BNW v State of New South Wales (Northern NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BNW v State of New South Wales (Northern NSW Local Health District) [2025] NSWPIC 32
APPLICANT:	BNW
RESPONDENT:	State of New South Wales (Northern NSW Local Health District)
MEMBER:	Catherine McDonald
DATE OF DECISION:	3 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation as a result of alleged psychological injury and functional neurological disorder as a result of events in the workplace; extensive psychological history; AV v AW; Kooragang Cement Ltd v Bates; no evidence of psychological history between meeting and onset of functional neurological disorder; the distress suffered by the applicant led to the development of functional neurological disorder; Held – award for the applicant for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant $970.29 per week from 19 November 2022 to date and continuing. 2. I grant liberty to apply if there is any dispute as to indexation of that amount. A statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

BNW was employed by the State of New South Wales (Northern NSW Local Health District) (the State) as a registered nurse at Lismore Hospital. She alleges that she suffered an injury on 18 November 2022 in the form of a functional neurological disorder which was caused by a conflict in the workplace on 14 November 2022 concerning the care of a paediatric patient.
There is no dispute that a meeting on 14 November occurred. The parties agree that the following issues are in dispute:
(a)    whether BNW suffered the aggravation of a disease – being a psychological condition – on 14 November 2022 to which employment was the main contributing factor;
(b)    whether BNW suffered a functional neurological disorder as a result of the conflict on 14 November, the date of that injury being 18 November 2022, and
(c)    whether the events in the workplace were the main contributing factor to BNW suffering a functional neurological disorder.
There is no dispute that BNW has no current work capacity but the State disputes that the incapacity was caused by an injury as defined in the Workers Compensation Act 1987 (the 1987 Act).
BNW’s claim is for weekly compensation only.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

BNW commenced proceedings in 2023 which were discontinued at a preliminary conference on 7 December 2023.
These proceedings were listed for preliminary conference on 8 November 2024 when the State sought leave to issue a series of directions for production. Despite references to a relevant pre-existing condition, there was no evidence in the Application to Resolve a Dispute (ARD) which pre-dated the injury. I granted leave to issue the directions because they were necessary to fill gaps in a complex medical case and to provide details about BNW’s pre-injury treatment.
The claim was listed for conciliation conference and arbitration hearing on 14 January 2025 by videoconference. Mr McEnaney of counsel, instructed by Mr Dunn, appeared for BNW and Mr Saul of counsel appeared for the State, instructed by Mr Franco.
The parties agreed that BNW’s pre-injury average weekly earnings were $970.29.
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 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

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply, and
(c)    The State’s Application to Lodge Additional Documents dated 9 January 2025.
There was no objection to the State’s reliance on the additional documents, and in particular, no objection to Dr Kasby’s signed statement which formed part of them.
There was no oral evidence.

Statements

BNW

BNW’s statements are brief. The first, dated 1 November 2023, comprises six short paragraphs. She said that on 14 November 2022, while working as a registered nurse at Lismore Hospital, she was involved in “a conflicting clinical discussion with other members of the nursing staff and the consulting paediatrician” and that she became unwell during her shift on 18 November 2022. She said that she was treated at Lismore Hospital and John Flynn Hospital and diagnosed with a functional neurological disorder. She said she that she had not been able to work since that date.
The second statement is dated 26 February 2024 and was prepared after earlier proceedings were discontinued on 7 December 2023. BNW described only the events of 14 November 2023. In summary, she said that when she started work on that day, she was the most senior nurse on the floor. She was told that one patient needed one-on-one care and that she should care for that patient. At handover, she was told that the patient’s condition had deteriorated in the last half an hour. BNW determined to ask the attending doctor to review the patient and the patient’s parents requested that occur.
BNW said that she approached the paediatrician, Dr Kasby, who had just arrived on the ward and was on the telephone. BNW said that she “politely excused myself as I interrupted her phone call and requested her urgent attention.” Dr Kasby held her hand in front of BNW’s face and said that she needed five minutes, and that she had reviewed the patient half an hour before. BNW said that she felt “ignored, shocked, distressed and belittled. As a Paediatric nurse, exercising my clinical judgement, further intervention was required for the patient.” She said that she and the patient’s parents were concerned.
One of the paediatric registrars, whose first name was Lucy was waiting to hand over after nightshift, and she agreed to have a brief look at the patient. The registrar said that there had been no change in the last half an hour. BNW disagreed and continued to voice her concerns to the registrar. The registrar went to speak to Dr Kasby in the doctors’ room behind the nurses’ station.
At about 7.30am, Kim Behari, the nurse unit manager arrived on the ward. BNW raised her concerns about the patient. Ms Behari briefly saw the patient, said that she was happy with the current management and told BNW to continue to closely observe her.
BNW said that “after a few minutes”, Ms Behari called her into the doctors’ room where Dr Kasby and the registrar were present. BNW said:
“Dr Kasby said to me, ‘I think it would be a good idea if a more senior and competent nurse, like Kim, looks after this child as I cannot keep being interrupted whilst I am doing important work, for something that is not important’. I felt ostracised, intimidated, unheard and upset. I had spent the last half an hour trying to express my concerns around this child’s clinical condition and I was being ignored. As a registered nurse, it is important to me to be overly cautious when caring for sick children, or any patient for that matter. It is my job to escalate my concerns to senior staff. I was in shock after what Dr Kasby said and didn’t really know what to say. How she treated me was against our code of conduct, being unprofessional and inappropriate. I felt silenced and belittled. After taking a few breaths, I proceeded to share my concerns about the patient I was looking after and how her clinical condition was deteriorating. Dr Kasby said that I undermined her, in front of the patient’s parents and that I was continuing to undermine her judgement. Kim also said that it was extremely unprofessional of me to undermine a senior Paediatrician who is a doctor with years of experience and that I should listen to her clinical judgement, not my own. In my view, I had not undermined anyone and was following procedure by requesting the child be reviewed by the treating doctor due to my concerns with the child’s clinical condition exercising my clinical judgement.”
BNW said that “at this point” she started hyperventilating and sweating and felt lightheaded. She said she proceeded to suffer from a panic attack. She was asked to remain in the room. When she was able to leave, she saw another paediatrician, Dr Ingall, who observed that she was distressed and asked her to go into the conference room “to help me calm down and have a chat about the patient”. BNW said that Dr Ingall said she was “well within my right” to escalate her concern to the senior doctor on shift, agreed that the child did not look well, and that further intervention and medication maybe a would be appropriate. BNW said that she later saw the registrar who “apologised for getting me into trouble.” When BNW was finishing her shift, she went to see Ms Behari for a debrief who her told her that she needed to apologise for Dr Kasby for “leaving the room during my panic attack, and for undermining the doctors.”
BNW said:
“For the days following this conflict, I felt sick to my stomach, had severe anxiety and the event that unfolded kept repeating in my head. I had trouble eating and sleeping. I felt very alone and like my clinical judgement as a Registered Nurse did not matter. Somehow, when I was doing my job, this was frowned upon.”
BNW said that on 18 November 2022 she was working in the Special Care Nursery and that Dr Kasby was still the paediatrician on shift for the week and that she was worried that Dr Kasby would “come to Special Care to continue to belittle and bully me.” BNW said that she “had her first seizure whilst at work” and that she believed that the events of 14 November were directly linked to her becoming unwell and developing a functional neurological disorder.
BNW’s third statement was signed on 10 October 2024. She provided some evidence relevant to the calculation of pre-injury average weekly earnings, which is no longer in issue. She said that she had noted a number of things in the statements made by Dr Kasby and Ms Behari which were “not right”. Some of the errors were typographical and were corrected in Dr Kasby’s signed statement.
BNW disagreed with Dr Kasby that the conversation with Dr Kasby and Ms Behari took place in late morning or early afternoon and said that it was about 8.00am and that Dr Kasby’s recollection as to who stood where is also different. She agreed that she as concerned about the welfare of the patient and became upset and emotional when “my serious concerns were dismissed and I was treated so poorly regarding my clinical judgement.”
BNW said that Ms Behari was incorrect to say that she had not gone to Ms Behari with concerns about the patient and that she had spoken to Ms Behari when she arrived, which was only a few minutes before she was called into the meeting with Dr Kasby. She said that Ms Behari was incorrect to say that the meeting occurred at about 9.30am.

Ms Behari

Ms Behari was the nurse unit manager on the paediatric ward. She had supervised BNW for some months and said that BNW told her that she had been bullied whilst working at Westmead Hospital for Children and that she felt anxious while working there. Ms Behari said that BNW worked her initial shifts in March 2022 and from that time “began to pick up more shifts” so that she was working 10 to 20 hours per week and was part of a pool of nurses who could be contacted to work in the paediatric unit.
Ms Behari considered from the beginning of BNW’s employment that she had the skills and knowledge to do well but would need a high level of support to perform her duties. She said that BNW had a habit of coming to her office regularly and often seemed overwhelmed. Ms Behari was told by “reports back” that BNW found it difficult to receive comment or constructive criticism about her work and it appeared to Ms Behari that BNW “felt like she was being attacked personally.” BNW made regular complaints to her about other staff during her employment and that she sought advice from her supervisor about managing BNW in May 2022. She did not “get HR involved in with the management of [BNW] and her emotional issues as she did not seem to pose any risk to patients.”
In about April 2022, Ms Behari recommended that BNW find a means of supporting herself through the hospital’s employee assistance program or an external service. She also recommended that BNW see her general practitioner for a mental health plan. In about August 2022, BNW told Ms Behari that a new registered nurse in the paediatric unit was one of the people who had bullied her at Westmead Hospital. No further complaints were made.
Turning to the events of 14 November, Ms Behari said that BNW arrived at about 8.00am. There was a two-year old patient on the ward suffering from croup who had been there for a few days and kept under observation by Dr Kasby and the nurses on the ward. BNW did not speak to Ms Behari about the patient but at about 9.30 am, Dr Kasby told her that BNW was “escalating” the case of the patient and was not happy with Dr Kasby’s decision. Ms Behari asked BNW for “a run-down” about the patient and BNW told her that she had spoken to Dr Kasby and to “NETS” who were happy to keep the patient at Lismore. Ms Behari reviewed the patient with BNW and assured BNW that the patient was doing fine. Dr Kasby spoke to the patient’s parents who were also happy with the treatment but BNW interjected and said that she was not.
Ms Behari was concerned that BNW had contradicted Dr Kasby in front of the patient’s parents and asked BNW to come to the doctors’ room where she informed BNW that it was unprofessional to contradict Dr Kasby in those circumstances. BNW began crying and spoke in a loud voice. She stormed out of the office and Ms Behari heard BNW say to Dr Ingall words to the effect of “don’t touch me”. Ms Behari saw BNW about half an hour later who said that Dr Ingall had told her to “stay and look after the child.” BNW completed the shift but Ms Behari did not see BNW again.

Dr Kasby

The statement to which BNW responded was a draft which appeared in the Reply. Dr Kasby signed her statement and made many corrections by hand. She said that commenced employment in 2015 as a Senior Medical Consultant – Paediatrics and worked at Lismore Hospital on a part time basis. She said that patients are treated within the bounds of the hospital’s resources as a regional hospital and that patients are transported to large hospitals around New South Wales and Queensland for more serious treatment. It is largely her responsibility to decide when patients require such transfers though she was required to contact an associate at the larger hospital and the receiving hospital made the decision as to transfer. The observations of nursing staff are relevant to her decision.
Dr Kasby was on call and in charge of the paediatric ward from 11 November 2022 at 8.00am until 11.00am on 14 November. A patient was transferred from Kyogle Hospital on 11 November and readmitted to Lismore Hospital on 12 November. Dr Kasby observed that the patient’s mother was sleep deprived and overly vigilant but that her partner was comfortable with the treatment process. She noted that she often has to speak to parents for several extended periods to explain the treatment and calm them. The patient suffered from croup and had mild to moderate symptoms throughout 12 November.
Dr Kasby noted that BNW arrived on the ward at about 7.30am, which was the first time she would have had contact with the patient. Dr Kasby said the records indicated that the patient had been eating on the morning of 14 November and that there were no objective changes in her condition on that day. The patient’s breathing sounded poor when she was sleeping but that was not a concern because she had spent several days with aggravated airways. Dr Kasby noted that BNW had sought several reviews by the registrar and Dr Kasby was concerned about the amount of reviews that BNW asked for. She said:
“I responded and spoke with [BNW] several times that morning. On each occasion, I advised [BNW] that the patient’s oxygen level and work of breathing and other indicators indicated the Patient did not require further attention based on objective measures.”
Dr Kasby spoke to Ms Behari and told her she did not think BNW was coping. She asked Ms Behari to review the patient and Ms Behari considered the treatment was adequate. Between 8.00 and 10.00am Dr Kasby spoke to the patient’s mother about a potential transfer if the patient’s condition got worse, though Dr Kasby said she could not promise anything and did not think it was currently necessary.
At about 11.30am, Ms Behari told Dr Kasby that BNW had said something to the patient’s parents that undermined Dr Kasby. Dr Kasby then entered the meeting room and heard Ms Behari say words to the effect that BNW had undermined the team and acted unprofessionally. Dr Kasby heard BNW repeatedly say “nobody is listening to me” in an emotional tone and a loud voice. BNW left the room and shut the door forcefully. Dr Kasby said that she did not see BNW again. She said that BNW’s concerns were not warranted because the patient was being monitored and that there was no need for an escalation in her care.

Medical evidence in the ARD

BNW had a long history of treatment for depression and anxiety and her claim is that she suffered the aggravation of that condition, which led to her suffering the functional neurological disorder. There is limited material in the ARD describing her pre-existing condition. In the alternative, her claim is that the events of 14 November led to her suffering a functional neurological disorder. A summary of the evidence in the ARD follows.
There is no medical evidence which was created in the period between 14 and 18 November 2022. BNW was taken to the Emergency Department of Lismore Hospital on 18 November and admitted.
The history recorded at Lismore Hospital was that BNW was “well until this afternoon – while at work episode of feeling flushed, light-headed and nauseous with presyncopal sensation.”
Dr De Meza examined BNW at about 1.30pm at Lismore Hospital on 18 November 2022. His notes include:
“sudden onset event of twitching and myoclonic jerks in all 4 limbs
at 1115 am was on ward and felt hot / faint / sweaty and pre-syncopal SPB 130 at the time
denies any change to meds or any new meds today
afebrile and otherwise well
has had recent increase in headaches in last week
tension headaches as per GP but had photophobia in last week
known to currumbin clinic – psychiatrist
- panic attacks/MH issues
- on tapering dose of diazepam for addiction since 1 y ago.”
Dr Shaw in the Emergency Department recorded that BNW was “well until this afternoon.”
Dr Bilal saw BNW in Lismore Hospital on the afternoon of 18 November having been asked to see her for “?seizure activity”. Dr Bilal recorded the onset of symptoms while at work and that “mood has been stable in her opinion.”
Dr Bilal recorded an extensive discussion which took one hour on 21 November 2022 during which she confirmed to BNW that functional neurological disorder is a medical diagnosis. Dr Bilal wrote:
“Patient distressed, frustrated and teary – feels that FND diagnosis means that medical team feels she is ‘making it up’
… reiterated that FND is a diagnosis in itself
…[BNW] feels that all her symptoms are related to medications
Upset as she feels that she is being told her symptoms are 'made up'
[BNW] feels that there was no 'trigger' for this episode, denies any recent anxiety, stressors etc
Explained that it may not be clearly predictable in terms of why this episode has happened now…”
The discharge summary dated 22 November 2022 said that BNW presented with a pre-syncopal episode and twitching/jerking movements while at work. A video was sent to GCUH (which I understand to be Gold Coast University Hospital) neurology “who” said that the movement was typical for a functional neurological disorder and provided resources for patient education and management. Discussions were had with Dr McDornan, her psychiatrist, regarding recent medication changes. BNW and her family sought a second opinion and chose to discharge from Lismore and drive to John Flynn Hospital for evaluation by a neurologist.

BNW went to John Flynn Private Hospital on 22 November 2022 and was discharged on 23 November. The medical discharge summary contained a principal diagnosis of “functional neuro disorder” of acute onset. The proposed follow up was with BNW’s psychiatrist. She was reviewed by Dr Sebastian, neurologist, while in hospital.
On 24 November 2022 Dr McDornan wrote to Dr Schaefer, BNW’s general practitioner and said:
“I had a call from Swapna Sebastian yesterday morning to let me know that [BNW] had been diagnosed with a functional neurological disorder.
Roughly last week, she has syncopal episode while working in the nursery at Lismore Hospital. She spent a long time in ED and was admitted to ward but not before she had some kind of conflict with a paediatrician over the management of a patient whom she regarded as about to deteriorate clinically. [BNW] became more forceful in the communication and the ward NUM believed that [BNW] had undermined a senior medical staff member.
[BNW] is not aware that this experience with a person of authority has generated a crescendo of stressors.
…
She presented today moving both legs in an agitated way but subjectively not feeling anxious.
We went through the phenomenon of functional neurological disorder and the displacement into the symptom containing anxiety.
She accepts this.”
BNW was referred to Dr Lehn, neurologist, who reported to Dr Schaefer on 25 January 2023. He described the onset of neurological symptoms at work, noting that BNW felt well in the morning. He recorded a past history of anxiety, depression and panic disorder and set out the medications she was taking. He said that he agreed with the diagnosis of a functional neurological disorder, and that the symptoms were inconsistent and incongruous with an organic process.
Dr McDornan wrote to Dr Schaefer on 31 January 2023 after reviewing Dr Lehn’s letter with BNW. He said:
“[BNW] accepts there are clear links with waves of emotion, predominantly anger.
She accepts that there is no organic cause to her seizures which can be dystonic or drop-like, and accepts that the likely treatment should be through stabilising her emotions, namely her anxiety and anger.
She struggled to dissipate and handle ways in anger in a psychological and behavioural sense.
…
She is still very sensitive to being unheard, devalued from authority, and criticised, and there are clear dynamics around the grief experience with her mother. Further back than this, she is also very sensitive to memories around trauma.”
On 15 April 2023, Dr McDornan wrote to the State’s insurer and said that he had been treating BNW for nearly 10 years. He described her as a compliant patient, who is heavily invested in her own mental health as well as in her career development. He said that there was no evidence that BNW was in a clinically depressed state at the time of the event on 15 November 2022 [sic] and that she found herself in trapped in a critical position, which he considered was handled poorly. In that context, she felt unheard, disbelieved, and treated in a bullying manner. She developed a completely new symptom complex three days later. He said:
“We would make the argument that this new symptom complex directly relates to a significant conflict and stress in the workplace, and, with this in mind, would qualify for a Work Cover claim.”
Dr Lehn wrote to Dr Schaefer after a consultation on 26 April 2023, describing BNW’s condition as functional neurological disorder on the background of depression, anxiety and a panic disorder. Dr Lehn said that he did not have much to add to her regular management, noting her treatment by a multidisciplinary team.
In a report to BNW’s solicitor dated 20 September 2023, Dr McDornan said:
“At times, she has been disabled with significant symptom load, generated from her depression, syndromal anxiety, and other times she has managed to function very well, training and working as a nurse. Even during these times, there can be residual anxiety symptoms, but they are far reduced and do not impede her functionality.
…
At this point, her function was good, she was not clinically depressed…”
After summarising the work interaction, Dr McDornan said:
“I note in your correspondence, the various presentations to Lismore Base Hospital and John Flynn Hospital and that this was not flushed out.
That is not surprising in terms of how people may attribute and understand an emergent experience like a functional neurological disorder.
…
In my opinion BNW’s work experience was the main contributing factor to the emergence of a functional neurological disorder, given that she was highly invested in a child's care and felt disempowered, as well as the reporting structures of the workplace itself, which exist in every hospital.
Her pre-existing condition was one of syndromal anxiety in several dimensions and a major depressive disorder. At the time that this occurred, these conditions were stable and well-controlled, and the functional neurological disorder was a new emergent illness complex.”
Dr Lehn reported to BNW’s solicitor on 28 December 2023. Asked if the incapacity suffered by BNW “the injury at work, including by way of aggravation of a pre-existing condition, if relevant” Dr Lehn wrote:
“BNW did a report to work injury to me. My initial review she stated that her symptoms started when she was at work, restocking a shelf and then had a pre-syncopal episode. BNW was pale and sweaty and colleagues were worried about her so called a met call. She was brought to her local emergency department and 30 minutes after onset started having intermittent, which is in various body parts. This then built up to whole body shaking and back arching.
FND is a multifactorial condition. In keeping with the biological psychosocial aetiological framework, there are many factors (biological, psychological and social), that play a role in the development of functional neurological disorders (some of them predisposing, some triggering, some perpetuating). Usually there are several underlying factors that cause vulnerability towards FND. Common triggers are physical injury/pain, life events, and/or social stressors. BNW’s pre-existing conditions of anxiety, depression, and panic disorder likely cause her to be more vulnerable to be developing functional neurological symptoms.
…
BNW did not report any employment related factors to me that lead to her developing her Functional Neurological Disorder. I did not discuss these underlying factors in detail with her, though the question will be better put to her, treating psychiatrist, and or psychologist.”
In a report dated 12 January 2024 Dr Schaefer prepared a report addressed “To whom it may concern.” After describing the onset of the functional neurological disorder at work and the subsequent treatment, she said:
“It was on 03/03/2023 that BNW attended a consultation with her partner requesting to apply for a Workers Compensation claim. She detailed a stressful incident which she told me occurred at her workplace three days prior to the onset of her FND symptoms. She told me she had felt intimidated by the consultant paediatrician in front of other staff members. On the day of onset of her symptoms, she told me she had again been very stressed. BNW had been off work since the onset of her symptoms. It was discussed that given her pre-existing history of severe anxiety and depression, causality may be difficult for her to prove for a Workers Compensation claim.
…
In my professional opinion, BNW has been unable to work in her role as a paediatric nurse since the diagnosis of FND on 18/11/2022. To work as a nurse in a hospital setting requires adequate concentration, memory, complex cognitive processing skills, and physical stamina. BNW has consistently reported that she is significantly impaired in all of these areas. BNW would have to demonstrate significant improvements in the above areas prior to being suitable to return to her former role.
It is beyond my scope to comment on whether her condition was caused by a workplace injury.
BNW's pre-existing conditions which may possibly be contributing factors include her history of severe anxiety and depression, panic attacks, and possible complex PTSD. She has had substantial prior psychiatric treatment, including inpatient admissions, however this is the first time a functional disorder has been diagnosed.”
BNW’s solicitor retained Dr Gill, a consultation-liaison neuropsychiatrist, who provided a long report dated 31 July 2024. He said that BNW claimed that she has suffered from “psychological injuries” in the course of her employment 5on 14 November 2022. He set out a history of the meeting and said that it led to BNW, feeling belittled and unsupported, resulting in a severe panic attack. He recorded that Dr Ingall reassured BNW that her actions were appropriate and validated her concerns about the child’s health. Dr Gill said that four days after this initial conflict, BNW suffered a seizure at work “which she believed was directly linked to the stress and resolve conflict from November 14.”
In respect of BNW’s “psychiatry history”, Dr Gill said that she had been diagnosed with depression and anxiety, which was well managed before the work incident. He noted she had been admitted to a psychiatric ward in 2013, when her mother passed away and had admissions in 2018 and 2021 “to change her psychiatric medications”.
Dr Gill summarised the reports from Drs Schaefer, McDornan and Lehn that appear in the ARD. He said that BNW:
“…presents with a complex array of psychological and neurological symptoms. Her primary diagnoses include Major Depressive Disorder with anxious distress and Functional Neurological Disorder (FND). BNW's psychological profile reveals an underlying anxious personality structure, characterised by a tendency to internalise psychological distress. The catalyst for her current condition was a significant work-related incident on 14 November 2022, which triggered severe psychological distress, culminating in a panic attack and the subsequent development of FND. This disorder is manifested through non-organic seizures, tremors, gait disturbances, speech disturbances, and various sensory symptoms.
BNW's medical history is notable for chronic pain conditions, including endometriosis, adenomyosis, and polycystic ovary syndrome (PCOS). These conditions have likely contributed to her longstanding struggle with pain and discomfort. Her history of Major Depressive Disorder and anxiety, combined with her perfectionist tendencies, overwhelmed her coping mechanisms during the workplace incident. This psychological turmoil has led to significant distress and the manifestation of functional neurological symptoms.”
Asked if the “condition was caused by the nature and conditions of our client’s work, including by way of aggravation, exacerbation, acceleration, or deterioration of a pre-existing condition”, Dr Gill said:
“Affirmative. The nature and conditions of BNW’s work have directly contributed to the development and exacerbation of her current psychiatric conditions. The significant conflict on 14 November 2022, wherein BNW felt undermined, unsupported, and criticised by her colleagues, served as a severe psychological stressor. This incident triggered a cascade of psychological and neurological symptoms, ultimately leading to her diagnosis of Functional Neurological Disorder (FND) and a severe exacerbation of her Major Depressive Disorder with anxious distress.
Before this incident, BNW had a history of anxiety and depression, which were well-managed and stable. However, the acute stress and perceived lack of support during the critical event at work acted as a catalyst, aggravating her pre-existing conditions and precipitating the onset of FND. The work environment, characterised by high responsibility and the need for immediate critical decision-making, further compounded her stress levels, leading to a deterioration of her mental health.
The psychological trauma experienced during the incident at Lismore Base Hospital, involving the care of a critically ill child and the subsequent interpersonal conflicts, directly exacerbated her anxiety and depressive symptoms. This resulted in the manifestation of severe functional neurological symptoms, including nonorganic seizures, tremors, and speech disturbances. These symptoms are consistent with a diagnosis of FND, which is often precipitated by significant psychological stressors.
In conclusion, the conditions and nature of BNW’s work significantly aggravated her pre-existing anxiety and depression, accelerated the deterioration of her mental health, and were the direct cause of her current Functional Neurological Disorder. The work-related incident was the primary factor that precipitated the severe psychological and neurological symptoms she now experiences.”
Dr Gill said that BNW’s employment, “specifically the highly stressful incident on 14 November 2022, was the main contributing factor to development of her current psychiatric disorder.” He said:
“The critical event involved managing the care of a severely ill child under high-pressure circumstances, combined with a perceived lack of support and validation from her colleagues and superiors. This environment of extreme stress and professional discord triggered a severe psychological reaction, manifesting as FND. The symptoms of FND, including non-organic seizures, tremors, and speech disturbances, emerged directly following the work-related incident, underscoring the causative link between her employment conditions and her disorder.
Furthermore, the persistent psychological impact of the incident, characterised by feelings of being belittled, unsupported, and criticised, significantly exacerbated her anxiety and depressive symptoms. This suggests that the nature of her employment and the specific traumatic event were the primary factors in her current psychiatric state.”
Dr Gill also said that BNW’s employment as the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of BNW’s pre-existing psychiatric conditions. He assessed whole person impairment using the Psychiatric Impairment Rating Scale in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 in respect of both BNW’s psychiatric condition and functional neurological disorder.
The State did not arrange to have BNW examined by a psychiatrist. It sought examinations by a neuropsychologist and neurologist, which did not take place.

Medical evidence about treatment

The State attached a large bundle documents produced under direction to its Application to Lodge Additional Documents. Those documents provide information about BNW’s medical history and condition immediately before the injury which is missing from the ARD.

Lennox Head Medical Centre

BNW has mostly been treated at the same general practice (Lennox Head Medical Centre) since she was six years old. Dr Betts referred her to a psychologist for treatment for an anxiety disorder with panic episodes in October 2011. Anti-depressant medication was prescribed. In November 2011 Dr Betts referred her to Dr Huntsman noting that BNW had always been troubled with anxiety but had deteriorated since her mother became unwell with melanoma. Further referrals were made for counselling treatment in 2012 and 2013. In 2015 she was referred to Dr McDornan, psychiatrist, for the first time and to Ms Draper, psychologist.
On 18 November 2015 Dr Staughton noted that BNW suffered low mood and “not sure if she should go into Currumbin again”. Based on other references in the file, this appears to refer to inpatient treatment in hospital in 2013. The general practitioners’ notes reveal a period of inpatient treatment in about May 2018 (during which time BNW saw Dr Staughton for unrelated treatment on 21 May 2018).
BNW has mainly seen Dr Schaefer as her general practitioner since 2020. On 19 May 2021 Dr Schaefer noted that she had been discharged after a six week admission to Currumbin Clinic.
BNW saw two other doctors at the medical centre seeking clearance to begin work in the paediatric ward at Lismore Hospital though by June 2021 she told Dr Schaefer that her psychological condition had deteriorated. On 21 June 2021 Dr Schaefer referred to her to Admissions and Assessments at Currumbin Clinic “for management of her severe anxiety and depression”, noting that her mood had been up and down since her admission earlier in the year and that she suffered a significant worsening of her condition.
A further admission to Currumbin Clinic was arranged and on 20 August 2021 Dr Schaefer noted that BNW was in hospital for two months. A mental health care plan was prepared on 25 August and a general practice management plan on 27 August. BNW consulted Dr Schaefer about her mental health on 15, 22 and 29 September 2021. On 13 October, Dr Schaefer noted that BNW was going into Currumbin Clinic “on Monday” and she was an inpatient at the time of a telehealth consultation on 26 October. Laparoscopic gynaecological surgery was undertaken in early December and BNW discussed her mental health with Dr Schaefer at a consultation on 17 December 2021.
The next reference to BNW’s mental health was a consultation with Dr Schaefer on 18 March 2022. Dr Schaefer noted that she was still seeing Ms Moses, psychologist. On 30 March 2022 Dr Staughton recorded that BNW was again suffering panic attacks and that she was working permanent part time as “rsl lifecare nurse in community” as well as casually at Lismore Hospital. She planned to give up the RSL job. Dr Staughton noted that BNW was reducing Lorazepam medication and suggested a slower reduction and the use of Diazepam (Valium).
On 12 April 2022, Dr Schaefer recorded that BNW had “ongoing panic attacks ++” and that she had seen Dr McDornan and felt that he was dismissive of her symptoms. BNW had stopped the community nursing job and was “doing 3 days in NICU”. On 20 April BNW told Dr Schaefer she felt a lot better.
Dr Mitchell adjusted BNW’s medication again on 23 May 2022, recording that she was taking Lithium and Valium and was to commence Lyrica which may “help dampen her anxiety and allow her to step off Benzodiazepines.” BNW discussed medication again with Dr Schaefer on 1 June 2022 and noted that BNW was taking Pregabalin (Lyrica) on 7 June 2022. That medication was ceased on 29 June 2022 and a repeat prescription for Diazepam provided.
After a general health consultation on 8 July 2022, Dr Schaefer recorded on 3 August that BNW had a week of severe anxiety and was off work for 10 days. On 2 September 2022 BNW told Dr Schaefer that she was still slowly weaning off Valium and had seen Dr McDornan the day before. BNW attended with a trainee mental health assistance dog and said that work was going well.
BNW consulted Dr Spicer by telehealth on 21 September 2022 for a flare up of gastritis and a pathology request was provided to check lithium levels. Further prescriptions for “antidepressant” and Diazepam were provided on 21 September and 12 October. A prescription for lithium was supplied on 25 October. On 8 November Dr Schaefer saw BNW for gastrointestinal issues. Her mood was stable and continued to slowly wean off Diazepam.
The next visit was on 30 November 2022 when Dr Schaefer obtained a history of BNW’s recent presentation to Lismore Hospital with neurological symptoms. BNW continued to see Dr Schafer regularly and, on 24 January 2023, was “wanting a second psych opinion, wonders if she may have PTSD.”
On 3 March 2023 Dr Schaefer recorded:
“With partner.
Wanting to apply for W/C
Stressful incident 3 days prior to onset of FND, which occurred at work.
Felt intimidated by paediatrician in form of other staff.
Three days later at work stressed +++, then onset of symptoms, was taken to ED
Unable to work since.
Pre-existing depression and anxiety
Discussed difficult to prove causality of above.
Still wanting to apply.
Long talk re process”.

Dr Schaefer provided a certificate of capacity in which she said that the cause of the injury was under stress at work, resulting in severe anxiety and functional neurological disorder. There had been a stressful incident at work three days prior to the diagnosis. She said the pre-existing anxiety and depression were factors which may be relevant to the condition.
Dr Schaefer completed a questionnaire for the State’s insurer in about April 2023. In response to a question as to whether BNW’s employment was the main contributing factor to her injury, Dr Schaefer said that she was “unable to confirm this, however undue stress may make FND symptoms worse.” She said that it was possible that the diagnosis could have arisen at this time in her lief regardless of employment.

Dr McDornan

The first report from Dr McDornan in the Application to Lodge Additional Documents is dated 25 November 2015. He noted that it had been some time since he had seen BNW, and that she had a long history of depression dispersed with anxiety and did well for some time on Fluoxetine. She had stopped taking the medication nine months before but after a few months noticed a re-emergence of depressive features and panic attacks. Dr Mc Dornan prescribed Fluoxetine again.
The next report in the is dated 24 April 2018 and Dr McDornan proposed treatment at Currumbin Clinic associated with a change in medication. BNW had moved back to Lennox Head after working in surgical nursing in Tamworth where she had a small social network though found the dynamics at the hospital testing. On 1 June 2018 Dr McDornan wrote to Ms Goldie, psychologist. He said that BNW had recently had a stay at Currumbin “where we altered her antidepressant therapy and gave her a trial of TMS”. (I understand TMS to be an abbreviation for transcranial magnetic stimulation.) Dr McDornan reported on 9 October 2018 about ongoing treatment and of a “crash into nasty depression” on 6 December 2018.
On 26 February 2019 Dr Mc Dornan saw BNW when she was on a visit home from Broken Hill where she was working. She suffered symptoms which he attributed to the use of Cymbalta and he proposed a reduction in that medication. His subsequent reports concerned medication. In May 2019 Dr McDornan said that BNW was overall less depressed and anxious though had not been treated to remission. During 2019, Dr McDornan consulted BNW every two months.
Reports in 2020 are addressed to general practitioner in Sydney. In a report dated 10 March 2020, Dr McDornan anxiety said that he treated BNW for clinical depression and co-morbid anxiety. He noted family conflict when BNW returned to Lennox head. He said that she remained isolated in Sydney and her depression is characterised by a dense sense of fatigue and cognitive difficulties, which she has battled through in her training. On 27 May 2020 Dr McDornan said that he was reviewing BNW every fortnight. On 2 February 2021 Dr McDornan said that he had obtained approval to use Ritalin for the treatment of refractory depression. He noted that BNW remained prone to periods of lowered mood with breakthrough anxiety and that she was prone to period of breakthrough anger and rage in discreet pockets.
By February 2021 Dr McDornan was again reporting to Dr Schaefer and said that BNW had noted improvement in her cognition since commencing Ritalin and a lifting of her mood, though continued to suffer symptoms. In June 2021 he wrote to an Employment Screening Coordinator from New South Wales Health in support of BNW’s employment at Lismore Hospital, saying that she had been exposed to the specific psychosocial demands of the job while working as a paediatric nurse in Sydney, and he did not consider that she required would benefit from extra support in assisting to manage the demands of the role. He noted that she had access to himself as well as her general practitioner and a psychologist.
Dr McDornan again wrote to Dr Schaefer concerning BNW’s medication in October 2021, including that she was prescribed Lithium. He said that BNW had declined a stay at Currumbin Clinic. In January 2022 he said that she had a “more reasonable summer” and still had panic attacks though they were less frequent and intense. Dr McDornan discussed medication again in March 2022, noting that BNW had reasonable control of depression but her anxiety and fatigue were more evident. He adjusted her medication again, introducing Valium and Lyrica. In April 2022 Dr McDornan noted that BNW was fearful of dipping into agitated depression “as she did last year and required hospitalisation.”
Dr McDornan again wrote about medication on 31 May and 30 June 2022. He noted that she was impacted emotionally by working a night shift and family dynamics.
On 1 September 2022 Dr McDornan said that BNW was not currently depressed but her anxiety persisted, although somewhat abated. He said it “surges forward” in any drop in benzodiazepines. Dr McDornan said that he had a pleasant interview with BNW who had recounted a series of successes around house purchase, work and meeting a new partner. He anticipated seeing her in four weeks though there are no reports in the file until that dated 24 November 2022, summarised above.

Psychological treatment

On 2 November 2022, Ms Moses, psychologist, reported to Dr Schafer, having undertaken 27 sessions with BNW for “psychological support for anxiety and depression” since 5 July 2021. She said:
“[BNW] identified the following issues she would like to address and work on; learn how to communicate during a period of conflict without getting completely overwhelmed in a panic and getting upset, and process previous traumas and learn other coping strategies for grief.”
Ms Moses’ notes show that the first of those took place when BNW was an inpatient at Currumbin Clinic. Ms Moses considered that BNW had suffered anxiety from possibly as early as age 4.
Ms Moses’ last consultation before the events of November 2022 was on 31 October 2022 when BNW said that work was going well though she continued to suffer some general anxiety. Ms Moses noted that BNW was more confident in herself and that her ability to work and have a working relationship was a sign that her mental health had improved.
In December 2022 Ms Moses discussed the events leading to a hospital stay for ill physical health and recorded “had a fit. Functional neurological disorder. Likely stress induced. Life long…some work stress – differing perspective to other staff about care of patient.”
BNW consulted Thomas Bagust in 2023 and 2024. He took a detailed history of the onset of functional neurological disorder symptoms, and while noting that the workplace “can be very intense” he did not obtain a history of the events of 14 November. He did detailed history of the diagnosis in Lismore hospital and subsequent treatment. He also recorded that BNW was diagnosed with anxiety and depression at 16 prescribed with medication. She had three separate admissions to hospital in 2013, 2018 and 2021 which added up to six months in hospital.

Dr Sebastian

Dr Sebastian, neurologist, prepared a report dated 30 November 2022. She saw BNW when she was an inpatient at John Flynn Hospital. She noted that BNW had a history of depression with a recent admission to Currumbin Clinic and recorded the medication taken for panic attacks, including a current small dose of Diazepam three times per day. Dr Sebastian diagnosed a likely functional neurological disorder, which she did not consider was caused by a recent medication change. She noted that BNW was to see Dr McDornan.
Dr Sebastian confirmed the diagnosis in her report dated 7 December 2022. Dr Sebastian did not record any history about the meeting on 14 November or express an opinion about the causation of functional neurological disorder.

Dr Goldstein

BNW began to consult Dr Goldstein, psychiatrist, in October 2023. He said in his report dated 23 October 2023 that BNW was seeking possible diagnostic clarification. He said that she had been diagnosed with a functional neurological disorder with non-epileptic seizure disorder late last year, and her first seizure occurred at work in a relatively unstressful moment but that, in the emergency department, she started developing cycles of seizures and associated disassociation in the post ictal period. He said that ultimately this increased over seven sessions per day which predominantly happened when she would arrive at work. Dr Goldstein also diagnosed complex post-traumatic stress disorder from a sexual assault when she was 17, chronic fatigue syndrome and noted that she had previously suffered substantially with panic attacks, which she had learnt to regulate better because they tend to precipitate seizures. He noted that BNW was an anxious child, and said she clearly met the criteria for generalised anxiety disorder. He said she “is a catastrophiser up and is quite overwhelm and irritable at times”[sic]. He noted that while she is not currently depressed, she has experienced depression intermittently and has required hospitalisations, including a period of three months at the beginning of that year.
Dr Goldstein said:
“[BNW] is a very complicated woman with a complicated mental health history. She presents phenotypically as someone with FND and complex post-traumatic stress disorder with episodic major depressive disorder.
I am struck by her genetic temperamental anxiety which has gone unchecked over years…
…
Whilst not currently at risk, I am struck by her functional decline and how overwhelmed of not returning to be a nurse.[sic]
Interestingly, she has become quite black and white in her thinking on this point and so is unable to consider alternative employment or study options because it is not what her passion is or what she is trained to do.
However, her symptoms emerged at work and have occurred in a functional nature and from a dynamic perspective part of me wonders whether or not there are significant traumas at work which she cannot accept as her self identity is wrapped up within her employment role; the seizures emerge at work in order to attempt to protect herself from that environment.”
In his report dated 1 December 2023, Dr Goldstein said:
“There is a significant trauma component evident in [BNW]. Today she went through her functional symptoms in detail as well as the initial episode.
Four days prior to the episode there is a workplace incident where she was trying to escalate her concerns about a very ill baby and was dismissed by the NUM and the paediatrician; only to subsequently have the patient's care reviewed and revised.
I note that since leaving work she has no contact from work and I sense that she feels rejected and unsupported by an environment that she saw as a very important part of her identity.”
On 16 February 2024 Dr Goldstein said that things continued largely unchanged and that BNW was struggling with the final part of weaning off Diazepam. He said:
“The sense of shame in [BNW] which pre dates her functional symptoms is quite clear and she has become increasingly insightful into how her longstanding and early childhood traumas have potentiated her current functional symptoms and is a possible target for psychological therapy.”

Decision notices

The State’s insurer declined BNW’s claim in a notice dated 14 June 2023. It referred to a previous undated notice in which it said that the claim had been excused because the medical information indicated the injury may not be related to employment and insufficient evidence was held to show how work was the main contributing factor to her symptoms. A request for review was accompanied by Dr McDornan’s report dated 15 April 2023 but the insurer said that the opinion conflicted with the notes from Lismore Hospital locating workplace stress was not a contributing factor to the onset of presenting symptoms.
A notice under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was issued on 30 October 2023. The review application was supported by Dr McDornan’s report dated 20 September 2023. The insurer observed that no report from a neurologist had been provided and that an assessment by a neuropsychologist had been arranged.
A further review notice was issued on 9 September 2024 after the provision of Dr Gill’s report. The insurer noted that the injury was not presented as a psychological injury. It did not accept that the functional neurological disorder was related to the events on 14 November 2022 and that the causal connection was not supported by Dr Schaefer or by Dr Lehn. The insurer said that Dr McDornan’s opinion was not convincing when the alleged injury was a neurological disorder and observed that it had not been provided with the letter from BNW’s solicitor which sought the report. With respect to Dr Gill’s report, the insurer said that he was the only doctor who classified the injury as psychological and neurological and that it did not accept his opinion in the absence of a report from a neurologist. The insurer noted that it had not been provided with the records of BNW’s long term pre-existing psychiatric disorders. It said that medical examinations would be arranged and further investigations undertaken.

SUBMISSIONS

Mr McEnaney observed that it was accepted that BNW suffers a functional neurological disorder which was diagnosed shortly after an incident on 14 November 2022. He said that the conclusion that the condition was caused by the events on 14 November 2022 was contemporaneously powerful and supported by medical evidence. Noting the factual disagreements, Mr McEnaney said that I would embrace BNW’s account of the meeting on 14 November. Following the incident, BNW found the work environment hostile, and she found it difficult to put a brave face on. She felt sick to the stomach, had severe anxiety and the event kept repeating in her head. Mr McEnaney said the salient feature of BNW’s account is that she felt anxious and distressed, and her evidence was sufficient for me to find that there was an aggravation of her per-existing depression and anxiety. Dr McDornan’s reports confirm that pre-existing condition, however, BNW had been working without interruption or complaint from 16 March 2022 until November 2022 and was working full time for the better part of nine months. Mr McEnaney said that the incident on 14 November was the main contributing factor to the deterioration of that condition, which led to an incapacity of itself, confirmed by the certificates of capacity and the history that BNW provided.
Functional neurological disorder was, Mr McEnaney said, a new condition that arose on 18 November 2022, four days after the serious incident at work. Dr McDornan in his report dated 15 April 2023 related the condition to the significant conflict and stress in the workplace and explained his reasons more fulsomely in his report to BNW’s solicitor dated 20 September 2023. In the latter report, Dr McDornan noted that the connection was not flushed out in the early treatment of the functional neurological disorder and said that the cause of the condition may be misattributed. Mr McEnaney referred to Dr McDornan’s report to Dr Schaefer dated 24 November 2022 and submitted that the statement that
“[BNW] is not aware that this experience with a person of authority has generated a crescendo of stressors.”
contained a typographical error and should be read as “[BNW] is now aware…”
Mr McEnaney said that, if he was wrong about a typographical error, the meaning remained the same because Dr McDornan’s opinion is that there is a connection between the crescendo of stressors and the functional neurological disorder, whether BNW was not aware or was now aware.
With respect to Dr Lehn’s report dated 28 December 2023, Mr McEnaney said that I should read the reference to the lack of report of a work injury to mean that BNW did not report a physical injury. Dr Lehn went on in the next paragraph to say that the causation of functional neurological disorders was multifactorial and that there were a number of possible triggers, including social stressors which Mr McEnaney said was relevant here. Mr McEnaney said that Dr Lehn’s reference to not discussing underlying factors with BNW should be read as deferring to a psychiatrist on the question of whether employment could have been the cause of the condition.
Referring to Dr Schaefer’s report dated 12 January 2024, Mr McEnaney said it was helpful in two ways. First, it explains the history of the understanding that BNW has come to about her condition, which was not until Dr McDornan had been told by Dr Sebastian that BNW’s neurological disorder was functional. At that time, the workplace stress four days earlier made sense of the onset of the condition. Mr McEnaney said that BNW should not be criticised for failing to immediately diagnose the cause of her condition. The report was also important in the description of the high-level skills required by a paediatric nurse, including attention to detail, which is what BNW demonstrated in her concern for the patient on 14 November.
Mr McEnaney summarised Dr Gill’s report and said that BNW was totally incapacitated for work.
Mr Saul said that the State’s case was that BNW failed to prove she suffered a psychological injury or aggravation of a psychological injury on 14 November 2022, because there was no contemporaneous support for that. He said that BNW, carried the onus of establishing the causal chain between the events of 14 November and the undisputed medical event on 18 November. Mr Saul said that the whole case rises or falls on whether the events of 14 November were causative of functional neurological disorder, and BNW must prove the event was the main contributing factor to the development of a psychological disease or a disease of functional neurological disorder.
At that point I asked Mr McEnaney to confirm that it was BNW’s case that each of those conditions was a disease and he that it was.
Mr Saul said that there was a glaring lack of evidence as to what the undisputed event of 14 November resulted in and there was no suggestion in any medical report or contemporaneous notes that demonstrates that BNW had panic attacks or suffered depression or anxiety or any condition related to psychological state between 14 and 18 November. Noting her extremely complex psychological problems dating back to her teenage years, Mr Saul referred to AV v AW,[1] and said that there was nothing in BNW’s medical case which weighed up the non-work stressors with the event of 14 November. He observed that there was no evidence about what happened on the intervening days and said it was unhelpful for Dr McDornan to say that BNW was psychologically well on 14 November when there was evidence that the condition had waxed and waned and was complex.
[1] [2020] NSWWCCPD 9.
Mr Saul said that the starting point should be the report of Dr Goldstein, BNW’s current psychiatrist, dated 23 October 2023, who considered the complex history including complex post-traumatic stress disorder from an assault when she was 17 and a diagnosis of chronic fatigue syndrome and considered that those factors were contributing factors to her condition. Dr Goldstein also noted that BNW was an anxious child, met the criteria for generalised anxiety disorder and was a catastrophiser. All of those factors supported the conclusion that BNW’s condition was well established and waxes and wanes.
Given that history and the fact that BNW had a long term general practitioner, it would be expected that if the event of 14 November had an impact, she would have seen her general practitioner on that day or between 14 and 18 November. Mr Saul said that BNW did not provide that history to Dr Schaefer until March 2023.
Mr Saul referred me to the passage in AV v AW[2] where Snell DP said:
“Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a)     The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[2] At [76]-[78].

Returning to the medical evidence, Mr Saul said that Dr McDornan overemphasised what happened on 14 November and did not show that it resulted in some form of psychological injury, not just that she was distressed. While a worker’s perception of real events can result in injury, but it is necessary to look at all the evidence to determine whether an injury occurred or not. Mere anxiety on the day, particularly in the context of BNW’s prior medical condition is not enough to satisfy the definition of injury. Mr Saul said that Dr McDornan’s bald statement in his report dated 15 April 2023 that the new symptom complex a few days later directly relates to the events of 14 November fails to grapple with the role of BNW’s previous psychological condition, as did the opinion in his report dated 20 September 2023 to her solicitor. Mr Saul said I would not be satisfied that Dr McDornan had grappled with the issue of causation.
Mr Saul said that the reports of Dr Lehn and Dr Schaefer did not assist BNW. He said that Dr Gill’s report was only as good as the history provided and that his brief analysis was contradicted by the extensive medical reports now available.
Mr Saul took me to the discharge summaries from Lismore and John Flynn Hospitals and the lack of reference to events of 14 November to submit that the case now made was a reconstruction. He noted the extensive history in the general practitioners’ notes
Mr Saul said that there was no allegation of a secondary psychiatric injury so that if I was not satisfied that BNW suffered an aggravation of her psychological condition on 14 November 2022, I would not be satisfied that she suffered a psychological injury nor that it resulted in a functional neurological disorder.
In reply, Mr McEnaney said that the State’s case turned on BNW’s failure to satisfy her onus of proof because it had not medical evidence and was left in the position of being forced to chip away at her case. He said that the State wanted me to set aside the opinion of Dr McDornan had treated BNW for over a decade, though multiple inpatient admissions and make findings about her pre-existing condition. Until the event of 14 November, Dr McDornan’s notes show that BNW was “on the mend” and doing much better.
Mr McEnaney said that Dr Gill summarised the notes from treating practitioners. He said there was no doubt that BNW had suffered some trauma in the past, but the evidence is that BNW was improving and managing “until she wasn’t”. Even if BNW had a period off work in August 2022 because a former colleague who had bullied her was now at Lismore Hospital (and there was no evidence of that), the fact that she returned to work showed that BNW was willing to work through things and was improving.
Mr McEnaney said that it was not a reconstruction to piece events about the causation of functional neurological disorder together after the diagnosis.
In response to my observation that BNW’s statements were very brief and concerned only the events of 14 to 18 November, Mr McEnaney said that her account of what happened in the room on 14 November was very precise and that the statements contained everything necessary.

FINDINGS AND REASONS

Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease ...”.
As Snell DP did in AV v AW, I have used “aggravation” to refer to the phrase “aggravation, acceleration, exacerbation or deterioration”.
BNW’s case is that she suffered a psychological injury as a result of the meeting on 14 November, to which employment was the main contributing factor. Given her history, any psychological injury would be an aggravation of her pre-existing condition and employment must be the main contributing factor to the aggravation. Her case is that the psychological injury led to her suffering a functional neurological disorder. In the alternative she claimed that the events of 14 November 2022 were the precipitating factor of the functional neurological disorder, as that condition is also a disease, she must prove that the events at work were the main contributing factor to the functional neurological disorder.
Snell DP said in AV v AW:
“I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one ‘substantial contributing factor’. ‘Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.’ ... On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.” (footnotes omitted, emphasis in original.)
The test is an evaluative process and does not turn on medical evidence alone.[3] Snell DP said:
“In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
‘That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369;78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’ (emphasis added)
I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as ‘one of causation’ This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited. Their Honours referred to the ‘causative element’ of the test in s 9A. It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.”
[3] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
However, BNW’s own view as to causation, expressed in her second statement, is not relevant to that evaluation.
BNW bears the onus of proving that the event on 14 November 2022 was the main contributing factor to the aggravation of a psychological condition and/or to the development of functional neurological disorder. The State did not obtain medical reports but the absence of contradictory evidence does not relieve BNW of the need to prove her case

The meeting on 14 November

BNW’s statements do not describe her experience in the workplace before the meeting on 14 November nor do they mention her extensive medical history.
Ms Behari described challenges in managing BNW in the workplace. BNW responded to some of Ms Behari’s statement in her third statement but did not deal with those paragraphs. Ms Behari’s evidence suggests that BNW may have struggled in some of her interactions with others in the workplace after she commenced work in March 2022.
The parties agree that an event occurred in the workplace on 14 November 2022. I note that there is no evidence that BNW had been involved in the care of the patient before she arrived at work on 14 November 2022. Dr Kasby’s statement confirms that she had not.
While there are some differences as to the time of the meeting and what occurred, the statements are consistent in that early on the morning of 14 November, BNW raised concerns about the care of the patient. The accounts of the meeting confirm that BNW strenuously raised her concerns about the patient, that Dr Kasby disagreed and that BNW left the room in distress. The statements of Dr Kasby and Ms Behari are consistent that there was some conflict, that it took place because BNW raised issues indicating that she disagreed with Dr Kasby about the care of the patient when the patient’s parents were present and that there was an element of discipline to the discussion.
Read together, the evidence supports the conclusion that BNW did have a response to the meeting which was loud and emotional. She described a panic attack, a symptom with which she was familiar as a result of her medical history. She recovered sufficiently to complete her shift on that day.
Dr Kasby said that she did not see BNW after meeting and Ms Behari said she did not see BNW after the completion of her shift.
BNW said that she finished her shift on 14 November and that she found it difficult to put on a brave face for the rest of her shift. She described her experience over the following days in general terms, based on conclusions drawn from her perception, not from a description of any event. She did not say when she last worked before 14 November and when she next worked.
BNW said that for the days following 14 November, she felt sick to her stomach, had severe anxiety and that the event kept repeating in her head. She did not say whether she was at work on those days or not. Even though she was working in a different area on 18 November – the Special Care nursery – BNW was concerned that Dr Kasby would come to the area to continue to belittle and bully her.
Mr McEnaney submitted that the workplace was hostile after the meeting. While the meeting could be described as hostile, the evidence of Dr Kasby and Ms Behari does not support a conclusion that BNW was “bullied” or treated unfairly by anyone in the following days, - in particular by Dr Kasby or Ms Behari who did not see her again. Her fear that she would be sought out and bullied was probably unjustified.
While BNW’s judgement as a registered nurse was relevant to the patient’s treatment, it was not the sole factor to be taken into account. In a hospital setting, it was appropriate for Dr Kasby and Ms Behari to speak to BNW when she had disagreed with Dr Kasby’s proposed treatment, particularly if that disagreement was voiced to or in front of the patient’s parents.
Roche DP considered State Transit Authority (NSW) v Chemler[4] (Chemler) and other authorities in Attorney General’s Department v K[5] and said that the following principles can be drawn from those cases:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[4] [2007] NSWCA 249 at [40].
[5] [2010] NSWWCCPD 76; (2010) 8 DDCR 120.
Even though I do not accept that BNW was bullied or treated unfairly on 14 November, her perception is that she was. The parties agree that there was conflict at the meeting. If her perception of the relevant events was the main contributing factor to an aggravation of her psychological condition, there is a basis to find that she suffered an injury.

Psychological injury

There is no medical evidence which describes BNW’s condition in the period between 14 and 18 November. While she described some symptoms which can be consistent with a diagnosis of anxiety, I cannot determine that she suffered a psychological injury based only on her own statement. That is particularly so when BNW had a psychological condition which had waxed and waned for many years.
While Dr McDornan said on 1 September 2022 that BNW was not currently depressed, he said that her anxiety persisted though was somewhat abated. She continued to taper her dose of Valium and remained on three other medications. Dr McDornan said he had a pleasant interview with her on 27 September but proposed to see BNW in four weeks. He did not refer to medication in his report to Dr Schaefer of that date. The appointment in four weeks shows that BNW was under active psychiatric treatment.
Dr Schaefer provided prescriptions for Paroxetine and Lithium on 25 October and Diazepam on 8 November.
In the context of that ongoing treatment, I cannot draw a conclusion on the medical issue of whether BNW suffered an aggravation of her condition, based on her evidence alone. As Roche DP said in Conargo Shire Council v Quor,[6] the bare assertion that a worker:
“…experienced an increase in symptoms does not, without properly qualified and explained expert medical evidence, support a conclusion that he sustained an injury within the meaning of section 4 of the 1987 Act.”
[6] [2007] NSWWCCPD 245.
There is no contemporaneous medical evidence that BNW suffered an injury as a result of the meeting on 14 November 2022. She did not see her general practitioner and she did not mention the meeting or subsequent manifestations of stress when she was treated at Lismore Hospital and denied recent stressors when asked by at least two different doctors.
Dr Sebastian who treated her at John Flynn Hospital did not set out a history of the meeting in her report dated 30 November 2022 though she did record a history of depression and of panic attacks.
Dr McDornan drew a connection between the conflict on 14 November and functional neurological disorder in his report to Dr Schaefer dated 24 November 2022, apparently following a consultation with BNW. His report is difficult to understand for a number of reasons. The first is the statement that “[BNW] is not aware…” which Mr McEnaney said should be regarded as a typographical error. The second is the reference to “the phenomenon of functional neurological disorder and the displacement into the symptom containing anxiety” which is not explained. He did not clearly diagnose a psychological injury, being the aggravation of her previous condition.
Dr McDornan also did not diagnose a psychological injury in his report to Dr Schaefer dated 31 January 2023. He said that BNW “accepts there are clear links, with waves of emotion, predominantly anger” but that does not, without more explanation, constitute the diagnosis of a psychological injury. The omission is less important in his reports to BNW’s general practitioner than in reports obtained for the purpose of persuading the Commission that compensation should be awarded.
The requirements for expert evidence were set out in (among other cases) South Western Sydney Area Health Service v Edmonds[7] (Edmonds) where McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[7] [2007] NSWCA 16 at [130]-[132].
In the report dated 15 April 2023 to BNW’s solicitor, Dr McDornan said that the new symptom complex of functional neurological disorder directly related to the conflict and stress in the workplace, but did not specifically say that her previous psychological condition has been aggravated. In his report dated 20 September 2023, he said that the connection between a robust discussion and the condition was “not flushed out”. However, Dr McDornan did not explain the nature of the connection between the previous psychological condition, and functional neurological disorder. He said little more than the conditions were stable and well controlled, and that functional neurological disorder was a new emergent illness complex.
Dr McDornan did not diagnose a psychological or psychiatric disorder within the meaning of s 11A(3) of the 1987 Act.
While Dr Goldstein did obtain a history of the meeting on 14 November in his report dated 1 December 2023, he did not attribute the causation of any injury to it. The history he recorded – that the infant patient’s treatment was reviewed and revised as a result of BNW’s concerns – is not supported by any evidence, including her own. He diagnosed functional neurological disorder potentially on the background of complex post-traumatic stress disorder and major depression. His reports, prepared for treatment rather than medico-legal purposes, do not assist in resolving the question of whether BNW suffered a psychological injury on 14 November 2022.
Dr Gill said that BNW’s pre-existing conditions were aggravated but he did not set out any history of the days between 14 and 18 November and there is no evidence that the events “triggered a cascade” which led to the functional neurological disorder. For the reasons set out in Edmonds, his bare statement that the conditions were aggravated is not probative.

I am not persuaded that BNW suffered a psychological injury in the course of her employment on 14 November 2022. I am satisfied, however, that she found the events of that day stressful and that they caused her to suffer a panic attack and experience significant distress.

Functional neurological disorder

The evidence is consistent that BNW suffered a functional neurological disorder but is not in agreement as to its cause.
BNW was referred to Dr Lehn for treatment. In his first report to Dr Schaefer, he obtained a history that BNW was well on the morning of 18 November. He described her treatment and the triggers for the manifestations of functional neurological disorder and provided information about the condition, indicating his willingness to remain involved in BNW’s case as part of a multidisciplinary team.
BNW’s solicitor asked Dr Lehn to prepare a report and, in answer to a specific question, said on 28 December 2023 that BNW did not report a work injury to him. He said that the condition of functional neurological disorder is multifactorial and there are usually many factors which play a role in the development. I do not accept Mr McEnaney’s submission that Dr Lehn was only considering whether BNW suffered a physical injury. He was clearly aware of BNW’s pre-existing condition. Dr Lehn did not consider the events of 14 November 2022 and said that BNW did not report employment related factors to him. He also said that he did not discuss the underlying factors with her, confirming that his focus was on diagnosis and treatment.
The letter of instructions to Dr Gill to prepare his report dated 31 July 2024 was not provided in the ARD and it is not clear from the report which documents he considered or what, if any, assumptions he was asked to make. His report does not explain his specialty of a consultation-liaison neuropsychiatrist.
Dr Gill set out a detailed history of the incident on 14 November 2022 which omitted that any reference to BNW’s disagreement in the presence of the child’s parents with the decisions made about the care of the patient. He summarised some of the reports which appear in the ARD. His precis of Dr Schaefer’s opinion is a summary of her report dated 12 January 2024 only. He noted the reports of Dr McDornan that appear in the ARD and those of Dr Lehn.
Dr Gill said that the catalyst for BNW’s current conditions of major depression and functional neurological disorder was the incident on 14 November 2022 which triggered severe psychological distress culminating in a panic attack and subsequent functional neurological disorder. The thrust of his opinion is that a significant conflict triggered a cascade of psychological and neurological symptoms leading to the diagnosis of functional neurological disorder and severe exacerbation of major depression.
He said that functional neurological disorder is often precipitated by significant psychological stressors. He was asked if employment was the main contributing factor to “developing this disorder” and to the aggravation of her pre-existing conditions and said that it was definitive that it was.
Dr Gill’s report does not set out the detail of BNW’s pre-existing condition, though he did have a history of the assault when BNW was aged 17 which he said likely contributed to the complexity of her current state. He was aware of hospital admissions though perhaps not their extent in that he said that the latter two admissions were for the purpose of medication change only, not taking into account the nature of the treatment described by Dr McDornan.
In accepting that the stressful events of 14 November 2022 led to the diagnosis of functional neurological disorder, Dr Gill did not consider other possible contributing factors. As Snell DP said in AV v AW, the test of main contributing factor is a test of causation and is an evaluative process made on the whole of the evidence, not purely a medical question.
While the evidence does not support a finding that BNW suffered a psychological injury on 14 November, it is clear that she was very distressed by the meeting.
In Kooragang Cement Ltd v Bates,[8] Kirby P said that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. His Honour said:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 at [461G].
Kirby P said:[9]
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
[9] At [463]-[464].
While BNW does not claim compensation in respect of a consequential condition, Kirby P’s statement about causation generally is relevant. The need for a commonsense evaluation of the causal chain is important where the condition BNW suffers is at the intersection of medical specialties. Her symptoms appear neurological but they are, as Dr Lehn said, “inconsistent and incongruous with a neurological process”, requiring a multidisciplinary approach to her treatment.
BNW suffered a significant pre-existing psychological condition. The evidence of Dr Lehn and Dr Gill is that that condition made her vulnerable to the development of a functional neurological disorder. Her vulnerability was a causal factor to the development of the condition.
Though Ms Behari’s evidence shows that BNW may have had some difficulties with personal interaction in the workplace, she was performing her work until 18 November 2022. Dr McDornan described significant improvements and life achievements and considered that her depression was in remission.
On 14 November, BNW attended a meeting which she found stressful. An experience of stress is not necessarily a psychological injury and I am not satisfied that it caused an aggravation of her underlying psychological condition, in the absence of medical evidence that it did. However, in the context of the vulnerability that her pre-existing condition caused, I am satisfied that the stressful event precipitated the onset of her functional neurological disorder, which is an injury.
Dr McDornan embraced the stress of the meeting as the cause of BNW’s injury soon after it occurred. Dr Schaefer was reluctant to do so when she was asked to do so about four months later. The neurologists she has seen for diagnosis and treatment have focused on those tasks and Dr Lehn conceded that he had not discussed those issues.
In AV v AW, the cause of the psychological condition suffered by the worker was exposure to “triggers” which she may have been exposed to outside the workplace as much, or to a greater degree than in it. In the circumstances of that case, there were clearly other competing causes of the condition which mitigated against the finding that employment was the main contributing factor.
The only competing causal factor disclosed on the evidence here is the underlying vulnerability to BNW suffering a functional neurological disorder. In circumstances where an event at work precipitated symptoms of stress only a few days before the onset of functional neurological disorder, I am satisfied that the meeting on 14 November 2022 was the main contributing factor to the injury.
There is no dispute that BNW has had no current work capacity since 18 November 2022. Because she worked on that day, I presume that the claim commenced from the following day. BNW is therefore entitled to an award of weekly compensation at the rate of $970.29 from 18 November 2022 to date and continuing.
The parties compromised on the figure for pre-injury average weekly earnings and did not discuss indexation. I grant liberty to apply if there is any dispute as to indexation.

[2025] NSWPIC 32

3 February 2025