White v Marist Youth Care Limited
[2022] NSWPIC 391
•19 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | White v Marist Youth Care Limited [2022] NSWPIC 391 |
| APPLICANT: | Nathan White |
| RESPONDENT: | Marist Youth Care Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 19 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant alleges injuries to lower back, neck, both shoulders and secondary psychological condition; respondent seeks adverse credit findings; Held – applicant complained of lower back pain to general practitioner but no sufficient complaint regarding neck or shoulders; held on the facts applicant entitled to an award pursuant to section 37 of the Workers Compensation Act 1987 reduced because of applicant’s capacity to perform some suitable employment; award for the respondent in respect of allegations of injury to the neck and shoulders. |
| DETERMINATIONS MADE: | 1. The applicant in the course of his employment with the respondent on 19 March 2017 suffered injury to his lumbar spine. 2. The applicant as a consequence of injury to his lumbar spine suffered a secondary and consequential psychological condition. 3. Award for the respondent in respect of allegations of injury to the applicant’s cervical spine and both upper extremities (shoulders). 4. Award in favour of the applicant for weekly payments of compensation for the period 19 September 2017 for 115 weeks being the remaining second entitlement period pursuant to s 37 of the Workers Compensation Act 1987, as amended, (1987 Act) in the sum of $523 per week. 5. General award in favour of the applicant in respect of expenses pursuant to s 60 of the 1987 Act, limited to expenses in respect of injuries to the applicant’s lumbar spine and secondary consequential psychological condition as determined above. |
STATEMENT OF REASONS
BACKGROUND
Nathan White (the applicant) is a 36-year-old-man who was employed by Marist Youth Care Limited (the respondent) as a home care (youth) worker. He alleges that on 19 March 2017 in the course of his employment in a youth home he slipped on stairs and fell injuring his back, neck and shoulder and subsequently suffered a secondary consequential psychological injury.
The applicant makes a claim for weekly payments of compensation from 19 September 2017 to 1 December 2019 as well as a general claim for s 60 expenses. The applicant’s pre-injury average weekly earnings were originally pleaded at $1,435 per week and neither this figure nor the maximum weekly figure of payments claimed is disputed in the applicant’s written submissions. At the conclusion of the respondent’s oral submissions (which came first) it was suggested that the respondent should be given credit for some weekly payments (15 weeks) made.
ISSUES
The primary issue is whether the applicant fell in his employment on 19 March 2017 and if so whether he suffered injury to his back, neck and shoulders? During the arbitration hearing a preliminary issue arose concerning the following matters:
(a) whether the applicant was entitled to amend the Application to Resolve a Dispute (Application) to add primary psychological injury, and
(b) whether the applicant should be permitted to amend the Application “description of injury” to replace the word “shoulder” on page 7 with the word “shoulders”.
After hearing submissions on these two aspects, the Personal Injury Commission (the Commission) determined:
(a) the application to plead primary psychological injury was not allowed, and
(b) the application to amend description of injury by including the word “shoulders” in lieu of “shoulder” was permitted.
A sound recording of the submissions and decisions on these matters was prepared.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing by MS Teams on 1 June 2022. Mr Adhikary of counsel instructed by Ms Robey, solicitor, appeared for and with the applicant. Mr Saul of counsel instructed by Mr Murray, solicitor, appeared for the respondent.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
Preliminary matters concerning proposed amendment occurred as set out above and thereafter Mr Saul provided oral submissions. There was insufficient time to conclude all submissions as a result of which the applicant was directed to file and serve written submissions by 20 June 2022 and the respondent was given the opportunity to file and serve written submissions in reply by 27 June 2022.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application lodged 25 March 2022. and
(b) Reply and attachments lodged on 14 April 2022 (Reply).
In addition to the respondent’s opening oral submissions, the parties subsequently provided written submissions as follows:
(a) by the applicant dated 20 June 2022 and lodged on 20 June 2022, and
(b) submissions in reply by the respondent undated but lodged 24 June 2022.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The respondent points to the applicant’s consultation with Dr Farabi on 22 March 2017 in that there is no complaint to Dr Farabi, just three days after the alleged injury, concerning any problems with the applicant’s neck, back, shoulders or psychological issues.
Further consultations were had with general practitioners after 19 March 2017 as follows:
(a) 29 March 2017 worm infestation?, fungal infection and lower back pain but no mention of the 19 March 2017 incident, no workers compensation issue and no radiology requested.[1]
(b) 3 April 2017 GORD but no mention of injury.[2]
(c) 9 May 2017 insomnia, back injury but no mention that the applicant injured himself on 19 March 2017.[3] (Note however, X-rays were requested for the reason “chronic pain following fall at work”.)
(d) 16 May 2017 back pain due to fall, slippery stairs due to shampoo, happened a few weeks ago. Subject to (c) above, this is the first mention of work-related back pain but there is no mention of neck or shoulder injuries.[4]
(e) 17 May 2017 anxiety/depression, anxious about the back injury, CT result and WorkCover.[5]
(f) 19 May 2017 workers compensation lower back pain, nil radiculopathy.[6]
(g) 29 May 2017 “he said he has neck pain as well following the fall at work” – no complaint of shoulder problems.[7]
(h) 30 May 2017 back pain, lumbo-sacral ADHD…anxiety symptoms may need to review with his psychiatrist.[8] (There is no information concerning who this psychiatrist is and what treatment the applicant has already received).
(i) 6 June 2017 feels better, improving pain following physiotherapy, lower back muscle spasm, would like to go back to work with restriction for week.[9]
[1] Reply at pages 40-41.
[2] Reply at page 41.
[3] Reply at page 41.
[4] Reply at page 42.
[5] Reply at page 42.
[6] Reply at page 43.
[7] Reply at page 43.
[8] Reply at page 44.
[9] Reply at page 44.
The respondent’s main submission in view of these consultation notes is that throughout a period of over three months following 19 March 2017 the applicant made a belated claim of his fall at work affecting his back and an even later claim of problems with his neck, but no complaint whatsoever of any problem with his shoulders.
In relation to past history, the respondent pointed to earlier consultation notes recorded by Dr Parikh.[10] In particular:
(a) 20 June 2016 counselling on upcoming court case, back pain discussed, has hurt back in the past, no radicular symptoms, mild tenderness L3/L4, advised stretching and walking.[11]
(b) 24 June 2016 back pain persisted, prescribed brufen.[12]
(c) 27 June 2016 back pain from lifting a trailer…no red flags.[13] “Back pain history for years”.[14] “Need counselling for stress related family matters”.[15]
[10] Reply at page 45.
[11] Reply at page 45.
[12] Reply at page 46.
[13] Reply at page 47.
[14] Reply at page 47.
[15] Reply at page 47.
The point raised in terms of the foregoing is that the applicant had a previous history of back pain for which he was sent to radiology and physiotherapy and this history extends to a period including up to a year or so before 19 March 2017.
The respondent’s submissions continue by reference to medical certificates completed in relation to the applicant. A medical certificate given by Dr Parikh on 9 October 2015 notes that the applicant was receiving a Disability Parking Permit to assist his back pain, but the doctor wrote the certificate in support of cancellation of this permit.[16] Dr Parikh completed a GP Management Plan on 9 October 2015 in which he recorded a history of back pain recorded at least on 18 October 2011.[17] The GP Management Plan includes under “Patient Problems/Needs” back pain requiring medication, exercises and physiotherapy.[18] There is, therefore, clearly a history of some prior back pain or symptoms.
[16] Reply at page 36.
[17] Reply at page 37.
[18] Reply at page 39.
That history of back pain may, nonetheless, in my view be compared with other complaints and treatment, that is to say the whole of the evidence, particularly having regard to the history in the months leading up to 19 March 2017 and the evidence as a whole. There is no evidence I believe of any back problems, pain or discomfort experienced by the applicant in about 9 months up to 19 March 2017.
The next submission by the respondent deals with the absence of medical reports from treating doctors. The applicant relies upon reports of Dr Anderson of 15 August 2018 and 28 April 2021.[19] The history to Dr Anderson on first assessment was that of the applicant hurting his neck and his lower back. There is no history of injury to the applicant’s shoulders. The applicant said that he had received no bruising.[20] He managed to continue to work 12 hour shifts for the next eight days or so[21] and reference is made to referrals to pain management physician, Dr Ho, and on 5 March 2018 to Dr Sundaraj.
[19] Application at pages 72 and 81 respectively.
[20] Application at page 74.
[21] Application at page 74.
The “daily running notes” of the respondent’s records accept that there was shampoo present on the stairs but the respondent submits that these notes provide no support for the assertion that the applicant was injured when he slipped on these stairs[22] and none of the radiological evidence demonstrates any pathology of any significance. The MRI scan of 9 February 2018 noted several small nodes at the applicant’s thoracic spine and although Dr Anderson regards the applicant as totally unfit for work, radiologically there is nothing wrong with him.
[22] Application at page 18.
Dr Edwards saw the applicant on 28 June 2017, only a little over three months after his alleged injury. The applicant complained of neck pain occurring about a week after his fall and denied any history of past back pain, although he conceded a past history of anxiety treated by a psychologist. There was no complaint of any shoulder symptoms made to Dr Edwards.[23] Dr Edwards was not given the benefit of any documents concerning the applicant’s past history of anxiety. Dr Edwards recommended obtaining the consultation notes of Dr Farabi and in a subsequent report dated 8 September 2017 Dr Edwards refers to those consultation notes and expressed the view that the applicant did not suffer any injury in the incident on 19 March 2017 and does not require any further ongoing treatment.[24]
[23] Reply at page 1.
[24] Reply at page 12.
Dr Roberts, psychiatrist, saw the applicant at the request of the insurer on 17 January 2018. Reference is made[25] to the applicant having seen Dr Suman, psychiatrist, every couple of months and also having attended a psychologist. In addition, the applicant had seen a psychiatrist, Dr Chatuvardi until she retired.[26] Dr Roberts ultimately concluded that the applicant suffered some psychological symptoms attributable to the alleged incident.
[25] Reply at pages 21-22.
[26] Reply at page 23.
Dr Allan, psychiatrist, saw the applicant in a medico-legal capacity and provided a report dated 8 June 2021.[27] Dr Allan deals substantially with primary psychological injury, which is not pleaded and because the report is dated 8 June 2021 and the period of payments under section 37 expired in 2019 the report is arguably of limited assistance, particularly when there are treating doctor’s reports which are not in evidence. Dr Allan mentions that the applicant saw Dr Ho, but there is no report from Dr Ho in evidence.
[27] Application at page 29.
The respondent makes the point that the applicant relies upon reports of Dr Anderson and Dr Allan but both reports are well after the alleged date of injury. Although Dr Allan claims the applicant is totally incapacitated for the purposes of his whole person impairment assessment, this is on the basis that the applicant suffered primary psychological injury, which is not pleaded. Additionally, there has been no radiological investigation nor any consultation in relation to the applicant’s shoulders at all.
The respondent concludes by indicating that payments were made for some 15 weeks of weekly compensation and the end of the 130 week period (section 37) is 1 December 2019.
Contrary to the respondent’s submission, the reports of the applicant’s treating psychiatrists were in evidence.[28] Dr Suman’s report is dated 29 October 2019 [sic] and addressed to Dr Nguyen. Dr Suman refers to the applicant having seen him since mid-2018 and prior to that seen by Dr Suman’s colleague, Dr Chaturvedi since 2015.
[28] Application at pages 276-277 and 440.
The strength of the treating psychiatrists’ reports are in issue because we only have before this Commission the limited reports available.
Dr Suman refers to the applicant’s treatment for Attention Deficit Hyperactive Disorder (ADHD) going back to his childhood. He concludes that on review on 8 October 2020 the applicant had “partial relief in terms of mixed anxiety and depressed disorder” but in this report he does not specifically address causation in terms of the applicant’s work, except to comment that the applicant “suffered a workplace injury, followed by chronic pain and adjustment disorder which prevented his return to work”.[29]
[29] Application at page 276.
The next treating psychiatrist’s report is that of Dr Chaturvedi dated 4 May 2016 addressed to Dr Yang.[30] That report mentions Dr Chaturvedi’s care of the applicant in the context of him undergoing a community service course, working casually and battling to gain custody of his two children. There is no mention of work involvement. It is a report well before the alleged injury of 19 March 2017 so it does not in my view assist the applicant.
[30] Application at page 442.
It is of course unnecessary as the applicant submits[31] for a litigant to have corroboration in a civil matter and only necessary from the strict view of causation for the employment to be a contributing cause to the incapacity or disability.[32] In terms of Dr Allan’s opinion the respondent has asserted that Dr Allan dealt only with primary psychological injury. Dr Allan does, however, comment on the impact of the applicant’s chronic pain on his mental state in terms of the history that the applicant provided: “he describes how that since the accident he has felt increasingly depressed. His motivation has diminished (etc)…”.[33]
[31] Applicant’s written submissions at page 3.
[32] Applicant’s written submissions at page 4.
[33] Application at page 98.
Dr Allan under “diagnosis”[34] includes a partial diagnosis of depressive disorder of a “secondary nature”. He refers to the applicant’s unfitness for employment as being due to “the severity of his combination of diagnosed psychological conditions”[35] and sees “no change in his ADHD as a result of his workplace injury”.[36]
[34] Application at page 99.
[35] Application at page 100.
[36] Application at page 100.
Concerning the report of Dr Edwards dated 28 June 2017 and the reference to there being no evidence of the applicant telling other staff about his fall, the applicant in his statement[37] gives evidence that he told “Sandra” not long after the fall and the respondent does not produce any evidence to contradict this assertion.
[37] Application at page 2 at [23].
At paragraph 49 of his statement, the applicant talks about deterioration in his mental health as his “pain continued”.[38] This is in the context, however, of paragraph 47 where the applicant talks of physiotherapy and appears to be related to worsening back pain which pain had extended by March 2018 to the applicant’s right leg.
[38] Application at page 5.
The nature of the injuries sustained by the applicant in his fall are clarified in the applicant’s second statement at paragraphs 19-20.[39] The applicant says:
“19. At the time I was in shock and thought that I may have just strained my back and the pain would subside.
“20. The pain persisted for the following week and gradually became worse over this time till I decided go see a doctor at my current medical practice Whalan Medical Centre.
“21. On approximately 29 March 2017 I seen Dr Farabi…I told Dr Farabi what had happened and that I was having severe lower back and neck pain for the past week or so”.
[39] Application at pages 11-12.
The difficulty with the applicant’s statement in this regard is that whilst Dr Farabi’s note of 29 March 2017 makes reference to lower back pain, there is no reference at all to neck or shoulder pain.[40] Additionally, at paragraphs 19 and 20 of the applicant’s second statement he refers only to his back pain.
[40] Reply at page 41.
The applicant’s submissions deal with the absence of early clinical entries concerning the applicant’s neck and shoulders at page 15 of the applicant’s written submissions. It is true that the applicant alleged that he complained of neck and back pain as the submissions assert. But the clinical records simply do not support any contemporaneous assertion in that regard and whilst I am mindful of Mason[41] (and similar authorities) and entries which are some months later (particularly the report made to Dr Farabi on 29 May 2017 regarding neck pain) and the earlier report of 22 May 2017 in the clinical notes of Healius Mt Druitt,[42] in my view there was ample opportunity in earlier consultations for the applicant to have mentioned neck and shoulder problems, had they been present.
[41] Mason v Demasi [2009] NSWCA 227.
[42] Application at page 498.
I have considered the various clinical entries referred to at paragraphs 124-138 of the applicant’s written submissions. Whilst helpful in making reference to chronic pain, most of them concern later treatment and do not assist in my view the applicant’s problem in not seeking earlier treatment nor making any earlier complaint concerning his neck and shoulders. In terms of his lumbar spine and past history, there is a period of about nine months between 24 June 2016 and 29 March 2017 where there is no mention of any problems experienced by the applicant. That fact is not necessarily determinative, but it adds to the weight of the evidence in that the applicant was able to perform his duties without any complaint of back pain or disability for those nine months.
In my view the applicant’s chronic back pain did make a material contribution to his consequential psychological condition. Whilst the evidence of Dr Allan appears to support a mix of both primary and secondary psychological injuries, there is nonetheless psychological injury of a secondary nature which has been established. Beyond that observation, it is not this Commission’s role nor function to determine any apportionment.
I accept that Dr Roberts’ medico-legal opinion is largely predicated upon the opinion of Dr Edwards concerning the absence of physical injury. To that extent I am not inclined to accept it. In terms of Dr Edwards’ opinion, having regard to the series of complaints made by the applicant and the treatment afforded to him concerning his lumbar spine injury, I take the view that the applicant suffered injury to his lumbar spine on 19 March 2017.
The respondent’s submission that credit was in issue notwithstanding the absence of cross examination[43] is accepted. But the applicant’s credit in my view of the evidence has not been shaken. The applicant’s submission that an inference unfavourable to the respondent should be drawn concerning the absence of evidence as to the completion of the “Registry of Injuries” form is rejected.[44] This is because of the correspondence referred to at paragraphs 8 and 9 of the respondent’s submissions reply which demonstrates quite clearly that relevant questions in this regard were put to the applicant.
[43] Respondent’s submission in reply at page 1 at [6].
[44] Respondent’s submissions in replat at page 1 at [7].
Capacity
In terms of capacity for work, regardless of whatever position may be in terms of psychological injury, the lengthy continuation of lower back pain and discomfort and the absence of suitable employment in the context of various medical opinions lead me to the view that the applicant has effectively had a limited capacity for work between 19 March 2017 and the cessation of the second entitlement period on 1 December 2019. Accordingly, in the event of economic loss it is appropriate that an award pursuant to s 37 be made in favour of the applicant.
In respect of the physical injuries, Dr Anderson comes to the conclusion that the applicant is unfit for his pre-injury work but it follows from his opinion[45] that he is fit for some work, albeit with some restrictions. In terms of s 32A of the 1987 Act, the evidence supports that the applicant is relatively young (37 years of age), completed high school until year 11[46] and holds a Diploma in Community Services. He has past experience working as a youth worker and in my view since the date of injury could perform that work at all material times with an ability to earn in the order of 25 hours per week at $25 per hour. That yields a capacity to earn of $625 per week in economic terms for the period in question.
[45] Application at page 86.
[46] See Dr Allan’s report at Application at page 94.
The relevant calculation therefore becomes the 80% rate ($1,148) less capacity to earn ($625) being $523 per week for the period claimed.
There will accordingly be an award in favour of the applicant in respect of weekly compensation in the sum of $523 per week for the period claimed.
There will be a general award for s 60 expenses limited to expenses regarding the applicant’s lumbar spine and secondary psychological condition referrable to the applicant’s lumbar spine injury.
Award in favour of the respondent in respect of alleged injuries to the applicant’s cervical spine and both upper extremities (shoulders).
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