a strong basis for the applicant’s case, although there appears also significant support from the clinical notes that I have outlined above.
I acknowledge that the respondent was first served with the reports when proceedings were commenced in the Commission. However, they have been aware of Dr Sarangan’s psychological issues for some time. The report of Rocket Rehab records depression, anxiety and stress in the “severe” range. Psychological symptoms are described, and it is recorded that “Ms Sarangan is taking anti- depressant to assist with mood management and she also has a Psychologist she consults regularly and she reported this is beneficial for her”.
It is clear from the clinical notes and reports provided that Dr Sarangan had a complex history in relation to her mental health. That does not preclude a finding of injury. It is uncontroversial that an injury can have multiple causes or contributing factors: ACQ Pty Limited v Cook and Aircair Moree Pty Limited v Cook [2009] HCA 28.
I am satisfied on the balance of probabilities that Dr Sarangan suffered a secondary psychological injury as a consequence of the physical injury she suffered on 8 April 2021. As a result of this finding, the psychological symptoms experienced by Dr Sarangan must be considered when examining her capacity for suitable employment, subject to consideration of the second issue in question, being whether there has been a novus actus interveniens.

Novus actus interveniens

On a foundational level, a novus actus interveniens (novus) breaks the chain of causation. The question of determining whether a novus exists and operates to preclude Dr Sarangan from compensation is one of causation. As the respondent points out, the leading authority on causation is Kooragang, in which it was stated at 463-464:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. ... What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury ... is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle, which Hart and Honore [H.L.A. Hart & Tony Honorĕ, Causation in the Law 2nd ed., (New York: Oxford University Press, 1985)] identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return as McHugh JA advised, to the statutory formula and ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The respondent has provided helpful submissions on the principles surrounding novus, from Griffey and Bailey. In Griffey, Byron DP stated:
“The question to be asked is twofold: if there is a chain of causation, was it broken to the extent that it was rendered inoperative, or ‘functus officio’ as described in Davies v Swan Motor Co (Swansea) Ltd [1947] 2 KB 291 at 318 (‘Davies’), or was the initiating ‘action’ still operative and the subsequent events part of the history or ‘circumstances in which the cause operates’, Minister of Pensions v Chennell [1947] KB 250 at 256 (‘Chennell’)? These are questions of fact, having regard to the circumstances of the case.”

As Byron DP points out, these are questions of fact.
In the present case, the facts support a conclusion that the motor vehicle accident did not constitute a novus breaking the chain of causation.
Dr Sarangan suffered a physical injury on 8 April 2021. She initially had pain focussed on her right arm, in the hand, thumb, elbow and shoulder, with pain extending into the neck and back. Over time, she developed pain in her left shoulder.
She had ongoing complaints of pain and restriction in her arm. She underwent investigations throughout 2021, up to 24 November 2021, where she underwent an MRI scan of both shoulders. On 13 March 2022, she was certified with capacity for some type of work from 13 March 2022 to 13 April 2022. This certificate was based solely on her physical capacity.
On 20 March 2022, Dr Sarangan was involved in a motor vehicle accident. The diagnosis provided on 21 March 2022, by her treating general practitioner, was “cervical whiplash/both shoulders/both elbows & low back”. The next box asks “detail any pre-existing factors which may be relevant to this condition or injury(ies)”, to which was recorded “Yes. Work related same injury as above on 8/4/21”. It was also noted “already seeing psychologist”. Thus Dr Kheray, from the date following the motor vehicle accident, connects Dr Sarangan’s symptoms to her work injury.
Dr Herald, an orthopaedic surgeon, has had the benefit of seeing Dr Sarangan both before and after the motor vehicle accident. He first saw her on 18 November 2021 and for the last time on 25 August 2022. In a report dated 6 October 2022, Dr Herald outlines Dr Sarangan’s history relating to her work injury and her motor vehicle accident. He outlines the investigations undertaken and answers a series of questions relating to the two incidents.
He first opines that her physical condition did not make her more susceptible to the motor vehicle accident. It could potentially be said here that Dr Herald is suggesting that there is no connection between the motor vehicle accident and her workplace injury. However, one must look at the words closely to determine what is being said. Here, Dr Herald is not decrying any causal connection, but rather stating that her injuries did not make her more susceptible “to a motor accident”, i.e. she was not more susceptible to being in a motor accident. There are circumstances where a workplace injury may make a person more susceptible to a further injury, in particular, in this case, a motor vehicle accident. For example, one could be taking medication that impairs concentration. That is not the case here.
Dr Herald goes on to directly link the work injury to the damage caused in the motor vehicle accident, in particular in terms of capacity for employment. He states that Dr Sarangan’s “pathology includes an aggravation of pre-existing pathology that was from the workplace injury”.
I acknowledge that Dr Herald’s opinion is somewhat qualified and he makes a number of suggestions that would assist in providing greater certainty, including comparative radiology and a further functional assessment. In the context of the other evidence, however, I am satisfied that there was no breaking of the chain of causation. Dr Herald’s opinion is that the motor vehicle accident aggravated the work injury, which was a temporary aggravation that ceased. His opinion is based on reviewing the imaging and his expertise. He reviewed
Dr Sarangan before and after the motor vehicle accident.
Dr Porteous, similarly to Dr Herald, answers the specific questions regarding the connection between the work injury and the motor accident in a non-committal way. It may be because of the way the questions were posed, which raise hypothetical situations that Dr Porteous states “is not something you can predict”. What is clear, however, is that Dr Porteous supports a conclusion that the motor vehicle accident aggravated the work injury. He discusses the issues in her arm and states “That was starting to all settle when she had an aggravation with the subsequent motor vehicle accident”.
In terms of her psychological symptoms, there is, again, medical support for the conclusion that the motor vehicle accident was not a novus. Dr Sarangan had been treated by Dr Jain for a long period prior to the motor vehicle accident. Discussions during those sessions concerned multiple issues, including Dr Sarangan’s domestic relationship, but I have found above that she suffered a secondary psychological injury as a result of the physical injury suffered on 8 April 2021.
In the leadup to the motor vehicle accident, the clinical notes of Dr Jain refer to issues connected to her work injury. Following the motor vehicle accident, a number of sessions deal specifically with those issues, as is understandable, but often revert to discussing the work injury. For example, on 28 April 2022, Dr Jain records that she is feeling unmotivated and depressed, “because of work injury, but now worse due to car accident”. On
19 July 2022, it is recorded that “the work injury is possibly complicating this issue and the car accident has made this worse, making her very upset”.
In the report dated 9 September 2022, Dr Jain connects the motor vehicle accident to the work injury, noting the different diagnoses for each. It is stated:
“The client also experienced more severe anxiety and exhibited signs of trauma. She has been diagnosed with Adjustment Disorder with Anxiety and Depression with the addition of mild Post-Traumatic Stress Disorder (PTSD).”
Dr Jain acknowledges that “Due to her pre-existing injury, her recovery from the car accident has been difficult. Her insurance issues and lack of security of care has also been a barrier”.
Dr Jain’s history and conclusions as Dr Sarangan’s treating psychologist are consistent with those of Dr Nair. Dr Nair provides a diagnosis of post-traumatic stress disorder with co-morbid major depressive disorder, and outlines that the mood symptoms became more severe following the motor vehicle accident. The physical work injury was said to have led to a secondary psychological injury and mood symptomatology, whereas the motor vehicle accident was said to be a primary psychological injury of post-traumatic stress disorder.
Dr Nair’s opinion supports a conclusion that in terms of the psychological symptoms present, there was no breaking of the chain of causation. The motor vehicle accident caused a new diagnosis, being post-traumatic stress disorder, which is unrelated to the work injury. However, the mood symptoms she experienced, as a secondary psychological injury due to her physical injuries, worsened following the motor vehicle accident. Her capacity for employment decreased as a result of this deterioration in her mood symptoms, in conjunction with her post-traumatic stress disorder. As discussed above, incapacity can have multiple causes.
The applicant relied on the cases of Oakley and Johnson. The applicant submits that she falls within the second category in Oakley, which is expressed as follows:
“(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence”
The respondent points out that in Johnson, Emmet AJA summarised the three categories in Oakley, and commented that the second category requires:
“Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.”
The respondent submits that Kooragang should be preferred over Oakley, and that the only cases that suggest that Oakley applies in workers compensation in NSW are Johnson and Ozcan, and they should be distinguished as they deal with permanent impairment assessments and not weekly compensation.
Firstly, I do not accept that Kooragang and Oakley cannot sit together in determining causation. Nowhere in Oakley, or those cases that discuss the principles in relation to NSW workers compensation, is there any suggestion that the test of causation is anything other than one of common sense, as set out in Kooragang. The Court of Appeal dealt with the relevant test of causation in Oakley, with direct reference to Kooragang (see at [124]):
“The first ground may be disposed of quickly. I do not understand the primary judge to have held that common law principles of causation are not applicable when assessing, under s 293 of the WC Act, the degree of permanent impairment that results from an injury. On the contrary, his Honour said:
‘66 It is significant that the Panel did not conclude that the later injury was of a kind or nature that severed the causal chain between the NSW Education injury and the plaintiff’s impairment. If it had come to such a conclusion, then it was obliged to find that there was no impairment as a result of the NSW Education injury. However, to the contrary, it concluded that the plaintiff’s impairment resulted from the NSW Education injury and the later Hostels injury.’”
Although the judgement refers to permanent impairment, I accept that the same common sense test applies to weekly compensation benefits. The respondent has pointed to no principle as to why the three categories in Oakley cannot sit together with Kooragang, and no reason to support the submission that they only apply in permanent impairment disputes. Member Sweeney considered the three categories in Carr v State of New South Wales (Mid North Coast Local Health District) [2021] NSWPIC 195, noting that whilst they are:
“relatively recent development, the second principle simply restates the time honoured principle that if a work injury makes a worker more vulnerable to a subsequent non-work injury, the additional pathology caused by the second injury can be attributed to the initial work incident”
Member Sweeney goes on to refer to Salisbury v Australian Iron and Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157 in which Sir Frederick Jordan stated:
“It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, a right to compensation ceases.”
In present circumstances, I do not accept the employment injury had ceased to produce effects at the time of the motor vehicle accident. I have referred to the evidence in that regard above. The overwhelming evidence in support of the applicant’s case is that she experience the effects of both her physical and psychological injuries prior to her motor vehicle accident, and that after the accident they continued and were made worse. There is also evidence to support a conclusion that the effects of the motor vehicle accident may have possibly ceased at this time, but nothing to support such a connection to the work injury.
Member Sweeney also referred to Calman v Commissioner of Police [1999] HCA 60; [1999] 73 ALJR 1609 in which it was stated:
“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause.”
As can be seen, there is nothing controversial in the three categories in Oakley – they represent a succinct expression of established principles within the workers compensation scheme in NSW that have existed for some time.
I am satisfied that the applicant falls within the second category in Oakley. The effects of the work injury were continuing at the time of the motor vehicle accident. Her incapacity after that date was made worse by the motor vehicle accident, but that the effects of the original work injury continued. To put it another way, I do not accept that the subsequent incapacity would have occurred, to the same extent, had the original work injury not occurred.
The outcome may have been different that the effects of the original work injury ceased. A/Prof Miniter, in a roundabout way, suggests this (although more caged in terms of suggesting that Dr Sarangan was exaggerating and inconsistent). I struggle to give much weight to the report of A/Prof Miniter. He seems to have completely discounted the symptoms described by Dr Sarangan and formed an opinion that she was, at best, exaggerating, or at worst, “non-genuine”. He acknowledges the fall but states he “could see no evidence of injury”, an opinion that flies in the face of the ongoing issues encountered by Dr Sarangan and her complicated recovery. The opinion of A/Prof Miniter is in distinct contrast to that of Dr Herald. I prefer the opinion of the applicant’s treating specialist, who has seen her on a number of occasions both before and after the motor vehicle accident.

Capacity

The parties agree that the role of telehealth dentist is suitable employment.
The final question to be answered is for how many hours per week can Dr Sarangan work in that role. The applicant submits that she has capacity for eight hours per week. She refers to the various opinions concerning capacity, including Drs Wallace, Miniter, Porteous, and Singh.
The respondent refers to the certification provided by Dr Kheray of 24 hours per week, which was provided 13 days prior to the motor vehicle accident. The respondent submits that no weight should be afforded to the opinions of Drs Porteous, Nair and Singh, as they did not consider the applicant’s capacity immediately prior to the motor vehicle accident and subsequent to it.
Firstly, I do not accept that submission as a matter of fact. All doctors have taken a comprehensive history of Dr Sarangan’s symptomatology pre and post the motor vehicle accident. Their opinions are clear and, in spite of the respondent’s submissions, made in a “fair climate”.
Secondly, given my findings about the motor vehicle accident not constituting a novus, and Dr Sarangan falling within the second category in Oakley, these submissions fall away. The incapacity suffered by Dr Sarangan had multiple causes, including the index work injury and the motor vehicle accident. Further, I am persuaded by the opinion of Dr Herald that the motor vehicle accident was likely a temporary aggravation.
As pointed out by Dr Nair, the work capacity decision failed to take account of Dr Sarangan’s mood symptomatology. The report of Rocket Rehab acknowledges these symptoms but makes no account of them in determining her capacity for suitable employment. Having found that Dr Sarangan suffered a secondary psychological injury as a consequence of the physical injuries she suffered on 8 April 2021, I am obliged to take these symptoms into account.
Having considered the medical evidence discussed in detail above, I am satisfied that Dr Sarangan has capacity for suitable employment as a telehealth dentist for eight hours per week. The applicant has provided a calculation of an entitlement to $576 per week based on that finding. The respondent has not disputed that calculation and accordingly I will make an award in that regard, including an order for indexation in accordance with the applicable legislation from time to time.

[2023] NSWPIC 100

13 March 2023