Soriano v Secretary, Department of Communities and Justice - [2021] NSWPIC 80

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Soriano v Secretary, Department of Communities and Justice [2021] NSWPIC 80
APPLICANT:	Wilfredo Soriano
RESPONDENT:	Secretary, Department of Communities and Justice
MEMBER:	Mr Marshal Douglas
DATE OF DECISION:	14 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Applicant suffered agreed physical and psychological injuries when struck by car; applicant claimed compensation for permanent impairment; respondent disputed applicant had suffered primary psychological injury; Held- applicant’s psychological injury due to both accident and consequences of physical injury; matter remitted to President to be referred to Medical Assessor/s to assess applicant’s WPI from both physical and psychological injuries.
DETERMINATIONS MADE:	1. By consent, the application to resolve a dispute is amended: a. to change the date of injury to 6 February 2015; b. to delete the reference to “lumbar spine” from the section titled Permanent Impairment/Pain and Suffering; and c. to include in the section titled Permanent Impairment/Pain and Suffering “skin scarring (TEMSKI)- right ankle”, “face- scarring and disfigurement” and “mastication”. 2. By consent, the applicant discontinues his claim for compensation for permanent impairment relating to his lumbar spine. 3. The applicant suffered a primary psychological injury on 6 February 2015. 4. The matter is remitted to the President so that the medical dispute relating to the degree of permanent impairment of the applicant resulting from his physical injuries and his primary psychological injury suffered on 6 February 2015 can be referred to a Medical Assessor to assess, with the following body parts and systems to be assessed: a. psychological injury; b. cervical spine; c. right lower extremity (ankle); d. skin scarring (TEMSKI)- right ankle; e. face- scarring and disfigurement; and f. mastication. 5. The report of Dr Ben Teoh dated 20 November 2020 is admitted into these proceedings. 6. The documents to be forwarded to the Medical Assessors are: a. the application to resolve a dispute and attached documents; b. the reply and attached documents, and c. Dr Ben Teoh’s report dated 20 November 2020.

STATEMENT OF REASONS

BACKGROUND

Wilfredo Soriano is a registered nurse by profession and commenced employment as such with the New South Wales State Government in 1994. The Secretary of the Department of Communities and Justice (the respondent) is, in accordance with s 26 of the Government Sector EmploymentAct 2013, Mr Soriano’s employer.
On 6 February 2015, Mr Soriano was working an afternoon shift between 3.00 pm and 11.00 pm. Part way through his shift, he went to move his car from a public road to a car park within the facility where he was working. To do that, he had to cross a pedestrian crossing. While doing that, he was struck down by a car. He was taken by ambulance to the Royal Prince Alfred Hospital where he was admitted and remained until he was discharged on 21 February 2015.
It is agreed that Mr Soriano suffered serious physical injuries in the incident. It is also agreed that he suffered a “psychological condition” as a consequence of the incident.
Mr Soriano has claimed compensation from the respondent for permanent impairment resulting from his physical injuries and also for permanent impairment resulting from a psychological injury. There is a dispute between the parties regarding the degree of permanent impairment Mr Soriano has from his physical injuries and the parties agree that that medical dispute must be referred to a Medical Assessor to assess.
There is also dispute between Mr Soriano and the respondent regarding whether the agreed psychological condition Mr Soriano suffered is a primary psychological injury within the meaning of s 65A(5) of the Workers Compensation Act 1987 (the Act). The respondent’s position is that it is not, and that Mr Soriano’s psychological condition is entirely a secondary psychological injury. Consequently, its position is that it has no liability, by virtue of s 65A(1) of the Act, to pay Mr Soriano compensation for any permanent impairment he has from his psychological condition. The parties agree however that in the event that the Commission finds Mr Soriano suffered a primary psychological injury, then the issue regarding the degree of his permanent impairment from such an injury must also be referred to a Medical Assessor to assess, and that Mr Soriano will be entitled to receive compensation for permanent impairment resulting from whichever of his physical injuries or his primary psychological injury result in the greater amount of compensation payable to him under s 66 of the Act.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation on 26 March 2021. Mr Soriano was represented by Greg Horan of counsel, instructed by Gerard Morson. The respondent was represented by Phillip Perry of counsel, instructed by Jesse Mikaelian. I used my best endeavours to attempt to bring the parties to a settlement. That did not eventuate and the matter accordingly proceeded to an arbitration.

ISSUES FOR DETERMINATION

The parties agreed at the arbitration that the only issue the Commission must determine is whether Mr Soriano has suffered a primary psychological injury from the incident on 6 February 2015.

EVIDENCE

The following documents are in evidence before the Commission and were considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents; and
(c) Report of Dr Ben Teoh dated 20 November 2020.
Mr Perry did not seek leave to cross examine Mr Soriano. No witnesses were called to give oral evidence.

FINDINGS AND REASONS

Relevant to the issue to be determined, is what recollection, if any, Mr Soriano has of the accident on 6 February 2015.
Mr Soriano completed a worker’s compensation claim form on 14 July 2015, in which, in a section titled “what happened”, he inserted the words “no recollection of accident”.
There are in evidence two statements that Mr Soriano signed, the first on 20 April 2016 and the second on 18 January 2021. In his earliest statement he recounted his intention midway through his shift on 6 February 2015 to move his car from the street to a car park at the premises at which he was working. He recalled speaking briefly with a colleague who was sitting on a brick wall near the front gate, and then progressing to where his car was parked. He said in this statement that he did not know any details of the accident. He said that he did “not remember stepping out onto the road”. His next memory was awaking in the intensive care unit at the Royal Prince Alfred Hospital. He said he had been asleep for a couple of days and when he finally became aware of his “surrounds” he realised he was in a hospital.
Mr Soriano also recounted in his earliest statement learning from the NSW Police relating to the accident that the vehicle that hit him was travelling at approximately 45 kilometres an hour.
In his later statement of 18 January 2021 Mr Soriano said that he was hit by a car that “had failed to stop at the pedestrian crossing”. He said that he was thrown upon impact and subsequently knocked over. He recounted losing consciousness. He said he had “very limited recollection of the accident”.
Mr Soriano also said in this statement that his mental state had significantly deteriorated and that he “was suffering from nightmares and flash backs about seeing myself in the intensive care unit at hospital”. He also described the disabilities and symptoms he continues to suffer, which description included this:
“I continue to suffer from unwanted memories, anxiety, panic attacks, depressed mood, feelings of hopelessness, suicidal ideation, reduced energy, weight loss, reduced enjoyment in activities, social withdrawal, avoidance, hypervigilance near pedestrian crossings, heightened startle reaction, impaired concentration and sleep disturbance”.
Not surprisingly, Mr Soriano has seen several doctors following the accident both for the purpose of treatment and for obtaining forensic medical reports for the claims he has made for compensation. One doctor is Dr Mukesh Kumar, a psychiatrist, whom Mr Soriano consulted on 24 January 2018 on referral from his GP Dr Mercedita Reyes. Dr Kumar wrote to Dr Reyes on the day to report on the consultation. Dr Kumar noted that Mr Soriano had reported losing consciousness and waking up in the hospital ICU. Dr Kumar also noted the following:
“He described flashbacks of the trauma in the ICU where he suffered severe pain. He has ongoing nightmares of the accident and becomes very anxious. His sleep is quite poor with frequent waking periods. Wilfredo said he is always tired and remains angry and agitated. The fact that he is now disabled and is unable to return to work perpetuates his symptoms. This makes him feel ‘useless’ and worthless adding to the depressive symptoms. He feels angry and guilty for crossing the road on the day of the accident. The uncertainty about his future regarding health and employment is another stressor. In terms of risks, Wilfredo acknowledges that he has had thoughts of dying, however he has never planned for suicide. He denies any intentions of suicide and cites his elderly mother in the Philippines and his religion as protective factors.”
Dr Kumar advised his opinion was that Mr Soriano had Post Traumatic Stress Disorder.
Mr Soriano’s GP also referred him to psychiatrist Dr Padmini Howpage, who treated Mr Soriano at the Hills Private Hospital where Mr Soriano was admitted between 3 February 2018 and 17 February 2018. Dr Howpage noted in a report he provided Dr Reyes on 16 February 2018 that Mr Soriano suffered multiple fractures as a result of Mr Soriano being struck by a car on 6 February 2018 and that Mr Soriano was admitted into the Royal Prince Alfred Hospital for 21 days and subsequently had a prolonged period of rehabilitation. Dr Howpage noted the following with respect to Mr Soriano’s “presenting complaint”:
“When he was informed by his GP that his insurer wishes him to return to work he developed low mood with increasing suicidal ideas. He experienced sleep difficulties. particularly with initial insomnia. He reported poor appetite. He reported having flashback regarding the ICU admission and memories of ‘people screaming’ in the hospital. He perceived stress of about securing another employment with limited mobility and chronic pain as too difficult for him. He does not think he has the capacity to return to work. He said he is worried about crossing roads alone. Not driving a car since accident, further increased his handicap for employment purposes.
Dr Howpage diagnosed Mr Soriano to have “Adjustment Disorder with anxious/depressed mood, Post Traumatic Stress Disorder”.
Mr Soriano’s solicitors organised for Mr Soriano to be examined by psychiatrist Dr Abdal Khan. Dr Khan examined Mr Soriano on 17 September 2020 using video conferencing. He reported to Mr Soriano’s solicitors on the same day. In his report, Dr Khan noted that Mr Soriano had described how on a break during his work he was hit by a car whilst crossing a pedestrian crossing. Dr Khan also noted that Mr Soriano had limited recollection of the incident as he had lost consciousness.
Dr Khan noted that Mr Soriano suffered significant psychical injuries including a traumatic brain injury with the loss of consciousness. Dr Khan noted that Mr Soriano had surgery to his right ankle. Dr Khan also noted that Mr Soriano continued to experience chronic pain. Dr Khan expressed the view that as a result of the accident:
“Mr Soriano experienced deterioration in his mental state characterised by nightmares and flashbacks about seeing his injured self in the Intensive Care Unit, unwanted memories, anxiety, panic attacks, depressed mood, feelings of hopelessness, suicidal ideation, reduced energy, weight loss, reduced enjoyment in activities, social withdrawal, avoidance, hypervigilance when he is near crossings, heightened startle reaction, impaired concentration and sleep disturbance. These symptoms have continued to have a significant impact on his social, occupational and other important areas of functioning.”
Dr Khan provided a diagnosis of Post Traumatic Stress Disorder and Major Depressive Disorder.
Mr Soriano was examined by psychiatrist Dr Ben Teoh on 26 July 2018, at the request of the respondent’s insurer, and again on 19 November 2020 at the request of the respondent’s solicitors. Dr Teoh provided reports dated respectively 28 July 2018 and 20 November 2020 relating to his examinations.
In his report of 28 July 2018, Dr Teoh noted that Mr Soriano had lost consciousness as a result of the accident on 6 February 2015, and woke up in the ICU at Royal Prince Alfred Hospital. Dr Teoh noted that Mr Soriano had suffered multiple injuries. Dr Teoh noted that Mr Soriano complained of chronic pain and that he reported being dependent on other people to do his housework and shopping. Dr Teoh noted that Mr Soriano had been unable to work since the incident and had been unable to do physical activities that he previously enjoyed. Dr Teoh noted that Mr Soriano had been feeling depressed and preoccupied with negative thoughts and was worried about his future. Dr Teoh noted that Mr Soriano reported experiencing insomnia and needing to take tablets for his sleep. Dr Teoh noted that Mr Soriano was concerned about his future and about his physical condition. Dr Teoh noted that Mr Soriano was preoccupied with chronic pain and that he was agitated and socially isolated. Dr Teoh diagnosed that Mr Soriano had Chronic Adjustment Disorder with Depressed Mood. Dr Teoh said that Mr Soriano’s psychiatric condition was caused by the motor vehicle accident, which has resulted in “chronic pain and physical disability”.
In his report to the respondent’s solicitors dated 20 November 2020, Dr Teoh repeated his diagnosis that Mr Soriano had Adjustment Disorder and Depressed Mood. He repeated his opinion that this was caused by the motor vehicle accident which had resulted in chronic pain and physical disability. Dr Teoh noted that Mr Soriano again reported experiencing insomnia. Dr Teoh noted Mr Soriano was preoccupied with negative thoughts and that he had become socially withdrawn. Dr Teoh further noted that Mr Teoh had been “feeling irritable and preoccupied with sense of hopelessness”.
Dr Teoh also noted in his report of 20 November 2020 that Mr Soriano had been admitted into the Hills Private Hospital in February 2018 for two weeks of treatment and that he had been diagnosed with an Adjustment Disorder. I observe that this is incorrect. The medical discharge summary issued by the hospital revealed that the diagnosis was PTSD and that Mr Soriano’s presenting complaint on admission included “management of his PTSD”. Further, as previously mentioned, Mr Soriano’s treating psychiatrist during his admission, Dr Howpage, had reported to Mr Soriano’s GP on 16 February 2018 that he had diagnosed Mr Soriano as suffering Adjustment Disorder with anxious/depressed mood and Post Traumatic Stress Disorder. Dr Teoh had a copy of Dr Howpage’s report at the time he prepared his report for the respondent’s solicitors on 20 November 2020, and hence was aware of Dr Howpage’s diagnosis.
At the time Dr Teoh prepared his report of 20 November 2020, he also had the report of Dr Kumar dated 24 January 2018, which has been discussed above and in which Dr Kumar reported to Mr Soriano’s GP that he had diagnosed Mr Soriano suffering Post Traumatic Stress Disorder. Dr Teoh also had the report of Dr Kahn dated 17 September 2020, in which Dr Kahn opined that his diagnoses for Mr Soriano were Post Traumatic Stress Disorder and Major Depressive Disorder. By virtue of having those reports, Dr Teoh not only would have been aware of the diagnoses that these doctors made with respect to Mr Soriano’s psychiatric illness but also would have been aware of the symptoms and stressors that Mr Soriano reported to these several doctors by which they made their respective diagnoses.
The respondent’s solicitors asked Dr Teoh to address this issue:

“whether you consider that the worker has developed a psychological injury as a result of the physical injuries sustained in the motor vehicle accident on 5 February 2015 i.e. a secondary psychological injury; or whether you consider that the worker has sustained a primary psychological injury arising directly from the motor vehicle accident on 6 February 2015”.

Dr Teoh answered:
“It is my opinion that he has developed psychological reaction as a result of this physical injury sustained in the motor vehicle accident on the 6th of February 2015. He reported that he has been preoccupied with chronic pain and physical disability.
It is my opinion that he has not sustained a primary psychological injury as a result of the motor vehicle accident on the 6th February 2015.
He did not report symptoms of Post Traumatic Stress Disorder (intrusive memories, hypervigilant, hyperaroussl (sic) or significant avoidant behaviour.”

With respect to what Mr Soriano can recall of the accident on 6 February 2015 it is also relevant to note that Mr Soriano reported to orthopaedic surgeon Dr Charles New, whom Mr Soriano’s solicitors qualified to provide a forensic medical report with respect to some of Mr Soriano’s physical injuries and whom Soriano consulted on 13 June 2019 for that purpose, that he had “no recollection of the accident and woke up in ICU” and that he has “no recollection of being struck”.
Mr Soriano also advised Dr Raj Sundaraj, a specialist in pain medicine, whom he consulted on 12 February 2019 on the referral from his GP, that he had “very little recollection of the accident itself”.
Further, Mr Soriano reported to oral cranio-facial maxillary surgeon Dr Nigel Curtis, whom the respondent’s solicitors qualified to provide a forensic medical report with respect to some of Mr Soriano’s physical injuries, and whom Mr Soriano consulted on 15 June 2020, that he had a poor memory of most of his injuries. He was however able to describe to Dr Curtis that he had been struck by a motor vehicle.
In my view, it is more likely than not, and I find, that Mr Soriano does not have a direct memory of being hit by a car on 6 February 2015. That is what he reported in the claim form he signed on 14 July 2015 and is consistent with what he said in the earliest of statements dated 20 April 2016. It seems to me that the “limited knowledge” he described of the accident in his later statement of 18 January 2021 and which he has described to some doctors, is derived from secondary sources, such as the police report he obtained. In all likelihood, he would have heard the recounts of others who witnessed the accident, such as his work colleague.
The situation is however, that Mr Soriano can describe what happened to him in the incident; that is that he crossed a pedestrian crossing and was struck by a car whilst doing so and thrown by the impact. Given that he does not have a direct memory of that, he necessarily has gained knowledge of what occurred from other sources.
In my view, Mr Soriano’s “limited knowledge” of what occurred in the incident on 6 February 2015 is a material factor to the onset of his psychiatric illness. In other words, what Mr Soriano knows of what occurred on 6 February 2015, although limited, and which has been derived from secondary sources, and not based on his direct memory, has contributed in a material way to Mr Soriano’s present psychiatric illness. His illness has been diagnosed by all psychiatrists whom he has seen, with the exception of Dr Teoh, as including Post Traumatic Stress Disorder. Dr Howpage diagnosed that Mr Soriano’s illness also included Adjustment Disorder with anxious/depressed mood and Dr Khan diagnosed Mr Soriano’s illness also included Major Depressive Disorder.

There can be little doubt in my view that the serious physical injuries Mr Soriano suffered in the accident and his memory and the flashbacks he has of awaking in pain in the ICU at Prince Alfred Hospital and his memory of people screaming at the hospital, and his experience of chronic pain and continuing incapacity and disability consequent upon those physical injuries, have also contributed in a material and major way to Mr Soriano’s psychiatric illness.
In my view, the opinions of Drs Kumar, Howpage and Kahn are to be preferred to the opinion expressed by Dr Teoh with respect to the factors that have precipitated Mr Soriano’s psychiatric injury.
In substance, Dr Kumar’s opinion is that the onset of Mr Soriano’s PTSD is multi-factorial. The factors include the flashbacks Mr Soriano experiences of awakening in ICU at Prince Alfred Hospital, his poor sleep, his becoming angry and agitated due to his disability and incapacity and his feeling of being useless and worthless, but the factors also include Mr Soriano being angry and feeling guilt about crossing the pedestrian crossing on the day and his having nightmares of the accident itself and becoming anxious from that. Those latter factors are directly related to the accident, and are not consequent upon the symptoms Mr Soriano has from his physical injuries or treatment for those injuries. Again, it does not matter in my view, that Mr Soriano’s knowledge of his crossing the road and his being hit and thrown by a car whilst doing so does not derive from his direct recollection but rather from secondary sources. What matters is that the stressors he has as a consequence of what he does know of the accident contributes to his current psychiatric illness.
Similarly, Dr Howpage’s report to Mr Soriano’s GP, in my view is to be interpreted as his expressing the view that Mr Soriano’s Post Traumatic Stress Disorder and Adjustment Disorder with anxious/depressed mood is due to several factors, such as Mr Soriano’s immediate concern when presenting to Dr Howpage of having to return to work, Mr Soriano’s sleep difficulties, Mr Soriano’s flashbacks of his awakening in the ICU and his memories of people screaming at him at the hospital, Mr Soriano’s difficulty in securing alternative employment, and Mr Soriano’s chronic pain. But the factors Dr Howpage identified also included Mr Soriano’s worry about crossing roads. That worry of Mr Soriano is a direct consequence of the incident itself.
Similarly, my reading of Dr Khan’s report is that he considers Mr Soriano’s psychiatric illness has been precipitated by several factors related to the incident, including Mr Soriano’s nightmares and flashbacks of his injured self in the ICU, his reduced ability to enjoy activities, his feeling of hopelessness, which are all a consequence from either the treatment he received for his physical injuries he suffered in the incident or the physical injuries themselves. However, Dr Khan also identified that Mr Soriano is hyper-vigilante when he is nearing a pedestrian crossing. That was one of the features Dr Khan identified to formulate his diagnosis that Mr Soriano’s illness was PTSD and Major Depressive Disorder. That factor relates directly to the incident.
I note at this juncture that Mr Horan submitted that Mr Soriano’s experiences in hospital ought to be considered as being part of the incident itself, rather than secondary to the physical injuries Mr Soriano suffered in the incident, and this is because Mr Soriano’s experience in the hospital was closely connected in time with the incident. I do not accept that. Firstly, the flashbacks and nightmares that Mr Soriano has with respect to his seeing himself in the ICU is directly related to the treatment he received for the physical injuries he suffered in the accident. Further, they are not close in time in that the evidence indicates that it was some days before Mr Soriano regathered consciousness following the incident.
In my view, Dr Teoh, by not taking account of Mr Soriano’s hyper-vigilance when near pedestrian crossings and his guilt about crossing the road on the day of the accident, means I can place less weight on his opinion, which is to the effect that Mr Soriano’s psychiatric illness is due to Mr Soriano’s chronic pain and disability, than the opinions of Drs Kumar, Howpage and Khan. As mentioned, I am satisfied that Mr Soriano has, by virtue of the limited knowledge he has of the incident of 6 February 2015, a feeling of guilt about crossing the road and experiences hyper-vigilance and worry and anxiety about pedestrian crossings, which relates exclusively to the incident itself, and is not secondary to his physical injuries. Dr Teoh said in his latest report that Mr Soriano did not report intrusive memories, hypervigilance, hyperarousal or significant avoidant behaviour. However by virtue of having the reports of Dr Kumar, Dr Howpage and Dr Khan, Dr Teoh would have been aware that Mr Soriano had, at the least, reported to other clinicians experiencing these symptoms. The fact that Dr Teoh did not account or explain why they had no relevance to the onset of Mr Soriano’s psychiatric illness means his opinion with respect to the onset of Mr Soriano’s illness, and also how Mr Soriano’s illness is to be diagnosed, is to be afforded less weight than the opinions of Dr Kumar, Dr Howpage and Dr Khan.
Primary psychological injury is defined in s 65A of the Act to mean a psychological injury that is not a secondary psychological injury. Secondary psychological injury is defined to mean a psychological to the extent that it arises as a consequence of, or secondary to, a physical injury. In my view, whilst Mr Soriano’s psychological injury has to an extent, arisen as a consequence of and is secondary to the physical injury he suffered in the incident of 6 February 2015, it is also to an extent a consequence of the knowledge Mr Soriano has of the incident itself.
I note that Mr Perry for the respondent said in discussion with me when clarifying at the start of the arbitration the issue for determination, that the question for the Commission is whether the agreed psychological condition Mr Soriano had suffered results exclusively from his physical injuries and that if it did then Mr Soriano will not have suffered a primary psychological injury. As I have indicated, I am not satisfied it results exclusively from Mr Soriano’s physical injuries. It results both from his physical injuries and their sequelae and from his derived knowledge of the accident.
Accordingly, for the reasons provided, I find that Mr Soriano suffered a primary psychological injury.

Marshal Douglas

MEMBER

14 April 2021