Anderson v State of New South Wales (Central Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Anderson v State of New South Wales (Central Coast Local Health District) [2023] NSWPIC 464
APPLICANT:	Tina Anderson
RESPONDENT:	State of New South Wales (Central Coast Local Health District)
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	12 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as a result of accepted injury to left shoulder sustained during assault; consequential right shoulder and thoracic spine conditions, and scarring; and for primary psychiatric/psychological injury as result of assault or nature and conditions of employment; dispute as to consequential condition of right shoulder and psychiatric/psychological injury; applicant claimed that there was no dispute as to consequential condition of thoracic spine; consideration of Jones v Dunkel; Skates v Hills Industries Ltd; Kumar v Royal Comfort Bedding Pty Ltd; State Transit Authority of New South Wales v Fritzi Chemler; Held – award for respondent in respect of claim for consequential condition of right shoulder; applicant sustained primary psychiatric/psychological injury as result of assault; there is a dispute as to whether the applicant has sustained consequential condition of thoracic spine; matter remitted to President for referral to Medical Assessors for assessment of permanent impairment as a result of injury to the left upper extremity, thoracic spine, and scarring, and as a result of primary psychiatric/psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to claim that the applicant has sustained a consequential condition of her thoracic spine, as a result of injury on 28 November 2016. 2. There is an award for the respondent with respect to the claim for consequential condition of the right upper extremity (right shoulder). 3. 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: 28 November 2016 – personal injury (b) Body systems/parts: (i) Left upper extremity (left shoulder); (ii) Thoracic spine, and (iii) Scarring (TEMSKI). (c) Method of assessment: whole person impairment. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 28 November 2016 – personal injury (b) Body systems/parts: psychiatric/psychological (c) Method of assessment: whole person impairment 5. The documents to be reviewed by the Medical Assessors are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 24 May 2023 and attached documents, and (d) Application to Admit Late Documents dated 25 May 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tina Anderson (Ms Anderson) was employed by the respondent, State of New South Wales (Central Coast Local Health District) as a security officer.
The applicant sustained an accepted injury to her left shoulder on 28 November 2016. She also claims to have sustained a consequential condition of her right shoulder and thoracic spine, and a primary psychiatric/psychological injury as a result of injury on
28 November 2016 or in the alternative a disease injury, with deemed date of injury of
28 November 2016.
The respondent completed a Notification of Injury/Illness on 28 November 2016. It recorded that on 28 November 2016, the applicant was holding a patient’s legs “as per PMVA training” when the patient kicked at [sic: out] hitting her left shoulder.
By letter dated 20 December 2021, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed the sum of $73,570 in respect of 26% whole person impairment (WPI) as a result of psychological and psychiatric injury with deemed date of injury of
20 December 2021.
By letter dated 2 March 2022, the applicant’s solicitors made on her behalf a further claim for permanent impairment compensation. The letter of claim did not specify the body systems in respect of which the claim was made.
The applicant claimed the sum of $79,390 in respect of 30% WPI as a result of injury on
28 November 2016.
On 20 July 2022, the respondent’s insurer, QBE Insurance (Australia) Ltd (QBE), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE disputed liability for psychological injury alleged to have occurred on
20 December 2021. It disputed that the injury arose out of or in the course of employment; and that employment was the main contributing factor to the contraction or aggravation, acceleration, exacerbation, or deterioration of a disease injury.
In the alternative, QBE disputed that the applicant’s accepted physical injury [sic] had resulted in more than 10% WPI; and relied on s 65A(4) of the 1987 Act. It disputed that the applicant had reached maximum medical improvement (MMI).
On 24 August 2022, QBE issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
QBE disputed liability for any consequential injury [sic] to the applicant’s right shoulder.
By letter dated 29 September 2022, the respondent’s solicitors made on its behalf an offer to settle the applicant’s claim. They referred to the enclosure of a s 78 notice with respect to the applicant’s right shoulder condition. It is assumed to refer to the notice dated
24 August 2022, as the only notices in evidence are those to which I have referred.
The respondent offered the applicant the sum of $34,690 in respect of 15% WPI. It noted that Dr Isaacs, whose report had been served with the s 78 notice, had incorrectly assessed 16% WPI, rather than 15% WPI, due to an error with respect to calculation of impairment associated with abduction.
The respondent advised that the offer was made in response to the entire claims for lump sum benefits and was not open to be accepted in relation to any component separately. It was only open to be accepted if the applicant agreed to resolve the entire dispute in accordance with the offer. The offer was to remain open for 14 days from the date of the letter.
The applicant lodged an Application to Resolve a Dispute (the Application) on 9 March 2023.
The applicant claimed that on 28 November 2016, she was required to help a police officer restrain a drug-affected patient. The patient became extremely violent and abrupt. The patient kicked the applicant in the left shoulder and back. As a result, she suffered injuries to her left shoulder, neck, and lower back.
The applicant claimed that as a result of her left shoulder [injury] she had relied on her right shoulder to overcompensate. Due to overuse, she suffered a consequential right shoulder condition.
The applicant claimed that during the course of her employment she was subjected to situations where she had to deal with mental health patients, drug addicts, and abusive patients. She was spat at and verbally and physically assaulted.
As a result of the nature and duties of her role, the applicant claimed to have psychologically decompensated and suffered PTSD (post-traumatic stress disorder); major depressive disorder (MDD); panic/agoraphobic disorder and obsessive-compulsive disorder (OCD). She claimed to have sustained a disease injury, with the deemed date of injury being
28 November 2016.
In the alternative, the applicant claimed to have suffered a psychological injury as a result of the assault detailed above.
The Application claimed permanent impairment compensation pursuant to s 66 of the 1987 Act of $79,390 in respect of 30% WPI as a result of injury on 28 November 2016 to the applicant’s right upper extremity, left upper extremity and TEMSKI scarring.
The Application also claimed pursuant to s 66 of the 1987 Act the sum of $73,570 in respect of 26% WPI as a result of psychiatric/psychological disorder on 28 November 2016.
The respondent lodged its Reply on 6 April 2023.

ISSUES FOR DETERMINATION

According to the direction issued by Member Churches on 17 April 2023, the following issues remain in dispute:
(a)     Whether the applicant suffered a psychological condition injury, pursuant to s 4(a) and 4(b)(i) of the 1987 Act;
(b)     If so, whether the applicant’s being assaulted on 28 November 2016 was a substantial contributing factor;
(c)   Further, if so, was her exposure to trauma a [sic: the] main contributing factor to her injury;
(d)     If so, was the psychological injury a secondary injury to the assault on
28 November 2016, and
(e)     Has the applicant suffered a consequential injury to [sic: condition of] the right upper limb.
The parties have raised in submissions the issue of whether the applicant’s claim for permanent impairment as a result of consequential condition of her thoracic spine should be referred to a Medical Assessor for assessment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

It appears that the matter was listed for conciliation/arbitration hearing before Member Churches on 29 May 2023.
It is unclear what transpired at the conciliation/arbitration hearing, but the dispute obviously did not resolve, and the matter was adjourned for further conciliation/arbitration hearing.
On 6 June 2023, Member Churches issued a direction cancelling the direction for a further conciliation/arbitration hearing. He directed that the parties provide written submissions in accordance with the timetable set by him.
Subject to an alteration in the timetable allowing each party an extension of time, the submissions have been provided, by Mr Malouf of counsel for the applicant and by Ms Goodman of counsel for the respondent.
Due to Member Churches having become unavailable to determine the matter, the parties were requested to advise the Commission as to whether they wished it to be re-allocated to another member, or to be re-listed to proceed de novo.
The parties agreed to the matter being re-allocated to another member for determination, and it was therefore allocated to me.
As it was unclear whether the Application to Admit Late Documents and attached document dated 24 May 2023, filed by the respondent, had been admitted into evidence, I caused an email to be sent to the parties, enquiring of the status of the document.
The applicant’s solicitors advised by email dated 17 August 2023 that the applicant had no objection to the admission of the late document, which was therefore admitted.
According to the applicant’s submissions, on 18 April 2023, her solicitors wrote to the respondent’s solicitors “adding a claim for the thoracic spine”.
The letter was not in evidence. It appears that the applicant attempted to lodge it as an attachment to an Application to Admit Late Documents dated 25 May 2023, which was rejected as it had not been lodged in accordance with Personal Injury Commission Rules 2021, rule 67(3)(c), and Procedural Direction PIC3.
I caused an email to be sent to the parties, requesting that they advise whether the Application to Admit Late Documents dated 25 May 2023 had been admitted, as it was unclear whether Member Churches had admitted it on 29 May 2023; and, if not, whether the respondent had any objection to its admission.
As the respondent did not object to the admission of the Application to Admit Late Documents dated 25 May 2023, the applicant’s solicitors were requested to provide the Commission with a copy. They did so on 30 August 2023.
It is unclear whether the Application was ever amended to add a claim for permanent impairment of the thoracic spine, but each party has made submissions about the issue. I therefore formally amend the Application to add a claim for WPI as a result of consequential condition of the thoracic spine.
Given the way the matter has progressed, 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 assumed that Member Churches used his 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 Commission and considered in making this determination:
(a)     Application and attached documents;
(b)     Reply and attached documents;
(c)   Application to Admit Late Documents dated 24 May 2023, and attached document, filed by the respondent, and
(d)     Application to Admit Late Documents dated 25 May 2023 and attached documents, filed by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Tina Anderson

Ms Anderson’s statement is dated 28 February 2023. Much of it recounts her treatment and the various health care practitioners she has consulted, and I have not reproduced that evidence. Clearly, she was dissatisfied with much of the treatment she received.
She was diagnosed with anxiety in or around 2015. It was well managed with psychological intervention and temporary medication. It did not have any significant or ongoing impact on her capacity to work or complete daily duties.
In or around 2017, she was diagnosed with a pulmonary embolism. It was well managed with medication. It did not have any significant or ongoing impact on her capacity to work or complete daily duties.
In or around 2018, she was diagnosed with coronary artery disease. It was well managed with mitral valve replacement and medication. It did not have any significant or ongoing impact on her capacity to work or complete daily duties. She has not referred to the perioperative stroke she suffered.
Before her workplace injury, she considered herself to have a happy and calm disposition with strong mental fortitude. She did not let every day and personal stressors get in the way of her active participation in work. Her personal and family life was fulfilled, and she enjoyed great social relationships, good health, and overall well-being. She was able to wholly engage with activities of daily living (ADLs) without compromise and rarely took time off work.
On 28 November 2016, she sustained injuries to her left shoulder and neck, a consequential injury to her right shoulder and psychological injuries, diagnosed as anxiety, depression, and PTSD.
She was helping a police officer restrain a drug-affected patient. The patient was extremely violent and abrupt, trying to force their way out of restraint. She was kicked in the left shoulder and back. She felt immediate pain radiate from her left shoulder through to her fingertips and throughout her neck and back. She was extremely stiff and struggled to move her left arm.
She was taken to the Emergency Department, underwent X-ray, and was issued with referrals.
A colleague notified their supervisor, who was extremely supportive and encouraged her to lodge a claim.
On or about 1 December 2016, she first consulted general practitioner (GP)
Dr William Dean Wright at Awabakal Medical Services (Awabakal). He referred her to Macquarie Physiotherapy.
Between December 2016 and April 2017, she consulted physiotherapist Fabiola Aguirre. She found the treatment unhelpful. She was extremely sore and struggled to complete the exercises. She believed these only worsened her condition.
She underwent steroid injection, ultrasound, and MRI of her left shoulder.
On or about 8 March 2017, she consulted Dr Wright and told him that since the injury, she continued to experience severe anxiety and panic attacks, flashbacks, low mood, and anxious distress. He referred her to counsellor, “Jeremey”.
She consulted Jeremey from March 2017 to November 2017. She found the treatment unhelpful.
Jeremey referred her to psychiatrist, (Dr) Cyriac Mathew for further treatment.
Dr Wright referred her to orthopaedic surgeon Dr Minas Petrelis. She consulted him between April 2017 and October 2019. He recommended surgery to her left shoulder and referred her to physiotherapist William Littler.
She underwent left shoulder surgery on or about 9 June 2017, under the care of Dr Petrelis. The surgery provided no relief, only worsened her symptoms, and caused her to rely heavily on pain relief medication.
Between June 2017 and December 2017, she consulted Mr Littler. Her treatment consisted only of breathing exercises after surgery, as her pain was excruciating. Any physical exercises were too painful to continue.
Mr Littler recommended hydrotherapy, which provided some temporary relief, although she still could not lift her left arm. As a result, he recommended that she return to see Dr Petrelis.
From 13 October 2017 to date, she consulted with Dr Mathew. She explained how her injuries had affected her mental health, and she had symptoms of low mood, anxiety, rumination, insomnia, panic attacks, anger bouts and nightmares. He altered her medication and recommended she continue psychotherapy with “Jenny” (Ms Jennifer Ann Evans).
From approximately November 2017 to March 2018, she consulted Ms Evans. She felt that the sessions were somewhat helpful.
Between December 2017 and April 2018, she had hydrotherapy at Newcastle Hospital. She felt it provided her with temporary relief and no further long-term benefit.
Between approximately April 2018 and September 2019, she consulted psychologist “Georgia”. Her treatment consisted of breathing techniques and talking through her circumstances. She did not feel comfortable with Georgia. She did not believe she understood the severity of her condition and continued to refer her back to Dr Wright.
In or around September 2018, she was medically discharged. A few days prior, she was called in for a meeting with her supervisor and management team. She was notified that she was being terminated from her employment due to her physical and mental injuries, and the lack of available suitable duties. She was extremely upset, as she had a strong work ethic and took pride in her work.
Between approximately 18 September 2019 and August 2022, she consulted psychologist David Bosner. The treatment consisted of management strategies and breathing techniques. She did not believe these sessions provided any relief. Her mental health continued to deteriorate. Mr Bosner suggested she consult a pain specialist.
From January 2021 to date, she consulted with pain medicine physician Dr Marc Russo. He referred her to breathing therapist Dean O’Rourke and Innervate Pain Psychology. He recommended further psychiatric intervention, steroid injections, and altered her medication.
Due to her lack of progress, persistent symptoms, and overcompensation and pain in her right shoulder, Dr Russo recommended further radiological scans to determine if another surgery may be necessary.
She underwent steroid injections of her left shoulder on or about 2 March 2021, with no relief; and on or about 11 March 2021, after which the pain in her shoulder increased.
Between 21 May 2021 and June 2021, she consulted physiotherapist Joel Irvine. She explained that she continued to suffer severe pain in her left shoulder and neck. Because of overcompensation with her right arm, she had developed significant radiating pain in her right shoulder.
She found Mr Irvine’s treatment unhelpful. He was cautious of working with her due to the severity of her pain, and recommended she consult her orthopaedic surgeon again.
From October 2022, she had consulted GPs Drs James Stephen and Samir Hussein, as
Dr Wright had retired. Her treatment consisted of management of her pain medication and steroid injections.

From November 2021, she had consulted psychologist “Lun” of Awabakal. Her treatment consisted of talking through the incident and management strategies. She had found it helpful, although the relief was temporary. She struggled to implement the strategies.
In or around January 2023 she underwent a steroid injection to her left shoulder. It provided her with no relief of her symptoms.
She has provided a ‘response’ to the s 78 notices, and it is unnecessary that I refer to most of that evidence.
Dr Issacs failed to acknowledge that “it was not without the consequential injury to my right shoulder” that she had become completely dependent on her husband to change her clothes or shower. Prior to receiving his assistance, she had to complete self-care and daily tasks on her own. He could not care for her full time, and there were many hours where she was forced to use her right shoulder and arm.
She felt uncomfortable when people asked about her scar. She was conscious of it and tended to cover it. She wore long sleeves at all times. She had asked about plastic surgery to minimise its appearance. It felt risen when she ran her fingers over it. She avoided using products that aggravated it.

Medical evidence

Awabakal Medical Service

It is not my intention to refer to every entry in the clinical records. I have been unable to find any reference to complaints about the applicant’s right shoulder.
On 17 July 2015, Ms Natalie Wright recorded a phone call from the applicant, “Jeremy’s mother”. She was extremely distressed, stating that Jeremy had said he would kill himself if he was sent to jail, and was not going to attend his appointment with Dr Lawrence that afternoon. He had taken off with his girlfriend, after abusing the applicant.
Ms Wright encouraged the applicant to see Dr Lawrence herself. She asked if he could do a court support letter. Ms Wright called her to advise that there was a letter for her to collect. She was staying with a relative. She was scared to go home, as Jeremy had told her he would kill her if she called the police.
The applicant assured Ms Wright she was feeling much better and was happy to stay with relatives and away from Jeremy.
On 1 September 2015, Dr Wright (referred to at times in the records as Dr Dean) recorded “WorkCover”. He noted anxiety disorder, that the applicant was concerned about her son, and the police wanted to talk to her about his charges.
On 28 September 2015, Dr Wright recorded that the reason for contact was workers compensation.
The applicant was concerned that the doctor being head butted and the nurses being spat on was her fault because she did not get there quickly enough. She kept having flashbacks, insomnia and could not concentrate. She felt she should have done more and had anhedonia. The only thing that kept her sane was her family.
The applicant felt unable to help the patient. She was scared to go back to the hospital. She did not feel the other security officers provided good support, due to conflict between themselves. They were yet to have mediation.
Dr Wright wrote a letter on 3 November 2015, in support of Jeremy being granted bail. He stated that the applicant was suffering from depression, and his release would aid her recovery greatly.
Dr Wright continued to see the applicant for “WorkCover” and “counselling”. He recorded on 12 November 2015 that she was agitated, anxious and unable to concentrate, due to impaired cognition.
On 13 November 2015, Dr Wright recorded that the applicant had adjustment disorder with depressed and anxious mood. “WorkCover” and referral to Psychology One were noted.
On 31 May 2016, Dr Wright recorded that the applicant had been injured at work, restraining an intoxicated person. She was kicked in the hand. There was a previous fracture at the base of the thumb, at work on 4 August 2015.
Dr Wright recorded on 2 June 2016 that X-ray of the applicant’s right thumb was reported as showing no fracture.
On 8 July 2016, Dr Wright recorded panic attacks and “WorkCover”.
On 14 November 2016, Dr Wright recorded that the applicant had injured her neck and both shoulders escorting a patient. “All pain now resolved”.
Dr Wright recorded on 1 December 2016 that the applicant had injured her shoulder working as a security guard at the Central Coast on the night of 28 November 2016. She was admitted overnight.
On 12 December 2016, Dr Wright recorded “Still painful and requiring physiotherapy”.
Dr Wright requested an ultrasound of the applicant’s left shoulder on 22 December 2016.
On 10 January 2017, Dr Wright recorded a case discussion with “Chenara QBE”. The applicant was to go back to work in “? 1 month” and full duties in six weeks. She was to have twice weekly physiotherapy. Imaging and ultrasound guided cortisone injection of the left sub-acromial bursa were requested.
On 12 January 2017, the applicant complained of worse pain after the injection. Dr Wright explained that relief could still be expected. The radiologist had told the applicant she needed MRI, “advancing theory of subluxation and then self-reduction”.
On 27 September 2017, Dr Wright recorded that the applicant had been reviewed by
Dr Petrelis. She had pain and weakness in the shoulder. Dr Petrelis said she was unable to do physiotherapy at that stage. She was unable to work.
On 13 October 2017, Dr Mathew recorded that the applicant had symptoms consistent with Major Depression and PTSD. She was to continue psychotherapy with “Jenny”.
On 10 November 2017, Dr Kirsty Jennings recorded that the applicant was requesting Tramadol for exacerbation of chronic shoulder injury. She had ongoing pain and was unable to sleep or attend to ADLs.
On 19 March 2019, Dr Fiona Cleary recorded that the applicant was wanting to do three days per week. She was volunteering to sit with people facing court. There was no physical work. She needed a clearance letter. Dr Cleary noted that she would check with Dr Wright.
On 18 September 2019, Mr Bosner recorded that the applicant had called, wanting an urgent appointment with Jenny. He suggested she have a MHCP (mental health care plan) and perhaps see Jenny on a cancellation. They had no capacity to see her urgently, as all the psychologists had waiting lists and Jenny had not seen her for two years.
On 18 September 2019, Dr Katherine Kalloniatis recorded 1. MH (mental health)/grief. The applicant felt impotent. She had lost her son and her job. Her last review with Dr Wright and Jenny was when they came to her house before her son’s funeral. She had been emotional lately. It was the one-year anniversary of her son’s passing. She had two grandchildren, both living with their mothers, “that she has nil visits with”.
The applicant wanted to try Valium to help with her poor sleep and anxiety. She wanted a letter of support for a speeding fine. She did not recall speeding or going through the red light and thought it was related to her mental health on the day.
They discussed “safety to continue to have her DL” and they would discuss that more next visit. The applicant was very strongly against suicide. Her religious belief was that she would not go to heaven if she chose that path. Her other son was also a protective factor.
Dr Kalloniatis recorded “2. WorkCover – needs certificate updates.”
On 27 September 2019, Dr Kalloniatis recorded that the applicant wanted a support letter after running a red light. She was very distressed about this, and felt she was driving home from an appointment with a psychologist. Dr Kalloniatis could not find the consultation notes.
The applicant was feeling emotional and upset. She did not realise she went through a red light and was “fighting this through a solicitor”.
Dr Kalloniatis recorded “Depression – loss of her son.” She understood the applicant’s mental health had been a longstanding issue and her distress was significant. She needed to rebook for MHCP so she could make an appointment with Jenny Evans.
On 20 November 2019, Dr Wright wrote to Centrelink, advising that the applicant was totally incapacitated for work due to coronary heart disease, mitral valve replacement, systemic lupus, pulmonary hypertension, cerebro-vascular disease, Adjustment Disorder with Depressed Mood, recurrent pulmonary emboli, Raynaud’s phenomena, Type 2 diabetes, and injury to left shoulder.
On 6 December 2019, Registered Nurse (RN) Ashley Cornwell recorded that the applicant wanted to see a dietician and would like another referral to Dr Russo. She would like a WorkCover certificate.
On 15 January 2020, Dr Wright recorded that the applicant had a K10 score of 37/50, and 30+ was “very high psychological distress.”
On 22 January 2020, Mr Bonsor recorded that the applicant attended in crisis. She was upset and tearful, saying she was not able to concentrate, her mind was racing. She had been like this for a few weeks and went through a red light as she was not focusing.
The applicant was struggling with Jeremy’s death, WorkCover, not working and being at a loss in terms of meaningful activity. She wanted follow up appointments with Mr Bonsor as she thought she related better to males, and needed psychiatry review as her medications were not holding her.
On 30 January 2020 RN Heather Maley recorded an aged care assessment. She noted that the applicant lived with her husband who fulfilled multiple needs. “Standy” (possibly “standby”) assist for personal care. There were some concerns about falls in the shower.
On 14 February 2020, Mr Bonsor recorded that the applicant felt her “meds” were not right. She could not concentrate, was tired, tearful, and thought she could hear Jeremy’s voice at night. She had had a hard time losing him, then problems at work with an assault by a patient and not working.
The applicant was reporting to Jenny anxiety so strong that she could not go out. She was having an assessment by a WorkCover psychiatrist in Sydney, and they might call him. Her anxiety was better, but she was not going to tell them that, “as it ruins her chance of a big payout”. The applicant was angry at what she felt was drug users getting DSP (disability support pension) when she could not get one and had paid taxes all her life.
The applicant talked about her first husband having an affair. She burned his Navy clothes. She talked of “seeing forensic photos re Jeremy, some tears, feeling proud of Andrew (?) other son”.
The applicant went to the courthouse a couple of days a week to help Aboriginal kids with court matters and offered to help them out.
Mr Bonsor noted that the applicant did not appear to be particularly disabled mentally, although she had some mobility problems.
On 19 February 2020, Dr Herron recorded that the applicant had had recurrent depression throughout her life. She was helped by escitalopram after “CSA”, the death of her mother before the age of 40, her first marriage “of DC” and infidelity.
The applicant’s last four years had been “particularly tough – many losses”. She had had a shoulder injury, which was managed by WorkCover, but her payments decreased. She was “seeking compensation through law”. She was medically terminated and left with chronic pain. The main effect was the loss of her role as a valued team member, valued for her ability to work with indigenous patients.
The applicant lost her younger son to suicide/drug addiction in August 2018. Her strong grief continued. She had since been sleeping in his bedroom, causing tension in her marriage, but she wanted to feel close to him.
The applicant complained of increased dreams, non-specific but unpleasant. She had difficulty concentrating, frequent thoughts of her son, and cried daily.
Dr Herron noted that the applicant’s history changed in the telling – “wonderful husband, later feels like walking out of the marriage.”
The applicant’s mood was “not right”, she was missing her boy. Her affect was “full range”, but she was often sad and tearful. She understated the timeframe and intensity of grief, especially that for a child. There was “external locus of control but protesting her independence.”
The applicant could identify many supports and enjoyable activities, such as crafts group, and church on Sunday and mid-week, “(?women’s? support) group.”
Dr Herron’s impression was of grief, history of recurrent depression. The applicant was one month into a medication change, still on a starting dose, which was unlikely to be therapeutic, but may have accounted for the increased dreams.
As well as a change in medication, Dr Herron recommended psychology to consider “progressing grief, state of marriage.”
On 22 June 2020, RN Maley recorded that the applicant asked to keep Extracare for domestic cleaning. She declined to use Cuttaway, as “won’t have family cleaning my house.”
On 21 July 2020, RN Maley recorded that the applicant was to have ongoing DA (domestic assistance), “not Cuttaway/weekly”. She was struggling emotionally, tearful, and was to see Mr Bonsor again soon. She was to trial Lite N Easy meals for when her husband was at work. She was asking for a shoulder injection, “pain”.
RN Maley recorded “Cognitive testing…Memory lapses and stress/grief/left phone at café today.”
On 24 September 2020, Dr Christopher Brokenshire recorded a telehealth phone consultation. The applicant requested a prescription for Valium and stated her usual GP supplied it if needed. Dr Brokenshire noted that she had a prescription for 10 tablets last month, but otherwise was getting it very infrequently. This was his first contact with her. He was not comfortable doing the prescription.
The applicant was insistent she needed it with the anniversary of her son’s death and going to Sydney for “?court” this weekend. She became tearful and upset when asked to wait and see Dr “Dean” about this medication.
The applicant’s usual GP was away. Dr Brokenshire would do a short prescription for Valium to get her through the weekend and discuss with Dr Dean to prevent this in future.
On 29 January 2021, Dr Wright recorded having provided advice and education about the psychological system. The applicant was “upset son’s superannuation is going to his ex-partner.”
On 12 May 2021, Ms Abby Jaeger, receptionist, recorded that the applicant came in thinking that she had an appointment with Dr Dean, which she did not. She said she still needed to talk to him and “got very loud towards me”. She started yelling that “young ones have no respect for elders”. “Sophie” calmed her down and said she would get Dean to call her. They sent Dean an email.
On 7 July 2021, Dr Sarah Parker recorded that the applicant was with Awabakal aged care – “house cleaning – supposed to have her lawn cared.”
On 11 August 2021 Dr Katherine Hanks recorded a telephone consultation. The applicant was asking for Valium. She said she had used it before when her anxiety was bad. She was struggling with the Covid lockdown, had panic attacks, and was not able really to leave the house.
The applicant had not been taking her medication for about six months. She had been quite stable and well on them but did not want to be reliant on them. Since then she had been very depressed and anxious. She agreed to go back on them. She had a lot of family support and felt safe.

Dr Marc Russo – pain management specialist

Dr Russo treated the applicant for an injury to her right shoulder in 2008. She had experienced pain in her shoulder while lifting a patient onto an X-ray table in June 2008. It had been mildly persistent and became markedly worse in November 2008 when she attempted to catch an oxygen cylinder.
Dr Russo reported this to Dr E Rice on 26 November 2008. The applicant had had physiotherapy, but it made no difference. Psychometric testing showed fear avoidance and catastrophising.
Dr Russo diagnosed a simple trapezius muscle sprain. The applicant’s poor posture, which was mostly obesity related, was sustaining the ongoing symptomatic spasm.
The applicant was again referred to Dr Russo on 11 January 2019, following the injury on
28 November 2016.
Dr Russo reported to Dr Wright on 18 January 2021. He noted that the applicant was right- handed.
Dr Russo recorded a history that the applicant was wrestling with a violent patient in 2016, when she sustained a dislocation of her left shoulder.
The applicant described her pain, which included occasionally some radiation to the left side of her neck. There was no history of symptoms in her right shoulder.
Dr Russo recorded that the applicant had had a lot of stress in her life, with the death of her son from suicide. She scored extremely high for anxiety, depression, and stress on psychometric testing.
Dr Russo diagnosed predominantly myofascial pain involving the left trapezius, with an adverse cognitive and behavioural response to persistent pain, with underlying anxiety and depression.
Dr Russo again reported to Dr Wright on 20 May 2021 and to QBE on 19 July 2021. In neither report did he refer to the applicant having made any complaint of symptoms in her right shoulder.

Dr Minas Petrelis – orthopaedic surgeon

Dr Petrelis reported first to Dr Wright on 24 April 2017.
Dr Petrelis recorded a history that the applicant had been kicked in the left shoulder by a very aggressive patient. She had since had ongoing pain and decreased movement. The pain was generalised around the shoulder, particularly the deltoid.
Dr Petrelis recommended arthroscope of the applicant’s shoulder. He performed the surgery on 31 May 2017.
On 5 October 2017, Dr Petrelis reported that the applicant was a lot better physically, and “not as emotional as she was the other day with pain and distress.” MRI of her spine did not show any nerve compromise.
As the applicant’s pain was a little better managed, Dr Petrelis did not think they should interfere. No further surgery was contemplated.
On 12 April 2018, Dr Petrelis reported that the applicant had an extremely painful left shoulder and would not really allow him to move or touch it. He would like a fresh X-ray to make sure there had been no dislocation, subluxation, collapse, or signs of infection.
Dr Petrelis reported on 23 April 2018 that he had reviewed the applicant’s blood results and X-rays. There were no signs of obvious infection and the X-rays looked normal. There was no indication for surgery or further injections.
Given the severe pain the applicant had around the shoulder, and the fact that they could not get it moving, Dr Petrelis opined that they may need to seek pain services intervention. He left that to Dr Wright’s discretion.
On 25 October 2018, Dr Petrelis reported that the applicant’s left shoulder was very, very sore, and she was very frustrated with it. She had been back in hospital with pericarditis.
The applicant was very reluctant to move her shoulder, and Dr Petrelis was not sure what was going on. The “most likely culprit” would be a frozen shoulder. He required a fresh X-ray. If it was clear, he would order a glenohumeral joint injection.
Dr Petrelis reported to Dr Wright on 4 March 2019.
The applicant’s left shoulder remained extremely irritable and sore. He had requested an X-ray. The applicant would not move her shoulder. She was reluctant to move it due to severe pain. Dr Petrelis opined that they were dealing with either capsulitis, arthritis, or referred pain from the cardiac region.
None of Dr Petrelis’ reports referred to any symptoms in the applicant’s right shoulder.

Macquarie Physiotherapy and Sports Injury Clinic

Ms Fabiola Aguirre reported to Dr Wright first on 31 December 2016.
Ms Aguirre recorded a consistent history of the injury. The applicant had experienced immediate pain and had since had significant loss of function with her arm.
The applicant had been in a sling for most of the last fortnight. Although it helped to support her shoulder, it was starting to feel uncomfortable through the neck.
Ms Aguirre found significant loss of shoulder active range [of movement]. All movements caused significant pain and apprehension. She was unable to complete other assessments due to pain and guarding.

The applicant had had three further sessions, with some promising improvement in both pain and function. She was off work until mid-January, and Ms Aguirre thought this may be a good time to have imaging to assess her shoulder for rotator cuff and bursal bunching.
On 19 January 2017, Ms Aguirre reported that the applicant was six weeks post-injury and one-week post-cortisone injection. She had reported a small improvement to her pain. Pain remained with active movements. Her arm felt fatigued after use, but she was able to use it for some domestics and ADLs.
On 15 March 2017, Ms Aguirre reported that the applicant reported what appeared to be activity-related pain. She had been completing exercises two to three times a day, which may have been overexertion. It was most likely that the intensity of the exercises would need to be reduced.
On 24 April 2017, Ms Aguirre reported to Dr Petrelis that the applicant had great difficulty with function and movement of her arm and was very hesitant to move it. She had been able to return to work before an incident whilst apprehending an intoxicated patient.
The applicant’s main complaints had been the pain and the amount of analgesia she was taking. They were going to trial a TENS machine.
Ms Aguirre also reported to QBE on 24 April 2017. She had concerns about the applicant’s motivation and general adherence to conservative management by attending physiotherapy.
The applicant had failed to attend on numerous occasions. Although she was diligent with her exercise program, she showed consistent errors in her techniques, which could have a detrimental effect on her pain if she did not correct them.
Ms Aguirre understood that the applicant had “had a rough time with her other medical conditions” and had pulled back the frequency of her sessions. She had also tailored the manual therapy around what the applicant could manage, but still felt like motivation and commitment were not quite matching.
The applicant’s future management may include referral to a psychologist.
There is no reference in Ms Aguirre’s clinical records or reports to complaints of right shoulder symptoms.

Dr Chris Harrington – orthopaedic surgeon

Dr Harrington was qualified by QBE and reported first on 2 November 2017.
Dr Harrington recorded a consistent history of the injury and the applicant’s treatment.
The applicant was still having physiotherapy. She took four Panadeine Forte tablets a day. She described global pain around the deltoid with some radiation into her neck. The pain was related to arm, rather than neck, movement. Although she said her shoulder had not improved, she felt better than two months before.
The applicant was unable to lie on her left side. She had difficulty showering and towelling herself. She could not put her arm through a shirt or jumper. Her husband helped her to dress. She clasped her bra at the front and swivelled it. She could not loop a belt. She did not really use her left arm for daily activities. She could nurse her youngest grandchild.
The applicant had been struggling with psychological issues with her work environment. She did not see herself getting back to full time work, where she was expected to deal with unpredictable situations. She had not been offered any permanent selected duties.
Dr Harrington did not believe there was any pathology coming from the applicant’s cervical spine. She may have a frozen shoulder, which could be contributed to by auto-amputating her arm.
Dr Harrington opined that the applicant should be encouraged to use her arm as much as possible. If her presentation continued, it may become ingrained and very difficult to reverse. The best treatment was an aggressive physical program, starting by increasing her passive range of movement to connect her arm with a normal body image.

Dr Abraham Isaacs – orthopaedic surgeon

Dr Isaacs was qualified by QBE and reported first on 28 November 2018.
Dr Isaacs recorded a consistent history of the injury and the applicant’s treatment. He noted that she sustained a stroke, affecting her left side, while undergoing heart bypass surgery.
The applicant told Dr Isaacs that she had severe pain in her left shoulder and had lost most of her movements in the shoulder.
Even before the left-sided hemiparesis, the applicant had been unable to move her left shoulder. She had primary care to assist with home duties, including driving a car. It was the chronic pain and inability to move her left shoulder, rather than weakness in her left upper and lower limbs, that had the greater part to play in her disability. She was unable to do any of the household tasks.
Dr Isaacs diagnosed left shoulder injury/rotator cuff impingement/decompression of the left shoulder; frozen left shoulder; and open-heart surgery/perioperative stroke and left hemiparesis.
Dr Isaacs again reported on 22 October 2020.
The applicant said she had had a lot of pain in her left shoulder and was referred to
Dr Russo. She had received at least two injections, which did not improve her pain. Dr Russo had treated pain in her neck and upper thoracic region, and she had received at least about 30 nerve blocks, with relief of pain only for a few days.
Dr Isaacs recorded that the applicant had very severe pain and restricted movements in the left shoulder and was unable to use her left hand for any activities without aggravating the pain. She was unable to perform any activities bringing her arm above shoulder level.
The applicant also suffered from pain in the cervical spine and upper thoracic spine, and any movements of the cervical spine aggravated the pain.
Dr Isaacs again noted that the applicant had primary care even before her stroke and also received quite a lot of help from the family. She was unable to do any household tasks or gardening.
Dr Isaacs recorded that movements of the applicant’s right shoulder were normal and pain-free. He diagnosed rotator cuff impingement/decompression of the left shoulder; frozen left shoulder; and open-heart surgery/perioperative stroke and left hemiparesis.
Dr Isaacs next reported on 29 June 2021.
The applicant had continued treatment with Dr Russo. She had received three trapezius trigger point injections, and her pain got worse. Dr Russo advised her to see a psychiatrist and psychologist, and they were helping her to some extent.
The applicant complained of persisting pain in her left shoulder and between the shoulder blades. It was aggravated by any activities.
Dr Isaacs recorded that all movements of the applicant’s right shoulder were normal and pain-free. His diagnoses remained the same.
Dr Isaacs assessed the applicant with 8% WPI as a result of injury to the thoracic spine; and 15% WPI as a result of injury to the left upper extremity (shoulder). The combined assessment was therefore 22% WPI.
Dr Isaacs provided a supplementary report on 27 July 2021.
He reported that when he first saw the applicant on 28 November 2018, she did not complain of an injury to or pain in her thoracic spine. She only complained of pain in her left shoulder. He therefore did not examine her thoracic spine but noted that she was constantly bracing her left arm against her body with her right hand and tilting her head to the left.
When Dr Isaacs saw the applicant again on 22 October 2020, she told him she had developed a frozen shoulder after surgery, and left shoulder pain persisted. She was referred to Dr Russo. At that time, she had developed pain in the neck and thoracic spine.
Dr Russo wanted the applicant to have breathing therapy treatment and confirmed that the requirement for such treatment was due to her altered posture, which was brought about by her left shoulder pain. This further confirmed that the change of posture had stressed her cervical and thoracic spines. Since the injury on 28 November 2016, she had had no further injuries to her shoulder or thoracic spine.
At that time, Dr Isaacs was of the opinion that since the applicant was constantly bracing her left shoulder against her body with her right hand, the upper body posture had changed, resulting in the sequential injury to the cervical and thoracic spine.
Based on these facts, when Dr Isaacs assessed the applicant’s WPI, her impairment in the thoracic spine was included with the injury to her left shoulder. The pain she developed in her thoracic spine was a “consequential injury to the left shoulder pain.” Therefore, a revised assessment of WPI was not necessary.
Dr Isaacs opined that none of the applicant’s WPI related to any subsequent unrelated injury, including any that was attributed to her stroke and resultant left sided hemiparesis.
Dr Isaacs’ next report is dated 26 April 2022, after a re-examination of the applicant.
The applicant said the pain in her neck, left shoulder, and between the shoulder blades had persisted. Lately, she was lying on her right side, which had brought about some pain in the right shoulder.
The applicant had been receiving radiofrequency neurotomy for the pain in her cervical spine, left shoulder and thoracic spine, with some relief for a short period. Although she experienced pain in the right shoulder, it had not been further investigated and she was not receiving treatment.
When Dr Isaacs previously saw the applicant, she did not complain of any pain in the right shoulder and examination was normal and pain free. Her symptoms had only developed lately.
The applicant had not returned to work. She was not involved in any of the household work, which had to be done by her husband. A nurse visited to shower and dress her. She did not do any physical work.
The applicant complained of pain in the neck, left shoulder, shoulder blades, and right shoulder.
Dr Isaacs reported that any attempt to examine the applicant’s cervical spine, left shoulder, right shoulder or thoracic spine was futile, due to her resisting movement and becoming tearful. He was therefore unable to come to any conclusions as to the cause of her right shoulder pain or assess her shoulders and neck.
Dr Isaacs’ diagnoses remained the same.
Dr Isaacs noted the applicant’s history that she was lying on her right side, which was aggravating or bringing about symptoms in her right shoulder. “Technically”, she suffered from a consequential injury to the right shoulder due to the injury to her left. He did not believe it was due to any overuse of the right shoulder to protect her left. There was no confirmation about the cause of pain in the right shoulder and she had not received any treatment.
Dr Isaacs was unable to examine both shoulders or come to any definitive conclusion to a reasonable level to assess impairment in both shoulders.
Dr Isaacs next reported on 21 July 2022, having re-examined the applicant.
The applicant had been receiving treatment from Dr Russo and physiotherapy. The physiotherapy was helping the symptoms in her left shoulder, neck, and between the shoulder blades.
Dr Isaacs noted that the applicant had not previously complained to him of pain in the right shoulder, and examination of the right shoulder showed no abnormalities. At that time, she was not working and was disabled to the extent that even her personal care had to be attended to by her husband. “Therefore, the theory of protecting the painful left shoulder, and overusing the right shoulder could not be accepted.”
The applicant had since had an MRI of the left shoulder but had not brought the MRI or the report of the MRI.
Dr Isaacs recorded complaints of pain in the cervical spine, left shoulder and thoracic spine. The pain in the left shoulder was quite severe, and the main problem.
Dr Isaacs diagnosed left rotator cuff tear/repair/under pain management; frozen left shoulder; and cardiac surgery/post-operative left hemiparesis. He opined that the right shoulder symptoms were not work related and not consequential injuries [sic].
Dr Isaacs assessed the applicant with 8% WPI as a result of injury to the cervical spine (in respect of which no claim is made, because Dr Min Fee Lai, who was qualified by the applicant, assessed WPI of 0% with respect to the cervical spine); and 16% WPI as a result of injury to the left shoulder. “As [he had] already explained, the right shoulder [was] not work related”.
There is no assessment of WPI as a result of injury to the thoracic spine in this report.
Dr Isaacs had been asked to assess the left and right shoulders only, but nonetheless assessed the cervical spine.
Dr Isaacs again reported on 18 October 2022.
Dr Isaacs had been requested to review his assessment of WPI. He noted that his original assessment contained an error. The assessment of WPI as a result of injury to the applicant’s left shoulder was 15%.
Dr Isaacs did not assess the applicant’s right shoulder, as he had “already explained, the right shoulder is not work-related.”

Associate Professor Michael D. Ryan – orthopaedic and spinal surgeon

A/Prof Ryan was qualified by the applicant and reported first on 26 February 2020.
A/Prof Ryan recorded a consistent history of the injury. Since that time, the applicant had pain and had gradually lost shoulder motion.
A/Prof Ryan noted the applicant’s investigations and treatment.
The applicant “live[d] a very limited existence at home”. She had been provided with nursing care, and assistance to clean, supply with medications, pay bills and help her with dressing.
Because of extreme dysesthesia, A/Prof Ryan was unable to palpate or examine the applicant’s left shoulder. He could not assess local signs for trophic changes or determine whether there was soft tissue atrophy.
A/Prof Ryan diagnosed a soft tissue injury to the applicant’s left shoulder. She may have developed a regional pain syndrome, but the limitations imposed by her symptoms did not allow detailed physical examination.
The applicant had undergone physiotherapy and left shoulder arthroscopy, neither of which had provided benefit or relief of symptoms. She was undergoing pain management. A/Prof Ryan opined that it was unlikely further surgery would be beneficial.
A/Prof Ryan opined that the applicant required assistance in washing, dressing, meal preparation, and house maintenance of about 1.5 hours a day, five days a week.
A/Prof Ryan reported that the very nature of a complex regional pain syndrome, if that was indeed the applicant’s condition, was an inconsistency between the precipitating injury and the degree of apparent impairment she displayed.
At this assessment, A/Prof Ryan had been unable to undress or expose the applicant’s left arm, neck, and shoulder to carry out a comprehensive physical examination, because of pain.
A/Prof Ryan next reported on 29 September 2020.
The applicant was being provided with nursing care by a visiting nurse and had assistance in cleaning.
A/Prof Ryan was again unable to examine the applicant’s left shoulder, or her left elbow, forearm, wrist, or fingers. She appeared to have a reasonable range of motion of her right shoulder.
A/Prof Ryan opined that the applicant appeared to have developed a left upper limb regional pain syndrome.
It was not possible to assess WPI without exposing the left arm. “Unfortunately,” no report of treatment by Dr Russo was provided. The applicant said she received left shoulder injections once a month.
The applicant had presented as a housebound invalid. She rarely travelled beyond the mailbox. She was dependent on her husband and son for assistance in ADLs.

Dr Michael Prior – psychiatrist

Dr Prior was qualified by the applicant and reported first on 28 February 2020.
The applicant had been separated “for a couple of years”. Her partner of 14 years “couldn’t handle the way I was.” Her employment had been “medically terminated”. She was receiving a disability support pension. She had a carer who visited four times a week, and for the past two years had been living with her son.
The applicant denied immediate significant life events and stressors in her non-work environment immediately before the injury. She denied pre-existing significant psychiatric symptomatology, psychiatric diagnosis, or psychiatric, psychological or psychopharmacological therapy.
Dr Prior recorded a history that, over the time the applicant worked as a security officer, there were “lots of situations” with mental health and developmentally disabled patients, ice and other drug addicts. She was abused by patients and by fathers trying to retrieve children taken by DOCS (Department of Community Services). She was assaulted a number of times, punched and spat at in the face, and had her thumb injured.
Dr Prior recorded a consistent history of the injury. The applicant said she was “really scared and nervous”. She was shocked and shaking. The person “looked like a demon”. She had never experienced terror like that before, not even with ice addicts. She had experienced nothing as frightening or as bad in the past.
The applicant described affective symptoms, anxiety symptoms, obsessive compulsive symptoms, and PTSD symptoms.
Dr Prior recorded that there were no reports by medicolegal psychiatrists, the applicant’s previous treating psychiatrist, Dr Sucare, or her recent psychiatrist, Dr Herron. There were also no reports from her psychologists, Ms Evans or Mr Bonsor. There were no historic, recent, or contemporaneous psychological test instrument results.
The applicant reported seeing Dr Sucare over the long-term but could not specify the length of time. She said he had diagnosed anxiety and depression and post-traumatic stress. She had ceased seeing him as she “didn’t feel comfortable with males”. She had recently begun seeing Dr Herron, whom she had seen once, last week.
The applicant had not been hospitalised in a psychiatric unit but had come into contact with a community mental health service briefly, after a suicide attempt several months ago.
The applicant had seen Ms Evans for a couple of years, until she retired. She was being treated for “anxiety and depression”. She had recently begun seeing Mr Bonsor, whom she had seen twice. He had diagnosed “depression/anxiety”.
Dr Prior recorded that the applicant had previously been prescribed an anti-depressant of unknown name and dosage. Dr Wright had recently prescribed another anti-depressant, the details of which she could not recall.
The applicant described the onset of her symptoms immediately following the assault. They had been ongoing without periods of remission. They were exacerbated by her son’s suicide in 2018, her open-heart surgery, and a stroke. They were progressively worsening. She was “going downhill every day”. She emphasised that she was worse than she was a month or several months ago.
The applicant was “never not depressed”. Her mood was worse at night. She described anhedonia. She could not elevate her mood through activity or the presence of others. She had subjective cognitive difficulties, and her self-esteem and confidence were “no good”. Her body image was poor due to weight gain. She experienced periodic thoughts of death and suicidal ideation.
Dr Prior recorded a history of poor sleep and comfort eating. The applicant frequently worried about “being hurt again”. She described panic phenomena since the date of the injury, having one panic attack per day, typically lasting less than an hour. They tended to be triggered by going out of her house and seeing people, particularly drug-affected people, who looked as though they could be a threat. She avoided leaving the house and even had problems going to the mailbox.
The applicant had panic attacks associated with crowds and confined spaces, situations that she avoided. She felt nervous about people walking behind her and was “paranoid that I’ll be attacked again.” She described occasional threatening voices in her head. They said someone was coming to get her and she should lock her door. She looked outside for an attacker, and had put chains on the door, which she barricaded with a board.
Dr Prior recorded obsessive-compulsive phenomena, such as repeatedly counting objects, checking up to four or five times that the door was locked, and whether the stove or iron was turned off. The applicant had a compulsion to straighten objects around the house.

The applicant described nightly nightmares of the assault. She also had nightmares about being threatened and attacked by other ice addicts. The assault was “in my head all the time”. Intrusive distressing recollections were triggered by people yelling, spitting and being abusive; seeing drug-affected people; seeing violence in police TV shows; being in proximity to the hospital; and seeing medical staff in situations she considered unsafe.
The applicant had an elevated startle response, was hypervigilant and scared for her safety. She was “always paranoid and scared”. She felt frequently irritable and angry. She avoided talking about the assault, the hospital, people she considered drug affected, and people creating a disturbance. She could not trust anyone and felt distant from loved ones.
Dr Prior asked the applicant what prevented her seeking work or re-training. She identified her anxiety levels, panic, “paranoia”, hypervigilance, depressed mood, and cognitive impairment.
The applicant’s son suicided in August 2018, in her garage. She stated that “losing a child is the worst thing you can go through”. Since the injury, she had been diagnosed with cardiac disease and had open-heart surgery in December 2017, with an associated stroke. Her depression and anxiety were exacerbated by these events. They all “affected [her] emotionally.”
The applicant was aided by a carer. She was also supplied with Meals on Wheels. The carer was supplied primarily for her pain and physical limitations. She maintained self-care, hygiene, and grooming. The carer helped her to dress because of her physical limitations. The carer visited for several hours, four days a week.
The applicant denied any prior history of significant psychiatric symptomatology, contact, diagnosis, hospitalisation, treatment, investigation, or referral. She was asked about
Dr Wright’s reference to 1 January 2016 being associated with “anxiety”. She was uncertain about this reference as “I only really got anxiety after my injury.”
Dr Prior recorded an “extensive” family psychiatric history. The applicant’s son and a maternal cousin had been diagnosed with bipolar disorder. Several maternal cousins had been diagnosed with depression and one had been hospitalised for a suicide attempt.
The applicant’s trauma history did not reveal a history of exposure to significant traumatic, catastrophic or life-threatening events producing post-trauma symptomatology outside of or prior to her work environment.
Dr Prior noted that the applicant experienced chronic pain perception in her upper left limb, plus associated neck pain.
The applicant was distressed during the assessment but indicated that she wished to complete it.
Dr Prior diagnosed chronic PTSD, with co-morbid MDD with associated panic/agoraphobic symptomatology, obsessive compulsive symptomatology, and possibly psychotic symptomatology. This occurred in an individual with some obsessive/perfectionistic personality traits.
Dr Prior opined that the cause of the applicant’s condition was the assault on the date of the injury. Her vulnerability factors included a very strong family history of mood disorder on the maternal side; obsessive/perfectionistic personality traits; potentially her pre-existing medical condition of systemic lupus; and a past history of exposure to potentially traumatic scenarios during her time as a security guard. Subsequent exacerbating factors were likely to have included her son’s suicide, her cardiac diagnosis and open-heart surgery, and a stroke.
Dr Prior opined that the applicant’s employment was the main contributing factor to her psychiatric diagnoses, incapacity, and need for treatment. Her condition was not well stabilised and she had not reached MMI.
Dr Prior again reported on 30 September 2020.
The applicant had been back with her husband for a “couple of weeks” and he was her official Centrelink carer.
Dr Prior again recorded affective symptoms, anxiety symptoms, posttraumatic symptoms, obsessive compulsive symptoms, and psychotic symptoms.
Once again, Dr Prior had no reports or clinical notes from the applicant’s treating practitioners, or from the local community mental health team. He had no documents from her most recent treating psychologist, “name unknown”, whom she had been seeing weekly for approximately the last six months.
The applicant had been scheduled to a psychiatric hospital for admission “a few months ago” and remained there for a month. Dr Sucare was her inpatient psychiatrist. Since leaving hospital she had had home visits by a local community mental health team, on average once a fortnight.
Dr Prior recorded that the applicant was on four “psychiatric medications”. She could not name them or their dosages. Dr Sucare had started one tablet approximately a month ago.
The applicant described her symptoms as “getting worse and worse”. Her admission to a mental hospital did not help. Her symptoms were largely as previously recorded. She described excessive and inappropriate guilt about her son’s suicide, and ruminated about why her employer did not protect her.
The applicant described paranoid delusional thinking about her aged care nurse and cleaner, as “I know they’re planning to hurt me.”
Dr Prior reported that the applicant still grieved the loss of her son. Her husband had been living with her for the last couple of weeks, and “he is the only one I can trust now but I can’t really trust him.” She had been diagnosed with diabetes and had gone onto insulin.
An aged care nurse visited once a week, helped the applicant to shower, checked her insulin, and set an alarm to remind her to take her medications. A cleaner visited twice a week.
The applicant described a lack of trust in anybody. She did not trust anyone but her son. She trusted Dr Wright, but not her psychiatrists, “because they put me in a mental hospital and drugged me.”
Dr Prior recorded that the applicant’s affect was dysphoric. Her affective range was reduced. She appeared agitated and distressed. She described paranoid ideation, believing that she was in imminent danger that someone would enter the room from the door behind her and attack her, and he would not be able to protect her.
The applicant appeared to be experiencing auditory hallucinations and responding to these during the session. She spoke to an imaginary person.
Dr Prior opined that the applicant exhibited frank psychotic symptomatology. The history listed was generally consistent with the term “depressed mood” made by Dr Wright in a single certificate of capacity dated 11 March 2020, 11 days after Dr Prior’s first report.
Dr Prior diagnosed chronic PTSD; co-morbid MDD with psychotic phenomena; co-morbid panic/agoraphobic disorder; and co-morbid obsessive-compulsive disorder (OCD).
Dr Prior opined that the applicant’s chronic PTSD and MDD with psychotic symptomatology related to the assault. Her associated panic/agoraphobic symptomatology and obsessive-compulsive symptomatology, which initially represented symptoms of her major depressive illness, now constituted stand-alone diagnoses and related to her PTSD and MDD.
The applicant’s condition was not well-stabilised, as she reported a progressive worsening of her symptoms since Dr Prior last saw her. Her prognosis was extremely guarded.
Dr Prior provided an assessment of 26% WPI but referred to it as a current/cross-sectional/non-stabilised/non-MMI assessment of function as it was at that moment.
Dr Prior provided a “clarification report” on 8 December 2020.
Dr Prior could not accurately predict when the applicant was likely to reach MMI. It depended on variables such as the future trajectory of her current exacerbation and her response to treatment. A rough estimate only was that she could possibly reach MMI from between six to twelve months into the future.
Dr Prior again reported on 22 October 2021.
Since his last report, Dr Prior had not been provided with new reports by medicolegal or treating psychiatrists, including a new psychiatrist, Dr “Siriack [? correct spelling]”.
Dr Prior also had not been provided with documents from treating psychologists, psychiatric units, accident and emergency departments, or community mental health team. He had not been provided with documents from Mr Bonsor, Ms Evans, and a new treating psychologist. The applicant could not recall her surname, but she went by the name “Kath”, and the applicant saw her at the medical centre.
Dr Prior had not been provided with documents from the applicant’s new treating psychologist, S Parker, or her previous psychologist, by the name of Wright.
Dr Prior had been provided for the first time with Dr Herron’s clinical note dated
19 February 2020; Mr Bonsor’s notes dated 14 February 2020 and 22 January 2020; and
Dr Brokenshire’s note dated 24 September 2020.
Dr Prior also recorded the assessment on 1 January 2020 of “30+ very high psychological distress”.
The applicant had recently been scheduled for a month when she was treated by Dr Sucare and followed up by a community health team.
Dr Prior recorded that the applicant saw three treating psychiatrists. Dr Siriack was her main treating psychiatrist. She saw Drs Sucare and Herron “at Mental Health”. Dr Sucare had diagnosed her with “schizophrenia”, with which the other psychiatrists agreed.
The applicant was seeing “Kath” on a second weekly basis and this “helps my anxiety and panic.”
The applicant had had two hospital admissions, in January 2021, and four months before. She had started a new “schizophrenia medication”, which she could not identify.
Dr Prior noted that the applicant had a referral for electro convulsant therapy in the next few weeks.
The applicant told Dr Prior that her condition had been ongoing, without periods of remission, and in her opinion had worsened since he last saw her. Her symptoms had been at their maximum severity recently and currently, for the last three to four months since her last discharge from hospital.
Dr Prior recorded numerous symptoms. They included depressed and lowered mood; cognitive difficulties; suicidal thinking, with two attempts; sleep difficulties; loss of appetite; panic attacks; obsessive compulsive phenomena; psychotic phenomena, when the applicant heard the voices of her deceased son and the man who assaulted her; paranoid ideation; nightmares; triggered recollections of various assaults; and elevated startle response.
The applicant had been upset that her son’s superannuation was going to his ex-partner, but that was no longer an issue, “because the kids are getting that”.
The applicant had been diagnosed with insulin dependent diabetes and sleep apnoea.
The applicant’s husband was her official carer. He looked after her medications and drove her to appointments. She had a nurse visit twice daily to help her shower, and a cleaner visited twice a week. She could do some limited sweeping and washed her cup and saucer but did very little else because of her poor motivation.
Either the applicant’s husband cooked, or she had meals delivered. She spent some time compulsorily [sic: compulsively] arranging and rearranging objects. She would not leave home without a support person. She did not trust anybody. She trusted her son more than anyone else.
Dr Prior noted that at his initial assessment, the applicant specifically denied a prior history of depressive or recurrent depressive episodes. On this occasion, she acknowledged suffering from previous depressive episodes throughout her life. She had “episodes of depression after my abuse, not constantly.”
The applicant had also specifically denied a prior history of childhood abuse. On this occasion, she acknowledged being “molested as a 7 year old and up to 14; he threatened to kill my pet cat and he did kill it”.
Dr Prior recorded that the applicant reported chronic pain perception in her head, both shoulders, and back. She rated it as 7 to 8/10.
Dr Prior diagnosed chronic PTSD; co-morbid Persistent Depressive Disorder with psychotic features (chronic MD type); panic/agoraphobic disorder; and OCD. He opined that they related to the experience of assaults in the workplace.
The applicant’s vulnerability factors included a strong family history of mood disorder; pre-existing obsessive/perfectionistic personality traits and systemic lupus erythematosus; exposure to potentially traumatic scenarios while working as a security guard; and her history of prolonged childhood sexual abuse and recurrent depressive episodes.
Dr Prior assessed the applicant with 26% WPI.

Dr Min Fee Lai – general, plastic and reconstructive surgeon

Dr Lai reported on 7 December 2021.
Dr Lai recorded a history that the applicant had injured her right shoulder just before she injured her left, the left shoulder injury being the subject of the claim.
The applicant required help to shower and had a paid carer twice a week. She also had a paid cleaner. The paid help amounted to 12 hours per week. Her husband assisted with cooking and other general household chores. She estimated this help amounted to seven hours per week. She had ceased gardening, sewing, quilting, and going to the gym. She had just started driving again but could only tolerate it for 10 minutes.
Dr Lai recorded a consistent history of the injury and the applicant’s treatment. He also recorded that she had undergone mitral valve replacement and a postoperative stroke. The pain in her left shoulder worsened, with increasing stiffness.
Dr Lai reported that X-rays had confirmed the applicant had a frozen left shoulder, and when she last consulted Dr Petrelis in March 2021, he advised conservative treatment.
Dr Lai reported that as a result of the applicant having minimal use of her left upper extremity, she had to depend on her right for the majority of tasks. She had virtually no use of her left arm, depending on her right arm for ADLs. As a result, she also had pain and increasing stiffness in her right shoulder. The pain in both shoulders radiated to her neck, especially on the left. This had led to limitations in neck movement, causing stiffness.
Dr Lai diagnosed left shoulder supraspinatus tear and right shoulder possible bursitis. There was possible left frozen shoulder. “On the balance of probabilities”, the applicant had suffered a right shoulder injury as a consequential condition following the injury to her left shoulder. She relied on her right upper extremity to carry out all daily activities. This had resulted in overuse, causing bursitis, and pain and stiffness.
Dr Lai assessed the applicant with 30% WPI as a result of injury to her left upper extremity, right upper extremity, and TEMSKI scarring. He assessed 0% impairment as a result of injury to/consequential condition of her cervical spine.

Dr Alexey Sidorov – psychiatrist

Dr Sidorov was qualified by the respondent and reported first on 8 May 2022.
Dr Sidorov was provided with documentation that is not before me.
Dr Sidorov recorded a history that the applicant was molested from the age of eight “for a few years”, until her grandmother reported it to the police.
The applicant was diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of eight or nine. She was treated, but treatment stopped at 16. There was no evidence of ongoing symptoms of ADHD. She developed depression at 19 after her mother died. She was treated with anti-depressants, saw a psychiatrist and counsellor, and had continued taking anti-depressants.
Dr Sidorov recorded that the applicant sustained a workplace shoulder injury in around 2014 and lodged a claim, receiving a payout. She also lodged a psychological claim in relation to that injury, as she described being very emotional and upset afterwards. She had ongoing issues relating to her right [sic] shoulder injury. She had had mitral valve surgery and been diagnosed with type 2 diabetes.
The applicant was not aware of any family history of mental illness.
Dr Sidorov recorded a history that the applicant was exposed to multiple events of being assaulted and exposed to aggressive individuals at work. In 2016, there was a “Code Black”. There were six guards holding down an aggressive patient. He kicked the applicant and dislocated her left shoulder. She felt “scared, hopeless, paranoid, and anxious” in the aftermath of the assault.
The applicant said the pain in her shoulder became worse. She had flashbacks of the assault, did not feel safe at home, and had to lock the doors all the time. She felt someone would attack her from behind. She became more alert and anxious, and her self-esteem became lower. She felt she had lost her independence.
Dr Sidorov recorded that the applicant was seeing a psychiatrist and psychologist. She had in the past experienced suicidal ideations, but not recently.
The applicant described nightmares and disrupted sleep. She had developed panic attacks, particularly in crowded places. She described some OCD phenomena. Since the injury, the only significant event that appeared to have occurred was her son’s suicide in 2018. She was visibly upset talking about his death. The other significant event was a cardiac surgery in 2017.
Dr Sidorov recorded that the applicant experienced low mood most days, with significantly diminished interest in her usual activities, poor appetite, and feeling low in energy, with significant loss of self-esteem and intermittent suicidal ideations. She described ongoing recollections of the injury by flashbacks, nightmares, and intrusive thoughts. She avoided thinking about the event and any reminders of it as they significantly distressed her and caused her to become depressed and fearful.
The applicant felt more detached and estranged from others and found it hard to experience positive emotions. She was more irritable, hypervigilant, experiencing exaggerated startle response and found it hard to concentrate and focus.
The applicant had a carer and a cleaner. Her husband cooked. She did not cook, clean, or do any housework, but tried to make sure everything was in its place, or she became distressed. Her husband helped her with showering and brushing her teeth. She left home only with him or her carer. She had not driven for a long time, as her anxiety levels were too high. She had mostly stopped gardening.
Dr Sidorov noted a history of workplace issues (assumed from the date of the factual investigation to which he referred, and which is not in evidence, to have been in about 2013/2014) when the applicant was the subject of complaints about her performance. He noted she was “stressed” regarding the internal investigations.
Dr Sidorov referred to the GPs’ clinical records. He diagnosed the applicant with MDD. He opined that her depressive symptoms had developed in the context of multiple factors including workplace issues including an internal investigation and being physically assaulted and injured by a patient. This was further exacerbated by non-work-related factors such as the death of her son and medical illness, including cardiac surgery.
Dr Sidorov did not believe the applicant met the full criteria for PTSD, anxiety, or OCD. She had been quite stable on her antidepressant medications as recorded by her GP but had decompensated since discontinuing them. Her symptoms had also been perpetuated by the COVID lockdown.
It was not clear to Dr Sidorov that employment was the main contributing factor to the applicant’s presentation, as there appeared to be multiple external factors in her diagnosis, but it was likely that it was a substantial contributing factor. She could be considered to have an underlying vulnerability to developing a depressive illness.
Dr Sidorov opined that assessment of WPI should be deferred until the applicant reached MMI.
Dr Sidorov provided a supplementary report dated 10 June 2022.
Dr Sidorov noted that he had been asked to assume that employment was the main contributing factor to the development of the applicant’s psychiatric condition (this request does not appear in his report, but part of the question he was asked, which he has reproduced, is missing). He opined that the applicant had suffered a primary psychological injury as a result of the assault on 28 November 2016. Her MDD arose out of the assault.

SUBMISSIONS

The parties have provided written submissions, which I will summarise.

Respondent

The respondent disputed that the applicant had sustained a consequential condition of her right shoulder; and that she had sustained a psychiatric injury either as a result of the nature and conditions of employment, or as a result of the incident on 28 November 2016.
The respondent submitted that the applicant relied on the opinion of Dr Lai in a report dated 7 December 2021. It submitted that he obtained no particulars of what the applicant did with her right arm, yet noted she had to use it for the majority of her tasks.
The respondent submitted that Dr Lai’s opinion ought not to be accepted. He did not appear to be aware of the applicant’s dominant arm. He got no information as to what she did with her right arm that she did not do before the injury to her left. The respondent referred to Grant v Dateline Imports Pty Ltd.[1] Dr Lai had also not taken into account that the applicant underwent heart valve surgery in February 2018, perioperative stroke, and left hemiparesis.
[1] [2022] NSWPICPD 3.
The respondent referred to Dr Isaacs’ examinations of the applicant’s right shoulder, about which he reported on 22 October 2020 and 21 June 2021. It referred to his report dated
26 April 2022, in which he noted no prior complaint of pain in the right shoulder, and his examination of her shoulder.
The respondent referred to Dr Harrington’s reports dated 2 November 2017 and
9 November 2017, which disclosed no complaints in respect of the applicant’s right shoulder.
The respondent also referred to the lack of complaints of right shoulder pain disclosed in the reports and clinical notes of Dr Russo, and the Hunter Pain Clinic records; and reference by Dr Russo in a report dated 26 November 2008 to a right shoulder injury in June 2008.
The respondent submitted that Dr Petrelis’ reports and clinical notes disclosed no complaints of right shoulder pain.
The respondent submitted that it was essential that the member feel a sense of actual persuasion that the applicant had suffered an overuse condition of her right shoulder as a result of the injury to her left shoulder; and the member would not feel such a sense. It is only Dr Lai who has recorded a history of overuse of the right shoulder. His opinion was not made in a fair climate and could not be accepted.
The respondent submitted there ought to be an award in its favour in respect of the claim for the applicant’s right shoulder.
As regards the claim for psychological injury, the respondent referred to the report of Dr Prior dated 28 February 2020. The applicant was re-examined by Dr Prior on 30 September 2020 She reported that she had been scheduled to a psychiatric hospital a few months ago and remained for a month. She was treated by Dr Sucare.
The respondent submitted that, as there was no evidence from either Dr Sucare or the institution to which the applicant was scheduled, an inference should be drawn that such evidence would not have assisted her.[2]
[2] Jones v Dunkel [1959] HCA 8.
The respondent submitted that Dr Prior recorded that the applicant was seen by a number of psychologists and psychiatrists, but he was not provided with any reports from them. His opinion was therefore not provided in a fair climate.
The respondent referred to Dr Herron’s report dated 19 February 2020, and the history recorded. It submitted that although the applicant told Dr Herron about the work-related incident, it was in respect of the injury to her left shoulder. She had been left with chronic pain, and its main effect was the loss of her role. Dr Herron did not diagnose PTSD or record any symptoms of such a condition.
The respondent submitted that Dr Herron’s evidence was very relevant, as she is/was the applicant’s treating psychiatrist. She was not provided with any psychological history as a result of the incident on 28 November 2016.
The respondent referred to Dr Sidorov’s evidence. He had reviewed the Workers Compensation Investigation Report dated 21 March 2014 (which as I have noted is not in evidence) and the clinical notes of Awabakal. He was of the view that the applicant met the criteria for MDD, but employment was not the main contributing factor to her presentation. There were multiple external factors in her diagnosis.
The respondent repeated its submission that the member must feel an actual persuasion, and submitted no weight ought to be given to Dr Prior’s report.
As regards the claim for injury to the thoracic spine, the respondent submitted that the applicant’s claim was amended to include a claim to have sustained 8% WPI in respect of her thoracic spine. This injury was not conceded by the respondent and was raised by its legal adviser at the preliminary conference.
The respondent submitted that the member had no jurisdiction to determine any WPI of the thoracic spine as result of injury on 28 November 2016, and this ought to be referred to a Medical Assessor for assessment. It submitted that the degree of WPI attributable to an injury is a medical issue and cannot be determined by a member. It referred to Shankar v Ceva Logistics (Australia) Pty Limited.[3] It is binding authority and was applied in Samaan v The Star Environment Group Ltd.[4]
[3] [2021] NSWPICPD 18, at [50]-[55] (Shankar).
[4] [2022] NSWPIC 471 (Samaan).
I note here that the employer’s appeal in the matter of Samaan was successful.[5] The parties were asked if they wished to make further submissions after the appeal was determined, but neither did so.
[5] The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50.
In the alternative, the respondent submitted that a medical dispute existed, given a clear divergence of opinion between the independent medical experts as to whether the applicant had any impairment of her thoracic spine.
The respondent submitted that it had made an offer on 29 September 2022 to settle the applicant’s claim. It allowed 0% for her thoracic spine. The respondent submitted that a medical dispute was therefore raised.[6] The letter of offer advised that the offer was only open to be accepted if the applicant agreed to resolve the entire dispute in accordance with the offer.
[6] Yates v Flavorjen Pty Ltd [2022] NSWSC 388; and Skates v Hills Industries Ltd [2012] NSWCA 142 per Leeming J at [43] (Skates).
The respondent submitted that it was clear that any WPI of the thoracic spine was put in dispute, given that no offer was made in respect of it. It was not until later that the applicant amended her claim to include a claim for the thoracic spine.
The respondent submitted that the assessment of 8% WPI is not correct, given the lack of any assessment by the applicant’s independent medical examiner and the absence of any supporting radiology, together with the impact on her left shoulder of the stroke affecting her left side, and therefore the impact on her ADLs.

Applicant

The applicant submitted (emphasis in original) that her claim was in respect of:
(a)     left shoulder (frank injury on 28 November 2016) - not in dispute;
(b)     right shoulder (consequential injury [sic]) – allegedly disputed; and
(c)   thoracic spine (consequential injury [sic]), not in dispute.
The applicant also made a claim for lump sum compensation in respect of primary psychiatric injury (emphasis in original):
(a) which resulted from the nature and conditions of her employment, with deemed date of injury of 28 November 2016 – disputed; or
(b) in the alternative, that the incident on 28 November 2016 caused a primary psychological injury – not in dispute.
The applicant submitted that the evidence more than adequately proved each injury.
The applicant submitted that, “fatal” to the respondent’s case, its expert supported that there had been a psychological injury and said it had never ceased; and the respondent’s orthopaedic surgeon found a right shoulder consequential injury [sic].
The applicant “wishes to make it very clear that the WPI of the thoracic spine is absolutely not in dispute”.
The applicant submitted that on 18 April 2023, her lawyers wrote to the respondent’s lawyers “adding the thoracic spine to the claim” and referred to Dr Isaacs’ assessment of 8% WPI. The respondent had not replied, “let alone dispute the claim”.
The applicant submitted that there cannot be a referral to an AMS [sic] (assumed to be a reference to the claim for permanent impairment as a result of injury to the thoracic spine).
The applicant submitted that there “must be a finding” that there is 8% WPI as a result of that injury, which would then be added to any other WPI certified in the Medical Assessment Certificate (MAC). The applicant submitted that the Commission did not have jurisdiction to deal with the issue otherwise.
The applicant referred to her statement dated 28 February 2023, which she submitted was unchallenged. The respondent made no challenge to her credit.
The applicant referred to her evidence that her pre-existing anxiety was well-managed and did not relevantly affect her; prior to the injury she had no pain in her shoulders; the event on 28 November 2016 caused injury to her left shoulder, right shoulder (consequential) and psychological injury; at the end of 2016 and in 2017 she had very limited range of motion of the left shoulder; she consulted her GP for psychological symptoms on 8 March 2017 and saw a psychologist and psychiatrist as a result; due to her left shoulder injury, she developed pain in her right shoulder as a result of overuse and overcompensating; Dr Isaac took a wrong history regarding the right shoulder; and there is scarring.
The applicant submitted that the notes of Awabakal made repeated reference to psychological symptoms, including on 14 February 2020; and the notes of Dr Russo and Newcastle Orthopaedics confirmed complaints of thoracic spine symptoms.
The applicant submitted that Dr Lai took a consistent and detailed history and reviewed all notes. He confirmed there had been overuse of the right arm and consequential right shoulder injury [sic]. He found evidence of bursitis.
The applicant submitted that Dr Prior had provided numerous reports. He took a consistent history and reviewed all notes. He initially diagnosed chronic PTSD and MDD caused by the work accident, and maintained they were caused by the work incident. In his final report, he maintained the diagnoses caused by the assaults at work. That supported a finding of a nature and conditions type injury. (Emphasis in original).
The respondent referred to Dr Isaacs’ evidence. She submitted he found a consequential thoracic injury [sic] and determined 8% WPI. He had explained the foundation for the finding in his report dated 27 July 2021. She submitted he took an incorrect history. It was only since [she had] right shoulder symptoms that she ceased doing household tasks.
The applicant submitted that Dr Isaacs stated that technically she suffered from a consequential injury to the right shoulder due to the injury to her left shoulder.
The applicant referred to Dr Sidorov’s evidence. He had clearly stated that she had suffered a primary psychological injury as a result of the assault on 28 November 2016 and her MDD arose out of the assault on 28 November 2016. He never opined the [effects of] the injury ceased.
The applicant concluded that the evidence “overwhelmingly” demonstrated that she sustained the following physical injuries in the work incident on 6 May 2022 [sic]:
(a)     Left shoulder injury;
(b)     Right shoulder injury [sic];
(c)   Thoracic spine injury [sic], and
(d)     Primary psychological injury – frank and nature and conditions.
The applicant referred to the decision in Kooragang Cement Pty Ltd v Bates.[7] She submitted the evidence had discharged the onus and was “all one way”.
[7] (1994) 35 NSWLR 452.
The applicant submitted there was no compelling evidence of any other cause of injury “to these body parts”. There was no evidence any of those injuries ceased.
The applicant submitted that the following orders ought to be made:
(a)     award for the applicant in respect of injuries to the left shoulder, right shoulder, thoracic spine, and primary psychological injury – frank and nature and conditions.
(b)     A finding of 8% WPI for injury to the thoracic spine
(c)   The following “body parts” to be referred to AMS [sic] for WPI assessment:
(i)Left upper extremity;
(ii)Right upper extremity, and
(iii)Primary psychological injury – frank and nature and conditions.
The applicant has overlooked that the claim for TEMSKI/scarring will also need to be referred to a Medical Assessor.

SUMMARY

Consequential condition of right shoulder

The applicant claims to have sustained a consequential condition of her right shoulder as a result of the accepted injury to her left shoulder. She does not, of course, need to establish that she has sustained injury to her right shoulder. She need only establish, on the balance of probabilities, that the condition of her right shoulder “resulted from” the injury to her left shoulder.[8]
[8] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD and the cases discussed therein.
I am not satisfied that the applicant has sustained a consequential condition of her right shoulder as a result of the accepted injury to her left shoulder.
I have referred in some detail to the evidence of both the applicant’s treating practitioners, and the qualified medical evidence. The only practitioner who has recorded a history of overuse of the applicant’s right shoulder as a result of the injury to her left shoulder is Dr Lai.
The only history recorded by Dr Lai in this regard is that the applicant depended on her right arm for a majority of tasks, and her ADLs. The applicant herself has given no evidence about tasks she previously performed with her left arm (bearing in mind she is right-handed) that she previously performed with her right, apart from referring to self-care and daily tasks.
The evidence establishes that, from at least January 2020, the applicant had significant care and domestic assistance.
I do not intend to refer to all the evidence regarding the assistance provided to the applicant. However, it includes personal care; domestic cleaning; meal delivery (or meals cooked by her husband); and visiting nurses. Her husband is her official Centrelink carer, which must mean he provides her with significant care.
I also do not intend to refer to all the evidence regarding the activities the applicant did not and does not undertake.
However, the evidence includes reference to inability to do any household tasks, recorded by Dr Isaacs in November 2018; being a housebound invalid who depended on her husband and son for assistance with ADLs, recorded by A/Prof Ryan in February 2020; inability to do household tasks or gardening, recorded by Dr Isaacs in October 2020; doing limited sweeping, and washing her cup and saucer, but very little else because of poor motivation (not because of any physical limitations), recorded by Dr Prior in October 2021; and not cooking, cleaning, or doing any housework and having mostly stopped gardening, recorded by Dr Sidorov in May 2022.
I do not accept the applicant’s submission that Dr Isaacs found that she had sustained a consequential “injury” of her right shoulder.
Dr Isaacs recorded a history that the applicant was lying on her right side, which was aggravating or bringing about symptoms in her right shoulder, so “technically” she had a consequential “injury”.
However, Dr Isaacs later unequivocally expressed the opinion that the theory that the applicant had been protecting her left shoulder, and overusing her right shoulder, could not be accepted, and explained his reasoning.
In view of the weight of the competing evidence, I am unable to accept Dr Lai’s evidence that the applicant has sustained a consequential condition of her right arm due to overuse. She appears to have performed few activities with either arm for at least several years.
There will be an award for the respondent in respect of the claim for consequential condition of the applicant’s right shoulder.

Claim for psychological injury

I am satisfied that the applicant has sustained a primary psychological injury, and that the injury resulted from the assault on 28 November 2016, to which her employment was a substantial contributing factor.
The applicant has described the patient who assaulted her as extremely violent and abrupt. He managed to assault the applicant despite being restrained, and in the presence of at least a police officer (although Dr Sidorov has recorded that there were six guards). The applicant told Dr Prior she had never before experienced such terror, even with ice addicts.
This matter is somewhat unusual, in that, although the applicant has been treated for her psychological condition by many practitioners, there is little evidence from any of those who have treated her.
It is also the case that the applicant had a pre-existing history of depression and was subjected to abuse as a child. She was not forthcoming with this history in her first consultation with Dr Prior.
While Dr Prior several times referred to the absence of documentation from the applicant’s treating practitioners, and the difference in the histories she provided, he nonetheless felt able to assess her, and provide diagnoses.
Dr Sidorov also does not appear to have had reports from the applicant’s treating practitioners, although he did have Awabaka’s records. He also was able to assess the applicant and provide a diagnosis.
I do not believe a Jones v Dunkel inference should be drawn from the absence of evidence from the applicant’s treating practitioners. She has comprehensive and supportive evidence from her qualified expert, and also has support from Dr Sidorov, sufficient to discharge her onus.
It is of course the case that the applicant was subjected to other stressors, not least the death of her son and her other health problems.
However, as early as 13 October 2017, Dr Mathew recorded that Ms Anderson had symptoms consistent with MD and PTSD. This is evidence that she was manifesting psychological symptoms after the assault and before her son’s death in August 2018.
It is true that Dr Herron recorded in February 2020 that “the main effect” was the applicant having lost her position with the respondent, but that evidence is not consistent with that of the qualified experts.
Both Dr Prior and Dr Sidorov accepted that the applicant’s condition was due to the assault on 28 November 2016. They have both recorded her symptoms, and neither has suggested that her account of those symptoms should not be accepted.
I am mindful that Mr Bonsor recorded on 14 February 2020 that the applicant’s anxiety was better, but she was not going to admit as much. However, Dr Prior was provided with this note. The applicant’s psychological symptoms were clearly not confined to anxiety.
Dr Prior opined that the applicant’s employment was the main contributing factor to her diagnosis. She need only establish that employment was the main contributing factor to a “disease injury”.
Dr Sidorov initially opined that the applicant’s symptoms developed in the context of multiple factors, including the assault. However, in his final report, he opined unequivocally that the applicant had sustained a primary psychological injury as a result of the assault on
28 November 2016, and her MDD arose out of the assault.
The applicant’s employment need only be a substantial contributing factor to the injury. As I have determined that it resulted from the assault on 28 November 2016, it follows that employment was a substantial contributing factor to the injury.
The applicant was clearly vulnerable to psychological injury, and Dr Prior has referred to the factors that contributed to that vulnerability. She may have had an “egg-shell psyche” but the respondent took her as it found her.[9]
[9] State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 239.

Whether any deduction from the assessment of the applicant’s WPI pursuant to s 323 of the 1998 Act is warranted, given her longstanding history of psychological disorders, is a matter for the Medical Assessor.

Assessment of permanent impairment as a result of injury to (consequential condition of) the thoracic spine

I am satisfied that there is a dispute as to whether the applicant has sustained WPI as a result of a consequential condition of her thoracic spine.
Section 281 of the 1998 Act provides for the manner in which a response is to be made to a claim:

“281 Liability to be accepted and settlement offer made

(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by--
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined--
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
Note: Section 283 makes failure to comply with this section an offence. Section 78 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.
(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.
(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.
(3) An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.
(4) If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted.
(5) An employer is not required to determine a claim as provided by this section if--
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.
Note : A claim forwarded to the insurer is taken to have been made on the insurer.
(6) This section does not apply to a claim for work injury damages in respect of the death of a person, except as the Workers Compensation Guidelines may otherwise provide.”

The respondent made an offer of settlement of the applicant’s claim for WPI on
29 September 2022. In accordance with s 282 (4) of the 1998 Act, the offer was made on the basis of a partial acceptance of liability, and the offer contained sufficient detail to allow the applicant to ascertain the extent to which liability was accepted. No offer was made in respect of permanent impairment as a result of consequential condition of the thoracic spine. Liability for that condition was clearly in dispute.
In Skates, Leeming JA said at [44]:
“The starting point is a ‘medical dispute’. That term is defined in s 319 [of the 1998 Act] …The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.” (Emphasis in original).
At [46], Leeming JA said:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
As I have determined that there is a “medical dispute” as to the permanent impairment of the applicant’s thoracic spine, it is appropriate that the dispute be remitted to the President for referral to a Medical Assessor, pursuant to s 321 of the 1998 Act.
I have made the following determinations:
(a)     There is an award for the respondent in respect of the claim for consequential condition of the right shoulder;
(b)     The applicant sustained a primary psychological injury on 28 November 2016, to which her employment was a substantial contributing factor, and
(c)   There is a medical dispute as to the permanent impairment of the applicant’s thoracic spine as a result of consequential condition, resulting from injury to her left shoulder on 28 November 2016.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 464

12 September 2023