Stevens v The Secretary Department of Transport

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stevens v The Secretary Department of Transport [2022] NSWPIC 235
APPLICANT:	John Stevens
RESPONDENT:	The Secretary Department of Transport
MEMBER:	Christopher Wood
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for lump sum benefits for whole person impairment as a consequence of psychological injury; whether the applicant was suffering from a secondary psychological injury for the purposes of section 65A of the Workers Compensation Act 1987 which ought be taken into account by the Medical Assessor in assessing whole person impairment; single area of dispute agreed by the parties and determined on the papers; Moon v Conmah Pty Limited; Kumar v Royal Comfort Bedding Pty Limited; Kooragang Cement Pty Limited v Bates; Held- respondent had not discharged its onus that the applicant received a secondary psychological injury as a consequence of the physical injury; no allowance was to be made by the medical assessor for a secondary psychological injury; matter remitted to the President for referral on this basis.
DETERMINATIONS MADE:	1. That the applicant did not suffer a secondary psychological injury arising out of a shoulder injury which occurred on 6 April 2016 during his employment with the respondent. 2. The applicant’s claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessment (MA) for the determination of the permanent impairment arising from the applicant’s psychological injury with a deemed date of injury in accordance with the Application to Resolve the Dispute (ARD) of 31 July 2017. 3. The documents to be referred to the MA to assist with the assessment are to include the following: (a) This Certificate of Determination; (b) The ARD and attachments; and (c) The Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr John Stevens, has a lengthy history of employment with the respondent having joined it in its then incarnation as the State Rail Authority of NSW. He progressed through roles broadly within accounts payable sections of the respondent’s enterprise, which underwent a period of privatisation in the early 2000s.
The applicant took up a role of as a System Administrator Financial Accounting in the merged FreightCorp and National Rail Corporation entities before progressing to a contract position within Rail Infrastructure NSW. This appears to have been a period of some stability for the applicant.
In February 2007, he accepted a position within the Purchasing Card section of RailCorp, which was transferred into Transport for NSW in around 2012.
Thereafter, the applicant went through a series of workplace interactions and further changes which proved quite stressful, causing him to suffer psychological injury for which liability has been accepted by the respondent.
In addition to his psychological injury arising out of several year’s exposure to workplace incidents and conflict, Mr Stevens also suffered a physical injury to his right shoulder.
The shoulder injury occurred on 6 April 2016.
Mr Stevens returned to work following a period of convalescence in relation to surgery involving that injury. After returning to work he again went through a further period of stressful interactions.
Mr Stevens makes a claim for lump sum compensation by reason of psychological injury equating to 25% whole person impairment.
The respondent contends that some of Mr Stevens’ presenting condition is a function of a secondary psychological injury consequent upon his physical injuries sustained in 2016 which is to be taken into account necessitating his whole person impairment by a medical assessor.

ISSUE FOR DETERMINATION

The parties agree that the only issue to be determined before Mr Stevens’ claim is referred to a medical assessor for opinion on his whole person impairment, is whether he suffered a secondary psychological injury as a consequence of an injury to his right shoulder on 6 April 2016 (with consequent surgery) for the purposes of section 65A(2) of the Workers Compensation Act 1987.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a telephone conference on 25 March 2022. Ms Bathgate, solicitor, appeared with the applicant and Mr Kreig for the respondent.
It was agreed that as the only point of difference between the parties was whether Mr Stevens was suffering from a secondary psychological injury (pursuant to section 65A of the Workers Compensation Act 1987) is to be taken into account in medical assessment of his whole person impairment, it was appropriate for the commission to decide the matter “on the papers”.
Accordingly, orders were made requiring the parties to file submissions.
There are primary submissions from the respondent, those in reply from the applicant, with some further short submissions by the respondent.
Orders were also made requiring of the previously unsigned statements of Mr Stevens to be executed, one of which now bares the date 31 March 2022 is a direct copy of a previously unsigned lengthy statement. The latter statement in response to matters going to the section 65A point remains unsigned but as it does not impact the reasons set out below, I propose to have regard to it at least for ordering the chronology of events.

Oral evidence

There was no application to leave oral evidence or cross examination of Mr Stevens or any other lay witness.

FINDING AND REASONS

Applicant’s evidence – statement of Mr Stevens

Mr Stevens has provided two statements, the lengthy one now dated 31 March 2022 and a supplementary statement which remains undated. As no mention or objection was taken to that undated statement in the respondent’s submissions, I propose to refer to it as evidence in the proceedings although it does not materially alter matters which flow from the various medical reports and to which both the applicant’s and the respondent’s submissions refer.
Mr Stevens gives a history of what might be regarded as long and loyal service to the respondent from the 1980s, when it was then the State Rail Authority, through various different operating entities. The applicant has not sought to deny other factors which may be relevant to his medical history including childhood sexual abuse. He appears to have got on with things. He progressed through different roles with the respondent. Although Mr Stevens dates the start of bullying type behaviour from 2008 it seems that it was not until around 2014 that things began to significantly go astray for him in the workplace up until he ceased employment in July 2017. As the respondent does not appear to seriously contest any of these matters, I will not unnecessarily review them for the purposes of these reasons suffice to say that there were various interactions with senior management and colleagues which the applicant found distressing, stressful and unacceptable to him. Mr Stevens felt excluded from workplace social functions and received negative comments from subordinate employees to the effect that he was a lousy manager, terrible at his job and other negative criticisms. He says that in his over three decades of public service he had not encountered conversations with fellow staff members of the type he was subjected to in this period.
Mr Stevens essentially became insecure and anxious as changes occurred in the workplace. He became concerned about reforms and the chances of him retaining his employment with the respondent.
Difficulties occurred in 2015 around his participation in a user acceptance testing (UAT) program for a new employee expense system. Demands were made of him to physically attend a training session in the CBD instead of his normal workplace in Burwood. The requirement to attend the CBD created a difficulty for Mr Stevens as he walks with a cane, as a result of severe arthritis in his left ankle and a damaged knee. He has the benefit of a NSW disability parking permanent because of this condition.
He was working long hours and in 2015 was diagnosed with diverticulitis. Things deteriorated throughout the rest of that year. He was dropped from project teams without explanation and found out about changes in the workplace by accident. He refers to being totally confused and worried about the reasons for his exclusion in tasks for which he had previously been included and was otherwise qualified. He said he was “being frozen out of his job and being isolated from social contact”.
Various other matters are detailed in Mr Stevens substantive statement which are consistent with him being involved in stressful and anxiety producing incidents.
A shoulder injury was sustained on 6 April 2016 at which time Mr Stevens was continuing to experience the negative workplace events referred to above. The mechanics of his shoulder injury vary in the evidence before the commission[1] however, there is no issue around this, it would seem from the respondents’ point of view, lifting a computer bag or placing it on a desk at work seems to be a consistent theme[2].
[1] For example; Dr Brian Stevenson who saw Mr Stevens for medico-legal purposes at the request of QBE, in his report dated 19 July 2019, records Mr Stevens as having injured his shoulder while lifting a projector onto a bench at work.
[2] I note that the clinical records of Mr Stevens’ treating general practitioner, Dr Owen Green, commenced from this time and record the fact of the shoulder injury.
Eventually Mr Stevens came to surgery and had a significant period off work throughout 2016 and until early 2017 when he attempted to return to work. From about March 2017 he found that he had returned to stressors in the workplace and was frustrated about what he saw as impediments being placed in his way. He was variously denied access to databases and encountered difficulties in relation to agreeing adjustments to his pay. Mr Stevens eventually ceased work in July 2017 and ultimately after a long period of interaction between him and the respondent, was medically retired in 2019. He has received compensation payments in respect of his right shoulder injury.

Applicant’s medical evidence

As with the broad overview of the applicant’s statement, I do not propose to unnecessarily dwell on the medical history outlining the applicant’s other treatment in relation to both physical and psychological injuries and focus on the discrete point of difference between the parties.

Dr Owen Green

The applicant’s treating doctor is Dr Green. The notes in evidence regarding Dr Green’s treatment date from shortly after the shoulder injury. Significantly, while there are references to the shoulder injury and indeed pain arising from it, apart from entry, there is no record of Mr Stevens in some way suffering a problem with pain as a consequence of his injury and subsequent surgery.
As pointed out by the applicant’s counsel in submissions, the first mention of any psychological injury in Dr Green’s notes is an entry on 27 September 2016 where he refers to “(Mr Stevens) being pushed out at work, stressing him, lots of politics at work, has union involved”.
There is reference in Dr Green’s notes to a consultation with Mr Stevens on 10 July 2017. There he records that Mr Stevens’ mood was being influenced by “chronic pain and stress at work”[3].
[3] The applicant’s counsel in his submissions quite rightly concedes this entry but notes that it is the sole entry in Dr Green’s notes to pain from the shoulder injury and surgery being a factor in Mr Steven’s mood.
Dr Green’s notes are otherwise consistent in their recording of work-related stressors variously on 17 October 2017, 16 November 2017, 6 December 2017, 2 January 2018 and 1 February 2018. Dr Green records on 6 February 2018 that:
“things are worse, wife states fixated on things… Frank talk with John re MH and ongoing fighting case. I think it would be better to drop the case. He will not consider this option. I feel he is showing signs of paranoia. He denies this”[4].
[4] The applicant’s counsel identifies this entry as the evidence of the all consuming relevance of the applicant’s sense of bullying.
Further references are made to Mr Stevens’ conflict in the workplace throughout Dr Greens notes into 2019. As noted above, there is but one reference to pain being an issue for Mr Stevens in Dr Greens’ notes. All other references are consistent and extend into 2019 with Mr Stevens reporting being bullied and harassed.

Dr Russell Hinton

Dr Green, having referred Mr Stevens to different health professionals including Dr David Butler, psychiatrist, and Adam Wiseman, psychologist, eventually referred him to Dr Russell Hinton who has provided a series of reports detailing his consultations with Mr Stevens throughout 2018 and 2019. All of these reports record workplace difficulties and the stressors involved in Mr Stevens negotiating the terms of his ongoing employment and later retirement from the respondent. At no stage is there reference to pain from the shoulder injury in these reports.

Dr Ash Takyar

Dr Takyar has seen Mr Stevens for medico-legal purposes providing two reports to his solicitors dated 19 March 2021 and 11 November 2021. These reports are comprehensive and have regard to all treating doctors’ material. He records other matters which might be relevant to Mr Stevens’ presentation including childhood sexual abuse. He has a detailed history of bullying in the workplace which is consistent with other records and this is said to date from 2007. Most of the incidents Mr Takyar refers are, based on Mr Stevens statement, related to that period I have identified earlier as between approximately 2014 to July 2017.
He concludes that Mr Stevens’ ten year history of significant bullying and harassment in the course of his employment is the cause of his psychological injury, describing (to the extent that exist) his pre-existing conditions as being in relative remission.
Dr Takyar’s second report has regard to questions put to him by the applicant’s solicitors concerning the respondents’ medico-legal opinions from Dr Glen Smith to the effect that pain arising from the shoulder injury constitutes a secondary psychological injury, to which regard had to be had in assessing whole person impairment.
Dr Takyar reiterated his diagnosis of adjustment disorder with mixed anxiety and depressed mood following workplace bullying and harassment. He did not feel that the physical (shoulder) injury was affecting his mental state.

Respondent’s medical evidence

The respondent primarily relies upon the reports of Dr Glen Smith although the submissions made on its behalf also referred to extracts from some of the material relied upon by the applicant[5].
[5] Page 98 of ARD; extract from notes of Dr Owen Green.
The reports of Dr Smith are dated 25 February 2018, 25 May 2018 and 20 July 2021.
The respondent also relies on the opinion of Ms Jasmine Sproule who has provided a report dated 25 October 2017.

Dr Glen Smith

Dr Smith, having taken a detailed history, records in his report of 25 February 2018 the work stressors which had been consistently reported by the applicant and referred to his in statement. Dr Smith also has a detailed history of the applicant’s previous mental health and makes reference to opioid dependence.
Dr Smith opines that employment factors were not the main contributing factor to the development of a mood disorder.
In his report of 25 May 2018, Dr Smith details his view as to the impact of the pain from Mr Stevens shoulder injury to his psychological injury. It was, as rightly conceded by the respondent in its primary submissions, being regarded by Dr Smith as “only a minor contribution”.
To allow the respondent to properly respond to Mr Stevens claim for lump sum compensation, Dr Smith saw the applicant again and provided a report dated 20 July 2021. There was consistency of history and again reference to the physical shoulder injury.
Having previously attributed a minor role to any pain from the shoulder injury, Dr Smith appears to place greater emphasis on that aspect noting that Mr Stevens’ persistent pain and limitation factor had stabilised and in Dr Smith’s opinion were “no longer (are) the predominant contributing factor to his distress and he continues to suffer from limitations that have an impact on his mood”.

Ms Jasmine Sproule

Ms Sproule has provided a report dated 25 October 2017 to the respondent’s insurer, QBE.
The report is significant being precisely in the period Mr Stevens was seeing Dr Green on a regular basis.
By the time of her report Ms Sproule had seen Mr Stevens four times commencing in July 2017. While it is not entirely clear, it would seem that Ms Sproule was reporting to the insurer in relation to its management of the shoulder injury claim. As such there would have been a focus on that aspect.
Despite this, Ms Sproule was also aware of the bullying and harassment complaints seemingly after discussing what Mr Stevens describes as “chronic pain as a result of his previous injuries”[6].
[6] Page 3 of Dr Sproule’s report
Ms Sproule records in relation to bullying and harassment, the following:
“John reports numerous incidents at work from September 2014 until the present including desputations (sic) around pain… bullying and harassment attempting to force John from his position, and verbal abuse from a colleague and no follow up from management regarding this. I understand that John has provided QBE with a more extensive record of specific workplace incidents”[7].
[7] Page 4 of Ms Sproule’s report.
Ms Sproule goes on to record:
“John reports that the circumstance of his current employment have substantial contributed to his current symptoms. He reports frequently ruminating about work and much of his anxiety and depressed mood has been focused on his work situation”.

REASONS

The respondent bares the onus in this case. It has steadfastly adhered its position expressed in the insurer’s section 78 notices, that Mr Stevens suffers from both a primary and secondary psychological injury.
Pursuant to section 65A(1) and section 65A(2) of the Workers Compensation Act 1987 Mr Stevens is not entitled to any lump sum compensation if the respondent can demonstrate that he suffered from a secondary psychological injury, consequent upon the physical injury to his shoulder in April 2016.
As I have noted there is a second statement or supplementary statement of Mr Stevens which remains unsigned. The respondent noted in annexure A to its reply that it objected to the applicant’s undated and unsigned statements being pages 1 and 50 of the ARD being included in these proceedings. The first statement has now been dated. It is a lengthy document. The second statement remains unsigned, but no reference or objection is taken to it in the respondent’s submissions. It does not impact the reasons which are set out below.
As noted above, it is the respondent which bears the onus in establishing that the conditions of section 65(A) are satisfied. Reference is made to Moon v Conmah Pty Limited [2009] NSWWCCPD 134. It is for the respondent to establish that Mr Stevens had a consequential condition from an accepted injury. The accepted injury is of course, from the respondent’s point of view, a shoulder injury. This is uncontroversial but the issue is whether Mr Stevens developed a consequential condition or a secondary psychological condition to his primary psychological reaction to workplace stressors which had already been accepted by the respondent. It needs to be more than a description of how he was feeling at the time. The respondent essentially acknowledges this in paragraph 7 of its written submissions. It needs to be a psychological injury although the respondent need only then show the applicant suffered from psychiatric symptoms resulting from the physical injury.
It is not necessary for the respondent to prove that his secondary psychological condition is a section 4 injury rather that the secondary psychological injury results from the accepted shoulder injury; Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 83.

Again, drawing on the cases to which the respondent has referred in its submissions, these are matters of common sense and evaluation of the causal chain and “but for” causation tests in accordance with Kooragang Cement Pty Limited v Bates [1994] NSWLR 452 (Kooragang Cement).
The respondent draws attention to Dr Green recording the shoulder injury as early as 6 May 2016 and thereafter that there were regular consultations. There were also complaints of pain in the right shoulder.
Reviewing Dr Greens’ notes, it is put no higher than that. In other words, there was no reference by Mr Stevens to him suffering pain in his shoulder to the point that it was causing him stress or distress which was compounding the primary psychological presentation.
There were difficulties in Mr Stevens organising his return to work following his shoulder surgery. I do not understand the respondent to be saying however, that difficulties organising a return to work amounts to a psychological condition. There is also reference to the applicant ruminating over his condition but again ruminating over a matter does not constitute a psychological injury even understood by the layman and certainly none of the medical practitioners emphasised it with the exception of Dr Smith, to the point of it demonstrating a psychological injury.
Attention is drawn by the respondent to Dr Sproule’s opinion which I quote in full from the respondent’s submissions:
“I understand that John has experienced chronic pain as a result of his previous injuries… This has possibly led to an exacerbation of his anxiety and depressed mood in conjunction with work stressors”.
I drew attention to the fact that Ms Sproule’s treatment of Mr Stevens coincided with his regular visits to Dr Green. The applicant’s counsel has quite rightly stressed that the word “possibly” in the above quote is significant and of course Ms Sproule has also made reference to the other workplace stressors which Mr Stevens had reported to her. These are not in dispute.
The respondent quite rightly conceded that the psychiatric symptoms reported to various treating doctors were primarily due to the workplace interactions. It is then however, asserted that “there can be no doubt that the ongoing chronic pain played some part in the applicants ongoing psychiatric presentation”. Reference is made to the applicant taking nine oxycodone tables in one day as evidence of that psychiatric condition which could only be referable to shoulder pain. I do not understand any of the doctors to take the matter that far, including Dr Smith.
The applicant’s counsel has noted that the respondent needs to go beyond establishing that Mr Stevens may have been unhappy or frustrated or as I have noted, ruminating over his condition including his pain, to satisfy a diagnoseable psychiatrist condition to satisfy the appropriate DSMV criteria.
All of Dr Hinton’s reports detail issues at work. As the applicant’s counsel has noted, in not one of Dr Hinton’s reports was pain or limited function as a consequence of the shoulder injury a relevant factor in assessing his psychological condition.
From a workplace point of view, in seeking to return to work following shoulder injury, the applicant was experiencing “more of the same”, consistent bullying, harassment and the like. Standards by which he had previously worked were at least from Mr Stevens’ perspective, no longer in place and he was encountering interactions that he had never been through in a lengthy period of service with the respondent.
The opinion of Ms Sproule, psychologist, has been set out in some detail already and as noted by the applicant’s counsel, she could put the issue of chronic pain as no more than possibly leading to an exacerbation of (Mr Stevens’) anxiety and depressed mood in conjunction with work stressors.
The overwhelming preponderance of evidence, which include histories which are both thorough and consistent, favours the argument of the applicant that the respondent has failed to discharge its onus. That Mr Stevens may have been destressed or ruminating is, as the applicant’s counsel correctly notes, not evidence of an established psychological condition consequent upon the secondary injury.
The respondent, in its reply to the applicant’s submissions, suggests that this approach adopted by the applicant is flawed at law and applying Kooragang Cement principles, the respondent does not need to establish that Mr Stevens suffered an “injury” as defined by sections 4 and 9A of the Workers Compensation Act 1987. It is enough that Mr Stevens suffers from symptoms that result from an injury.
That is an easier proposition to make out in the context of a physical injury but more difficult here.
The secondary or consequential condition has to be a psychological condition. Rumination or sadness hardly constitutes a secondary condition. Rather the sadness and rumination or any other response to the pain from the shoulder can at its highest be seen on the balance of the medical evidence to be a further manifestation of responses to the stressors that Mr Stevens had experienced over a lengthy period of time. There was no change. The applicant is not seeking to suggest that he was not suffering significant and ongoing pain, but it does not, based on the histories taken by the doctors, lead to a conclusion that it caused him to seek assistance or psychological treatment which was subsequently provided to him by Ms Sproule and Dr Hinton and others. I again note, Dr Hinton’s reports are conspicuous by their absence of recording issues arising from Mr Stevens’ pain.
Having regard to the overwhelming weight of evidence, I find that the respondent has failed to discharge its onus to show that the applicant received a secondary psychological injury. The matter should be remitted to the President pursuant to section 321A of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the applicant’s whole person impairment.

[2022] NSWPIC 235

23 May 2022