Bijok v Lindsay Yates & Partners Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bijok v Lindsay Yates & Partners Pty Ltd [2021] NSWPIC 200
APPLICANT:	Kathleen Bijok
RESPONDENT:	Lindsay Yates & Partners Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	23 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” or was a “secondary psychological injury” that was, by virtue of section 65 A(1) of the 1987 Act excluded from giving rise to a claim for lump sum compensation for permanent impairment under section 66(1) of the 1987 Act; Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65 A of the 1987 Act that may give rise to a claim for lump sum compensation under section 66(1) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the Workers Compensation Act 1987 that may give rise to a claim for lump sum compensation under s 66(1) of the Workers Compensation Act 1987. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 3 September 2008 (deemed) Body parts: Psychological Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor include: (a) Application to Resolve a Dispute and all attachments; (b) Reply to Application to Resolve a Dispute and all attachments with exception of the following: (i) Medical Report of Dr Devina Singh dated 21 December 2015; (ii) Medical Report of Dr Devina Singh dated 20 January 2016, and (c) Application to Admit Late Documents and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Kathleen Bijok (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from psychological/psychiatric injury (the psychological injury) sustained in the course of her employment with Lindsay Yates & Partners Pty Ltd (the respondent) with a deemed date of injury being 3 September 2008. The applicant claims that she sustained the psychological injury in the form of a disease process throughout an extended period in 2007 and 2008, as a result of her being subjected to ongoing unfair treatment, bullying, harassing and intimidating at the hand of the respondent’s employees following her return to work subsequent to an accepted physical injury that she sustained in the workplace on 5 September 2007 (the physical injury).
The applicant ceased work with the respondent on 3 September 2008.

The applicant made a claim for psychological injury by claim form dated 17 September 2008.

By notice dated 15 October 2008 pursuant to s 74 (as it then was) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent denied liability for a primary psychological condition on the basis that it alleged the psychological condition was in fact a secondary psychological condition caused by the physical injuries.
By notice dated 16 May 2019 pursuant to s 78 of the 1998 Act, the respondent denied the applicant sustained a “primary psychological injury as required by section s 11A(3)” of the 1987 Act. Further, the respondent denied liability for a claim for weekly payments and medical treatment on the basis that the applicant did not “have total or partial incapacity for work resulting from an injury as required by section 33” of the 1987 Act and “because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60” of the 1987 Act. The s 78 notice stated “[w]e accept that you suffered a secondary psychological injury as a consequence of your physical injury on 5 September 2007”.
By notice dated 24 May 2019 pursuant to s 78 of the 1998 Act, the respondent denied liability for the applicant’s claim for weekly payments and medical treatment for her claimed primary psychological injury on the basis that the applicant did “not have total or partial incapacity for work resulting from an injury as required by section 33” of the 1987 Act and “because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60” of the 1987 Act. The s 78 notice stated “[w]e accept that you suffered a secondary psychological injury as a consequence of your physical injury on 5 September 2007”.
By letter dated 12 March 2020, the applicant made a claim for lump sum compensation.

By notice dated 9 April 2020 pursuant to s 78 of the 1998 Act, the respondent denied liability for the applicant’s claim for lump sum compensation on the basis that “we believe your permanent impairment results from a secondary psychological injury”.

The applicant filed an Application to Resolve a Dispute (ARD) on 24 February 2021.

ISSUES FOR DETERMINATION

There is no dispute that the applicant has a psychological injury within the meaning of
s 11A(3) of the 1987 Act.
The issue for determination is whether the applicant’s psychological injury is:
(a) a primary psychological injury that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act, or
(b) a secondary psychological injury that is, by virtue of s 65A(1) of the 1987 Act, excluded from giving rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At a hearing on 28 April 2021, the applicant was represented by Mr Ty Hickey, Counsel, instructed by Ms Tolini Kakala of Law Advice Compensation Lawyers. The respondent was represented by Mr Josh Beran, Counsel, instructed by Ms Jenny Nichols of Hall & Wilcox Lawyers.

In accordance with directions of the Commission, following the hearing, lawyers for the applicant and respondent then filed written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

Applicant’s objection to parts of respondent’s evidence

The applicant’s counsel objected to the following documents being admitted into evidence (except for historical purposes):
(a)    Medical Report of Dr Graham Edwards dated 8 October 2013 (Dr Edwards’ Report) (page 30 of attachments to Reply to ARD);
(b)    Medical Report of Dr Devina Singh dated 21 December 2015 (Dr Singhs’ 2015 Report) (page 37 of attachments to Reply to ARD);
(c)    Medical Report of Dr Devina Singh dated 20 January 2016 (Dr Singh’s 2016 Report) (page 46 of attachments to Reply to ARD),
(collectively, the Relevant Documents).
In that regard, the applicant’s counsel submitted that the Relevant Documents cannot be admitted into evidence in addition to the Medical Report of Dr Bradley Ng dated 21 March 2019 (Dr Ng’s Report) (page 49 of the attachments to Reply to ARD), because it would contravene the provisions of Sub-Regulation 44(1) of the Workers Compensation Regulation 2016 (2016 Regulation) which requires that “In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings”.
In response, the respondent’s counsel submitted that the Relevant Documents are not subject to the limitation contained in Sub-Regulation 44(1) of the 2016 Regulation because they do not fall within the definition of “forensic medical report” which is contained in
Sub-Regulation 44(4) of the 2016 Regulation. The respondent’s counsel accepted that the Relevant Documents are a “report from a specialist medical practitioner” as required by Sub-Regulation 44(1)(a) of the 2016 Regulation. However, he submitted that the Relevant Documents do not satisfy the requirement in Sub-Regulation 44(1) of the 2016 Regulation that they were “in respect of the claim or dispute” because they each came into being prior to the date of the claim for compensation (being 12 March 2020).
In the alternative, the respondent’s counsel adopted the position that the applicant relies on Dr Edwards’ Report but noted that Dr Graham Edwards has retired and is no longer practicing (this was not disputed by the applicant). The respondent’s counsel submitted that Dr Ng’s Report is therefore admissible pursuant to Sub-Regulation 45(1)(b) on the basis that:
(a) Dr Ng’s Report has the purpose of updating Dr Edwards’ Report by confirming, modifying or retracting an opinion expressed in Dr Edwards’ Report; and
(b) Sub-Regulation 45(3) of the 2016 Regulation on the basis that Dr Edwards has retired and is no longer practicing and Dr Bradley Ng practiced in the same specialty as Dr Edwards.
Regulation 44 of the 2016 Regulation provides:
“(1)In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause –
(a) forensic medical report, in relation to a claim or dispute –
means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
Regulation 45 of the 2016 Regulation provides:
“(1)    Despite clauses 44 and 46, a medical report other than the original report (a supplementary report) may be admitted if –
(a)It has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or
(b)It has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or
(c)It has the purpose of addressing issues omitted from the original report, or
(d)It has the purpose of addressing an opinion in the other party’s medical report.
(2)     A supplementary report can be provided as an addendum to the original report and in any such case the original report together with that addendum constitute the report referred to in clauses 44 and 46.
(3)     A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practice in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.”
In relation to those submissions, the Commission’s determination and reasons is as follows:
(a)    Each of the Relevant Documents is a report of a psychiatrist who has not treated the applicant. On that basis, the Commission is satisfied that each of the Relevant Documents is a “report from a specialist medical practitioner who has not treated the worker” as required by Sub-Regulation 44(1)(a) of the 2016 Regulation;
(b)    The Commission does not accept the submission of the respondent’s counsel that the Relevant Documents are excluded from the definition of “forensic medical report” and the operation of Sub-Regulation 44(1) of the 2016 Regulation because they pre-date the making of the claim for compensation and therefore are not “in respect of the claim or dispute”. It appears from the Relevant Documents that they were obtained at least in contemplation of the applicant’s claim for compensation. Each of the Relevant Documents addressed questions about the applicant’s psychological condition in the context of the accepted physical injury which the applicant sustained in the workplace in 2007. This included whether the applicant sustained a psychological injury that was primary or secondary to those physical injuries. On that basis the Commission is satisfied that, notwithstanding that the Relevant Documents were prepared prior to the making of the claim for compensation, each of the Relevant Documents was apparently obtained for the purpose of proving or disproving the applicant’s entitlement, or the extent of an entitlement, to compensation in respect of psychological injury sustained by the applicant and the issue of whether psychological injury was primary or secondary to the accepted physical injuries. The Commission is satisfied that each of the Relevant Documents is “in respect of the claim or dispute” as required by Sub-Regulation 44(1)(a) of the 2016 Regulation;
(c)    For those reasons, the Commission is satisfied that each of the Relevant Documents falls within the definition of “forensic medical report” in Sub-Regulation 44(4) of the 2016 Regulation and is subject to the limitation imposed by Sub-Regulation 44(1) of the 2016 Regulation;
(d)    In relation to the respondent counsel’s alternative submission, the Commission notes that the respondent substantively relies on Dr Edwards’ Report. The respondent seeks to have Dr Ng’s Report admitted pursuant to Sub-Regulation 45(1)(b) of the 2016 Regulation, that being on the basis that it has the “purpose of updating the original report [being the report of Dr Edwards] by confirming, modifying or retracting an opinion expressed in the original report”. It is clear from Dr Ng’s Report that Dr Ng considered the Medical Report of Dr Edwards. Further, it is clear that Dr Ng also addressed the issue of whether the applicant sustained a psychological injury that was primary or secondary to the accepted physical injury which the applicant sustained in the workplace in 2007. On that basis, the Commission accepts that Dr Ng’s Report does have the purpose of updating Dr Edward’s Report “by confirming, modifying or retracting” the opinion expressed in Dr Edwards’ Report.
(e)    In relation to the respondent counsel’s submission that Dr Ng’s Report should be permitted pursuant to Sub-Regulation 45(3) of the 2016 Regulation because
Dr Edwards has now retired and ceased to practice in the specialty of psychiatry, the Commission notes that there is no evidence to that effect. However, the applicant’s counsel did not dispute that Dr Edwards has ceased to practice and the Commission is prepared to accept the submission of the respondent’s counsel in that regard.
(f)    On that basis, the Commission accepts that pursuant to Sub-Regulation 45(1)(a) and Sub-Regulation 45(3) of the 2016 Regulation, Dr Ng’s Report may also be admitted into evidence as a “supplementary report” to Dr Edwards’ Report.
(g)    Accordingly, the Commission does not admit into evidence:
(i)the Medical Report of Dr Devina Singh dated 21 December 2015; and
(ii)the Medical Report of Dr Devina Singh dated 20 January 2016.
(h)    However, the Commission does admit into evidence:
(i)the Medical Report of Dr Graham Edwards dated 8 October 2013; and
(ii)the Medical Report of Dr Ng dated 21 March 2019.

Applicant’s Application to Admit Late Documents

The applicant filed an Application to Admit Late Documents (AALD) dated 14 April 2021 which attached a management plan issued by a general practitioner, a number of witness statements and a report. The documents appeared to be relevant to determination of the issues in dispute.
The respondent’s counsel did not object to admission of the late documents into evidence.
In the circumstances, I gave leave to admit the late documents into evidence.

Documents in evidence before the Commission

On that basis, the following documents were in evidence before the Commission and considered in making this determination:

(a) The ARD and attached documents;
(b) Reply to ARD and attached documents, with the exception of the following:

(i)the Medical Report of Dr Devina Singh dated 21 December 2015; and
(ii)the Medical Report of Dr Devina Singh dated 20 January 2016, and

(c) AALD and attached documents.

Applicant’s evidence

Applicant

The applicant gave the following evidence by way of two written statements, respectively dated 2 October 2008 (also dated 24 September 2008), 8 May 2020 (also dated 1 May 2020) and 10 October 2008:

(a)    The applicant is a 45-year-old woman;
(b)    She was employed by the respondent in the position of receptionist/ accounts receivable clerk since commencing on 25 October 2001;
(c)    At the relevant time, the applicant’s supervisor was Monique Irvine and the director of the respondent was David Shoppe;
(d)    The applicant commenced experiencing physical symptoms of burning sensation in both of her shoulders and in her right scapula and down her right arm in the period leading up to 5 September 2007, at which time she experienced an escalation of her pain which she then reported to Mr Shoppe and Ms Irvine;
(e)    The following day, the applicant continued to experience symptoms which she reported to Ms Irvine and others and attended her general practitioner about the symptoms;
(f)    The applicant was absent from work for a period of days but returned to work for a period of two days on 10 September 2007 before subsequently having further time off work due to the symptoms;
(g)    On 15 September 2007, the applicant attended her general practitioner who recommended a CT scan and further time off work;
(h)    On or around 27 September 2007, the applicant returned to her full-time hours on restricted light duties;
(i)    After the applicant returned to work following the physical injury, Ms Irvine made statements to the applicant which included “Where is your neck brace?” and “this is compo”. The applicant believed that Ms Irvine was inferring that her injury was not genuine and was being sarcastic;
(j)    Ms Irvine questioned the applicant’s duties and abilities and was verbally “attacking” the applicant. Notwithstanding that the applicant had a medical certificate specifying restricted work duties with using her left hand only to answer phones, no use of her right hand and no typing, Ms Irvine made comments such as if the applicant could answer phones she could still type;
(k)    The applicant reported Ms Irvine’s behaviour to Mr Shoppe who said that he would talk with Ms Irvine;
(l)    On 16 November 2007, the applicant’s doctor certified her as unfit for work due to a rash and increased pain in her neck. The applicant took sick leave from 19 November 2007 until 23 November 2007;
(m)     When the applicant returned to work on 26 November 2007, she learnt that the respondent had reported her injury to their insurance company, she was still on restricted duties;

(n)    The applicant’s symptoms had not improved and her work conditions were “disgraceful”. The applicant believed that Ms Irvine and Mr Shoppe were playing “mind games” with her. Mr Shoppe took several weeks to approve leave which the applicant had requested;
(o)    On 11 February 2008, the applicant attended Mr William Sears, neurosurgeon;
(p)    On 11 March 2007, the applicant attended Dr Seamus Dalton, orthopaedic surgeon/rehabilitation. Dr Dalton believed that the applicant’s physical injury was a result of occupational overuse strain from her employment;
(q)    A rehabilitation provider recommended changes to the applicant’s work environment, including changes to seating and computer arrangements, which was implemented by the respondent on 17 March 2008;
(r)    On 9 April 2008, the applicant returned to work after a period of leave. She had little assistance with the exception of a person to assist her with invoicing one afternoon per week;
(s)    Over the next few months, Ms Irvine and Mr Shoppe harassed and bullied the applicant by their “constant questioning of what [the applicant] could and could not do”;
(t)    On 15 April 2008, Ms Irvine said to the applicant “Can you type yet?” and, when the applicant responded “no”, Ms Irvine giggled and said “What a joke”;
(u)    On 1 May 2008, the applicant, Ms Irvine and Mr Shoppe attended private mediation arranged by the rehabilitation provider, which resulted in a plan for greater communication between them;
(v)    Over the next few weeks, Ms Irvine’s behaviour toward the applicant improved but Mr Shoppe’s behaviour toward the applicant did not improve;
(w)   During May 2008, the applicant had time off work due to unmanageable pain. However, when the applicant returned to work the behaviour or Ms Irvine and
Mr Shoppe toward the applicant worsened;
(x)    On 18 June 2008, the applicant attended her general practitioner. The applicant had a severe rash on her face and felt a real decline in her emotional and mental state. The applicant had informed her general practitioner about how
Ms Irvine and Mr Shoppe had treated her. The general practitioner told her that the rash was caused by work-related stress;
(y)    When the applicant returned to work, Ms Irvine and Mr Shoppe continued to harass and bully her;
(z)    During at least August and September 2008, the applicant was required to complete daily timesheets which recorded the detail and times of work performed by her and her breaks on the respective days;
(aa)    On 8 August 2008, Ms Irvine said to the applicant “You didn’t even do 12 invoices today” and “People around here are starting to get really cheesed off. I don’t know how long more they are going to keep you here and if they pay you out what are you going to do next”. Ms Irvine then said “We are going to change insurance companies and they will cut your claim off”. Mary Suklan was a witness to that conversation;
(bb)    The applicant experienced Ms Irvine’s comments as threatening;
(cc)     Over the next few weeks, the applicant attempted to increase her work output however experienced ongoing pain which was not relieved by medication;
(dd)    On 12 August 2008, Ms Irvine “went off the deep end again” and told the applicant that Ms Irvine “was not responsible for debtors anymore”, and that she could not assist with other work. Ms Irvine told the applicant to talk with
Mr Shoppe from then on. Ms Irvine said to the applicant “Anyway you just make a mess of things”. Ms Irvine “continued to harass” the applicant and said that she “was sick of all of this” and that she would not support the applicant and that the applicant had to report only to Mr Shoppe;
(ee)    Every Wednesday, Ms Irvine would “attack” the applicant about the amount of invoicing that the applicant did and compared the applicant with other workers;
(ff)    The applicant reported the behaviour of Ms Irvine and Mr Shoppe to her rehabilitation provider;
(gg)    Mr Shoppe started placing large amounts of work tickets for invoicing on the applicant’s desk and walking away;
(hh)    Ms Irvine’s and Mr Shoppe’s bulling and harassing behaviour towards the applicant in August 2008 was the “straw that broke the camel’s back” and the “catalyst” that began the applicant’s steep decline into depression;
(ii)    On 13 August 2008, Ms Irvine stated to the applicant that her pain was caused by “having the heater on and then going outside in the cold” and by “working on the houseboat”;
(jj)    The incidents in August 2008 led to “an explosion, the break down, the paralysis in the left arm, and my emotional reaction, and when I went to the doctors, I complained to him of having so much pain, and he urged me to calm down”;
(kk)     On 3 September 2008 there was an incident between the applicant and
Mr Shoppe;
(ll)    On 4 September 2008, the applicant reported that incident and her depression to her general practitioner;
(mm) The applicant did not return to work after 3 September 2008;
(nn)    The applicant complained to her treating medical practitioners about the conduct of Ms Irvine and Mr Shoppe, culminating in her making a claim for psychological injury;
(oo)    The applicant had no other history of depression/psychological illness or mental health issues and no other factors which affected her mental health;
(pp)    The applicant continues to experience a psychological condition and believes her depression is a direct result of the unfair treatment, bullying and harassing by
Ms Irvine and Mr Shoppe.

David Shoppe

Mr Shoppe gave the following evidence in statements dated 29 September 2008 and 13 October 2008:
(a)    The applicant’s duties as a permanent employee included reception, accounts receivable, invoicing, credits, rebates, meet and greet and general administration and reception duties. The applicant’s supervisor was Ms Irvine;
(b)    During 2007, the applicant went off on leave due to physical injuries and she returned to work on light duties. He was notified of a workers compensation claim made by the applicant in respect of the physical injuries and formulation of a rehabilitation plan which included workplace changes and restricted work duties. In the beginning, the applicant was not to type at all however over time the amount of typing increased from one hour to two hours with 10-minute rest periods. The majority of the applicant’s typing requirements involved invoicing and that was a small part of her total duties;
(c)    A shift report for the applicant was implemented in about September 2007 after discussion with the rehabilitation provider as part of business improvement initiatives. The applicant was one of a number of staff who was required to complete a shift report which had been progressively implemented across the respondent;
(d)    In the first week of September 2008, he was advised of a workers compensation claim made by the applicant in relation to psychological condition;
(e)    The applicant was at work on 3 September 2008, which was a day on which invoices were required to be submitted. The applicant was asked to “do what she can, in the context of her return-to-work plan, which at that stage was invoicing and typing up to 2 hours a day, in blocks of 10 minutes”;
(f)    He recalled the applicant speaking to him about concerns she had with Ms Irvine but he does not recall when or the exact concerns. He believed that “tension between them may have been due to personality differences” between the applicant and Ms Irvine. He does not recall formally speaking with Ms Irvine about that;
(g)    Ms Irvine could be “misinterpreted as being arrogant” and” there has been a strained relationship between [Ms Irvine] and most people at various times in the business” although it “never got to the stage where counselling of [Ms Irvine] was required”;
(h)    Mr Shoppe, Ms Irvine and the applicant attended mediation by the rehabilitation provider “to address alleged concerns [the applicant] had with her work plan and her overall work duties. This was based around situation prior to [the applicant’s] alleged injury in September 2007 where a staff member who had been on maternity leave had left and when this staff member returned to work, she later resigned. Work duties at this time were redistributed as they were when the staff member was on maternity leave. [The applicant’s] work plan had already accommodated for the increase in her duties. A number of management plans had been put into place for [the applicant] during this time and each time the injury management plan would expire we would receive another plan and this lead [sic] to no headway being made to accommodate our needs as an employer and [the applicant’s]”;
(i)    He does recall speaking at different times to the applicant about invoicing however these were normal type discussions. At times, due to the applicant’s work plan he utilised the services of his daughter once a week to assist in invoices and, after his daughter stopped doing that, he personally performed invoicing work which was part of the applicant’s responsibilities;
(j)    At no time was the applicant pressured to achieve a particular invoice volume of to go outside the parameters of the injury plan;
(k)    The applicant never reported to him any harassment of bullying by any other staff member;
(l)    He refutes any allegations that he harassed or bullied the applicant during the course of her employment at any time;
(m)     Leave approvals were not normally completed until later in the year and the respondent had not finalised its closure period for Christmas. Nobody told the applicant that she would be refused leave and there were no issues whether the applicant’s leave would be granted or not;
(n)    He believes that the respondent and himself was fair and reasonable in the management of the applicant’s physical injury.

Mary Suklan, Accounts Payable and Payroll Clerk employed by the respondent

Ms Suklan provided a written statement dated 29 September 2008 which stated:

“5.     …I do not recall being present during any conversation between Monique and Kathy about changing insurance companies…
6.     I have been present when Monique has made comments to Kathy about her workers compensation claim regarding to neck and shoulder. These comments were about if Kathy had a neck injury she should be wearing a neck brace, other comments about her typing and the light duties she was on. From the time I started here the relationship between Kathy and Monique has appeared to me to be tense at times and this has increased over the past few months. Kathy has mentioned to me in the past couple of months that Monique has been making comments to her about her work in general. I think the tension between Monique and Kathy is from both sides. I think Monique may have been frustrated with the increase in our work load due to Kathy’s plan and management did not seem to be doing much about the increase in our work.
7.     I attended a training session on the afternoon in early September 2008 and Kathy attended. She seemed to be okay at this time.
8.     I believe it was the next day I rang Kathy at home as she had not contacted work about turning up. I rang her to see how she was. Kathy sounded delirious. She was crying and out of control saying she was in pain and she could not handle it any more. She told me she was going to the doctor and I asked her if she needed help…
9.     Kathy has never spoken to me about any type of harassment or bullying she was experiencing with other staff and management people with the exception of her concerns with Monique and the fact she believed Monique was harassing her in the workplace over her suitable duties and the whole situation of her workers compensation for her shoulder and neck injury.”

Ms Suklan provided a written statement dated 13 October 2008 which stated:
“4.     Since I have been there, the relationship between Kathy Bijok and Monique Irvine has been a bit tense. I just think that the situation with Kathy having her neck problems, perhaps the return to work plan, and having to help her out, Monique might have got a bit of frustrated with that. I do not know that the relationship was like before I started here.
5.     I believe that Monique has been tolerant, but at times, she might have lost it a bit, with the frustration, because of not getting relief to help us out. Monique likes things to work smoothly and efficiently but things got a bit overloaded, and my work was also being disrupted as I had to answer phones as well. People were doing bits and pieces here and there, and because Kathy was off work quite a bit, and other people were doing the work, such as the Accounts Receivable and David was becoming involved with invoicing.
6.     I think at times, Monique might have been a bit pushy. That is just the way Monique is. She was not bullying or harassing Kathy, she just wanted to get things done.
7.     I do not recall ever hearing Monique make any comment to Kathy about her workers compensation being stopped due to any change in the insurance arrangements. I do not recall Monique saying to Kathy that the workers comp was being changed over.
8.     The only thing I heard Monique discuss with Kathy about the situation here, and it was not specific to workers comp, and Monique had said that management here was concerned about her being on and off work for so long, just informing her, not like a warning or threat, but just to be careful, and I saw it as Monique giving her some advice. I was not a party to the conversation. This could have been in about August 2008, but I do not take any note of it at the time. It was just a casual conversation. My only comment about it, is that I myself felt a bit uncomfortable being present when they talked about it.
9.     I have learned that there is a new insurer, but I learned of this in my capacity as Payroll officer, and Davit Shoppee also spoke to me about it.
10.    Kathy has made comments to me about Monique, that she would be upset at times with Monique, but she never said anything about being bullied or harassed.”

Monique Irving

Ms Irving provided a statement dated 13 October 2018, which stated:
“6.     Kathy and I have had our ups and downs. She can be very horrible. I never called her names or anything. In regards the work situation I had expectations that the work be done, and there was always ups and downs.
7.     In hindsight, one day she walked out, but she came back, and I said to my supervisor that we shouldn’t accept her back, because she has been very insulting to my person.
8.     But some days she was good, and doing her work and I was happy with her.
9.     But if her mood changed, some days she would accept nicely what I said to her, but other days she would react to me in an inconsistent manner. Some days I could say things to her, but other days she was impossible to talk to. I think she may have misunderstood what I would say to her and her reaction would be impossible.
…
18.    On 8/8/08 I never made any comment to Kathy about her workers comp. It may be that I was talking to Mary, and maybe she overheard that, and I was asking what they might do about it, but I do not know anything about workers comp or how it would work.
19.    I am not a subtle or diplomatic person, so if I am going to say something I will. My way is to say something, and then it is over, say sorry, and then we all get back to work again.
…
20.    I was worried that I would not say a word about her without her getting upset. She has no respect for me at all.
22.    English is not my first language and I am concerned that maybe I have said something that has been misinterpreted.”

Other evidence

The applicant provided a number of daily timesheets which appear to have been completed by her over a period of time in August and September 2008 and record the detail and times of work performed by the applicant and her breaks on the respective days.
An email dated 10 December 2007 from Ms Irvine to Mr Shoppe and another person with the subject heading “Yelling outburst from Kathy this morning at 8.30AM 10/12/07” stated:
“Paul and David
I just want this incident to be recorded as a receptionist should not be yelling at me like she had done this morning.
I want you to know that this incident is not the first one and she has been insulting and assaulting me this way in the past.
She has requested me to enter the receipts into DaVinci which I have done promptly without saying anything. I return the cheques and the remittance advice on her desk. She came back to me and yelled at me in front of all the estimators and sales persons Paul Barry – Michael Wagner etc were present) [sic] Her wording was as I can recall “I told you so I cannot touch the keyboard. I must not do any typing etc. “Every time you talk to me I getting pain in my neck”. I did not have time to tell her that I have done the entries and she just need to enter by writing the cheques in the deposit book and she does not have to enter anything.
In the past she has been insulting me and assaulting me verbally. Now I will have to call the police and report this incident.
I wish you to warn her as you have mention in the past if another outburst re-incurred [sic] again.”

Fiona Mather, Clinical Psychologist

In a report dated 10 November 2008 (which was possibly inaccurate), based on an initial assessment stated to have occurred on 17 November 2008, Ms Mather stated:

“Kathy attended an initial assessment on Monday, 17^th November 2008 and presented with features of Pain Disorder with both Psychological features and a General Medical Condition.
At the present time Kathy reports symptoms of pain in her neck and shoulder region. Specifically, Kathy reported feeling teary and sad at times and frequently agitated when thinking about work and her current situation. Kathy reported experiencing frequent sleep disturbance often related to her pain and accompanied by excessive nocturnal rumination. In addition, Kathy reported feeling unable to engage in many activities (both mundane and pleasurable) due to the level of discomfort in her neck and shoulder area. Kathy reported feeling keen to reduce her pain medicine and she expressed concern at her inability to think clearly whilst taking medication. Kathy denied excessive alcohol consumption and reported no previous history of depression or anxiety.
Kathy provided a detailed summary of the history of her symptoms which included a “neck injury caused by continuous and repetitive tasks at work”. She reported noticing neck pain from early July 2006. Since then, Kathy indicated that the pain fluctuated to some extent but noticeable flared up at busy times at work when she was under an increased workload. In addition, Kathy reported experiencing workplace bullying and feeling “demoralised and humiliated” by her perceived lack of support from her workplace with her pain problem.
In regards to psychometric information obtained on assessment, as can be seen in the graph below, Kathy is reporting significant mental and physical health concerns (SF-12), elevated Depression and Stress (DASS42) and high levels of anxiety (PSWQ; Ant1; MCQ). This is generally consistent with her verbal reports during the assessment.
From the information obtained in the initial assessment it appears as though Kathy is experiencing symptoms of Pain Disorder with both Psychological features and a General Medical Condition.”

In a report dated 18 January 2009, Ms Mather noted that at an initial assessment on 17 November 2008, the applicant presented with features of Pain Disorder with both Psychological features and a General Medical Condition. The applicant attended regular treatment sessions with Ms Mather to learn how to better manage her chronic pain.
In a report dated 9 March 2009, Ms Mather noted that the applicant reported “significant anxiety in her ability to return to the previous workplace given her reported history of feeling bullied, harassed, and largely unsupported since her injury” which was a significant barrier to the applicant’s rehabilitation despite pain management treatment and strategies.

In a report dated 19 May 2009, Ms Mather noted:
“Despite a decision being reached that Kathy would not return to her previous employment situation, Kathy has continued to report heightened distress associated with work. She reports ongoing nightmares and nocturnal rumination associated with her previous workplace. Kathy also reports being fearful of approaching a new workplace as she is worried that they may “be unsupportive” and that she will be “unable to cope”. As a result of her increased distress, Kathy has also reported higher pain levels and she appears to continue to have difficulty being able to comprehend the relationship between the two…”

Dr Michal Baghiani, Psychologist, Recovre

In a report dated 3 July 2008, based on a psychological assessment of the applicant on 1 July 2008, Dr Baghiani stated that on the Depression Anxiety Stress Scale 21, the applicant scored in the “Mild” range for Depression and in the “Moderate” range for Stress and Anxiety.
Dr Baghiani noted that:

“In terms of medical history, Ms Bijok denied any significant incidents prior to her current workplace related injury.
Ms Bijok also denied any psychological or psychiatric history, noting that she worked through her own emotional pain when ending her relationship with her fiancé of 13 years. She reported that she had previously been tearful and upset over her current physical condition, yet noted that she has accepted her condition now and has a more positive outlook with minimal anger.”

Further, Dr Baghiani noted that the applicant reported pain across her neck, both shoulders, down both arms and down the centre of her back which was currently “Distressing”, at its worst was “Excruciating” and at its least was “Discomforting”. Dr Baghiani noted that the applicant reported no clinically significant symptoms. She stated that the applicant “reported to have previously been angry, upset and easily became tearful when thinking about her injury and pain, yet noted that this is no longer the case as she reported to have a more positive outlook on her situation. She reported no change to her appetite yet advised that her sleep is disturbed as a result of pain”. Dr Baghiani recommended that the applicant participate in a multidisciplinary pain management program.

Dr Seamus Dalton, Specialist in Rehabilitation Medicine

Dr Dalton prepared a number of reports in relation to the applicant and noted the applicant’s ongoing pain including in the context of psychological factors.

In a report dated 25 July 2008, Dr Dalton stated:
“The workplace is an ongoing issue. She has managed to do an hour of keying a day in up to 10 min breaks but tells me that she has to take Panadeine Forte to cope. Her problem at the moment is invoicing. She tells me that the other day she did three session of invoicing of 4mins, 9 mins and 5 mins and by the afternoon she had widespread neck and shoulder girdle pain. I have tried to explain that her pain appears muscular and there is no pathological condition which would readily account for her symptoms. Her pain is triggered off by seemingly very short periods of repetitive activity and I think that the best approach now is to upgrade her to stage two whereby she can do up to 2 hrs of keying a day but I do not think that she is ready to do filing and I have told her that she can do short periods of invoicing provided this is self-paced. Without going into too much details there are clearly ongoing issues at work which I think are an obstacle to her further recovery. She still has not undergone any pain management counselling but I gather an initial assessment has been performed and hopefully that will get underway as soon as possible.”
In a report dated 24 June 2010, based on his review of the applicant on that day, Dr Dalton noted the applicant’s physical rehabilitation appeared to be complicated by her psychological condition and stated:

“I feel that we are at an impasse and that Kathy is not going to move forwards until issues related to her claim have been resolved. Much of this centres around the fact that she has not been terminated from her previous employment.
… it is claim-related issues and psychological stressors which continue to hamper attempts at her physical and vocational rehabilitation.”

Dr Newman Harris, Consultant in Pain Medicine & Consultant Psychiatrist

Dr Harris prepared numerous reports/correspondence in relation to the applicant and noted the applicant’s ongoing pain in the context of psychological processes.

In a report dated 19 March 2009, based on his review of the applicant on that day, Dr Harris stated:
“Ms Bijok explained that she developed a neck injury through over-work in association with poor workplace ergonomics. Ms Bijok tells me that imaging has demonstrated cervical disc pathology causing nerve root impingement. As a result, she experiences neck pain, headaches, burning pain and tightness in the right trapezius which radiates into the right upper arm, and tightness with a stabbing sensation in the left upper trapezius. Over the following months, with pain persisting and disharmony with the workplace advancing, she developed a secondary “psychological injury”, she told me.
She provides a history of variable degrees of supportiveness and concern from the employer, but it is noteworthy that her supervisor Monique is described as having “harassed” her for the full seven years of her employment with this company. Towards the end of her time there Monique allegedly stated, in front of a witness, that everyone was “fed up with all this” and that “we’re going to change insurers and cut off your claim”. Ms Bijok lamented that no-one from the administration of the employing company ever telephoned to enquire about her progress and wellbeing, a historical detail which you will recognise as asserting a negative prognostic influence on her course.
Ms Bijok indicates that her symptoms have tended to fluctuate somewhat, but she was particularly alarmed when, around early September last year, she suffered a most severe exacerbation of her pain which, temporally at least, was associated with Monique’s last verbal abuse of Ms Bijok. ‘The pain got so bad I was screaming and crying’ and was unable to go to work, and has not returned.”
In a report dated 20 May 2009, Dr Harris stated:
“As indicated previously, I do not believe there is much chance of her returning to her former employer. She remains hounded by anxiety over this, even dreams of co-workers from that place pursuing her and urging her to return because she is needed there. Kathy expresses the view that a prompt termination of her relationship with the employer would be of benefit to her in taking off some of the pressure.”
In a report dated 4 June 2009, Dr Harris stated:
“Ms Bijok remains rigidly stuck in a phobic process relating to the workplace, and to a lesser degree towards employment in general. My attempts to encourage her towards even menial paid roles in an imaginal setting produce an assortment of suppositions and fears relating to bullying and harassment…
Her pain problems remain of significance but I cannot help feeling that her psychological process is of greater prominence; that her physical problems prevent her from returning to full duties presents an obvious secondary gain.”
In a report dated 28 September 2009, in response to questions asked by the insurer,
Dr Harris stated:
“Do you believe Ms Bijok’s current psychological status is die to her neck injury or as a result of the bullying and harassment suffered at work?
Ms Bijok is a driven, obsessional person who seeks to provide a level of function and performance which is beyond reproach. She certainly is now, but I suspect that she has always been anxious regarding any potential to attract negative appraisal through actions which others might consider suboptimal. The perceived bullying and harassment at work appears to have placed her under a pressure such that her neck issue was fuelled. In other words, the musculoskeletal issues are related in their perpetuation to the bullying and harassment. Indeed, there is a causative relationship in both directions, as aspects of bullying and harassment are reported to relate to the employer’s failure to provide appropriate allowances in the context of her pain. Her current psychological status is plainly attributable to both of the above, stressors being cited by her which relate to both issues. Whilst I appreciate the desirability of teasing out the relative aspects of attribution, I am unable to provide you with any greater clarity in this regard.
…
What do you believe is the reason for a minor neck strain injury to be unresolved two years post-injury, particularly in light of the fact that Ms Bijok has not worked for some time?
… The issues which have complicated, reinforced and perpetuated this difficulty include her personality structure, the level of her phobic anxiety with regards to pain and with regards to activities that are perceived as “bullying”, and the very unhelpful impact (both physically and psychologically) of a protracted period off work.”
In a report dated 12 January 2010, based on his review of the applicant on that day,
Dr Harris noted that the applicant’s “physical pathology is not of sufficient magnitude as to explain the totality of her disability” and “the issue is that her psychological processes (fear of re-injury, etc.) are getting in the way of her return to function. Her ongoing anxiety symptoms regarding her former workplace are also unhelpful”. He sought approval for the applicant to be referred to the ADAPT pain management program.
In a report dated 9 February 2010, Dr Harris noted that the applicant “remains in a sad state, wracked with varying degrees of substantial pain, associated anxiety about her capacities, and related symptoms such as ongoing nightmares pertaining to her former workplace”.
In a report dated 11 October 2012, based on his review of the applicant that day, Dr Harris stated:

“[The applicant] remains unhelpfully enmeshed in memories of maltreatment by the employer and then by the insurer. Kathy maintains a low threshold for arriving at negative interpretations of interactions and continues to roll out quotes from various people as if verbatim and accurate; it is noteworthy that a couple of the comments which she attributed to me cannot be accurate as at least one of them is reflective of an opinion which I have never held. Rather, it is I would suggest, indicative of how she has interpreted such comments from her vantage point of hypervigilance and expectation.

Dr G Artinian, Treating General Practitioner

In a questionnaire report dated 25 January 2012, Dr Artinian noted his diagnosis of “Anxiety and stress” and “neck pain”. He noted that the applicant’s “psychological problems” were a risk and barrier to the applicant’s return to work and opined that she required “pain management & psychiatrist review”.

Dr Paul Wrigley, Pain Management and Research Institute

In a report dated 30 March 2012, based on his review of the applicant in conjunction with other doctors, Dr Wrigley stated:

“Ms Bijok presented as being extremely disabled by her pain and her need to avoid activities that increase her pain…
… She describes having extremely debilitating flare ups which can last for two to three weeks and she last experienced on of these in January. She reports that he sleep is disturbed by nightmares relating to her employer as well as pain…”

He recommend that the applicant undertake the ADAPT pain management program.

NSW Department of Anaesthesia & Pain Management, Northern Sydney Local Health District

A progress report dated 26 October 2012 confirmed that the applicant participated in Stage 1 of a pain management program, referred to as ADAPT, during October 2012 and made “modest” gains and had a low level of confidence to manage her pain. The report noted (in Section 5) that “[a]t the beginning of Stage 1 of the program, Ms Bijok indicated that her goal was to increase her sitting tolerance and to be able to trust her work colleagues and employer again…”.
A report dated 23 November 2012 reported limited physical progress and little psychological progress. It noted that a planned rehabilitation case conference with the applicant and the respondent had not taken place.
A six-month follow-up report dated 11 June 2013, based on observations of staff, objective psychometric tests and the applicant’s report of her progress, noted that the applicant had made limited physical progress and little psychological progress.

Dr Ben Teoh, Consultant Psychiatrist & Physician in Addiction Medicine

In a report dated 5 March 2013, based on his review of the applicant on an unknown date,
Dr Teoh noted that the applicant reported a workplace injury and that she suffered bullying and harassment at work. He stated:

“She has been employed by Lindsay Tate and Partners since 2001, and she stopped working on 3 September, 2008, because of a “nervous breakdown”.
Ms Bijok reported that in July 2006, she was working at her desk, doing data entry, when she experienced neck pain, which persisted for several months. She said that she had to work continuously without any breaks.
She consulted her general practitioner in September, 2007. She was told that she had a “pinched nerve” affecting her right scapula. She was prescribed analgesic medication.
She was experiencing chronic pain. She was referred for physiotherapy.
She could not use her right hand, and she took time off work.
Ms Bijok reported that she suffered bullying and harassment.
She said that there was a delay in reporting her injuries to the insurance company by her employer.
She reported that the supervisor had suggested that her “injury” was not caused by her work, and that she was not really suffering from a physical injury. She felt humiliated at work.
In June, 2008, she reported feeling “flushed” and agitated. She was going through a rehabilitation program. She felt that her employer was not supportive, and that they have doubted her injury.
She reported that on 6 September, 2008, she had not felt well, and she started screaming with severe pain on her left arm. She was crying continuously. She was prescribed Endone.
Further investigations revealed a “nerve root compression”.
She was referred to a psychologist, Fiona Mather, in December 2008.
She was later referred to a psychiatrist/pain specialist, Dr Newman Harris, from 2008 to 2010.
Ms Bijok is currently attending an ADAPT Program, for chronic pain. She is currently on Lexapro 20mg, and Panadeine Forte. She is not seeing any counsellor or specialist.
She has been complaining of chronic pain affecting her neck, scapula and left arm.
She has problems with insomnia and nightmares She has been feeling “stressed”, and she has avoided social contacts. She has been feeling depressed and lacking motivation. She has been preoccupied with negative thoughts.
Ms Bijok said that she has been under pressure from the Insurance Company to return to Sydney and participate in a rehabilitation program.
She has been feeling uncomfortable with the prepared return to work plan. She said that she cannot do, “first point of contact job”, and tasks involving repetitive movements.
Ms Bijok believes that she can do jobs that involve “answering calls”, speaking to people, and feeling physically comfortable.
She has no past history of psychiatric or psychological illness…”

In the report, he stated a diagnosis of Chronic Adjustment Disorder with Depressed Mood (DSM IV diagnostic criteria) and stated “[i]t is my opinion that her condition is caused by the injury at work, which has caused physical pain and disability”.

In a report dated 15 August 2013, based on his review of the applicant on 8 August 2013,
Dr Teoh noted that notwithstanding the applicant’s completion of an ADAPT program for chronic pain, she continued to experience chronic pain. He stated:

“She complained of persistent chronic pain. She was depressed and preoccupied with negative thoughts.
She was preoccupied with her pain and physical disability.
She continued to experience intrusive memories of the humiliation and harassment at work.
There was no evidence of suicidal ideation or psychotic symptoms.
Her cognitive functions were intact; there was no evidence of short of long term memory impairment.
Her prognosis for recovery is poor, as her condition has become chronic, and has not responded to treatment.”

In that report, Dr Teoh confirmed his diagnosis of Chronic Adjustment Disorder with Depressed Mood (DSM IV Diagnostic Criteria) and opined that the applicant had reached maximum medical improvement. He assessed 19% Whole Person Impairment.

Various handwritten clinical notes of Dr Teoh were submitted into evidence:
(a)    A clinical note which appears to be dated 5 March 2013 or 8 August 2013 states “nightmare about work”;
(b)    Assessment notes dated 8 September 2013 (which appears was possibly erroneously dated and should have been dated 8 August 2013) noted:
(i)The applicant reported that she suffered “bullying and harassment” and that her “supervisor had suggested that her ‘injury’ was not caused [sic] her work, and that she was not really suffering from a physical injury. She felt humiliated at work.   In June 2008, she reported feeling ‘flushed’ and agitated. She was going through a rehabilitation program. She felt that the employer was not supportive, and that they have doubted her injury”;
(ii)“She was distressed with physical pain and could not sit for long periods”;
(iii)“She reported feeling depressed, and preoccupied with negative thoughts. There was no evidence of suicidal ideation or psychotic symptoms;
Her cognitive functions were intact, there was not evidence of scan CT… impairment”;
(iv)“Her presentation is consistent with a diagnosis of… (DSMIV)… It is my opinion her condition is caused by the injury at work which has caused physical pain and disability”.

Veronica Engel, Registered Psychologist, Peak Psychology

In a report dated 25 November 2015, Ms Engel stated that she had undertaken an initial psychological assessment of the applicant. Ms Engel stated that the applicant scored “severe on stress, severe on depression and normal on anxiety”. She recommended that the applicant receive psychological counselling and other treatment to address her symptoms.
In a report dated 26 April 2016, Ms Engel noted that the applicant had completed a treatment plan to address symptoms of her diagnosed anxiety and depression.

Associate Professor Allan Molloy, Consultant Anaesthetist & Pain Management Specialist

In a report dated 15 November 2019, based on an examination of the applicant on 14 November 2019, Associate Professor Molloy stated that:
“This 56-year-old lady has persistent pain complicated by a range of psychosocial factors such as depression, stress and anxiety, high catastrophising and low confidence to manage her pain. She has attended a rehab and pain programs. I do not have the report from ADAPT in 2012 and do not know what the outcome was.
…
Ms Bijok has neuropathic pain and associated osteoarthritis in her neck.
…
Ms Bijok relates the injury to excessive working and overuse at the workplace as described. I consider her employment as the substantial contributing factor to the injury sustained by her.
…
The onset of pain 13 years ago was attributed to repetitive tasks and other injuries related to the workplace. The imaging findings that have been presented could be associated with a whole range of disabilities and distress. This lady is very distressed and disabled and these psychosocial factors are complicating her recovery. The nature and conditions of this lady’s employment with Lindsay Yates Group was a substantial contributing factor in causing her condition.
The employment is a substantial contributing factor in causing aggravating, accelerating and exacerbating her condition.”

Dr Thomas Oldtree Clark, Consultant Forensic Psychiatrist

In a report dated 5 March 2020, based on an examination of the applicant on 4 March 2020, Dr Clark stated that:

“The diagnosis is of a Persistent Depressive Disorder.
…
Yes, her employment was a substantial contributing factor to her psychiatric injury.
…
Her employment was the cause of the development of her psychiatric injury, which has persisted since and therefore was the substantial contributing factor. There was no evidence presented of other cause.”

In that report, in response to the question “Please detail my client’s present physical capabilities and identify any activities, whether work or recreational, which she should avoid”, Dr Clark stated “She is in chronic pain and unlikely to be able to work. She has restricted recreations and should avoid repetitive movements”.

In a further report dated 5 March 2020, Dr Clark stated that he assessed that the applicant had 17% Whole Person Impairment as a result of her diagnosed psychiatric disorder, a Persistent Depressive Disorder”. He stated “This is a primary psychiatric injury”.
In a report dated 26 September 2020, Dr Clark stated that:

“1. Whether or not my client suffers from a primary psychiatric condition and your reasoning?
She suffers a primary psychiatric injury, a Persistent Depressive Disorder, which is a recognised primary psychiatric disorder.
I have detailed and quoted the DSM-5 criteria for this disorder in my prior report. A mentally ill person is defined under the Mental Health Act, as someone who has a mental illness.
She still experiences nightmares, frightening recollections about being victimised and picked upon. That is, she also has a disorder of thinking. She experiences fearful emotions with consequent withdrawal.
In particular, her sleep ins problematic, she has trouble falling asleep, wakes early and cannot get back to sleep.
She was bulled to such an extent that she developed the above symptoms, leading to her Persistent Depressive Disorder.
2. In relation to your assessment of permanent impairment, does any impairment related to her secondary psychological sequelae. Please explain your reasoning in detail.
No. It is not a secondary psychological injury, since it is not cause by a general medical condition. It is not caused by a drug. It is a mental disorder which involves changes in thinking, cognition, emotion and behaviour and lasts over 2 months.
She suffers a primary psychological (psychiatric) injury.”

In a supplementary report dated 5 January 2021, Dr Clark stated that:
“You have asked for details of the work incidents, which Ms Bijok said caused her to be humiliated, bullied and harassed.
Whilst working in reception accounts, she had to answer the phone using both hands at the same time. She had to perform data entry with no breaks throughout the day. These incidents cause her injuries to both shoulders, her arms and neck and resulted in time off for 12 months.
She was bullied by her employers when she returned, pressured to get work done. She had pains in her shoulders particularly her left side and she saw a neurosurgeon. Bullying and harassment became a problem, her employer very short and abrupt, giving no concessions. Her supervisor became angry with her, saying there was nothing wrong with her. Eventually, she felt the office ganged up against her.
She took many weeks off work for medical treatment.
When she returned to work, she was humiliated, bullied and harassed because of this. She refers to this as “a toxic environment”.
She developed a Persistent Depressive Disorder, a primary psychiatric injury. Her self-care and personal hygiene deteriorated. She suffered insomnia with flashbacks and nightmares to the harassment by her employers.”

Dr Kirsten Missen, Treating General Practitioner

In a report date 18 January 2021, Dr Missen noted the applicant’s current conditions, needs and treatment plan. These included her chronic back and neck pain and depression.

Clinical notes

Various clinical notes of the Chatswood Medical Centre, Dr William Sears and The Fix Program were also admitted into evidence.

Respondent’s evidence

The respondent relied on some of the applicant’s medical evidence which is set out above. In particular, the respondent relied upon:
(a)    Email from Ms Irvine to Mr Shoppe dated 8 October 2013;
(b)    Report of Dr Baghiani, Psychologist, Recovre dated 3 July 2008;
(c)    Reports of Dr Dalton dated 24 October 2008, 14 November 2008, 26 November 2009, 25 February 2010, 24 June 2010, 3 February 2011;
(d)    Reports of Fiona Mather dated 18 January 2009, 9 March 2009, 19 May 2009;
(e)    Questionnaire report of Dr Artinian dated 25 January 2012;
(f)    Reports of Dr Harris dated 19 March 2009, 20 May 2009, 1 July 2009, 24 August 2009, 28 September 2009, 21 October 2009, 17 November 2009, 7 January 2010, 12 January 2010, 9 February 2010, 1 November 2010, 11 October 2012;
(g)    Report of Ms Engel, Peak Psychology dated 25 November 2015;
(h)    Reports of Dr Teoh dated 5 March 2013 and 15 August 2013.

The respondent also relied upon the following evidence.

Fiona Mather, Psychologist

In a Psychological Treatment Plan dated 19 November 2008, Ms Mather stated:

“Section 2: Current Psychological Symptoms
Kathy reports significant distress associated with chronic pain, anhedonia, sleep disturbance, impaired concentration, feeling teary & sad, increased agitation and anxiety when thinking about her workplace and her future.
DSM-IV Diagnosis of workplace injury to which this plan relates
Provisional diagnosis: Pain disorder with both psychological factors and a General Medical Condition.
…
Section 4: Identifying barriers to RTW and recommended strategies to overcome the barriers
What premorbid conditions may have an effect in the worker’s recovery and RTW?
No pre-morbid factors identified as yet, however, Kathy reports an ongoing history of bullying in her workplace that may require further investigation.”

Dr Graham Edwards, Psychiatrist

In a report dated 8 October 2013, based on an independent medical examination of the applicant on 1 October 2013, Dr Edwards stated:

“HISTORY
She sustained a physical injury initially in 2007, she said. Prior to that, she had some ongoing physical symptoms, which began in 2006, when she was typing and phone answering without a break. She started to experience neck and right shoulder pain initially, but then it became more aggravated.
She said that on 5 September, 2007, she was all day answering phones and data entry, and the pain became stronger. There was much pressure to get the work done.
Her general practitioner told her that she had a pinched nerve, and referred her for physiotherapy. She went back to work, but the pain persisted and became severe. She then had a CT Scan, which showed degenerative disc changes in her spine. She kept attending to work. She said that there was pressure by the general practitioner to do so, but then she said bullying and harassment by her employer became quite a significant problem. She said that he would talk to her but be very short and abrupt with her, and not supportive. He expected her to carry out her normal duties as though nothing had happened.
Her general practitioner prescribed her Panadeine Forte to cope with the pain. She could not use her right arm anymore, and had to type with her left arm. Her employer became angry with her, telling her that she was “not that wick”, and her supervisor again was saying that there was nothing wrong with her.
In November, 2007, she had a week off on sick leave, and at that stage, the injury had been reported to Allianz. Her employer continued to be non-supportive, and the months went by. In 2006, a rehabilitation officer tried to schedule suitable duties, like a special chair. She struggled on. The torment was become worse. She was then told that they were all becoming “cheesed off” with her, and belittled her. She asked for holiday leave.
In June, 2008, she developed a bad rash around her neck and face, which her general practitioner said was due to “bad stress”.
She then saw her general practitioner on 4 September, 2008, Dr Artinian. At that stage, she was screaming with pain, and she had tried so hard. They continued to be unsupportive at work.
She saw a specialist, Dr Thornton, and at that stage, she said she was crying excessively due to pain. She could not sleep. She was depressed, and she was put on Endone. She has not worked since, and has not been allowed to go back to that work situation.
PRESENT PHYSICAL SYMPTOMS
She has had various physical and mental rehabilitation programs. The most recent was ADAPT, which she said she self-funded for $10,000. By Dr N Harris. She said it was a nice distraction during all the various psychological treatments like deep breathing, relaxation etc, but nothing affected the pain, which did not improve.
She still continues with back, neck and shoulder pain, which radiates down her left scapula to her left elbow, and intermittently in her right arm. She still continues on Panadeine, two a day. She is not on Endone at present, but she has been on multiple analgesic medication for severe pain. These have included Voltaren, Panadol, Nurofen Plus, Endone and Lyrica, which were not effective, and also caused side effects.
MENTAL SYMPTOMS
She said that she is always knotted up inside. She is very shaky. She has episodes of black moods at time. She has occasional panic and anxiety attacks, but less frequently recently. She has low energy levels when the pain becomes aggravated. She has less interest in her usual activities, she likes movies, but she cannot go to a movie that she would like, as she has to stand up.
She has nightmares, about once a week, mainly related to memories of the harassment and bullying in the workplace, or seeing the employer. She has variable sleep disturbance, crying episodes. She is socially avoidant. She initially had thoughts of self-harm, but not anymore. She has variable memory and concentration difficulties. There is some improvement in her mood following the course last year, but no improvement with the pain. She is still not able to enjoy much at all, except to go to the pool.
She is mainly under the care of her general practitioner, Dr Artinian, who is very supportive. She has been on various antidepressant medications, including: Pristiq, Cymbalta, Zoloft and Lexapro, which were not effective or had any side effects, except that she is presently on Lexapro, two tablets daily, which has been the best for her.
She did have some treatment by Dr Newman, Psychiatrist Pain Specialist, who was involved with the ADAPT Program, who she saw several times. He was supportive, and there was some improvement in her mood, but it did not affect the level of her pain.
…
Her diagnosis is of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to a workplace injury in 2007.
1. Do you consider that Ms Bijok is suffering from a diagnosable psychiatric condition?
Ms Bijok, in terms of the DSM IV TR Diagnostic Criteria of the American Psychiatric Association, is of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to a workplace injury in 2007.
2. Do you consider that Ms Bijok’s current psychological condition has arisen secondary to her workplace injury to her neck? If so, please elaborate on this relationship. If no, please discuss what you consider to be the cause of her current condition.
Yes, Ms Bijok’s current psychological condition has arisen secondary to her workplace injury. This is related to her ongoing chronic pain disorder. The clinical picture has also been aggravated by her strong memories of her perceptions of intense bullying, harassment and lack of emotional support in the workplace environment.”

Dr Edwards opined that the applicant had reached maximum medical improvement and had very limited capacity for work. He assessed 6% Whole Person Impairment.

Dr Bradley Ng, Consultant Psychiatrist

Dr Ng’s report dated 21 March 2019, based on a review of available records and file data and interview of the applicant, stated:

“Ms Bijok stated that she started developing significant neck and shoulder pains in July 2006. She was working at an ergonomically inappropriate desk for long periods and there was a lot of bending and twisting. She had massage but no formal treatment. The pain worsened with increase of physical workload and some staff leaving. There was a change in ownership and there were difficulties with management and she stated that she went off work originally in September 2007 with a neck injury. She could not type anymore. She had a burning sensation on the right side of her neck. She had shoulder problems. She had to stop because she could not cope with the pain. She had physiotherapy and a CT later showed a disc bulge. She was on Endone and saw her acupuncturist but did not have any surgery or procedures.
Ms Bijok stated that management were nasty towards her and insinuated that she was a malingerer. They were dubious about the validity of her physical problems and injury. They did not believe she reported that she could not type. She returned to full-time work on light duties; “they really got aggressive towards me”. Ms Bijok was on light duties on her return to work plan for one year between September 2007 and 2008 before finally stopping work in September 2008. She did have an assessment for possible pain management counselling in about July 2008. She stated that her doctor, Dr Dalton, a sports physician may have started her on some Zoloft and lorazepam in March 2008. She did some physiotherapy programs.
I enquired about the reasons for stopping work in September 2008. Ms Bijok stated that there was a horrible work environment and they were piling work on to her. She said she was overloaded with invoicing work. She recalled having a rash on her face in June 2008 which she believed was stress-related. When I brought up the issue of being forced to complete a daily time sheet demonstrating her work activities she admitted that she had forgotten all about it but it was part of the bullying and harassment.
…
Current Symptoms:
Ms Bijok reported herself as low in mood and quite pain-focussed. She had not had suicidal ideas for a long time…
I enquired about stressors. Ms Bijok reported ongoing pain problems. It is persistent. She has neck pain which radiates into her left shoulder and down her left arm and sometimes radiates into her right shoulder. She says she cannot sit or stand for long periods of time. This triggered pain in her neck…
In terms of sleep, Ms Bijok had middle insomnia due to nightmares. She has nightmares about her employer at least once a week. If she has a poor night’s sleep it triggers pain the following day and she becomes depressed and moody. She is not quite sure why a lack of sleep triggered her pain.
…
MENTAL STATE EXAMINATION
Ms Bijok presented as a middle-aged woman who was casually dressed and presented quite tidily. She was in clear consciousness. She carried a large bag of notes and files and personal possessions in her right hand without too many difficulties. We developed a reasonable rapport. She was cooperative. There was no distractibility or irritability. Her mood was described as low and anxious and her affect was restricted. There was no formal thought disorder or evidence of psychosis. There were no delusions or hallucinations. There were no strong suicidal or homicidal ideas. Her cognition appeared grossly intact. Her insight was fair and her judgement was reasonable.
…
SUMMARY AND ASSESSMENT:
The DMS IV/5 diagnosis is an adjustment disorder with depressed mood and anxiety, chronic, mild to moderate severity. The bulk of the disability appears to be pain-driven.
Ms Bijok stated that there were number [sic] of unpleasant interactions that occurred after she put in her WorkCover claim for her shoulder and neck problem. Indeed, all of the negative interactions between her and her employer appeared to be related to the compensation process. Obviously these are disputed and I refer you back to the statements in 2008 that were gathered by two investigation companies. There is no further evidence to suggest anything outside of those unpleasant interactions except for Ms Bijok’s own account.
In summary, it is not unreasonable for a secondary psychiatric injury to emerge out of chronic pain. However, there is no event suggesting a primary psychiatric injury. There certainly may be unpleasant interactions in the context of the primary workplace injury. Difficult workplace situations in the context of a primary injury may lead to secondary psychiatric injury. In other words, but for the primary physical injury, there would not be any mental health problems. There is no evidence that there would have been a primary psychiatric injury from distinct events separate from the initial pain problems.
…
3. Diagnosis
The DSM IV/5 diagnosis is adjustment disorder with depressed mood and anxiety, chronic, mild to moderate severity.
4. Causation
…
It would appear that Ms Bijok has developed long-term secondary depression and anxiety symptoms in the context of a pain condition that was regarded as a primary workplace injury. In my opinion the psychiatric symptoms are secondary to her physical injury of the upper extremities and cervical spine. There is no evidence of a primary psychological component that rests outside of the pain issue and its aftermath.
I note that there are allegations that Ms Bijok was pressured from the insured to increase her keyboarding and invoicing activities and there was requirement that she keep a time sheet of her activities. In my opinion these activities were possibly in the context of her initial workplace injury and hence would give rise to the secondary psychiatric symptoms. I also note that these events were disputed. There is no other evidence that there was a separate incident that led to her primary psychiatric injury. If she had not developed shoulder and neck pain all of these issues would have never developed.
…”

Oral Evidence

No oral evidence was given

SUBMISSIONS

Written submissions were made as follows:
(a)    By the applicant’s counsel dated 14 May 2021;
(b)    By the respondent’s counsel dated 26 May 2021, and
(c)    By the applicant’s counsel in reply dated 2 June 2021.

Both counsel referred to relevant legislation, case law and evidence.

Submissions of applicant’s counsel

The applicant’s counsel submitted that, in light of the position taken by the respondent in its
s 78 notices, it cannot be disputed that the applicant suffers from a psychological condition and, on that basis, the only matter for determination is whether the applicant has sustained a primary or secondary psychological condition.
The applicant’s counsel submitted that the evidence has established numerous real events that occurred in the workplace in which the applicant perceived herself to have been the subject of bullying, harassing and intimidatory conduct. Those matters were not denied by the respondent in its section 78 notices and must be accepted. In any event, they are not denied and are in fact supported by the respondent’s own evidence and the evidence of its employees.
The applicant’s counsel submitted that the weight of the evidence overwhelmingly supported a finding that the applicant suffered a primary psychological injury as a result of the continued course of conduct at the hands of her supervisor whilst employed by the respondent.
The applicant’s counsel submitted that once the issue is determined, the matter ought to be referred to a medical assessor for assessment of permanent impairment.

Submissions of respondent’s counsel

The respondent’s counsel submitted that, in light of the decisions of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) and Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223; 85 ALJR 1130, “it is the Respondent’s position, as it always has been, that it is the expert medical evidence, both treating and independent, on causation which that preferred to common sense when determining causation in the current matter, and the preponderance of such expert evidence is that the Applicant’s psychiatric condition was caused as a result of her chronic pain condition which falls squarely within the definition of a secondary psychiatric condition” (paragraph 5).

I am satisfied that there were real events in the course of the applicant’s employment which the applicant perceived to be unfair treatment, bullying, harassing and intimidating by her work managers and which caused the applicant to feel emotional upset and distress.
Having regard to all the evidence including the medical evidence, I am also satisfied that at all relevant times since the physical injury the applicant also endured ongoing pain related to her physical injury.

The medical evidence in relation to psychological injury

There is no dispute, and I accept, that the applicant has a psychological injury within the meaning of s 11A(3) of the 1987 Act.

I note that is consistent with the overall medical evidence, although over the years there have been varying diagnosis of the applicant’s psychological injury:

(a)    In 2008, Ms Mather, clinical psychologist, assessed elevated Depression and Stress (DASS42) and high levels of anxiety (PSWQ; Ant1; MCQ) and diagnosed Pain Disorder with both Psychological features and a General Medical Condition;
(b)    In 2008, Dr Baghiani, psychologist, assessed that on the Depression Anxiety Scale 21, the applicant scored in the Mild range for Depression and in the Moderate range for Stress and Anxiety;
(c)    in 2008 and in 2010, Dr Dalton, Specialist in Rehabilitation Medicine, noted that the applicant had psychological factors and stressors which impacted her physical rehabilitation;
(d)    in 2009, Dr Harris, Consultant in Pain Medicine and Consultant Psychiatrist, noted psychological processes including a “phobic process relating to the workplace”, “phobic anxiety” and “anxiety symptoms”;
(e)    in 2012, Dr Artinian, general practitioner, diagnosed “anxiety and stress” and “psychological problems”;
(f)    in 2013, Dr Teoh, Consultant Psychiatrist, diagnosed Chronic Adjustment Disorder with Depressed Mood (DSM IV Diagnostic Criteria);
(g)    in 2013, Dr Edwards, Psychiatrist conducting an independent medical examination, diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood;
(h)    in 2015, Ms Engel, psychologist, assessed that the applicant scored “severe on stress, severe on depression and normal on anxiety”;
(i)    in 2019, Dr Ng, Consultant Psychiatrist conducting an independent medical examination review, diagnosed DMS IV/5 Adjustment Disorder with Depressed Mood and Anxiety, chronic, mild to moderate severity;
(j)    in 2020, Dr Clark, Consultant Forensic Psychiatrist, diagnosed Persistent Depressive Disorder;
(k)    in 2021, Dr Missen, general practitioner, noted the applicant was diagnosed with “depression”.

It is clear from the evidence of the applicant and the medical evidence, does not appear to be in dispute, and I accept, that from the time of the physical injury on 5 September 2007, the applicant experienced chronic ongoing pain which was severe at times. In the years since 2007, various attempts to treat and resolve the applicant’s pain have been largely unsuccessful.

In her report dated 10 November 2008, Ms Mather assessed that the applicant “presented with features of Pain Disorder with both Psychological features and a General Medical Condition”. In her reports in 2008 and 2009, Ms Mather noted the applicant’s distress from ongoing pain, but also noted that the applicant’s pain fluctuated at times. Further, even from Ms Mather’s initial report, she noted the applicant reported experiencing workplace bullying and feeling “demoralised and humiliated” by her perceived lack of support from her workplace with her pain problem and bullying and harassment in the workplace. She noted that the applicant “continued to report heightened distress associated with work. She reports ongoing nightmares and nocturnal rumination associated with her previous workplace”. She also noted that the applicant reported “being fearful of approaching a new workplace as she is worried that they may ‘be unsupportive’ and that she will be ‘unable to cope’. As a result of her increased distress, Kathy has also reported higher pain levels and she appears to continue to have difficulty being able to comprehend the relationship between the two”.
In his report dated 3 July 2008, Dr Baghiani noted that whilst the applicant reported ongoing pain she reported that she was no longer upset and tearful when thinking about her injury and pain and was more positive in her outlook.
In his reports in 2008 and 2010, Dr Dalton noted that the applicant’s physical rehabilitation appeared to be complicated by her psychological condition and issues related to the applicant’s workers compensation claim and “the fact that she has not been terminated from her previous employment”.
In his reports dated 2009, 2010 and 2012, Dr Harris considered the applicant’s ongoing pain condition in the context of psychological processes. He noted the applicant’s reported history of workplace bullying and harassment. He noted that the applicant reported that her pain symptoms fluctuated somewhat and that, temporally at least, she suffered a severe exacerbation of pain in the context of verbal abuse by Ms Irvine. He opined that the applicant remained “hounded by anxiety” over the possibility of having to return to the respondent and “even dreams of co-workers from that place pursuing her and urging her to return because she is needed there” and sought the prompt termination of her employment with the respondent. He opined that the applicant “remains rigidly stuck in a phobic process relating to the workplace, and to a lesser degree towards employment in general” and had “fears relating to bullying and harassment”. Significantly, he stated that the applicant’s “pain problems remain of significance but I cannot help feeling that her psychological process is of greater prominence; that her physical problems prevent her from returning to full duties presents an obvious secondary gain”. Further, he opined that the “perceived bullying and harassment at work appears to have placed her under a pressure such that her neck issue was fuelled”. He opined that the musculoskeletal issues are related in their perpetuation to the bullying and harassment. Indeed, there is a causative relationship in both directions, as aspects of bullying and harassment are reported to related to the employer’s failure to provide appropriate allowances in the context of her pain. Her current psychological status is plainly attributable to both of the above, stressors being cited by her which relate to both issues”.
In his report dated 8 October 2012, Dr Edwards noted the applicant’s ongoing pain condition and opined that the applicant’s psychological injury was a secondary psychological injury, having arisen secondary to her physical injury and related ongoing chronic pain disorder. Significantly, noted the applicant’s reported history of workplace bullying and harassment and that the applicant demonstrated mental symptoms which included “nightmares, about once a week, mainly related to memories of the harassment and bullying in the workplace, or seeing the employer”. Dr Edwards further opined that the “clinical picture has also been aggravated by her strong memories of her perceptions of intense bullying, harassment and lack of emotional support in the workplace environment”.
In his report dated 21 March 2019, Dr Ng also noted the applicant’s ongoing pain and that the applicant’s current symptoms included being pain-focused. Dr Ng opined that the applicant’s psychological injury was a secondary psychological injury, which arose in the context of her pain condition secondary to her physical injury. Significantly, Dr Ng noted the applicant’s reported history of bullying and harassment in the workplace and that her current symptoms also included “nightmares about her employer at least once a week”. However, Dr Ng noted that the applicant’s assertions regarding her treatment in the workplace were “disputed” and that “there is no further evidence to suggest anything outside of those unpleasant interactions except for Ms Bijok’s own account”. He opined that there was no event or evidence suggestive of a primary psychological injury. Dr Ng summarised his assessment by stating “In summary, it is not unreasonable for a secondary psychiatric injury to emerge out of chronic pain. However, there is no event suggesting a primary psychiatric injury. There certainly may be unpleasant interactions in the context of the primary workplace injury. Difficult workplace situations in the context of a primary injury may lead to secondary injury. In other words, but for the primary physical injury, there would not be any mental health problems. There is no evidence that there would have been a primary psychiatric injury from distinct events separate from the initial pain problems”. He also stated “I note that there are allegations that Ms Bijok was pressured from the insured to increase her keyboarding and invoicing activities and there was requirement that she keep a time sheet of her activities. In my opinion these activities were possibly in the context of her initial workplace injury and hence would give rise to the secondary psychiatric symptoms. I also note that these events were disputed. There is no other evidence that there was a separate incident that led to her primary psychiatric injury. If she had not developed shoulder and neck pain all of these issues would never have developed”.
In his reports dated 2013, Dr Teoh, Consultant Psychiatrist, noted that the applicant complained of persistent chronic pain in relation to her physical injury and that she was “preoccupied with her pain and physical disability”. In addition, Dr Teoh also noted that the applicant complained that she suffered “bullying and harassment” at work and her supervisor suggested that her injury was not caused by her work and that she was not really suffering from a physical injury. The applicant felt humiliated at work. In June 2008, the applicant felt “flushed” and agitated, she was going through a rehabilitation program and felt that her employer was not supportive and doubted her injury. She felt under pressure to participate in a rehabilitation program and uncomfortable with the prepared return to work program. He noted that the applicant experienced a “nightmare about work” and “continued to experience intrusive memories of the humiliation and harassment at work”. Dr Teoh opined that the applicant’s psychological condition was “caused by the injury at work, which has caused physical pain and disability”.
In his report dated 2019, Associate Professor Malloy, Pain Management Specialist, noted the applicant’s persistent neuropathic pain and associated osteoarthritis in her neck complicated by psychosocial factors such as depression, stress and anxiety, high catastrophising and low confidence to manage her pain. He opined that her employment was the substantial contributing in causing, aggravating, accelerating and exacerbating her condition.
In his reports dated 2020 and 2021, Dr Clark, Consultant Forensic Psychiatrist, diagnosed Persistent Depressive Disorder and stated that the applicant’s employment was a substantial contributing factor to her injury. Dr Clark noted the applicant’s chronic pain. However, he opined that the applicant’s psychological injury was nevertheless a “primary psychiatric injury”. He noted that the applicant “still experiences nightmares, frightening recollections about being victimised and picked upon”, she “has a disorder of thinking” and “experiences fearful emotions with consequent withdrawal” and he opined that the applicant was “bullied to such an extent that she developed the above symptoms, leading to her Persistent Depressive Disorder”. In his report dated 26 September 2020, Dr Clark opined that “It is not a secondary psychological injury, since it is not caused by a general medical condition. It is not caused by a drug. It is a mental disorder which involves changes in thinking, cognition, emotion and behaviour and lasts over 2 months. She suffers a primary psychological (psychiatric) injury”. In that regard, I note that Dr Clark does not appear to be applying the definitions of “primary psychological injury” and “secondary psychological injury” stated in s 65A(5) of the 1987 Act.
In his supplementary report dated 5 January 2021, Dr Clark further explained his reasoning for his opinion that the applicant’s psychological injury was a “primary psychological injury” and described specific work incidents which caused the applicant to be humiliated, bullied and harassed. These included being “bullied by her employers when she returned [following the physical injury], pressured to get work done”, “bullying and harassment became a problem, her employer very short and abrupt, giving no concessions. Her supervisor became angry with her, saying there was nothing wrong with her. Eventually, she felt the office ganged up against her. She took many weeks off work for medical treatment. When she returned to work, she was humiliated, bullied and harassed because of this. She refers to this as ‘a toxic environment’. She developed a Persistent Depressive Disorder, a primary psychotic injury. Her self-care and personal hygiene deteriorated. She suffered insomnia with flashbacks and night mares to the harassment by her employers”.

There is medical evidence of psychological symptoms caused by the applicant’s pain in November 2008, when Ms Maher noted that the applicant “reports significant distress associated with chronic pain, anhedonia, sleep disturbance, impaired concentration, feeling teary & sad, increased agitation and anxiety when thinking about her workplace and future”. Ms Maher then assessed that the applicant presented with features of a Pain Disorder with Psychological features and a General Medical Condition. However, in July 2008, Dr Baghiani noted that, whilst the applicant experienced ongoing pain, she was not longer angry, upset nor easily tearful when thinking about the physical injury and pain. Nevertheless, the applicant’s ongoing distress with pain did continue to be noted in much of the medical evidence. In October 2013, Dr Edwards noted the applicant’s distress due to pain and diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to the workplace injury and “related to her ongoing chronic pain disorder”. Dr Ng, in March 2019 diagnosed “adjustment disorder with depressed mood and anxiety, chronic, mild to moderate severity” which he opined to be “pain driven” and secondary to the physical injury.
In contrast, there is also medical evidence of psychological symptoms caused by the perceived bullying and harassment from at least November 2008. Even at the initial psychologist assessment by Ms Maher in November 2008, whilst Ms Maher assessed that the applicant presented with features of a Pain Disorder with Psychological features and a General Medical Condition, Ms Maher also noted that the applicant’s pain fluctuated and flared up when the applicant was under a busy workload. At that time, Ms Maher also noted that the applicant reported workplace bullying and the applicant experienced agitation, sleep disturbance and excessive nocturnal rumination in relation to her work situation. Further, Ms Maher noted in March 2009, that the applicant experienced “significant anxiety” in relation to the workplace, and in May 2009, the applicant had “heightened distress”, “ongoing nightmares and nocturnal rumination”, “increased stress” and “higher pain levels” associated with her workplace. Dr Harris noted March 2009, the applicant’s exacerbation in pain was associated, at least temporally, with Ms Irvine’s verbal abuse of the applicant and, in May 2009 that that applicant was “hounded by anxiety” and in June 2009 that the applicant was “rigidly stuck in a phobic process” relating to her workplace. Significantly, in June 2009, Dr Harris opined that the applicant’s pain was an obvious secondary gain to prevent her return to duties in the context of her fears relating to bullying and harassment. In September 2009, Dr Harris opined that the applicant’s psychological condition was causally related in both directions to both the pain and the perceived bullying and harassment. In 2013, Dr Teoh noted the applicant’s preoccupation with her pain and being “distressed with physical pain” but also her “intrusive memories of humiliation and harassment at work” and “nightmare about work”. In 2020, Dr Clark noted that the applicant “still experiences nightmares, frightening recollections about being victimised and picked on” which he described as a “disorder of thinking” and “a mental disorder which involves changes in thinking, cognition, emotion and behaviour” and he opined that the applicant “was bullied to such an extent that she developed the above symptoms, leading to her Persistent Depressive Disorder”. In January 2021, Dr Clark noted that the applicant “developed a Persistent Depressive Disorder, a primary psychiatric injury. Her self care and personal hygiene deteriorated. She suffered insomnia with flashbacks and nightmares to the harassment by her employers”. In October 2013, notwithstanding that he diagnosed a psychological condition secondary to the applicant’s physical injury, Dr Edwards noted that the applicant had psychological symptoms which included “nightmares, about once a week, mainly related to memories of the harassment and bullying in the workplace, or seeing the employer” and he noted that “the clinical picture has been aggravated by her strong memories of her perceptions of intense bullying, harassment and lack of emotional support in the workplace environment”. Although Dr Ng, in March 2019, opined that there was “no evidence of a primary psychological component that rests outside of the pain issue and its aftermath” and that there was “no other evidence that there was a separate incident that led to her primary psychiatric injury”, Dr Ng did note that the allegations that the applicant “was pressured from the insured to increase her keyboarding and invoicing activities and there was requirement that she keep a time sheet of her activities” and stated that in his opinion “these activities were possibly in the context of her initial workplace injury and hence would give rise to the secondary psychiatric symptoms”.
I have given greater weight to and prefer the opinion of Dr Clark over the opinions of Dr Edwards and Dr Ng. It appears to me that Dr Clark’s analysis and opinion is well reasoned and reflective of the entirety of the applicant’s circumstances at the relevant time and consistent with the principles stated by Deputy President Roche in Cannon and Watkins. In contrast, the opinions of Dr Edwards and Dr Ng do not appear to fully explain and take account of the apparently significant distress and psychological symptoms that the applicant apparently experienced as a result of the perceived bullying and harassment. Further, the reasoning of Dr Edwards is at odds with the principles stated by Deputy President Roche in Cannon: the ‘but for’ test is not the correct test of causation. In addition, Dr Clark did not appear to be apply the definitions of “primary psychological injury” and “secondary psychological injury” stated in s 65A(5) of the 1987 Act.
Having regard to the legal principles set out above, particularly the principles stated by Deputy President Roche in Cannon and Watkins, and having regard to the whole of the evidence, I am satisfied that the applicant was significantly distressed and experienced psychological symptoms by the harassment and bullying that she perceived to occur in the workplace and further that there is a causal chain between the perceived bullying and harassment and the psychological injury. Further, I am satisfied that the above evidence demonstrates a causal chain between the perceived bullying and harassment and the psychological condition and that causal connection is sufficient that the psychological injury is a primary psychological injury and is not a secondary psychological injury.

On that basis, I am satisfied that the applicant’s psychological injury is a primary psychological injury pursuant so s 65A of the 1987 Act that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.

SUMMARY

Accordingly, it is appropriate that I make the following orders:
(a) The applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the 1987 Act that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.
(b)    The lump sum claim is remitted to the President for referral to a Medical Assessor (MA) for assessment as follows:
Date of injury:           3 September 2008 (deemed)
Body parts:               Psychological
Method:  Whole Person Impairment

(c) The materials to be referred to the MA include:

(i)The ARD and all attachments;
(ii)Reply to ARD and all attachments with exception of the following:
a.Medical Report of Dr Devina Singh dated 21 December 2015;
b.Medical Report of Dr Devina Singh dated 20 January 2016, and

(iii)Application to Admit Late Documents and all attachments.

[2021] NSWPIC 200

23 June 2021