White v Marist Youth Care Limited
[2023] NSWPIC 578
•2 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | White v Marist Youth Care Limited [2023] NSWPIC 578 |
| APPLICANT: | Nathan White |
| RESPONDENT: | Marist Youth Care Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 2 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the worker established in prior proceedings that he suffered a work injury when he fell down steps injuring his back and sustaining a secondary psychological injury; present claim pursuant to section 66 for primary psychological injury; absence of symptoms supporting primary psychological injury in statement, clinical notes and not referenced by treating psychiatrist; weight to be attached to report supporting claim; absence of reasoning; errors in history; Hancock v East Coast Timber Products Pty Ltd applied; criteria for establishing post-traumatic stress disorder; DSM-5; finding of nature of injury matter for the Commission: Jaffarie v Quality Casting Pty Ltd applied; Held – applicant had not established that he sustained a primary psychological injury in the form of post-traumatic stress disorder; award for the respondent. |
| DETERMINATIONS MADE: | The Commission finds and orders: Finding 1. The applicant did not sustain a primary psychological injury. Order 2. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Nathan White (the applicant) was employed by (the respondent). The current application is a claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for an alleged primary psychological injury resulting from an incident at work on
19 March 2017.The Application to Resolve a Dispute refers to a “deemed” date of injury based on the following injury description:
“Worker was ascending internal stairs when he slipped on shampoo that had been placed on the stairs by the youth residents resulting in the worker falling backwards on the stairs injuring his back, neck and shoulders as well as sustaining a psychological injury.”
At the telephone conference the date of injury was amended by deleting the word “deemed”.[1]
[1] Direction dated 25 September 2023, paragraph 1.
The only liability issue in these proceedings “is whether the applicant suffers from a primary psychiatric injury caused by the accepted work injury”.[2]
[2] Direction dated 25 September 2023, paragraph 2.
Mr White brought previous proceedings and established that he suffered injury to the lumbar spine and a secondary psychological condition.[3] Awards in favour of the respondent were made in respect of the allegation of injuries to the cervical spine and both shoulders.
[3] White v Marist Youth Care Ltd [2022] NSWPIC 391 (White (No 1)).
An application to amend the claim in those proceedings to add an allegation that the applicant suffered a primary psychological injury was refused.[4]
[4] White (No 1) at [4].
An appeal by the applicant on the issue of capacity was allowed.[5] The other grounds of appeal were dismissed. There was no ground of appeal alleging error by the Member in refusing leave to add the allegation that the applicant suffered a primary psychological injury.
[5] White v Marist Youth Care Ltd [2023] NSWPICPD 41 (White (No 2)).
Accordingly, there has been a conclusive determination in the previous proceedings that the applicant suffered a secondary psychological injury. The issue of whether the applicant sustained a primary psychological injury was not determined.
CONCILIATION ARBITRATION
The matter was set down for a conciliation arbitration hearing on 19 October 2023.
Mr Goodridge of counsel appeared for the applicant and Mr Saul appeared of the respondent. At that time the following documents were admitted by consent:(a) Application to Resolve a Dispute and attachment (Application);
(b) Reply and attachments;
(c) Respondent’s Applications to Admit Late Documents (two applications);
(d) 10 page extract from Diagnostic of Statistical Manual of Mental Disorders (DSM-5) for the diagnostic criteria of post-traumatic stress disorder.
There was no application to adduce oral evidence by either party. Counsel made submissions on the relevant material. The submissions have been recorded and referred to later in these Reasons under the heading “Findings”.
I am required to provide a “a brief statement” of reasons.[6]
EVDIENCE
[6] Section 294(2) of the Workplace Injury Management & Workers Compensation Act, 1998.
Applicant’s statement evidence
The applicant provided two statements dated 15 October 2019[7] and 17 July 2020.[8]
[7] Application, p 2.
[8] Application, p 9.
The injury was described by the applicant in the following terms:[9]
“On the 19th of March 2017 at around 10 am I had just completed a night shift. My role was before giving handover, to check each room to see that every youth in care were ok. I did this task daily. On this day, I walked up the stairs to complete my daily tasks and as I walked up at least 3 of the stairs, I suddenly slipped backwards down the stairs.”
[9] Application, p 9.
In the first statement Mr White referred to:
· “chronic pain was starting to get to me”[10] and he attended upon Dr Farabi as the symptoms were making him increasingly anxious;[11]
· pain was becoming quite chronic and the anxiety continued to increase;
· in June 2017 the back and neck pain remained the same and levels of anxiety remained high;[12]
· after the MRI scan the “pain was becoming chronic and was finding it difficult to cope”;[13]
· he regularly attended general practitioners (GPs) throughout 2018 and would go through potential strategies to assist with the pain;[14]
· as the pain continued “my mental health continued to deteriorate … and I felt as though there was nothing I could do to help my pain”,[15] and
· “it was not until after the fall and the associated pain that my psychological issues showed up severely and that I had to be medicated for anxiety and depression”.[16]
[10] Application, p 4, para 31.
[11] Application, p 4, para 35.
[12] Application, p 5, para 39.
[13] Application, p 5, para 45.
[14] Application, p 5, para 46.
[15] Application, p 6, para 49.
[16] Application, p 8, para 69.
In the second statement Mr White referred to:
· “My pain was prohibiting me from living my once full and active life and because of this I started developing anxiety depression and received a diagnosis of PTSD;”[17]
· taking constant pain relief and the “anxiety over this was constant” and “became severely depressed as a result [of] this”,[18] and
· mental health continued to deteriorate as nothing was helping that was recommended.[19]
[17] Application, p 11, paragraph 29.
[18] Application, p 11, paragraph 33.
[19] Application, p 12, paragraph 41.
Notes of general practitioners
The records from Whalan Medical Centre cover the period from 4 July 2018 to 16 April 2021.[20] The respondent submitted that there was no mention of symptoms suggesting post-traumatic stress disorder or a conclusion of post-traumatic stress disorder other than the comment on 7 July 2018 which states, amongst a variety of illnesses:[21]
“3) Poor libido
Multifactorial - ?medications, ?due to anxiety/depression/PTSD”
[20] Application, pp 142-193.
[21] Application, p 143.
The records of the Emerton Family Medical Centre cover the period from 25 January 2015 to 24 August 2018.[22] These notes are mostly prior to, and some postdate the work injury. The notes generally refer to a prior psychiatric injury. The clinical note of Dr Parikh dated 24 August 2018 refers to the “work injury 18 months ago” and includes the following comment:[23]
“PTSD: had private investigators, was abused by insurer and employer”.
[22] Application, pp 401-439.
[23] Application, p 416.
Dr Suman
Dr Aman Suman, psychiatrist, provided a report dated 29 October 2019.[24] The doctor noted that the applicant had been under his care since mid-2018. The doctor referred to a pre-accident work history of attention deficit hyperactivity disorder (ADHD) and noted that the workplace injury caused “chronic pain and adjustment disorder”. The doctor referred to prescribed medication at8 October 2020 as Endep and Mirtazapine.
[24] Respondent’s late Application, p 5.
Dr Suman noted the applicant “appeared exhausted” with poor sleep and diagnosed the applicant with mixed anxiety and depressive symptoms.
Dr Chaturvedi
Dr Shail Chaturvedi, psychiatrist, treated the applicant for prior psychological symptoms.[25]
[25] Respondent’s late Application, pp 3-4.
Dr Allan
Dr Martin Allan, psychiatrist, was qualified by the applicant and provided a report dated
8 June 2021.[26] The doctor was provided with various materials including the applicant’s statement. Dr Allan noted a past psychiatric condition of ADHD.[26] Application, p 115.
Dr Allan noted the workplace injury due to “slipped and fell causing physical injuries” and on return to work being “spat in my face”.[27] The applicant advised Dr Allan that he was in chronic pain.
[27] Application, p 120.
Given the submissions, it is necessary to refer to significant portions of Dr Allan’s report. The doctor stated:[28]
“He states however, that his pain is, ‘constant, it never goes away. It’s either dull but it’s often stabbing. It gets worse. It’s like someone’s dragging a knife over you’. He describes how as a result of his pain he is unable to do heavy physical tasks. He does not exercise. Although he attends to tasks around the home such as cooking and cleaning, he is much less capable in these areas due to his physical restrictions as a result of his physical injury. Despite the treatment which has been outlined in the referral paperwork, Mr White does not describe any periods of respite from his pain in recent years.
As regard to the impact of Mr White’s chronic pain on his mental state, he describes how since the accident he has felt increasingly depressed. His motivation has diminished. He can at times be irritable. He describes prominent themes of helplessness and hopelessness in his thinking with him feeling guilty about how his physical function has diminished. He recognised the reduction in the quality of his relationship with his children due to his altered mental state. He has lost many friends and reports having only one now who he has any desire to have regular contact with. He feels much less socially connected therefore with people both in and outside of his family. His energy is poor. His lacks motivation. He describes anhedonia. He worries about his future. He has had one occasion where he drove whilst drunk and caused a collision but states that he was not drug tested or alcohol tested as a result due to another accident having occurred nearby. He describes sleep as never being restful. His appetite is erratic. He is withdrawn.
In addition to marked symptoms of depression, he states that he will waken with nightmares at least two to three nights per week where he dreams about the accident that occurred or the face-spitting incident. He states he has become avoidant and reclusive. He does not like being around people. He feels more uncomfortable and on edge. His pain is a constant trigger for him thinking about the accident.”
[28] Application, p 121.
Under mental state examination Dr Allan noted a somatic symptom disorder and major depressive disorder secondary to physical injury. Dr Allan stated that the applicant “describes intrusive thoughts of the accident”[29] and observed:[30]
“Mr White describes a previous diagnosis of ADHD. This was present prior to the accident which occurred in 2017. Since that time, he describes symptoms consistent with a diagnosis of a somatic symptom disorder with predominant pain that has become chronic and secondary to his physical injury has developed a major depressive disorder. He describes intrusive thoughts of the accident.
His mind frequently goes back to thinking about the accident as is described where he had slipped down stairs. He has recurrent nightmares of the accident several times a week. He has intrusive visions of the accident as per his account. He ruminates about what had occurred to him and his mood has been hugely impacted thereafter. These changes in his mood have impacted on his daily function and the quality of his relationships.
In addition to his somatic symptom disorder with predominant pain it has become chronic and his major depressive disorder in the context of the above-described symptoms, he has a posttraumatic stress disorder. This is managed by him seeing a psychiatrist and having prescribed medication in the form of mirtazapine, which can go up towards 660 mg daily. Mr White has no desire to return to psychological treatment given the lack of benefits he had from such interventions previously.”
[29] Application, p 121.
[30] Application, p 122.
Under the heading “Diagnosis and Opinion”, Dr Allan stated:[31]
“Somatic symptom disorder with predominant pain that has become chronic, secondary nature of depressive disorder and a posttraumatic stress disorder which arose as a direct result of the incident in which Mr White sustained severe, enduring and life-changing injuries.”
[31] Application, p 122.
Dr John Roberts
Dr John Roberts, psychiatrist, provided a series of reports. In the report dated 17 January
2019 the doctor referred to the type of stressors that could give rise to post-traumatic stress disorder[32] and opined in relation to the subject injury:“The accident was of minimal degree, there was no evidence of unconsciousness, no cuts and in terms of his account to me, no ability to recollect bruising which he asserts however was present as recorded elsewhere.”
[32] Reply, p 14.
Dr Roberts provided a further report dated 27 September 2023. He stated:
“I comment that the stressor criteria for Post-traumatic Stress Disorder have never been reached and the diagnosis of PTSD is untenable on reasonable psychiatric grounds.”
Dr Roberts noted that emotional reactions to the traumatic event “fear, helplessness, horror” are no longer a part of Criterion A. The doctor stated:
“I reiterate that a fall down some stairs which was of such a minimal degree that no medical attention was sought for a period of approximately two weeks does not correlate with the stressor intensity as defined in DSM-5.”
Extract from DSM-5
The diagnostic criteria of post-traumatic stress disorder under DSM-5 require categories A through to H. Category A requires exposure to actual or threatened death, serious injury or sexual violence in one of four ways. The first way is directly experiencing the traumatic event. The discussion for the criteria includes the following:[33]
“The directly experienced traumatic events in Criterion A include, but are not limited to exposure to war as a combatant or civilian, threatened or actual physical assault (e.g. physical attack, robbery, mugging, childhood physical abuse) threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking) being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters and severe motor vehicle accidents. … Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, war or disaster, or a medical catastrophe in one’s child.”
[33] DSM-5, p 274.
Other evidence
The claim form completed on 18 May 2017 described the work injury when the applicant “fell down stairs”.[34]
[34] Reply, p 33.
FINDINGS
The applicant bears the onus of proof on the balance of probabilities.[35]
[35] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]- [55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].
Section 65A(3) of the 1987 Act provides that no compensation is payable in respect of permanent impairment resulting from primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%. In assessing the degree of impairment that results from a primary psychologic injury, “no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury” (s 65A(2)).
A primary psychological injury is defined as a psychological injury “that is not a secondary psychological injury”. A secondary psychological injury is defined as a psychological injury “to the extent that it arises as a consequence of, or secondary to, a physical injury”.
Accordingly, s 65A provides that a worker can suffer from both a primary psychological injury and a secondary psychological injury.
The respondent submitted, and the applicant accepted, that the only diagnosis of primary psychological injury was post-traumatic stress disorder. It is common ground that if the applicant did not establish that he suffered from post-traumatic stress disorder then the claim failed.
The applicant submitted that the primary psychological injury was caused by the event, being the fall at work on 19 March 2017. That submission is consistent with the legislation and the discussion in Romanous Constructions Pty Ltd v Arsenovic.[36] The respondent did not contest that a primary psychological injury could be caused by the event although it disputed that the event was sufficiently severe to justify a diagnosis of post-traumatic stress disorder.
[36] [2009] NSWWCCPD 82 (Arsenovic).
The respondent’s submissions emphasised the absence of direct evidence of symptoms, the absence of recorded complaint of post-traumatic stress symptoms in the clinical notes, the treating opinion provided by Dr Suman, the weaknesses in the opinion expressed by Dr Allan and the contrary opinion expressed by Dr Roberts.
The respondent submitted that the issue of the acceptance of the criteria under DSM-5 was a matter for a medical practitioner and not the Personal Injury Commission (Commission). That submission was unsupported by any authority, is contrary to the legislation and superior Court authority. It is otherwise contrary to s 105 of the 1987 Act.
The finding of the nature of the injury sustained is a matter for the Commission and not a medical practitioner.[37] The issue of whether a worker does or does not suffer a primary psychological injury is otherwise a matter for the Commission. As Roche DP stated in Arsenovic:[38]
“[t]he question of whether a worker has sustained a primary psychological injury or a secondary psychological injury is a question for the Commission to determine on the basis of the whole of the evidence.”
[37] Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [80].
[38] Arsenovic at [62].
To the extent that the applicant referred to DSM-5 and was required to satisfy the various diagnostic criteria, that issue is, consistent with the above authorities, a matter for the Commission.
The respondent submitted that the applicant’s pre-existing psychological condition meant that it was more likely that he would suffer from a secondary psychologic condition than a primary psychological condition. There was no evidentiary basis for that submission. I do not accept that it is made on the basis of logic and commonsense.[39]
[39] Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [364]-[368].
The respondent also submitted that the medical opinion of Dr Allan offended the principles in Makita (Australia) Pty Ltd v Sprowles.[40]This submission was withdrawn when it was noted that the principles in Makita did not apply.[41]
[40] [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita).
[41] See for example Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.
The respondent relied on an absence of complaint of symptoms that would support a finding that there was a primary psychological injury. It referred to an absence of direct evidence from the applicant in his statements apart from the brief comment that he “received a diagnosis of PTSD”. The applicant did not dispute that submission. I have earlier referenced portions of the applicant’s statements which discuss the psychological symptoms caused by pain and/or in response to the injuries. I accept the respondent’s submission that the applicant’s statement evidence does not support his claim that he suffered a primary psychologic injury.
This is not conclusive of the matter as the histories contained in the doctor’s report may establish the applicant’s complaint. However, the applicant’s case is weaker because the applicant has not provided direct evidence in his statements of the nature, duration and extent of the various symptoms said to give rise to a diagnosis of post-traumatic stress disorder.
The respondent referred to an absence of record of symptoms in the clinical notes of the GPs. The applicant did not dispute that submission save as to referring to the brief note set out earlier in these Reasons.[42] Those clinical notes do not reference symptoms and do not associate “PTSD” to the work injury. One note refers to post-traumatic stress disorder being associated with “private investigators, was abused by insurer and employer” which, as the respondent noted, was not the cause oof the injury alleged by the applicant.
[42] See [15]-[17].
The respondent referred to the absence of support from Dr Suman, treating psychiatrist, that the applicant sustained a primary psychological injury. The single report from Dr Suman diagnosed a secondary psychological injury and otherwise did not reference any symptoms supportive of a diagnosis of post-traumatic stress disorder. There was no contrary submission by the applicant.
I accept the strength of this submission. The report is dated 29 October 2019 and refers to treatment since mid-2018. The applicant was seen by the treating psychiatrist “every few months”[43] and the report does not refer to any symptoms associated with a post-traumatic stress disorder.
[43] Application, p 120.
The respondent referred to the absence in the clinical notes to symptoms associated with post-traumatic stress disorder. Other than the brief mention to “PTSD” the applicant did not contest that submission.
This submission, which I accept, is consistent with the absence of history recorded by Dr Suman and the absence of reference to these symptoms in the applicant’s statement.
There were lengthy submissions concerning the evidentiary weight to be given to Dr Allan’s opinion.
The applicant emphasised the history recorded by Dr Allan that referred to nightmares and ruminations. The applicant acknowledged the limitations in the report but submitted that it was sufficient to satisfy the onus of proof on the balance of probabilities.
The respondent referenced the lack of reasoning in Dr Allan’s report and the contrary opinion expressed by Dr Roberts.
Given the nature of the submissions, particularly regarding the weight to be attached to
Dr Allan’s report, it is instructive to repeat what was discussed by Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd[44] (Hancock). Her Honour stated:“82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83 In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162
at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”[44] [2011] NSWCA 11 at [82] – [83], Giles and Tobias JJA agreeing.
As her Honour noted, the issue of admissibility of expert opinion does not arise in the Commission as it is not bound by the rules of evidence: Brambles Industries Ltd v Bell.[45]
[45] [2010] NSWCA 162 at [19], [24] and [28].
The requirements of compliance with regards to principles governing expert evidence were discussed in STA of NSW vEl-Achi[46] when Roche DP stated:
“All that is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out ‘the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from xrays and other tests’ (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 per Beazley JA (as her Honour then was) at [85] (Giles and Tobias JJA agreeing)).”
[46] [2015] NSWWCCPD 71 at [80].
In OneSteel Reinforcing Pty Ltd vSutton[47] (Sutton) McColl JA stated:[48]
“66. In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) stated:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’ (emphasis added)
[47] [2012] NSWCA 282.
[48] at [66]-[68].
The general observations of Allsop P in Sutton (at [2]) are pertinent:
“Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”
Part of the history recorded by Dr Allan was that someone spat in the applicant’s face. That allegation was not part of this work injury alleged in these proceedings. It was unclear from the report what part of the diagnosis of post-traumatic stress disorder related to the face spitting incident. Dr Allan noted that the nightmares were “about the accident that occurred or the face-spitting incident”.[49] To the extent that the diagnosis of post-traumatic stress disorder is partly due to face-spitting incident, it is not part of the allegation of injury and undercuts the weight to be attached to the opinion.
[49] Application, p 121.
Dr Allan noted a history that there were “life changing injuries” and the doctor referred to injuries to the “back, neck, shoulder and head”.[50] That history is inconsistent with the findings of the Commission in White (No 1) that the physical injury was limited to the back.
[50] Application, p 116.
Dr Allan opined that the applicant had a somatic symptom disorder with predominant pain, a major depressive disorder and “a posttraumatic stress disorder”. He then stated immediately after that conclusion that “this is managed by him seeing a psychiatrist and having prescribed medication in the form of mirtazapine”.
Dr Suman prescribed Mirtazapine in the context of a diagnosis of chronic pain and an adjustment disorder. To the extent that Dr Suman has expressed an opinion on diagnosis, it was a secondary psychological condition and certainly not one of post-traumatic stress disorder. Accordingly, the prescription of mirtazapine was for the secondary psychological condition and not for post-traumatic stress disorder.
I accept the respondent’s submission that this passage of Dr Allan’s opinion is unsupported by the opinion of Dr Suman and is incorrect.
Dr Allan also opined that the diagnosis of post-traumatic stress disorder “arose as a direct result of the incident in which Mr White sustained severe, enduring and life-changing injuries”.[51] That opinion appeared to be related to a history recorded by Dr Allan that there were back and neck injuries with radiating symptoms into the right upper and right lower limbs.
[51] Application, p 122.
Dr Allan diagnosed both a secondary psychological injury and post-traumatic stress disorder. However, the reference to “severe, enduring and life-changing injuries” may only be a reference to the secondary psychological injury. That paragraph is unclear. Mr Goodridge
described the phrase as “unnecessary or shows error”. He submitted that Dr Allan’s opinion was the applicant’s case at its highest and described the report provided by Dr Allan as “less than fantastic”.However, the applicant submitted, despite these deficiencies, that Dr Allan considered the history and concluded that there was both primary and secondary psychological injuries.
The respondent otherwise submitted that Dr Allan has not explained how he has arrived at the diagnosis of post-traumatic stress disorder. That submission was not the subject of contrary submission save that the applicant referred to portions of the history which referenced nightmares and ruminations. I agree with the respondent’s submission.
When the criteria for establishing post-traumatic stress disorder under DSM-5 was tendered, I noted to the applicant’s counsel that Dr Allan had not discussed the other criteria. The applicant made no submission contradicting that observation.
The other area of submissions concerned Dr Roberts’ opinion that it was untenable that Criteria A could be established from this injury.
The applicant referred to Dr Roberts’ recent opinion wherein the doctor noted that the phrase “emotional reactions to the traumatic event (eg fear, helplessness or horror)” is no longer part of Criterion A and that the doctor subsequently stated:[52]
“I reiterate that a fall down some stairs which was of such a minimal degree that no medical attention was sought for a period of approximately two weeks does not correlate with the stressor intensity as defined in the DSM5.”
[52] Respondent’s late Application, p 3.
After referring to Criterion A, the applicant submitted that Dr Roberts’ opinion was “intellectually jarring” as the doctor opined that the event could not be sufficient. Reference was made to the fact that Dr Roberts had “selectively quoted” from the criteria and had “misinformed himself”. It submitted that it was sufficient that there was “threatened” death or serious injury, and this is what had occurred in this case.
The applicant referred to the following sentence:
“Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse or another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one’s child (e.g., a life threatening haemorrhage).”
I agree with the applicant’s submission that it is not untenable that a fall down steps can satisfy Criteria A of DSM-5.
However, I also acknowledge and accept Dr Roberts’ opinion that, on the facts in this case, the injury at the time did not appear serious. This is because of the matters referred to by Dr Roberts, that is the absence of the applicant seeking medical attention. The applicant’s stated that he “was in shock and thought that I may have just strained my back”, the pain persisted and gradually got worse overtime and he then consulted his doctor.[53]
[53] Application, pp 10-11, para 19-20.
The various examples sufficient to satisfy Criterion A discussed in DSM-5 are far removed from this event. The applicant submitted that a fall down steps could satisfy the criteria as that could result in threatened serious injury. Whilst I accept that it is not untenable, the nature of fall in this matter is inconsistent with the examples given in the discussion under “Diagnostic Features” such as “exposure to war”, threatened or actual physical assault, threatened or actual sexual violence.
The issue of causation of primary psychological injury is determined on the totality of the evidence.
I am not satisfied, based on the overall evidence that the applicant has discharged the onus of proof on the balance of probabilities. This finding is based on the following. First, the absence of direct evidence from the applicant in his statement of symptoms referable to post-traumatic stress disorder. Secondly, the absence of reported symptoms in the clinical notes which may tend to establish post-traumatic stress disorder. Thirdly, the absence of any reference by Dr Suman, treating psychiatrist, who did not provide a diagnosis of post-traumatic stress disorder or otherwise refer to any symptoms supporting such a diagnosis.
These matters show that there is no record of symptoms supportive of post-traumatic stress disorder recounted by the applicant in his statements, noted by the treating psychiatrist and/or recorded by the GP. This conclusion casts serious doubt that those symptoms were of sufficient intensity or duration because they were not referenced in these documents.
Fourthly, despite these absences, the deficiencies in Dr Allan’s report includes:
· an absence of reasoning explaining how that the applicant suffered from post-traumatic stress disorder, which included an absence of reference to the various criteria in DSM-5;
· errors of history of the extent of the injuries and the reference to other allegations (eg “face spitting”) which was not included in this claim;
· the suggestion that Mirtazapine was prescribed for post-traumatic stress disorder;
· that that this event did not satisfy Criteria A of DSM-5, and
· an absence of explanation of how post-traumatic stress disorder was caused by the injury.
CONCLUSION
The finding and order are set out in the Certificate of Determination.
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