Smith v Workers' Compensation Regulator
[2016] QIRC 5
•15 January 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Smith v Workers' Compensation Regulator |
PARTIES: | Smith, Patrick v Workers' Compensation Regulator |
CASE NOS: | WC/2015/155 |
PROCEEDING: | Appeals against decision of Regulator |
DELIVERED ON: | 15 January 2016 |
HEARING DATES: | 19 and 21 October 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeals are dismissed. 2. The decisions of the Workers' Compensation Regulator are confirmed. 3. The Appellant is to pay the costs of, and incidental to the appeals. Failing agreement, the Regulator is granted liberty to apply. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR – where Appellant suffered two back injuries at work - whether Appellant suffered a psychological injury secondary to either one or both of the back injuries - where no record of Appellant receiving treatment or sought any treatment for psychiatric injury prior to December 2011 or February 2012 events - where no objective evidence establishing cause of Appellant's pain - where Commission does not consider Appellant suffered a psychological injury. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr G. Hampson, Counsel instructed by Hall Payne Lawyers for the Appellant. |
Decision
Patrick Smith commenced employment with Swickers Kingaroy Bacon Factory Pty Ltd in or about 2009. Prior to his work with Swickers, Mr Smith had been engaged in various occupations, including as a furniture assembler. While performing that work in 2005, Mr Smith injured his back. He filed a Notice of Claim for Damages in relation to that injury and a secondary psychological injury.
On 21 December 2011, whilst employed with Swickers, Mr Smith aggravated his back injury. He was treated onsite with acupuncture and had little, if any, time off work. Mr Smith again aggravated his back at Swickers on 17 February 2012. Mr Smith made claims in respect of both of those injuries which were ultimately accepted by the Workers' Compensation Regulator.
Mr Smith returned to Swickers on light duties in mid-2012. In October 2012, Mr Smith was hospitalised for a non-work aggravation of his back injury. Mr Smith was retrenched in November 2012 and has not worked since then.
Mr Smith claims that as a result of the December 2011 and February 2012 injuries he has sustained a secondary psychological injury.[1] This injury was not accepted by the Regulator. There are two appeals against the decisions of the Regulator which were heard together.
[1] Throughout the hearing and in the written submissions, the terms "psychological injury" and "psychiatric injury" were used interchangeably.
The Appellant frames the issues to be determined in this appeal as:
1. Whether Mr Smith suffered a psychological injury secondary to the physical injuries sustained in either or both the December 2011 and February 2012 events; and
2. Assuming Mr Smith is found to have suffered a secondary psychological injury arising out of either or both of those events, that psychological injury was an "injury" within the meaning of that term as set out in s 32 of the Workers' Compensation and Rehabilitation Act 2003.
To assist in determining the matter oral evidence was given by the following witnesses:
For the Appellant:
· Mr Smith;
· Barbara Smith, the Appellant's wife;
· Dr John Robinson, General Practitioner, Nanango; and
· Dr Axel Estensen, Consultant Psychiatrist.
For the Respondent:
· Lainie Nicholson, Psychologist, Kingaroy;
· Dr Wasim Shaikh, Consultant Psychiatrist; and
· Dr Alfred Chung, Consultant Psychiatrist.
Evidence in relation to whether Mr Smith suffered a secondary psychological injury
Mr Smith was referred to Dr Leo Zeller, Orthopaedic Surgeon, by his GP, Dr Robinson for examination and treatment following the second work incident. Dr Zeller advised Dr Robinson that Mr Smith had ongoing pain issues despite having no radiological or clinical evidence of a serious underlying problem. Dr Zeller considered Mr Smith should be referred to the Wesley Pain Program for assessment and treatment of his lumbar back injury. Mr Smith attended this program in May 2012.
The Commission does not have the benefit of any notes or other evidence relating to Mr Smith's participation in the Program. Mr Smith's evidence to the Commission is that after he attended the Wesley Pain Program, he returned to work on light duties and was "really good" for the first few weeks. This evidence is consistent with that of his wife but different to Dr Robinson's evidence of what Mr Smith told him, viz., that he did not receive any real benefit from the Program.
Over June and July 2012, while on light duties, Mr Smith was referred to Ms Nicholson by WorkCover Queensland to receive assistance in adjusting to his injury. Mr Smith attended on Ms Nicholson for assessment, four sessions of adjustment to injury counselling, vocational assessment and resume development.
Ms Nicholson had Mr Smith complete a Personality Assessment Inventory and a DASS, a self-assessment tool. The results of the PAI were not valid because of the way Mr Smith had answered the questions. Mr Smith had assistance from Ms Nicholson in completing the DASS as a result of having problems with literacy. The DASS is not a diagnostic tool but is a self-report inventory where the client indicates their level of symptoms over a week. In a letter to Dr Robinson dated 2 August 2012, after referring to the "null" results of the PAI, Ms Nicholson stated that:
"What I was able to identify was that Patrick's score on the suicide scale was extremely high. His depression score was also in the clinical range, as was his somatic complaints. The subscale score of physical depression was very high. This is consistent with his presentation."
Ms Nicholson's evidence was that the invalid PAI results could have implications for the validity of the DASS test but she "can't make that conclusion at this point". Equally, she was unable to express an opinion about whether Mr Smith had a psychological condition as that was outside the purposes of the referral and she did not undertake specific assessment, interviewing or assessment throughout.
During his sessions with Ms Nicholson, Mr Smith discussed his concerns about being retrenched. He told her he felt like he was on the scrap heap and a "bludger". He was stressed about losing his job and concerned that he was going "nowhere with his life."
In cross-examination, Mr Smith said that hurting his back and not being able to return to normal duties made him stressed. For a large part of his working life, Mr Smith has been employed in physical work. He took pride in that. His pain prevents him from socialising and participating in enjoyable activities. He has a sense of guilt about not being the breadwinner and a good provider for his family. He agreed that if he did not have pain, he could return to his normal life.
Mrs Smith gave evidence that before the end of 2011 her husband was fun-loving, enjoyed socialising and having family time. Although Mr Smith had other physical injuries in relation to his shoulder and knee, these did not affect his personality. His back injury in 2005 took a lot longer to heal and "we had a lot of issues at that stage but we came through it". Since the events of December 2011 and February 2012, Mr Smith had become "very quiet", "hard to talk to", "doesn't want to do anything any more" and has "just gone into himself". He also does not socialise and prefers to stay at home. After he was terminated and was doing "nothing", Mr Smith "just got worse and worse. Not talking or answering. Wouldn't talk to the kids on the phone."
Ms Nicholson wrote to WorkCover on 27 June 2102 after two sessions with Mr Smith advising that he "lacks insight into his injury and its management despite the back rehabilitation program." She was of the opinion that "there is some underlying depression and anxiety."
Mr Smith told Ms Nicholson of his "silly thoughts", i.e., that he was contemplating suicide. Ms Nicholson considered the protective mechanism of his family mitigated against him acting on those thoughts. Ms Nicholson wrote in the Vocational Assessment Report to Workcover dated 6 August 2012 that Mr Smith had "a strong history of suicidal ideation". When cross-examined on this point Ms Nicholson admitted that there was no mention in her notes of when this ideation commenced. Despite that, she considered that it pre-dated his 2011 back injury because of the language she had used in her report.
On 2 August 2012, Ms Nicholson wrote to Dr Robinson advising of Mr Smith's "strong suicidal ideation" and his "long history of suicidal thoughts". She sought that Mr Smith continue with counselling outside of the workers' compensation process because of concern about his expressing suicidal thoughts which she considered to be related to stress about the loss of his job and coping rather than a diagnosis of depression. Dr Robinson did not act on Ms Nicholson's request for a referral.
In his evidence, Mr Smith denied having "silly thoughts" prior to his back injury and said they came on when he realised he was going to be sacked. His evidence about whether he had told Dr Robinson, his General Practitioner since 2009, of his silly thoughts was inconsistent, varying from that he had not told him at all to that he had told him a couple of times. He ultimately agreed in cross-examination that he had told Dr Robinson of them on one occasion after Ms Nicholson advised she would write to him. Mr Smith kept these thoughts to himself thereafter because he did not want people thinking there was anything wrong with him.
Dr Robinson said that as at the time of receipt of Ms Nicholson's letter, Mr Smith had not specifically complained of suicidal thoughts. He had no recollection of either Mr or Mrs Smith raising this issue and had no records to that effect. Mr Smith did not attend on his surgery to obtain a mental health care plan. When Dr Robinson asked Mr Smith about his moods, he did not get the impression that Mr Smith had a depressive illness in the psychiatric sense as opposed to a sadness that may be associated with the imminent loss of one's job. He was of the opinion that Mr Smith was struggling with the practical difficulties arising from his back pain, was sad, reacting to the loss of his job, problems with his finances and frustration with the court process. Dr Robinson accepted though that a General Practitioner may not always be able to detect patients who have a depressive illness.
Dr Chung placed little weight on Mr Smith's suicidal ideation. In the "Conclusions" section of his report dated 20 November 2014, Dr Chung wrote:
"I noted that Mr Smith had mentioned suicidal ideation on several occasions. At one time he told me about suicidal thoughts without my asking him for this information. I also noted that he was watching me intently for an emotional reaction when he mentioned this. I wonder about the reliability of his reported suicidal thoughts, as it is somewhat histrionic in its presentation."
Dr Chung was cross-examined about his opinion concerning Mr Smith's suicidal ideation. In particular, he was asked whether he should have challenged Mr Smith when he identified this. Dr Chung replied that he did not consider this was appropriate in a medico-legal assessment and further, he intended to later pursue a line of questioning about suicide and self-harm. Dr Chung was asked whether by looking at him, Mr Smith was concerned about his thoughts and wanted a comment. Dr Chung replied:
"Well, he could be, yes, but, at the same time, I think you have to look at the context of the statement. If a person said to me in a very distraught and distressed manner saying that he's having these thoughts and he's, basically, in his facial expression and bodily language, is appealing for help, I think I would have picked up on that. At the time of the assessment, I don't think that was the sort of impression I was getting from him. I think what I need to mention here too that I feel that, throughout the whole assessment, even though he was saying things that are emotionally quite distressing, he was quite relaxed and quite contained throughout the whole appointment. So - yeah. So from what he said to me and what he - and his facial reaction and bodily language all were so out of touch and not in keeping with the content of the conversation that it sort of seems - it seems as though he wasn't very sincere, I guess. I don't know which other word I can use to describe it."
Dr Shaikh's notes of his examination record that Mr Smith had "suicidal thoughts present very long time". In oral evidence he considered these dated back to the 2005 accident and "subsequent experiences."
Dr Shaikh gave evidence that suicidal ideation does not mean that a person has a psychological condition. Suicidal ideation is one of approximately nine or 10 criteria which relate to a diagnosis of depression. In order to have diagnosis about five criteria need to be met. Suicidal ideation is also seen in a percentage of the population who do not suffer with mental illness.
Dr Estensen also accepted that suicidal ideation does not necessarily mean a person has a psychiatric condition but could be a situational issue or related to personality factors.
Ms Nicholson advised WorkCover after the first appointment with Mr Smith of her belief that he was "likely to tell people information that will be to his perceived benefit." Under cross-examination Ms Nicholson acknowledged that this view was not recorded in her notes. However, it was written after two consultations with Mr Smith and followed her (repeated) comment that he lacked insight into his injury and management. This lack of insight was again highlighted to her when he expressed the view at his third appointment that despite being in pain "if he keeps working he will keep his job". She expressed concern about "the high possibility of underlying psychological and cognitive issues that were likely to be present prior to the injury and may be impacting on his current management of the injury."
Dr Chung identified in his assessment with Mr Smith "an element of secondary gain in his presentation". He acknowledged under cross-examination that he did not ask Mr Smith about the financial outcome of his claim. He also accepted that at the time of Mr Smith's participation in the Wesley Pain Program and his consultations with Ms Nicholson that he was intending to return to work. Despite these concessions, Dr Chung explained that he came to the view that Mr Smith was pursuing "secondary gain" because his reports of symptoms and his clinical presentation did not coincide.
On examination, Dr Chung did not find that Mr Smith reported symptoms that are consistent with a psychiatric diagnosis. Mr Smith described a lack of sleep secondary to the alleged pain symptoms which meant his energy level was low. This caused poor motivation and low mood. Although Mr Smith reported a low mood, Dr Chung considered he discussed most issues freely without any evidence of emotional distress. Dr Chung did not make a psychiatric diagnosis and did not notice any significant objective signs of psychiatric illness.
Dr Shaikh examined Mr Smith on 4 April 2015. His opinion is that while Mr Smith presented "with emotional lability and impaired cognition, there is not much evidence to suggest that he suffers with any psychiatric condition, even in relation to the 2011 incident. The majority of his 'psychological' complaints are in fact related to his claimed physical ill health, for example, sleep disturbances due to pain, impaired energy due to pain, impaired cognition due to effects of medication." In his oral evidence, Dr Shaikh also said Mr Smith did not have an adjustment disorder to the back pain.
Dr Estensen saw Mr Smith on 24 June 2014 and prepared a report dated 30 September 2014. He diagnosed Mr Smith as having a Major Depressive Episode (mild/moderate severity). Mr Smith had reported to him feeling useless, very negative about himself and a sense of guilt that he had let his wife and family down. He was distressed that he could not do a range of activities he had previously undertaken. Mr Smith also said he was prone to catastrophising and thinking "silly thoughts", although he did not think he would harm himself as his family was protective. His mood had declined prominently after he was retrenched.
Dr Estensen opined that in the context of pain, physical impairment and loss of employment, Mr Smith had experienced a decrease in his mood and the onset of a range of depressive and anxious cognitions. Associated with his depressive symptomatology had been a neurovegetative disturbance including insomnia, weight gain, diminished libido and impaired attention and concentration. Under cross-examination Dr Estensen was asked whether these conditions were caused by his physical injury rather than a potential psychiatric injury. Dr Estensen was of the opinion that both would contribute but accepted there was a "grey area" which could be determined by professional expertise. He went on to add that the severity and clarity with which the person describes their symptomatology would also assist in determining the cause.
In a File Note made as a result of a conference between Dr Estensen, Counsel for Mr Smith and his instructor on 23 July 2015, Dr Estensen, after reviewing various medical reports as well as correspondence from Ms Nicholson to WorkCover, stated that he was of the view that the initiating event for the Major Depressive Episode was the event occurring on 17 February 2012, with the progression of symptoms thereafter. Dr Estensen further considered that but for the event of 17 February 2012, it was unlikely Mr Smith would have progressed to develop a depressive illness. Under cross‑examination, De Estensen said he relied on the report of Dr Gillett, Orthopaedic Surgeon, the Medical Assessment Tribunal - Orthopaedic (neither of which are in evidence) and Mr Smith's history of his decline in his state of health as his back condition progressed to arrive at the conclusion that the February 2102 event was the precipitating event. When it became apparent that he was not recovering, his employment became more uncertain and his pain was ongoing, this led to a gradual onset of Mr Smith's depressive illness.
Dr Estensen acknowledged that the types of loss experienced by Mr Smith would be accompanied by some degree of sadness, frustration and irritability. In his opinion, Mr Smith's description of his symptoms and emotional state was consistent with his facial expressions and movement. When asked about the objective signs he observed about a depressive condition, Dr Estensen referred to Mr Smith being a little dishevelled, having possible psychomotor retardation and his mood being depressed but his affect was reactive. Dr Estensen said that each of these signs is a contributing factor. He concluded from Mr Smith's symptoms that he was suffering from a depressive illness. Dr Estensen acknowledged that Drs Chung and Shaikh had not reached this conclusion but had interpreted them as a usual reaction to life's vicissitudes. He also thought it was reasonable to expect a General Practitioner who had regularly seen a patient would be able to pick up some signs of a major depressive illness.
Partly because Dr Shaikh was of the opinion that Mr Smith's "so-called psychological complaints are ... representation of his physical experiences and his pain", he disagreed with Dr Estensen's psychiatric diagnosis. He explained:
"… he has advised that his impairment - he has got impairment in concentration and memory, but this is as a result of his experienced pain and prescribed medications. He has talked about emotional instability, but this is as a result of his experienced pain, and it's during those periods of experienced pain that he is emotionally labile. He has talked about reduced social engagement but that seems to be as a result of physical restrictions rather than reduced motivation to engagement. His energy levels are dependent on his experienced levels of pain. And so what Dr Estensen has commented on is the diagnosis of a major depressive episode, not realizing that one of the DSM criteria for major depressive episode is that the condition is not better explained via other factors. In Mr Smith's situation, he does have other reasons that explain his symptoms, i.e., his reported physical complaints."
Evidence from Dr Licina, Orthopaedic Surgeon, was tendered by consent. His evidence consists of a report dated 17 October 2014 and a file note of a teleconference between Dr Licina, Counsel for the Regulator and her instructor. In short, Dr Licina did not consider that as at 17 October 2014, Mr Smith had any lower back symptoms due to any work-related injuries. Although Mr Smith was limping and complained his leg was giving way, Dr Licina could not find any plausible explanations for these symptoms. There was no structural problem to his back nor was anything found on objective examination or on the imaging findings. He said that on the balance of probabilities none of Mr Smith's symptoms as at 17 October 2014 were related to the work injuries of December 2011 or February 2012. Dr Licina opined that the vast majority of soft tissue injuries resolve within 12 weeks if there is no psychological component. He attributed Mr Smith's symptoms to non-organic factors or abnormal illness behaviour.
Conclusion
The decision of Hall P in Groos v WorkCover Queensland[2] establishes that the DSM IV criteria do not have to be met in order to establish the existence of a psychiatric illness. In the decision in Lackey v WorkCover Queensland,[3] Hall P held that there was no need for a temporal connection between a psychological injury and the worker's employment, although the test posited by the words "arising out of" requires some causal or consequential relationship.
[2] Groos v WorkCover Queensland (2000) 165 QGIG 106, 107.
[3] Lackey v WorkCover Queensland (2000) 165 QGIG 22, 22.
The Regulator has admitted that there is no record of Mr Smith having received any treatment or sought any treatment for any psychiatric injury or symptom prior to either the December 2011 or February 2012 events. However, the evidence suggests that Mr Smith might have had a pre-existing psychiatric condition. In this regard reference is made to the evidence of Ms Nicholson who referred in a report to WorkCover dated 27 June 2012 to Mr Smith having underlying depression and anxiety. Further, Mrs Smith's evidence about coming "through a lot of issues" after the 2005 back injury also indicates that Mr Smith had experienced mental health issues before the back injuries in 2011 and 2012. His 2005 claim, which included a claim for secondary psychological injury, tends to support this view.
Although I accept the evidence of all psychiatrists that suicidal ideation of itself does not necessarily mean a person has a psychological condition, the evidence of Ms Nicholson and Dr Shaikh is that those thoughts are of long standing. Dr Shaikh was of the opinion they dated back to 2005. Despite that evidence, I note that Dr Shaikh, who examined Mr Smith many years later in 2015 in relation to the 2005 claim, did not find evidence of a psychiatric condition in relation to the 2005 incident. Ultimately, it is unnecessary to draw a conclusion about whether Mr Smith had a psychological condition prior to the events of 2011 and 2012.
The orthopaedic evidence before the Commission is that Mr Smith suffered soft tissue injuries from the two work events which should have resolved within 12 weeks. There is no objective evidence through imaging or on examination which establishes an organic cause of Mr Smith's pain. Despite this, Mr Smith continued to experience pain after the second injury which should have resolved. It was the existence of pain and an inability to find its cause that led Mr Smith to attend the Wesley Pain Program. I am satisfied on the evidence of Mr and Mrs Smith that Mr Smith's participation in this Program was beneficial, as he felt "really good" for the first few weeks after his return to work on light duties.
However, Mr Smith did not continue to cope after his return to work. Mrs Smith referred to his decline in mood and WorkCover decided that he should receive adjustment to injury counselling. I accept Ms Nicholson's evidence that no implication of the existence of a psychological injury can be drawn from Mr Smith being referred for such counselling.
Mr Smith did not return to his former physical health. He was retrenched. Mr Smith said this occurred because of his inability to come off light duties, however, no documentation from Swickers to that effect was tendered in evidence. After his retrenchment his mood became "worse and worse". While Mr Smith told Dr Estensen that his mood declined prominently after he had been retrenched, this does not appear to have been reported to either Drs Chung or Shaikh.
Mr Smith did not seek any treatment for any decline in his moods. At best his evidence is that he told Dr Robinson on one occasion of his "silly thoughts". Dr Robinson acknowledges that he could have given Mr Smith more counselling and did not act on advice from an Occupational Physician to arrange a psychiatric assessment. Apart from the logistical difficulties in arranging a psychiatric assessment in a regional area, Dr Robinson had the impression Mr Smith did not consider counselling was very helpful. He did not return to Dr Robinson's surgery for a follow up on the mental health care plan proposed by Ms Nicholson. More importantly, Dr Robinson did not see any clinical indications from Mr Smith's presentation to refer him to a psychiatrist.
The Commission does not have the benefit of contemporaneous psychiatric evidence about Mr Smith's mental state as at 2012. The evidence of the three psychiatrists concerns their examination of him in 2014 or 2015.
Of the three psychiatrists who examined Mr Smith only Dr Estensen was prepared to opine that Mr Smith sustained a secondary psychological injury to one or both of the aggravations of the back injury. Despite the limited objective signs of a depressive condition, Dr Estensen was prepared to find that Mr Smith's report of symptoms and his expression was consistent. He also considered that Mr Smith's neurovegetative disturbance was attributable to a psychiatric condition. His opinion differs to that of Drs Chung and Shaikh.
This is not a case where the conflict in the opinions of the psychiatrists can be resolved on the grounds of qualifications, reasoning or the extent to which each witness had a correct grasp of the objective facts relevant to the problem.[4] Helpful in resolving the conflict in the specialist medical opinions is Dr Estensen's evidence that the severity and clarity with which the person describes their symptomatology can aid in determining the cause of the neurovegetative disturbance.
[4] Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J).
Both Drs Chung and Shaikh have reservations about Mr Smith's reliability. Their concerns centre on the inconsistency between Mr Smith's presentation and his symptoms.
Mr Smith gave very little direct evidence about his psychological symptoms to the Commission. Mrs Smith provided some evidence about the alteration to his state but this was not put to either Drs Chung or Shaikh for their opinion. I have previously remarked on their not being informed of his prominent mood decline after losing his job at Swickers. Mr Smith's evidence was that were it not for his back pain, he would be back at Swickers, back to his normal life. This points to the back injury being of concern and is consistent with the evidence of Drs Chung and Shaikh that his symptoms are better explained by his back condition.
Contemporaneous evidence from health professionals in 2012 about Mr Smith's mental health is from Ms Nicholson and Dr Robinson.
Ms Nicholson said that Mr Smith's presentation at the first and second session was consistent with his score on the DASS test although she was unable to make a diagnosis of depression. However, Ms Nicholson was not convinced that any depression or anxiety related to the injury, hence her request to Dr Robinson that Mr Smith be referred under a system other than workers' compensation.
Dr Robinson's evidence is that Mr Smith did not have a depressive illness rather sadness related to the loss of employment and associated factors. As mentioned, he did not consider Mr Smith showed clinical indications requiring him to see a psychiatrist.
In my view, it is reasonable to place some weight on the evidence of Ms Nicholson and Dr Robinson given they saw Mr Smith at the time his psychological condition is alleged to have been developing. Neither consider that Mr Smith had a psychological condition secondary to his back injury.
The Commission does not consider that Mr Smith suffered a psychiatric injury in accordance with the DSM IV. I am prepared to accept that he has suffered a range of stressors such as sadness at the loss of employment, financial worries and concern about the court process. Although these occurred after the back injury of February 2012, I cannot conclude that the back injury was the precipitating event. He was able to return to work from mid-2012 to November 2012 on light duties. As the Regulator submits, this indicates that his back condition had recovered sufficiently for him to do so. Further, the evidence from Ms Nicholson does not show that any psychological condition arising from his back injury prevented him from returning to or performing work. Dr Robinson also did not note any clinical signs.
I prefer the evidence of Drs Chung and Shaikh that most of the psychological complaints are representations of pain symptoms and prescribed medications rather than being a discrete psychological injury. Further, his physical complaints better explain his symptoms.
An additional, complicating factor in this case is that on the orthopaedic evidence before me, although the pain arose after the second back injury, there is no identifiable organic basis to the pain. Accordingly, I am unable to find that the pain is attributable to either one or both of the back injuries Mr Smith suffered at work.
For all of these reasons I am unable to find that Mr Smith suffered a psychological injury secondary to either or both of the physical injuries he sustained at work. In the event I am wrong about him not sustaining a psychological injury, I am not satisfied, for the reasons given, that any such injury arose out of his employment or that employment was a significant contributing factor to it.
Orders
1. The appeals are dismissed.
2. The decisions of the Workers' Compensation Regulator are confirmed.
3. The Appellant is to pay the costs of, and incidental to the appeals. Failing agreement, the Regulator is granted liberty to apply.
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