Bramble v State of New South Wales (Hunter New England Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bramble v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 655
APPLICANT:	Kylie Bramble
RESPONDENT:	State of New South Wales (Hunter New England Local Health District)
MEMBER:	Jill Toohey
DATE OF DECISION:	28 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation for psychological injury; claim for weekly payments and medical expenses; no dispute as to the circumstances that led to the claimed injury; respondent’s independent psychiatrist assessed applicant as suffering PTSD and major depressive disorder as a result of the incident; opinion retracted after results of testing indicated applicant was malingering; weight to be given to the results of testing; applicant’s treating psychologist and treating and independent psychiatrists maintained their opinion; finding it was not open to the applicant to challenge the validity of the testing in the absence of expert evidence; finding that greater weight should be given to the applicant’s evidence; Held – finding that the applicant suffered a psychological injury arising out of or in the course of her employment; respondent to pay weekly payments at the rate of the agreed PIAWE as indexed and reasonably necessary treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury arising out of or in the course of her employment on 4 July 2023 to which her employment was a substantial contributing factor. 2. The respondent to pay the applicant weekly compensation from 29 March 2024 to date and continuing based on her pre-injury average weekly earnings of $1,263.12 as indexed. 3. The respondent to pay the applicant’s reasonably necessary treatment expenses

STATEMENT OF REASONS

BACKGROUND

Kylie Bramble, the applicant, was employed by the Hunter New England Local Health District (the respondent) as a dental assistant. On 4 July 2023, she was abused and threatened by a patient. Ms Bramble claims she suffered a psychological injury as a result of that incident and her employer’s lack of support. She claims weekly payments from 29 March 2024 to date and continuing, and reasonably necessary treatment expenses.
The respondent’s independent medical examiner, psychiatrist Dr John Honey, initially assessed Ms Bramble as suffering with “a very significant psychological illness” as a consequence of the events at her workplace. He diagnosed her as suffering with a post-traumatic stress disorder.
On 23 October 2023, psychologist Dr Paul Phillips reported to the respondent with the results of psychometric testing from which he concluded that Ms Bramble was malingering.
On 14 December 2023, Dr Honey reported that he accepted Dr Philips’s diagnosis of malingering. On that basis, he said, there was no relevant diagnosable condition.
By dispute notices issued on 9 February 2024 and 26 March 2024, the respondent denies liability to compensate Ms Bramble. The respondent disputes that she has sustained a psychological injury for the purposes of ss 4 and s11A (3) of the Workers Compensation Act 1987 (1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are:
(a)    whether Ms Bramble suffered a psychological injury as a result of her employment with the respondent,
(b)    if so, whether she has had any incapacity as a result, and
(c)    whether she is entitled to medical expenses.
Parties agree that Ms Bramble’s pre-injury average weekly earnings (PIAWE) are $1,263.12 as indexed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Parties attended a conciliation conference and arbitration hearing on 14 November 2024. Ms Bramble was represented by Mr Young of counsel, instructed by Ms. Norton. The respondent was represented by Mr Adhikary of counsel, instructed by Mr Gilmour.
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 to bring them to a settlement acceptable to all of them. I am satisfied that they have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witness.

Ms Bramble’s evidence

Ms Bramble provided a statement of evidence dated 9 August 2024.[1] A summary of her statement follows. The respondent does not take issue with her account of the events at work but disputes her claim that she suffered psychological injury as a result.
[1] ARD page 1.
Ms Bramble states that she had been employed by the respondent as a dental assistant since July 2015. She had no history of psychological or mental health conditions. She considered herself to have “a happy and calm disposition with a strong mental fortitude.” In 35 years in the dental profession, she has dealt with people from all walks of life, and aggressive patients are “a weekly occurrence”.
On 4 July 2023, a patient arrived late for an appointment and became agitated when Ms Bramble told her she would have to wait. The patient complained about having to wear a face mask, she became abusive and aggressive, and she demanded an Emergency Voucher so she could attend on her usual dentist. Ms Bramble explained why she could not provide the voucher for the extensive treatment the patient required. The patient seemed to calm down but began complaining again about the wait time, and she “got up, began pacing, ranting and behaving erratically”.
Later that day, Ms Bramble learned that the patient had called the local oral health contact centre demanding a voucher to see a private dentist. The operator who told Ms Bramble about the call said the patient was a “blubbering mess”. The operator tried to explain the process to her but the patient threatened to kill staff if she went back to the clinic where Ms Bramble worked. Ms Bramble learned that the call centre had not documented the patient’s threats, and she documented them herself. She remained at work for the rest of the day but felt unsafe walking to her car, and staff were told to leave the clinic together for their safety.
Ms Bramble says she did not feel the patient’s behaviour was adequately addressed by management at the clinic. They told her that, if she felt unsafe, she should leave the reception area or the clinic whenever the patient presented to the clinic. She asked her employer to contact the police but they did not do so.
Ms Bramble went to work the next day but felt “very apprehensive” and was worried every time the door opened that it might be the patient again. When her manager made a “courtesy call” to the patient, the patient referred to Ms Bramble as “that thing” at reception and said she was lucky the patient’s husband did not bash her head in, and Ms Bramble would be sorry if she ever saw her again. Ms Bramble says it was concerning that the clinic’s non-zero policy to violence and aggression was not brought up with the patient, and she felt her behaviour was not being adequately addressed.
On 6 July 2023, Ms Bramble did not feel well enough to go to work, and she has not returned since. She remains “concerned, upset and scared that the patient’s threats were very serious”. She says she does not feel safe at work or anywhere in the small town where she lives. She saw her general practitioner, Dr Su Oo, that day. Dr Oo diagnosed her with an acute stress reaction and referred her to psychologist, Jeanette Pheiffer.
On 7 July 2023, Ms Bramble’s team leader sent her an email to say that, if she felt the matter warranted reporting to the police, they would support her. Ms Bramble felt her employer should report the matter as part of the “zero-tolerance policy”. Approximately one week later, Ms Bramble reported the matter to the police herself. They suggested she press charges but she did not want to deal with the process and she did not want to have to go to court. Subsequently, the police officer contacted Ms Bramble and “expressed concern about the patients’ husband’s criminal record” in light of the patient’s remark that Ms Bramble was lucky her husband didn't “bash her head in”.
Ms Bramble describes her appointment on 9 October 2023 with Dr Phillips who diagnosed her with malingering. She found the experience “very distressing” and “more like an interrogation than a medical assessment”. He compared her to the Unabomber and serial killer Jeffrey Dahmer, and he questioned her intellect. She was home alone when his report was emailed to her and she had “a complete breakdown and was crying uncontrollably”. She disputes Dr Phillips’s comment that she “apparently believe she has special mystical powers or a special mission in life that others do not understand or accept”. Ms Bramble says she has never said anything like this.
Ms Bramble describes her ongoing treatment with Ms Pfeiffer and, from 17 April 2024 with psychiatrist, Dr Jennifer Young, and what she says are the ongoing effects of her injury.

Related workplace documents

A record of Ms Bramble’s Performance Development Review on 13 June 2023 notes her comment that a “growing number of patients in the waiting room [are] being abusive” and the manager’s agreement that “there needs to be something in place particularly in regards to confrontational patients at the desk.”[2]
[2] ARD page 26.
An unsigned document headed “Wednesday 05/07/2023”, apparently a record made by Ms Bramble’s manager,[3] describes what Ms Bramble told her about the incident. The manager noted her phone call to the patient who made “unsettling” comments about Ms Bramble, including “Lucky my husband didn't pull her across the counter and bash her head in” and “She will be sorry if she's there when I come in”.
[3] ARD page 30.
The manager noted that, after this conversation, she felt it would be unsafe for Ms Bramble to be present when the patient attended the clinic, and she placed a note on the patient’s file to this effect. She noted that she advised Ms Bramble to remove herself from reception and go to the tea room if she fels uncomfortable with that patient or any other patient, and that she could call the manager or security.
The manager recorded that, after reading the notes, Ms Bramble was “understandably upset and said she was feeling very unsupported by management”. Ms Bramble said she thought her employer should call the police. “HR” advised the manager that the clinic should not call the police but Ms Bramble would have their support if she felt it was needed, and they were to walk together to their car after work.

Dr Honey’s report dated 6 November 2023

Dr Honey saw Ms Bramble for assessment on 2 November 2023 and reported to the respondent’s solicitors on 6 November 2023.[4]
[4] Reply page 84.
Dr Honey took a history of the incident on 4 July 2023 consistent with Ms Bramble’s statement of evidence. He noted that she was seeing a psychologist who was “trying to help her overcome her fears through a graded desensitisation approach.” He noted that she could not go out unaccompanied, she was hypervigilant and scared, and she was afraid she would run into the patient or her husband. Dr Honey noted that she had been on Sertraline antidepressant medication for the previous six weeks.
Dr Honey noted there had been “a little improvement” since Ms Bramble commenced on Sertraline. He noted her continuing symptoms including nightmares and intrusive images about the event. On examination, he said she was “a very anxious and somewhat tearful woman who found it difficult to talk about” the circumstances of her injury. He said Ms Bramble “impressed as a very genuine witness who loved her job and who feels somewhat ashamed and embarrassed about her inability to cope with everyday activities.”
Dr Honey stated that Ms Bramble was “suffering with a very significant psychological illness as a consequence of the events described which led her to fear for her life.” He diagnosed her as suffering with a post-traumatic stress disorder that satisfied the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) for that condition. He noted that she was “highly motivated to recover”, she loved her job and wished to return to it but, at that time, did not feel safe doing so. He thought she would require a further three to six months of “quite intensive psychological treatment and medication” in order to recover sufficiently to return to work. He said she required additional treatment and, if practically possible, should be referred to a psychiatrist for review of her medication regime because there were a number of other medications which might be helpful in speeding her recovery.

Dr Phillips’s report

Dr Phillips saw Ms Bramble for assessment on 9 October 2023 and reported to the respondent’s solicitors on 23 October 2023.[5] His report runs to 83 pages, including detailed descriptions of the tests he administered using the Minnesota Multiphasic Personality Inventory (MMPI), and his findings.
[5] Reply page 1.
At the start of his report Dr Phillips included a “Plain English Summary” to help the reader understand the technical information in the report. He states that none of the prior assessments of Ms Bramble could be considered a “full psychological diagnosis” and said they were “essentially deficient in their process for medicolegal purposes” because a clinical interview turns almost entirely on a person’s accurate report of their symptoms.
Dr Phillips stated that his assessment differed from the others in the administration of the MMPI-2 which, he said, psychiatrists are told by their own textbooks to use and not to trust the clinical interviewer therapy history in medico legal contexts. He stated:
“When the test results indicate that the self-report is distorted, either by denial, gross exaggeration or fabrication, then the self-report must be rejected. The distortion prevents any accurate diagnosis of a mental illness being made. Such a situation is instead covered by the diagnosis of malingering [in the case of an external motivator such as compensation].”
Dr Phillips explained that a person's profile on testing is compared to known profiles for other diagnoses. If a person has post-traumatic stress disorder, their profile will be similar to other known profiles for people with post-traumatic stress disorder such as injured workers, bullying victims, harassment victims and trauma survivors, Holocaust survivors, and persons with schizophrenia and dissociative identity disorder.
In each case, Dr Phillips reported that Ms Bramble endorsed more symptoms than the average person who fits within each of those profiles. If taken at face value, she was “far more mentally ill” than the average worker who developed post-traumatic stress disorder as the result of a workplace injury, or who was injured by harassment, or who was bullied at work, and she was “far more mentally ill” than the average person with post-traumatic stress disorder after surviving the Holocaust.
Dr Phillips concluded that, in effect, Ms Bramble's profile was “not medically possible (and certainly not for the alleged mechanism of injury).” He concluded “based on commonalities in all assessments and collateral information” that she met the diagnosis in the DSM-V of malingering, the three elements of which are exaggerated or fabricated symptoms, medical attention and treatment, and external reward. He said that, in a medico-legal case involving money, the “external reward” is present and the “presence of exaggerated or fabricated responses” was detected in Ms Bramble’s case. He stated that the correct label for the results of her testing is malingering.
Dr Phillips said:
“The diagnosis from the psychometric testing of malingering supersedes, prevents, and overrides all other diagnoses. Until ruled out by evidence of similar quality as that presented above, it is the standing diagnosis. Any questions regarding prognosis, treatment options, course, etc, are mute. As malingering is a diagnosis that is not a mental illness, it cannot be asserted that a valid mental illness is the cause of any decrease in performance, employment, or study options.”[6]
[6] Reply page 26.
Dr Phillips cites studies over many years to support his view that testing is not inferior to clinical judgment and “if there is a discrepancy between the two, the testing method should be given more weight as it is as it is more likely that it is superior.”[7] Further, “even a highly experienced clinician using clinical interview cannot be relied on to be more accurate than the tests used in the current assessment battery.”
[7] Reply page 65.
In an appendix,[8] Dr Phillips describes the “multiple benefit of the doubt checks” applied before reaching a conclusion that a person is malingering.
[8] Reply page 67.

Dr Honey’s report dated 14 December 2023

On 14 December 2023, Dr Honey reported to the respondent’s solicitors that he had reviewed Dr Phillips’s report.[9] He said:
“The computer derived and scoring and analysis of the well validated psychological test, the [MMPI] is hard to contradict.
The report of that testing leads to the diagnosis of malingering which I accept according to the argument presented by Dr Phillips. In the presence of a diagnosis of malingering the diagnostic process can't proceed any further. This is in part to be based on the assertion that exaggeration is to be treated the same as malingering. That seems to say that if a person has been untruthful about the severity of symptoms then they are also being untruthful about the presence of symptoms.”
[9] Reply page 93.
In response to a question whether Ms Bramble continued to suffer from the effects of the work-related injury, Dr Honey said:
“The worker does continue to suffer with some anxious apprehension about the circumstances of the workplace. She does express the view that her concerns about the workplace situation have not been adequately dealt with by her employer.”
With respect to Ms Bramble’s capacity for employment, Dr Honey said in light of his previous comment, her capacity for employment at the time that he saw her originally, that is employment in that place and in those circumstances, was “zero and was a result of her anxious apprehension as a result of feeling unprotected in the workplace.” Her “concerns about being unsafe in the workplace” needed to be addressed in order to facilitate a return to work, gradual or otherwise.

Dr Smith’s report

Psychiatrist, Dr Glen Smith, saw Ms Bramble for assessment on 7 May 2024 and reported to her solicitors on the same date.[10] He noted the dispute notices which relied on Dr Phillips’s assessment and Dr Honey's second report. He noted documents including Ms Bramble’s statement of evidence, file notes of the event on 4 July 2023, various allied health documents, Certificates of Capacity and Dr Young’s report dated 22 April 2024.
[10] ARD page 52.
Dr Smith took a history of what happened in Ms Bramble’s workplace which is uncontroversial. He noted that she started seeing psychologist, Jennifer Pheiffer, from July 2023 and was diagnosed with anxiety, depression and post-traumatic stress disorder. He outlined her current symptoms and their effect on her functioning. He described Ms Bramble on examination as “cooperative but she appeared very anxious.”
Dr Smith made a provisional diagnosis of post-traumatic stress disorder and major depressive disorder with anxious distress. He justified his diagnoses by reference to the criteria in DSM-V and said Ms Bramble presented with symptoms consistent with those diagnoses. He said her symptoms developed in the context of the verbal abuse, physical intimidation and death threats during the incident in July 2023 on a background of frequent exposure to verbal abuse and physical intimidation in the workplace. He said her “previous exposure to recurrent aggressive incidents, characterised by verbal abuse and physical intimidation, in her workplace likely rendered her vulnerable to the severe decompensation that she suffered after the traumatic incident in July 2023.”

With respect to Dr Phillips and Dr Honey, Dr Smith said he had not seen their reports but he disagreed with the conclusions of the s 78 notice dated 9 February 2024. He said there was corroborated evidence from file notes that Ms Bramble was threatened with death, satisfying criterion 1 for the diagnosis of post-traumatic stress disorder. Her history and presentation was consistent with the documentation from her treating practitioners: the psychologist, general practitioner and psychiatrist. Furthermore, her presentation was “more consistent with the description of true PTSD as opposed to malingered PTSD, as provided by Hall and Hall (2006) and she did not appear to exaggerate her symptoms.”
Dr Smith concluded:
“Considering the totality of the available information, including her own history, the mental state examination, the evidence that the traumatic incident actually occurred as described and the available documentation from treating practitioners, in my opinion, on the balance of probabilities, Ms Bramble has suffered from symptoms consistent with the diagnosis of PTSD and major depressive disorder after the traumatic incident in July 2023.”
Dr Smith said Ms Bramble presented as “completely unfit for any employment due to her anxiety and depressive symptoms with associated suicidal ideations and cognitive impairments.”

Ms Pheiffer’s reports

Ms Pfeiffer reported to Dr Oo on 30 August 2023 that Ms Bramble had attended “7/8” appointments for the treatment of severe anxiety and depression since the work-related injury.[11] Ms Bramble completed a depression, anxiety and stress scale (DASS21) on 27 July 2023 on which her scores indicated severe depression, anxiety and stress. On 11 August 2023 she completed the Post Traumatic Check List (PCL checklist), a “self-report measure that assesses the DSM-V symptoms of PTSD.” Ms Bramble’s score indicated a provisional post-traumatic stress disorder score and diagnosis. Ms Pfeiffer recommended a trial of medication and referral to a psychiatrist for diagnosis and review of her treatment plan. She said Ms Bramble had no current capacity to return to work.
[11] ARD page 76.
On 23 July 2024, Ms Pheiffer reported that Ms Bramble had dealt with verbally abusive patients during her career but had never felt personally threatened as she was in July 2023. Ms Pheiffer said she was diagnosed with post-traumatic stress disorder and major depression with anxiety and panic attacks. She presented with “significant mental health symptoms as a direct result of workplace events” and she continued to be “in a fragile PTSD state with severe depression anxiety, poor sleep, irritability and anhedonia.”
With respect to Dr Phillips’s and Dr Honey's reports, Ms Pheiffer noted that Dr Phillips conducted a five-hour long psychometric assessment and concluded that Ms Bramble was malingering. Ms Pheiffer described Ms Bramble’s symptoms by reference to the criteria for a diagnosis of post-traumatic stress disorder. In light of those criteria, she considered the documentation from the general practitioner and Dr Young, and recurring trauma symptoms evident and reported in psychological therapy sessions were consistent with the diagnosis of post-traumatic stress disorder. She said Ms Bramble’s fear of returning to work was compounded by the employer’s delay in action to remedy “the safety protocols” and they were further exacerbated by Dr Phillips’s report of malingering which she received by email and proceeded to read on her own without support or debriefing. Ms Pheiffer said there were “no indications or evidence in Ms Bramble’s psychological therapy sessions of exaggeration.”
Ms Pheiffer considered that Ms Bramble had no capacity to return to pre-injury duties, and a review after 12 months psychiatric and psychological intervention was recommended to determine her progress and further treatment needs.
In a report dated 26 July 2024, Ms Pheiffer confirmed her opinion that Ms Bramble had post-traumatic stress disorder and major depression with anxious distress, and she was totally unfit for work until she stabilised and her symptoms improved.

Dr Young’s reports

Psychiatrist Dr Jennifer Young reported to Dr Oo on 22 April 2024 that she saw Ms Bramble for initial assessment on 17 April 2024.[12] She noted that Ms Bramble was paying for her consultation herself since her claim had been declined by the insurer. Dr Young noted that, on review on 22 April 2024, Ms Bramble:
“… was visibly distressed and clearly has ongoing significant symptoms that seem clearly the direct result of her events in workplace from July 2023. Specifically, she describes panic attacks, middle insomnia, racing thoughts, intrusive memories and flashbacks of the events, hypervigilance, and avoiding events/people and places that may trigger trauma memories”.
[12] ARD page 84.
Dr Young said her impression was of post-traumatic stress disorder, with panic attacks and secondary major depression. She noted that Ms Bramble was on a number of medications which Dr Young recommended be adjusted. She said Ms Bramble was unfit at that time for any work role or duties.
On 26 June 2024, Dr Young reported to “HR Department NSW Health” confirming her impression and her opinion that Ms Bramble’s diagnoses were the direct result of workplace events and should be covered by workers compensation but, failing that, she needed to remain on leave without pay.[13]
[13] ARD page 87.
On 22 July 2024, Dr Young reported to Ms Bramble’s solicitors.[14] She confirmed her diagnosis by reference to Ms Bramble’s symptoms. With respect to Dr Phillips’s report she said:
“As Ms Bramble’s treating psychiatrist it is my opinion that her symptoms and presentation are consistent with true PTSD and are not feigned or malingering PTSD. At each clinical review Ms Bramble presents in a consistent and distressed manner, her clinical presentation is consistent with PTSD and depression, and while this is refuted by MMPI results, I can not as a treating psychiatrist ignore or discount Ms Bramble’s level of distress and consistent description of symptoms and presenting agitation at reviews.
On the balance of probabilities with regard to the symptoms Ms Bramble presents with, the agitation and distress she presents with, the ongoing motivation to seek treatment despite her claim being denied and the significant negative impact that these symptoms and events are having on her life, to me are more consistent with true PTSD and depression, not malingering.”
[14] ARD page 88.
With respect to the testing carried out by Dr Phillips, Dr Young said:
“My understanding of MMPI is that it should not be a stand-alone test by which a diagnosis or forensic assessment is made, rather it should be used in combination with history, clinical examination and longitudinal assessment and knowledge. MMPI is a broadband test and is a general tool to support and assist in rendering a diagnosis, not to be a stand-alone diagnostic tool, nor replace clinical diagnosis and judgment.
While the MMPI results are of interest and clearly place clinicians in a quandary and challenge our diagnostic impression, I do not feel it should replace diagnostic opinion. Also noting that these tools were designed to assist patients not judge and penalise, which is how the application by Dr Phillips is being used.
Perhaps a way forward is for another symptom validity test to be undertaken with Ms Bramble, noting that literature indicates that more than one test is recommended when implying/reporting malingering.
Tracy and Rix (2017 BJPsych Advances vol 23, 27-25) indicate that MMPI-2 in PTSD has a mixed evidence base on its ability to detect malingering, and that there are more specific malingering scales for PTSD that would be more specific, sensitive and appropriate.
It is also noted that the GP, psychologist, and three separate psychiatrists (Dr Honey, myself and an IME from legal team) have all assessed Ms Bramble and identified psychological symptoms consistent with PTSD and depression. This clinical judgment must be considered by author of MMPI results, and not just dismissed, just as clinicians are being asked to consider the MMPI results.
Literature indicates that tests such as MMPI should be supported by multiple evidence sources, which include detailed interviews, medical notes, longitudinal assessment. Again noting that MMPI should not be used as a stand-alone tool.
Indicators suggesting malingering as per DSM V - other conditions that may be a focus of clinical attention – are ‘lack of compliance with diagnostic evaluation, treatment regimen and follow up care’, along with ‘marked discrepancy between claimed stress and objective findings and observations’. Neither of these factors are present for Ms Bramble, noting that that she undertook the MMPI is in of itself suggestive of not malingering, her seeking private treatment and out of pocket expenses for treatment and compliance with recommended treatments all suggest Ms Bramble is distressed by her symptoms and is seeking improvement.
DSM V also suggests that presence of antisocial personality disorder is suggestive of malingering. Ms Bramble has no history or presentation that is consistent with ASPD.
Throughout initial assessment and subsequent reviews Ms Bramble has had consistent presentation and behaviours of agitation, anxiety, impacted cognition and concentration that are consistent with diagnosis of PTSD and depression.
It is further noted that Ms Bramble’s description of events, precipitating events and symptoms appears consistent across all the medical assessments undertaken, there does not appear to be changes over sequential interviews, nor discrepancies between the different reports. Ms Bramble’s self-reported symptoms also seem in keeping with observed behaviour.”

SUBMISSIONS

The respondent’s submissions

Mr Adhikary submits that the primary issue for determination is whether Ms Bramble suffered injury within the meaning of ss 4 and 9A of the 1987 Act. He submits that there is no dispute as to the events in July 2023 but, based on Dr Phillips’s report, Ms Bramble has not suffered a psychological injury or disorder.
Mr Adhikary submits that I would not accept the challenges to Dr Phillips’s opinion based on Ms Bramble’s evidence, which should be given limited weight, and the other medical evidence. Dr Phillips based his assessment on specialised knowledge and testing, and his clinical assessment on the day. Further, I would not accept Ms Bramble's challenge to the validity of his testing.
Mr Adhikary submits that Ms Bramble’s evidence, including that of her doctors, relies solely on her reporting; Dr Phillips’s testing is objective. His report describes in detail how to understand the testing he carried out, his methodology and how he came to his diagnosis of malingering. He explains that the first step in any diagnosis is to rule out malingering. He explains how the results of his testing are interpreted and he gives Ms Bramble the benefit of the doubt.
Mr Adhikary submits that the respondent also relies on the report of Dr Honey who accepts Dr Phillips’s diagnosis. In contrast, Dr Oo offers no comment which, in Mr Adhikary’s submission, is telling.
With respect to Dr Young, Mr Adhikary submits that she acknowledges that she is not a forensic psychologist. She acknowledges there is a place for psychometric testing and she even suggests further testing be carried out.
Mr Adhikary submits that I would prefer the objective testing carried out by Dr Phillips over Ms Bramble’s self-report and the reports of her doctors who rely on her self-reporting.

The applicant’s submissions

Mr Young submits that Dr Phillips’s assessment is just one of a number of diagnostic tools. In Mr. Young’s submission, Dr Phillips takes his assessment too far and says, in effect, that testing “trumps” clinical assessment.
Mr Young questions whether Dr Phillips’s methodology is even valid and relevant. Mr Young questions why it is relevant to compare Ms Bramble’s symptoms to the experience of the average Holocaust survivor or the average injured worker subjected to workplace bullying, a person with schizophrenia or dissociative identity disorder or a person like notorious serial killer, Jeffrey Dahmer. Mr Young submits it is “a huge leap” to jump from there to a diagnosis of malingering.
Mr Young submits that there is no dispute that the events Ms Bramble describes in fact happened, and it cannot be said that her symptoms are disproportionate. He submits that Dr Phillips’s methodology and assumptions are questionable. In effect, Dr Phillips says forget all other evidence once testing has arrived at a particular conclusion. Further, Ms Bramble disputes saying anything to the effect that she was “on a mission” and believed she had special mystical powers.
Mr Young submits that, although Dr Smith did not see Dr Phillips’s and Dr Honey’s reports, he clearly understands them and he explains carefully why he disagrees with them. Ms Pheiffer and Dr Young came to the same diagnosis of post-traumatic stress disorder major depressive disorder based on their clinical judgments.
Mr Young submits that Dr Young accepts that testing is valid but says it is only part of the assessment. Mr Young submits that I would accept the clinical judgement of Ms Bramble’s treating team including expert psychiatrists. In contrast, Dr Honey simply says it is “hard to contradict” Dr Phillips’s assessment without explaining why. Dr Honey does not evaluate the evidence and accepts uncritically that Dr Phillips’s testing outweighs all other evidence.

Submissions in reply

in reply, Mr Adhikary submits that Dr Phillips explains in his report why testing is to be preferred over clinical assessments. Further that the validity of his testing cannot be attacked without cogent expert evidence: Strinic v Singh[15].
[15] Strinic v Singh (2009) NSWCA 15 (Strinic).

CONSIDERATION

There is no dispute that the events Ms Bramble describes at work on and after 4 July 2023 occurred. The real issue is what weight is to be given to Dr Phillips’s report (and Dr Honey who agreed with him) in determining whether she has suffered a compensable psychological injury.
Ms Bramble bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[16] and Nguyen v Cosmopolitan Homes.[17]
[16] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[17] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Mr Young made a number of submissions questioning the validity and relevance of the tests administered by Dr Phillips. I do not accept those submissions. I agree with Mr Adhikary’s submission that the validity of the testing cannot be challenged in the absence of cogent expert evidence: Strinic.
Dr Young does not challenge the validity of the tests administered by Dr Phillips. Rather, she takes issue with his view that testing necessarily outweighs clinical judgment. She cites research indicating that MMPI-2 in post-traumatic stress disorder has “a mixed evidence base on its ability to detect malingering” and she says there are “more specific malingering scales for post-traumatic stress disorder that would be more specific, sensitive and appropriate.” She cites the source of her opinion and the respondent has not challenged what she says.
Dr Young’s mind is not closed to the kind or usefulness of testing carried out by Dr Phillips. She clearly recognises there is a place for it but she says it is not a “stand-alone diagnostic tool” that outweighs all clinical experience and judgment. She gives clear and cogent reasons for maintaining her opinion in the face of Dr Phillips’s assessment.
Dr Young suggests that “a way forward” could be for another symptom validity test to be undertaken with Ms Bramble in light of literature indicating that more than one test is recommended when implying or reporting malingering. It is not clear to me exactly what purpose she has in mind but, in making that suggestion, she does not resile from her diagnoses and her opinion that Ms Bramble suffers the symptoms she claims.
Ms Pheiffer saw Ms Bramble repeatedly over a number of months and agrees with Dr Young’s opinion. She describes her reasons in detail.
Dr Smith acknowledges that he has not read Dr Phillips’s and Dr Honey's reports but that does not in my view undermine his report. He saw Ms Bramble for assessment and found her presentation consistent with documentation from her general practitioner, Ms Pheiffer and Dr Young. He cites his source for his opinion that her presentation was more consistent with the description of “true PTSD as opposed to malingered PTSD”. The respondent has not challenged his source. Dr Smith does not give as clear or detailed an explanation as Dr Young but his opinion lends weight to hers.
Dr Honey retracted his earlier opinion entirely on the basis of Dr Phillips’s assessment. In my view, his opinion adds little because he did not attempt to evaluate Dr Phillips’s opinion in light of Dr Young’s, Ms Pheiffer’s and Dr Smith’s opinions or even his own.
Testing such as that carried out by Dr Phillips has been considered in a number of cases from which it is clear that experts have differing views as to its usefulness. None of the cases is particularly helpful, not surprisingly as the dispute in each, insofar as it related to testing, concerned the weight to be given to testing as opposed to clinical judgment.
Dr Phillips referred in the opening pages of his report to the judgment of the NSW Supreme Court in Zahr v TAL Life Limited[18], a claim under a disability insurance policy of partial disability. Neuropsychological testing on the MMPI-2 and other forms of testing led to the conclusion that the plaintiff did not have any diagnosable psychological pathology.
[18] Zahr v TAL Life Limited [2014] NSWSC 358 (Zahr).
Pembroke J noted at [30] that the clinical psychologist who carried out the testing did not rely exclusively on an objective evaluation. His opinion was also derived in part from his interview with the patient and his consideration of the reports of other practitioners. The plaintiff’s treating psychiatrist said he would defer to the clinical psychologist. At [30] Pembroke J rejected the idea that testing mechanisms are merely “a tool”. He said
“I think they are better described as a screening instrument that is able to play a critical role in identifying false or exaggerated claims. In an appropriate case, such tests are, in my view, valuable, and in some cases indispensable, aids to the formation of an accurate judgment, and consequently a correct diagnosis.”
I do not read Zahr s standing for unqualified support for Dr Phillips’s assessment.
In Michael Burke v Metlife Insurance Limited,[19], the plaintiff claimed he suffered with post-traumatic stress disorder and was totally and permanently disabled. The insurer relied on testing including the MMPI-2 as pointing to exaggeration and feigning by the plaintiff. Experts disagreed as to how the scores on testing should be interpreted. Ultimately, Rees J preferred the opinion of the insurer’s psychologist and found for the insurer but the case was factually and procedurally complex, and does not stand for unqualified acceptance of testing over clinical judgment.
[19] Michael Burke v Metlife Insurance Limited [2019] NSWSC 177
In Brighten v Traino[20] at [79] Basten J referred to neuropsychological testing “the validity of which was impenetrable and unproven in court” but, again, the case and the weight to be given to testing turned on its facts.
[20] Brighten v Traino [2019] NSWCA 168.
I find Dr Young’s opinion more persuasive than Dr Phillips’s assessment. She does not reject the validity or the role that testing has to play. She had the benefit of seeing Ms Bramble over a number of sessions. Ms Pheiffer and Dr Smith agree with her. Dr Honey agreed with her until he receive Dr Phillips’s report. In my view, Dr Young’s report is careful and considered, and she gives cogent reasons for maintaining her diagnosis.

I find that Ms Bramble suffered a psychological injury as a result of her employment with the respondent.
The respondent does not take issue with reports of Ms Bramble’s treating and assessing doctors that she has had, and still has, no capacity for employment. I find that she is entitled to weekly payments from 29 March 2024 to date and continuing based on her agreed PIAWE of $1,263.12 as indexed, and to reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 655

28 November 2024