Allchorne v Serco Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allchorne v Serco Australia Pty Ltd [2023] NSWPIC 665
APPLICANT:	Brendan Allchorne
RESPONDENT:	Serco Australia Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	11 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 65A and 66 psychological injury due to being assaulted in the course of employment; not disputed that applicant has suffered a psychological injury; dispute as to whether primary or secondary psychological injury; Held – that the applicant sustained a primary psychological injury due to being physically assaulted in the course of his employment with the respondent on 19 September 2019.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a primary psychological injury due to being physically assaulted in the course of his employment with the respondent on 19 September 2019. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 16 September 2019 – personal injury. b. Body systems / parts: psychological/psychiatric disorder. c. Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, b. Reply and attached documents, and c. applicant’s Application to Admit Late Documents signed 23 October 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Brendan Allchorne, the applicant, was at the relevant time employed by Serco Australia Pty Limited, the respondent, as a Detainee Officer

The applicant alleges that he suffered a psychological injury on 16 September 2019 when whilst in the course of his employment with the respondent he was punched in the left hand side of his face by a detainee.
The applicant seeks permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury.
It is not disputed that the applicant was punched in the left hand side of his face on 16 September 2019. It is also not disputed that the applicant has sustained a psychological injury. The only issue in dispute is whether the psychological injury is a primary or secondary.
The respondent:
(a) disputes that the applicant’s psychological injury is a primary psychological injury, and
(b) disputes that the applicant is entitled to permanent impairment compensation pursuant to s 66 of the 1987 Act as pursuant to s 65A of the 1987 Act no compensation is payable in respect to permanent impairment that results from a secondary psychological injury.

ISSUES FOR DETERMINATION

The following issue remains in dispute:
(a) whether the applicant has sustained a primary or secondary psychological injury and has an entitlement to permanent impairment compensation pursuant to ss 65A and 66 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 9 November 2023. Mr Craig Tanner, counsel, instructed by Mr Stephen Matthews, appeared for the applicant, who was present. Mr Stuart Grant, counsel, appeared for the respondent, instructed by Ms Eloise Cotchett. The proceedings were conducted by audio visual link. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    attachments to the applicant’s Application to Admit Late Documents dated 23 October 2023.

Oral evidence

Neither party sought leave to adduce oral evidence.

Evidence

A brief summary of the evidence follows.

Applicant’s statement evidence

It is the applicant’s evidence that on 16 September 2019, a high risk detainee who required constant supervision and was required to keep the door of their room open, attempted to close the door. The applicant in an attempt to stop the detainee closing the door placed his foot between the door and the frame of the door. The detainee flung himself at the door which resulted in the door rebounding and as it did so the detainee punched the applicant in the left side of his face. The applicant immediately called for assistance via radio and as he waited for assistance he held the detainee, who was attempting to resist arrest, down.[1]
[1] ARD p 1.
Following the incident, the applicant was in significant pain. On 11 August 2020 having exhausted all conservative treatment options he underwent an arthroscopy of his left temporomandibular joint (TMJ) and removal of his wisdom teeth.[2]
[2] ARD p 2.
It is the applicant’s evidence that at times he was taking six to eight Panadeine Forte tablets per day and began resorting to alcohol to manage his pain and thoughts. He was prescribed cannabis to ease off codeine.[3]
[3] ARD p 2.
After approximately six months he returned to work with the respondent on light duties operating the boom gate and working at reception prior to returning to work on the “floor” in approximately November 2020. However due to his psychological condition he experienced numerous issues managing his work duties. It is the applicant’s evidence that during one shift he conferred with his manager and broke down due to his psychological state at the time.[4]
[4] ARD p 2.
As his pain continued to increase further surgical procedures were performed in December 2021 and in or around May 2022.[5]
[5] ARD p 2.
It is the applicant’s evidence that as a result of the work incident on 16 September 2019 he has suffered from ongoing flashbacks of the incident, nightmares and distress. The applicant claims that he experienced psychological symptoms immediately following the subject incident but did not report them straight away as he attempted to deal with the symptoms himself and did not want to talk about it. He felt embarrassed and attempted to handle the symptoms without seeking medical help. He just wanted to get on with his life and forget about the incident. However, this became increasingly difficult, and he consulted a psychologist in or around December 201/January 2020 as a result of his deteriorating psychological symptoms.[6]
[6] ARD pp 2-3.
It is the applicant’s evidence that he continues to struggle with ongoing sleep disturbance, nightmares and flashbacks of the incident.[7] It is also the applicant’s evidence that he gets overwhelmed and very anxious when he is exposed to similar circumstances such as when watching television.[8]
[7] ARD p 3.
[8] ARD p 4.

Medical evidence

On 4 June 2020 the applicant attended on his general practitioner (GP) at the time, Dr Steffan Eriksson. The clinical note of the attendance records that the applicant was concerned about the person who assaulted him being released from prison living nearby. The applicant had reported that he was distressed. The applicant was to be reviewed by a psychologist.[9]
[9] ARD p 205.
On 11 August 2020 Dr Samuel Kim, specialist oral and maxillofacial surgeon, reported to Dr Steffan Erikson that on that day he had performed a left TMJ arthroscopy and removal of four wisdom teeth.[10]
[10] ARD p 58.
On 21 January 2022 the GP, Dr Eric Lim, reported to the applicant’s solicitors noting that the applicant’s troubles included being anxious, panic attacks, nightmares and trouble sleeping.[11] The doctor observed that the applicant had post-traumatic stress disorder symptoms and appears to diagnose post-traumatic stress disorder.[12]
[11] ARD p 45.
[12] ARD p 46.
On 4 February 2022 Mr Carl Nielsen, the applicant’s treating psychologist, reported to the applicant’s GP recording that the applicant reported as a result of the assault a deterioration in his mental state characterised by repeated disturbing and unwanted memories pertaining to the assault. The applicant reported that he had noticed avoidance of social interactions and going outdoors, fluctuations in arousal ranging from hypervigilance and panic attacks to fatigue and low mood, negative thinking and mood characterised by anxious and depressive cognitions from pain as well as concerns regarding future capacity for work. The applicant also reported abusing alcohol.[13]
[13] ARD p 139.
Mr Nielsen diagnosed post-traumatic stress disorder as well as alcohol abuse disorder.[14] Mr Nielsen made recommendations in respect to treatment.
[14] ARD p 139.
On 22 March 2022 the GP, Dr Ben Dickson, reported to the applicant’s solicitors a diagnosis which included post-traumatic stress disorder. The applicant’s symptoms were noted as including anxiety, panic attacks, heart palpitations, flashbacks, nightmares and trouble sleeping.[15]
[15] AR p 55.
Dr Dickson observed that the applicant suffered a physical assault which led to the emergence of symptoms of intrusion (flashbacks and nightmares), hyperarousal and hypervigilance, anxiety with panic attacks, psychomotor agitation, irritability and avoidant behaviour. This in the doctor’s opinion is consistent with a diagnosis of post-traumatic stress disorder which the doctor observed was not uncommon after a physical assault.
Dr Dickson noted that the symptoms were first reported to him at the time of his first review of the applicant on 18 February 2022 and were also reported to Dr Lim on 21 January 2022.[16]
[16] ARD p 57.
On 9 June 2022 the applicant’s treating psychiatrist, Dr Louis Ereve, reported to Dr Dickson noting that the physical injury which the applicant had sustained to his jaw in the assault continued to cause significant pain despite the taking of pain medication and other interventions. In respect to the applicant’s psychological condition, Dr Ereve was of the opinion that the applicant had suffered a primary psychological injury as a result of the subject incident on 16 September 2019.[17]
[17] AR p 117.
Dr Ereve diagnosed post-traumatic stress disorder as well as a major depressive disorder. The doctor made recommendations in respect to treatment of the psychological condition.[18]
[18] ARD p 118.
On 20 October 2022 Dr Ereve reported to the GP, Dr Sebastian Calvace-Rubio that the applicant’s symptoms were persisting with little improvement and that he was suffering from hyperarousal, prominent memories of the work injury, impaired short term memory, difficulty focusing on tasks, nightmares of workplace incidents, hypervigilance, irritability, anhedonia and early insomnia.[19]
[19] ARD p 53.
Dr Ereve diagnosed post-traumatic stress disorder as well as a major depressive disorder. The doctor made recommendations in respect to treatment.[20]
[20] ARD p 53.
On 15 December 2022 Dr Ereve reported to Dr Calvace-Rubio that the applicant’s continuing symptoms included hyperarousal, prominent memories of work injury, impaired short term memory, difficulty focusing on tasks, nightmares of workplace incidents, hypervigilance, irritability, anhedonia and early insomnia.[21]
[21] ARD p 51.
Dr Ereve again reported a diagnosis of post-traumatic stress disorder as well as a major depressive disorder. The doctor made recommendations in respect to treatment.[22]
[22] ARD p 51.
On 16 February 2023 Dr Ereve reported to the GP, Dr Hamayoun Siddiqui, that the applicant was continuing to suffer from hyperarousal, prominent memories of work injury, impaired short term memory, difficulty focusing on tasks, nightmares of workplace incidents, hypervigilance, irritability, anhedonia and early insomnia.[23]
[23] ARD p 49.
Dr Ereve maintained his diagnosis of post-traumatic stress disorder as well as a major depressive disorder. The doctor made recommendations in respect to treatment.[24]
[24] ARD p 49.
On 24 August 2023 Dr Ereve reported to Dr Siddiqui that the applicant was suffering from hyperarousal, prominent memories of work injury, flashbacks, impaired short term memory, difficulty focusing on tasks, nightmares of workplace incidents, hypervigilance and irritability. Dr Ereve was of the opinion that the applicant was suffering from treatment resistant post-traumatic stress disorder.[25]
[25] ARD p 47.
Dr Ereve observed that the applicant was continuing to require trauma based psychotherapy, with other treatment modalities such as medication playing a supportive role to facilitate effective psychotherapy taking place. The doctor noted that the applicant was continuing to suffer from hypervigilance, hyperarousal when entering places with people such as shopping centres and a fear of leaving the house.[26]
[26] ARD p 47.
Dr Ereve again confirmed his diagnosis of post-traumatic stress disorder as well as a major depressive disorder. The doctor made recommendations in respect to treatment.[27]
[27] ARD p 47.
On 16 September 2023 Dr Lim reported that the applicant initially presented on 21 January 2022. Dr Lim diagnosed post-traumatic stress disorder.[28]
[28] ARD p 43.
On 16 March 2023 Dr David Kumagaya, psychiatrist, provided two forensic reports to the applicant. Dr Kumagaya reports that as a result of the assault on 16 September 2019 the applicant described the onset of flashbacks, nightmares, psychological distress at exposure to cues that resemble the incident, hypervigilance, exaggerated startle response, irritability, concentration difficulties, sleep disturbance, low mood, decreased interest and engagement in activities, difficulty experiencing positive emotions and avoidance of reminders of the incident.[29] Dr Kumagaya diagnosed post-traumatic stress disorder.
[29] ARD p 27.
On 3 June 2023 Dr Suzanna Goodison, psychiatrist, provided an expert forensic report to the respondent. Dr Goodison records that in about October/November 2021 the applicant began to experience some psychiatric symptoms as well as ongoing pain and incapacity from his jaw injury and concerns about being punched or assaulted again at work, which would have a further impact on his prior injuries.[30]
[30] Reply p 8.
Dr Goodison records that the applicant reported that he could not remember the initial onset of his psychological symptoms, they crept up and over time. The applicant reported that he had seen a psychologist "early on" but could not recall when that was. The applicant reported that he struggled to talk about the incident as it was traumatic. The applicant had recently been seeing a psychologist again but had also struggled with this and ceased.[31]
[31] Reply p 9.
The applicant reported to Dr Goodison that he had not recovered from the injury to his jaw as he had expected and had been told that it was chronic and would not go away. The applicant reported that this had caused a significant impact on his mood and that he was fearful of the future and anxious, particularly given his ongoing disability.[32]
[32] Reply pp 99.9-10.
The applicant described to Dr Goodison problems with sleep initiation reliving and rehashing the event in his mind when trying to get to sleep. The applicant endorsed flashbacks of what happened and of getting hit as well as other violence he had been exposed to in the course of his employment with the respondent. He described to Dr Goodison reliving an embarrassing moment when he was drug tested and breathalysed at work whilst on a return-to-work programme and taking “CBD” oil and Panadeine Forte for pain relief. The applicant complained that work was not supportive, and he reported feeling angry and upset by the way he had been treated by the respondent. The applicant described how he used to have a lot of positive relationships at work, but this had changed, and he did not want to have any contact with his colleagues. The applicant reported to Dr Goodison that he starts thinking about all these things at night, ruminating and stewing upon it which makes him irritable, angry and agitated.[33]
[33] Reply pp 10-11.
The applicant reported that he struggled psychologically when he realised that he may no longer be able to continue to perform his work role and this impacted significantly on his motivation, energy, sleep and mood. His symptoms had worsened over time and not improved with any treatment including antidepressant medications, psychological support or seeing a psychiatrist briefly.[34]
[34] Reply p 11.
The applicant reported to Dr Goodison that he was anxious about going anywhere and his overall mood was low on most days. He described negative thoughts about himself and about the future. The applicant endorsed that he feels the world is a dangerous place and has flashbacks about the assault on 16 September 2019 at night and during the day, although according to Dr Goodison these were not particularly prominent or well described. Dr Goodison reported that the applicant was vague in reporting some of his history.
The applicant reported to Dr Goodison that he was worried about running into people from his work or people that he may have been involved with who were detainees. In particular, he worried about the individual who assaulted him as he understands that he had been released and been living close by. According to Dr Goodison the applicant could not explain why he was worried about this as there had been no indication of threat, however, Dr Goodison noted that the applicant reported that he was worried about them being disgruntled.[35] Dr Goodison also noted that the applicant described his assailant as violent and unpredictable.[36]
[35] Reply p 11.
[36] Reply p 12.
Dr Goodison observed that the applicant had been using excessive amounts of alcohol for some time noting that the applicant described drinking heavily since at least mid-2021.[37] Dr Goodison diagnosed an alcohol use disorder.
[37] Reply p 13.
Dr Goodison is of the opinion that the applicant’s chronic pain and disability had substantially impacted upon his mood and his function, with the applicant describing a constellation of symptoms which are consistent with a major depressive episode which had persisted for more than two years and is chronic. Dr Goodison is also of the opinion that whilst the applicant endorsed some post-traumatic stress symptoms such as flashbacks and hyperarousal, he did not meet the threshold for a diagnosis of post-traumatic stress disorder.
Dr Goodison is of the opinion that the applicant’s psychological injury is secondary to his physical injury and chronic pain.[38] Dr Goodison in coming to her opinion found that the applicant’s symptoms were more consistent with a major depressive episode with some symptoms of post-traumatic stress but not meeting the diagnosis for post-traumatic stress disorder. Dr Goodison observed that the ruminations were often in respect to "moral injury" in regard to the workplace than the assault itself. In the opinion of Dr Goodison the applicant’s psychological injury arose after the event on 16 September 2019 in response to the chronic pain and disability from his jaw, with the symptoms of post-traumatic stress emerging far later and in the doctors opinion likely due to his ongoing ruminations about what occurred, some of which appeared to be active ruminations as opposed to intrusive thoughts. Intrusive thoughts being more consistent with a flashback.[39] Dr Goodison reported that the applicant gave a clear history of his symptoms arising after he realised his recovery trajectory was not going to be as straight forward as it had been from previous injuries that he had sustained in the course of his work.[40]
[38] Reply p 17.
[39] Reply p 19.
[40] Reply p 20.

On 14 July 2023 Dr Kumagaya, psychiatrist, provided a further forensic report to the applicant. Dr Kumagaya confirmed his opinion that the applicant had sustained a primary psychological injury diagnosing post-traumatic stress disorder. In support of his opinion Dr Kumagaya observed that following the assault the applicant experienced the onset of post-traumatic stress disorder symptoms, including flashbacks, nightmares, psychological distress at exposure cues that resembled the incident, hypervigilance, exaggerated startle response, irritability, concentration difficulties, sleep disturbance, low mood, decreased interest and engagement in activities, difficulties experiencing positive emotions, and avoidance of reminders of the incident.[41]
[41] ARD p 20.
Dr Kumagaya is of the opinion that the applicant experienced a progressive deterioration in his mental state, characterised by a progressive intensification of his post-traumatic stress disorder, owing to ongoing exposure to his workplace, as well as reminders of the assault.[42]
[42] ARD p 21.
In respect to Dr Goodison’s diagnosis of a major depressive disorder and that the condition is secondary to the physical injury and chronic pain, Dr Kumagaya observed that Dr Goodison took a history that is largely in keeping with that which he had obtained. Dr Kumagaya observed that Dr Goodison specifically noted direct exposure to the traumatic event on 16 September 2016 during which the applicant was exposed to serious injury and threatened death. The Dr Goodison noted the clear presence of intrusion, avoidance, arousal, and depressive symptoms, that comprise the diagnosis of post-traumatic stress disorder being flashbacks, struggling to talk about the incident as it was to traumatic, being worried about running into people from his work or detainees that he may have had involvement with, sleep disturbance, problems with sleep initiation, worries about the assailant who had been released and may be living close by, reliving and rehashing events and feeling that the world is a dangerous place. Dr Kumagaya observed that Dr Goodison noted that the applicant had experienced these symptoms for a considerable period and for more than the one month required for a diagnosis of post-traumatic stress disorder. [43]
[43] ARD pp 21-22.
On 12 October 2023, following review of a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and the report of Dr Goodison, Dr Ereve reported that he maintained his opinion that the applicant has suffered a primary psychological injury as a consequence of the incident on 16 September 2019.
In the opinion of Dr Ereve, Dr Goodison made several observations which indicate that the applicant’s is suffering psychiatric symptoms related to the event itself, and not the resulting physical injury or loss of function. In particular Dr Ereve noted that the applicant struggles to talk about the incident as it is traumatic for him to do so which in the opinion of Dr Ereve indicates the presence of prominent memories as well as hyperarousal secondary to reminders of the incident. The applicant had reported to Dr Goodison experiencing flashbacks and of being fearful of seeing other employees of the respondent which in the opinion of Dr Ereve indicated distress and hyperarousal at reminders of the incident, and that Dr Goodison observed that the applicant believed that world is a dangerous place following the subject incident. Dr Ereve also referred to an opinion from a Dr Synott which is not in evidence before me.[44]
[44] Applicant’s AALD p 2.
Whilst Dr Ereve confirmed his opinion that the applicant had suffered a primary psychiatric injury as a result of the incident on 16 September 2019, Dr Ereve is of the opinion that the report of Dr Goodison indicates that the applicant has suffered multiple incidents that have caused a psychiatric injury including observations by Dr Goodison that the applicant was suffering flashbacks of other violence to which he was exposed in the course of his work duties with the respondent and grievances and anger which the applicant has towards the respondent in respect to its handling of maters after the incident on 16 September 2019.
Dr Ereve is of the opinion that in addition to the primary psychological injury, the applicant has also suffered a secondary psychological injury which has occurred secondary to his pain and loss of function following the incident on the 16 September 2019. The symptoms of the secondary psychological condition include low mood, insomnia, negative thoughts about himself and the future, as well as reduced motivation.[45]
[45] Applicant’s AALD p 2.
Dr Ereve is of the opinion that the applicant meets the criteria for the diagnosis of post-traumatic stress disorder having directly experienced a traumatic event with serious injury, having intrusion symptoms including distressing memories, flashbacks and psychological distress due to internal or external cues related to the traumatic events, making efforts to avoid distressing memories, thoughts and feelings about or closely related to the traumatic events, being avoidant of external reminders of the traumatic incident such as employees from the respondent and the former detainee that assaulted him, persistent and exaggerated negative beliefs about the world as being unsafe, persistent negative emotional state as well as marked alterations in arousal and reactivity.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

The applicant claims that he suffered a primary psychological injury as a result of being punched in the left hand side of his face by a detainee whilst in the course of his employment on 16 September 2019 and seeks referral to a Medical Assessor for assessment of permanent impairment. The respondent does not dispute that the applicant has suffered a psychological injury but submits that it is a secondary psychological injury in respect to which, pursuant to s 65A of the 1987 Act permanent impairment compensation pursuant to s 66 of the 1987 Act is not payable.
Section 65A(1) of the 1987 Act prohibits the payment of permanent impairment compensation pursuant to s 66 of the 1987 Act for “permanent impairment that results from a secondary psychological injury.” Section 65A(5) defines “primary psychological injury” as “a psychological injury that is not a secondary psychological injury” and “secondary psychological injury” as “a psychological injury to the extent that it arises as a consequence of, or secondary to, physical injury.”
The applicant bears the onus of proof in respect to proving primary psychological injury.
The medical evidence supports that the physical injury sustained to the applicant’s jaw on 16 September 2019 is significant requiring multiple surgical procedures and has caused the applicant significant amounts of pain.
The respondent submits that the opinion of the psychiatrist, Dr Goodison, that the applicant is suffering from a secondary psychological injury should be accepted.
Dr Goodison is of the opinion that whilst the applicant has symptoms of post-traumatic stress as a result of being punched in the left side of his face in the course of his work duties with the respondent on 16 September 2019 he does not meet the threshold required for a diagnosis of post-traumatic stress disorder. Dr Goodison diagnosed a major depressive episode as well as an alcohol use disorder which in the opinion of Dr Goodison is a result of the physical injury, pain and incapacity caused by the injury and associated concerns in respect to his future including his ability to return to work and grievances and anger over how the respondent has treated him since sustaining the injury.
Mr Tanner submits on behalf of the applicant that the opinions of the psychiatrists Dr Kumagaya and Dr Ereve, the psychologist Mr Nielsen along with that of the GP’s Dr Lim and Dr Dickson, that the applicant suffers from post-traumatic stress disorder and that it is a primary psychological injury should be accepted. I note that Dr Ereve in addition to diagnosing post-traumatic stress disorder also diagnosed a major depressive disorder and did so prior to the applicant being examined by Dr Goodison.
The symptoms which the said doctors and psychologist rely on to support their diagnosis of post-traumatic stress disorder and the opinion that it is a primary psychological injury include distressing memories, flashbacks, nightmares, psychological distress due to cues that remind the applicant of the incident, a persistent and exaggerated belief that the world is a dangerous place as well as avoidance behaviours. Dr Goodison does not appear to dispute that such symptoms are indicative of a primary psychological condition rather, Dr Goodison appears to dispute the qualitative nature of some of these symptoms and the time of onset.
I prefer and accept the opinions of Dr Kumagaya, Dr Ereve and Mr Nielsen that the applicant suffers from post-traumatic stress disorder as a result of the subject incident on 16 September 2019 and that he has suffered a primary psychological injury for the following reasons. In particular I accept the opinion of Dr Ereve that the applicant has suffered both a primary and secondary psychological injuries as a result of the incident on 16 September 2019.
The applicant’s history as to how he sustained the injury to his jaw on 16 September 2019 is not challenged or contradicted by other evidence. There is no reason to doubt the applicant’s history in respect to this issue. I therefore accept the applicant’s evidence as to the history of the event on 16 September 2019. The history which the applicant provides is one of a violent confrontation in which he was attacked and punched, and judging by the injury sustained, with significant force.
Dr Goodison did find that the applicant has symptoms of post traumatic stress but is of the opinion that the applicant does not meet the threshold for a diagnosis of post-traumatic stress disorder. In forming their opinions and making their diagnosis Dr Ereve, in his capacity as the treating psychiatrist, and Mr Nielsen, in his capacity as the treating psychologist, had the opportunity to consult with, examine and assess the applicant on multiple occasions, an opportunity which was not available to Dr Goodison who examined the applicant just the once. This is not a criticism of Dr Goodison but rather the reality of the role of a forensic expert.
Significantly, the applicant reported to Dr Goodison that he struggled to talk about the incident on 16 September 2019 and Dr Goodison reported that she found the applicant to be a vague historian. Dr Ereve and Mr Nielsen would have benefited from being able to take a history from the applicant both in respect to the onset and nature of his symptoms on multiple occasions as well as having the opportunity to commence their history taking a year or more prior to Dr Goodison examining the applicant and therefore at a closer proximity in time both to the assault and the onset of psychological symptoms. Dr Ereve and Mr Nielsen also had a greater opportunity to build rapport with the applicant which would have assisted them in obtaining both a history and details of the symptoms which the applicant was experiencing.
It needs to be borne in mind that both Dr Ereve and Mr Nielsen were examining the applicant for the purpose of treatment and that their diagnosis of post-traumatic stress disorder was confirmed on multiple occasions. At no point does either Mr Nielsen or Dr Ereve question the correctness of their diagnosis. I am of the opinion that both Mr Nielsen and Dr Ereve, as the treating psychologist and treating psychiatrist, were in the position to make a diagnosis.
Dr Goodison in response to being asked whether she agreed with Dr Lim’s diagnosis and if not why not and in respect to her opinion that the psychological injury is secondary and not primary reasoned that the applicant’s ruminations are often active and more around his “moral injury” in regard to the workplace than the assault itself and that the psychological injury arose in response to the chronic pain and disability from the injury to the jaw. That the onset of his depressive symptoms were precipitated by the applicant’s realisation that the trajectory of his recovery was not going to be what he expected whilst the symptoms of post traumatic stress emerged much later, likely due to ongoing ruminations as opposed to intrusive thoughts which would be more consistent with flashbacks.
Dr Goodison in providing the above reasons for her opinion appears to conclude that the applicant has suffered from ruminations more than or rather than intrusive flashbacks. In contrast Mr Nielsen, who as previously mentioned had the opportunity to repeatedly review the applicant and examine the applicant at an earlier time, records in his report of 4 February 2022 that the applicant reported repeated and unwanted memories of the assault. Dr Dickson recorded in his report of 22 March 2022 that the symptoms included flashbacks and nightmares. Dr Dickson and Mr Nielsen record these symptoms well in excess of a year prior to Dr Goodison examining the applicant which is possibly significant given the timing of at least some of the events which Dr Goodison relates to the “moral injury” which Dr Goodison identifies as the applicant ruminating on, stewing over and rehashing in his mind. Dr Ereve and Dr Kumagaya also record the applicant suffering from flashbacks and nightmares. Dr Goodison makes no reference to the applicant’s nightmares.
In respect to Dr Goodison’s opinion that the applicant first developed depressive symptoms which were precipitated by his realisation that the trajectory of his recovery was not going to be what he thought and much later developed post-traumatic stress symptoms in response to his ongoing ruminations. Dr Goodison appears to locate the initial onset of the applicant’s psychological symptoms to about October/November 2021.[46] However, Dr Goodison did note that at the time of the examination the applicant could not recall when the initial onset of his psychological symptoms occurred as they crept up on him over time. The applicant did however report to Dr Goodison that he had seen a psychologist “early on” but could not remember when that was.
[46] Reply p 8.
The applicant’s psychological symptoms in fact appear to have commenced well prior to October/November 2021. It is the applicant’s evidence that he experienced psychological symptoms immediately following the assault but did not report them straight away as he attempted to deal with the symptoms himself and did not want to talk about it. He wanted to forget about the incident. However, this became increasingly difficult, and he consulted a psychologist in or around December 2019/January 2020 as a result of his deteriorating psychological symptoms.
The respondent submits that the applicant’s statement is made many years after the event and its reliability is questionable given a lack of supporting contemporaneous evidence in the clinical notes of the Crown Medical Centre Figtree which the applicant attended following the incident on 16 September 2019 until in or about January 2022. However, in my view, the clinical notes from the Crown Medical Centre Figtree do support the applicant’s evidence.
The applicant was referred to Karen Mulready, who appears to be a psychologist, on 20 December 2019 for assistance with chronic pain and sleep. Furthermore, a clinical note from the same medical centre dated 4 June 2020 records that the applicant was concerned about the person who had punched him being released and living nearby, that the applicant had conveyed to his rehabilitation provider that he was distressed with the clinical note recording that the applicant’s mental health needed to be monitored and that he was to be reviewed after seeing a psychologist. The applicant’s distress was significant enough for the doctor to note that the applicant was aware that he was to contact the doctor if in crisis.[47] The clinical note does not record that a referral was made at that time to a psychologist which indicates that the applicant had a pre-existing appointment. Presumably Ms Mulready was the psychologist who was to review the applicant and it would therefore appear that Ms Mulready was being consulted in respect to issues beyond just difficulties with sleep. This is also consistent with the history that Dr Goodison took from the applicant that he saw a psychologist “early on” but struggled to talk about the incident as it was traumatic.
[47] ARD p 205.
At this stage the applicant’s doctors would appear to have been more concerned with the applicant’s physical injuries than any psychological issues as the clinical records contain no information as to what monitoring of the applicant’s mental health took place or as to the outcome of the review by the psychologist or in fact any opinion that the psychologist held.
On 21 January 2022 the applicant changed GP’s and attended for the first time on, Dr Lim. Following the change in GP there is a stark contrast in the clinical records in respect to the recording, diagnosis and treatment of the applicant’s psychological complaints. In making this observation it needs to be remembered that there is no dispute that the applicant suffers from a psychological injury. It is only the nature of the psychological condition that is in dispute. At that first consultation Dr Lim refers the applicant to the psychiatrist, Dr Kumagaya, and makes a diagnosis of post-traumatic stress disorder.
It is not until 11 August 2020, some two months after the applicant being recorded as being distressed on 4 June 2020, that the applicant underwent the first surgery on his jaw and it is not until 19 August 2020 when the applicant had a follow up with his surgeon, Dr Kim, that he is apparently told that he would need a full jaw TMJ replacement. On 20 August 2020 it was noted that the applicant was in a lot of pain and that he was upset that he might need a joint replacement.[48] A clinical note from Crown Medical Centre Figtree for 21 August 2020 evidences that the applicant was anxious/depressed and also states “looking like change of work most suitable.”[49]
[48] ARD p 209.
[49] ARD p 210.
It is the applicant’s evidence that it is not until after returning to work “on the floor” in approximately November 2020 that he broke down whilst conferring with his manager and that the embarrassing incident in respect to being breathalysed and drug tested occurred. The clinical records of the applicant’s GP at the time make no reference to this incident.
It would therefore appear that the issues in respect to the applicant’s disappointment over the trajectory of his recovery as well as how he was treated by the respondent after being breathalysed and drug tested by the respondent occurred after, or at least not long before, the onset of the psychological symptoms rather than being the precipitator of the depressive symptoms which in the opinion of Dr Goodison led to the ruminations which fuelled the development of the applicant’s post traumatic symptoms. Whilst the applicant was certainly suffering from pain and insomnia prior to the initial surgery and being advised that he may need a TMJ jaw replacement there is no mention in the clinical notes of the Crown Medical Centre Figtree of the applicant suffering from psychological distress as a result. The said clinical notes relate the applicant’s insomnia to pain.
For the above reasons I find the applicant sustained a primary psychological injury due to being physically assaulted in the course of his employment with the respondent on 19 September 2019 and refer the matter back to the President for referral to a Medical Assessor for assessment of permanent impairment.

SUMMARY

I find that:
(a) the applicant sustained a primary psychological injury due to being physically assaulted in the course of his employment with the respondent on 19 September 2019.

[2023] NSWPIC 665

11 December 2023