Carnell v Arthur Tzaneros Trust and Luke Labourpower Recruitment Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carnell v Arthur Tzaneros Trust and Luke Labourpower Recruitment Services [2022] NSWPIC 185
APPLICANT:	Amanda Lesley Carnell
RESPONDENT:	Arthur Tzaneros Trust and Luke Labourpower Recruitment Services
MEMBER:	Karen Garner
DATE OF DECISION:	28 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act); applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” that may give rise to a claim for lump sum compensation for permanent impairment under section 66(1) of the 1987 Act; Held– the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A of the 1987 Act that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the Workers Compensation Act 1987 that may give rise to a claim for permanent impairment compensation under s 66(1) of the Workers Compensation Act 1987. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 November 2015 Body parts: Psychological Method: Whole Person Impairment. 3. The materials to be referred to the Medical Assessor include: (a) Application to Resolve a Dispute and all attachments, with the exception of the following which will be excluded: the opinion and reasons expressed by Dr Christopher Bench in his Medical Report dated 17 April 2018, being that part of the report from the heading Opinion and Reasoning at page 1758 of the Application to Resolve a Dispute to the conclusion of the report at page 1763 of the Application to Resolve a Dispute, (b) Reply to Application to Resolve a Dispute and all attachments, and (c) Application to Admit Late Documents and all attachments. 4. The respondent is to pay the applicant’s costs as agreed or assessed. 5. Complexity is certified for both parties’ costs with 20 per cent uplift.

STATEMENT OF REASONS

BACKGROUND

Ms Amanda Lesley Carnell (the applicant) claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from psychological/psychiatric injury.
The applicant claims that she sustained psychological/psychological injury (the psychological injury) in the course of her employment as a security guard with Arthur Tzaneros Trust and Luke Labourpower Recruitment Services (the respondent). The applicant claims that she sustained psychological injury in the form of post-traumatic stress disorder arising out of an incident in which she was physically assaulted (the incident) on 6 November 2015. In the alternative, the applicant claims that she sustained an aggravation, acceleration, exacerbation or deterioration of a disease with a deemed date of injury of 6 November 2015.
It is not in dispute that the applicant suffered physical injury (the physical injury) in the incident. Dr Lewington, Approved Medical Specialist, in his Medical Assessment Certificate of 2 July 2019 described the history of the physical injury, onset of symptoms and treatment as follows:
“Ms Carnell stated she was injured on 5 November 2015 when she was assaulted. She described working at Newcastle Entertainment Centre when disgruntled evicted patrons attacked her punching her in the head and during the scuffle she noticed pain in her left hand.
She was attended at John Hunter Hospital where she received stitches to her scalp and her left ring finger was strapped to the adjacent finger. Apparently x-rays were taken which revealed a fracture of the left ring finger. She later saw her G.P. and was subsequently referred to a hand surgeon, Dr Burgess who diagnosed a Flexor Digitorum Profundus (F.D.P.) [tendon] avulsion fracture of the left ring finger [distal phalanx]. She proceeded to reconstruction graft procedures on 1 March 2016 and 19 July 2016 and a third operation to release the left ring finger P.I.P. joint and tenolysis of the F.D.P. and F.D.S. tendons on 13 June 2017. Grafts were taken from the right and left forearms leaving her with multiple scarring.
She gradually developed symptoms in the right upper limb after the July 2016 surgery where tendons were harvested from the right side. She developed carpal tunnel syndrome on the right side. This has been treated conservatively and she attends Dr Myers, hand surgeon. Dr Myers recently injected the right carpal tunnel and there has been some reduction in the right wrist pain symptoms but not the hand symptoms. There has been no carpal tunnel surgery.
She was attended by a pain physician for burning pain in the right-hand thumb and index finger. She was treated with Palexia analgesic medication as well as Lyrica for neuropathic pain.”
(my additions marked in square brackets, taken from Dr Lewington’s statements under the heading “Summary” of the Medical Assessment Certificate)
Dr Lewington noted in the Medical Assessment Certificate that the applicant ‘s present symptoms were:
“Continuing right wrist pain (reduced since recent steroid injection) and pain radiating into the medial hands and fingers associated with paraesthesia and burning sensation. This is mainly in the thumb, index and middle fingers.
Cramping sensation in both hands and clawing of the left ring finger.
Left finger restricted range of movement and weakness with aching and pain.”
By Certificate of Determination dated 6 August 2019, the Personal Injury Commission (the Commission) ordered the respondent to pay the applicant, as permanent impairment compensation pursuant to s 66 of the 1987 Act, $28,360 in respect of 13% permanent impairment for her left upper extremity, right upper extremity and scarring resulting from the physical injury.

By letter dated 3 February 2021 and Permanent Impairment Claim Form dated 7 December 2020, the applicant made a claim for permanent impairment compensation in respect of the psychological injury. In respect of the psychological injury, the applicant claimed 16% whole person impairment (“WPI”) in the sum of $37,180 (less previous claim of 13% WPI paid in the sum of $28,360).
By notice dated 28 April 2021 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent denied liability for permanent impairment compensation in respect of the psychological injury on the following grounds:
(a) the respondent asserted that the applicant had not received a psychological injury which resulted in at least 15% WPI;
(b) the respondent disputed that the applicant received a psychological injury as required by s 11A(3) of the 1987 Act;
(c) the respondent disputed that the permanent impairment resulted from an injury as required by s 66(1) of the 1987 Act, and
(d) the respondent believed that the applicant had exhausted her one claim for permanent impairment compensation for her injury pursuant to s 66 (1A) of the 1987 Act.
The applicant filed an Application to Resolve a Dispute (ARD) on 23 November 2021.

ISSUES FOR DETERMINATION

The respondent now accepts and there is no dispute that:
(a) the applicant has a psychological injury within the meaning of s 11A(3) of the 1987 Act, and
(b) in accordance with the views expressed by Roche DP in Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72, the applicant may claim permanent impairment compensation in respect of the psychological injury, in addition to the physical injury, noting that the applicant is limited to permanent impairment compensation only for the injury that results in the greater entitlement.
The issue for determination is whether the applicant’s psychological injury is a primary psychological injury that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act (or is a secondary psychological injury that is, by virtue of s 65A(1) of the 1987 Act, excluded from giving rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

At a hearing on 22 February 2021, the applicant was represented by Mr Simon McMahon, counsel, instructed by Ms Christina Strano of Slater & Gordon Lawyers. The respondent was represented by Ms Lyn Goodman, counsel, instructed by Ms Naomi Tancred of Hicksons Lawyers.
In accordance with directions of the Commission, following the hearing, lawyers for the applicant and respondent filed written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Exclusion of part of attachments to ARD into evidence

Following objection by the respondent’s counsel to certain parts of the applicant’s evidence (except for historical purposes), the applicant’s counsel consented to a certain part of the attachments to the ARD being excluded from the evidence, specifically: the opinion and reasons expressed by Dr Christopher Bench in his Medical Report dated 17 April 2018, being that part of the report from the heading Opinion and Reasoning at page 1,758 of the ARD to the conclusion of the report at page 1,763 of the ARD.
Accordingly, the Commission does not admit that part of the attachments to the ARD into evidence.

Applicant’s Application to Admit Late Documents

On 30 December 2021, the applicant filed an Application to Admit Late Documents (AALD) dated 14 April 2021 which attached a supplementary report of Dr Thomas Oldtree Clark dated 19 October 2021.
Leave was granted to admit the late document into evidence for the reasons that the report is relevant to determination of the issues in dispute and the respondent’s counsel did not object to admission of the document into evidence.

Documents in evidence before the Commission

On that basis, the following documents were in evidence before the Commission and considered in making this determination:
(a)    The ARD and attached documents, with the exclusion of the opinion and reasons expressed by Dr Christopher Bench in his Medical Report dated 17 April 2018, being that part of the report from the heading Opinion and Reasoning at page 1,758 of the ARD to the conclusion of the report at page 1,763 of the ARD;
(b)    Reply to ARD and attached documents, and
(c)    the applicant’s AALD and attached documents.

Oral evidence

Neither party applied to adduce oral evidence nor cross-examine any witness.

Applicant’s evidence

The applicant gave the following evidence by way of two written statements, respectively dated 17 April 2019 and 17 November 2021.
The applicant is a 44-year-old woman.
She was employed by the respondent in the position of casual security guard since January 2014.
On the evening of 5 November 2015, the respondent worked for the respondent as a security guard for a school formal function, when the incident occurred in the following manner:
(a)    the applicant approached a man who was drinking out of a jug and said words to the effect of “I can’t let you drink out of the jug”;
(b)    the man replied with words to the effect of “I paid for it and I’m going to drink it”;
(c)    the applicant sought advice from a work colleague who offered the man a glass;
(d)    the man looked at the applicant and then threw the contents of the jug of beer over the applicant’s face which spilled onto her clothing;
(e)    the applicant’s colleagues escorted the man from the premises and told the applicant that she could go home given that it was late and she was covered in beer;
(f)    as the applicant approached the exit, the man who threw the beer and other patrons who had also been evicted were on the other side of the fence;
(g)    the man who threw the beer grabbed hold of the applicant’s left arm;
(h)    as the applicant attempted to escape his grip, a woman stepped in and punched the applicant in her right eye;
(i)    the applicant was engaged in a wrestle with those persons and was pushed to the ground;
(j)    the applicant was able to use her knees to push the woman off her and to stand up;
(k)    the applicant was then hit from behind in the head;
(l)    the applicant was later informed by her colleague that the man who threw the beer had hit her in the head with an umbrella;
(m)     after the applicant regained her senses, she was able to stand up;
(n)    the applicant observed that the man who threw the beer had her colleague in a headlock and the applicant came to assist;
(o)    another colleague pulled the applicant away as the applicant was bleeding from her head, and
(p)    the applicant noticed that she was suffering from pain and discomfort in her left ring finger, wrist and hand.
After the incident, the applicant attended a hospital emergency department where she was treated by stitches to a laceration in her scalp and strapping of her left finger and she was advised to attend her general practitioner for further medical advice.
The applicant lodged a claim for workers compensation in respect of the physical injuries and the insurer subsequently accepted liability for the claim.
In respect of the physical injuries, the applicant was treated by general practitioners, Dr Charlie Hinder and subsequently Dr Rita Singh. The applicant was referred to orthopaedic and hand surgeon, Dr Tanya Burgess, who performed reconstruction surgery on the applicant’s left hand on 1 March 2016, 19 July 2016 and in 2017.
The applicant also developed symptoms on her right hand and neck following a graft taken on her right wrist and her favouring her right arm. The applicant has now been diagnosed with carpal tunnel syndrome in her right hand.
The applicant now attends orthopaedic and hand surgeon, Dr Andrew Myers, in relation to her physical injury.
The applicant now suffers from constant pain and discomfort in her neck and both her forearms, wrists, hands and fingers and cold weather aggravates her pain. She experiences the sensation of pins and needles in her hands. The applicant has a restricted range of motion in her fingers, wrist and hands and her left ring finger now curls back. As a result of the physical injury, the applicant finds it difficult to drive long distances, pick things up and to perform domestic duties and other activities of daily living. She takes pain medicine as required and often needs to wear a splint to alleviate pain.
Since the incident, the applicant is lethargic and avoids social and recreational activities. She can no longer engage in fishing for long periods which previously was her main recreational activity and she now finds it difficult to cook which she previously greatly enjoyed.
The applicant also sustained the psychological injury as a result of the incident and suffers from anxiety and depression.
The applicant had some history of psychological symptoms prior to the incident. In approximately 2014, the applicant suffered from anxiety and depression as a result of the death of her grandmother and the breakdown of her relationship. At the time of the incident, the applicant was being treated by a counsellor, Laura Infeld, who diagnosed the applicant as suffering from anxiety and depression. Also at that time, the applicant was prescribed Pristiq medication to manage her condition although it did not affect her ability to work. The applicant was otherwise fit and well prior to the incident.
Following the incident, the applicant did not immediately notice any psychological symptoms. The applicant did not know or understand how being subject to a traumatic incident would affect her psychologically.
However, the applicant subsequently attended upon her general practitioner, Dr Singh, with complaints of poor sleep, crying spells, tiredness and lack of self-esteem and motivation.
Dr Singh referred the applicant to psychiatrist, Dr Cyriac Mathew, whom the applicant first attended on 14 November 2015. In consultation with Dr Mathew, the applicant denied experiencing any symptoms following the assault as she did not want to talk about the incident due to the stress it caused her. Dr Mathew recommended changes to the applicant’s medication and a trial of Duloxetine medication.
The applicant was subsequently referred to psychologist, Roz Ramplin, whom the applicant first attended on 17 May 2016. The applicant had difficulty establishing trust with Ms Ramplin during the treatment sessions. Ms Ramplin diagnosed the applicant as suffering from post-traumatic stress disorder as a result of the incident.
The applicant returned to Dr Singh with complaints of night sweats and difficulties with constant changes in her medication. The applicant was certified unfit from 6 June 2016 to 30 June 2016 by way of a non-WorkCover medical certificate.
On 6 September 2016, the applicant attended her last treatment session with Ms Ramplin. The treatment sessions were ceased as Ms Ramplin discovered that the applicant was still being treated by her counsellor Ms Infeld.
The applicant was subsequently referred to psychologist, Phillip Screen, whom the applicant attended for psychological treatment between September 2016 and July 2020. The applicant found it because extremely difficult to obtain appointments with Mr Screen.
The applicant was then referred to counsellor, Joan Gillies, whom the applicant first attended on 28 July 2020. The applicant continues to be treated by Ms Gillies.
Currently the applicant takes medications including Endep, Catapress, Targin, Fluvoxamine and Norflex.
As a result of the psychological injury, the applicant:
(a)    often feels depressed, stressed and anxious which results in decreased motivation with self-care;
(b)    often experiences flashbacks and recollections of the incident;
(c)    has great difficulties sleeping and was prescribed medication to assist in that regard;
(d)    felt uncomfortable and unsafe where she was living and consequently relocated interstate and no longer lives alone;
(e)    finds the prospect of meeting new people and entering into new relationships to be very confronting and is extremely isolated;
(f)    now has a strained relationship with her children;
(g)    has lost pre-existing friendships and no longer engages in social activities;
(h)    is uncomfortable travelling to places on her own and avoids unnecessary travel;
(i)    is often easily irritable, frustrated and suffers from mood swings;
(j)    experiences great difficulty making decisions;
(k)    struggles to concentrate;
(l)    struggles to complete simple tasks, loses her train of thought, becomes overwhelmed and requires redirection and reminders of what is required for the task;
(m)     has not been able to read and struggles to watch tv or movies, which she previously enjoyed;
(n)    struggles to play musical instruments and fish, which she previously enjoyed;
(o)    is fearful of injury working as a security guard;
(p)    ceased security guard work on 6 November 2015 and let her security licence expire, and
(q)    has not been able to return to full-time employment and consequently experiences financial stress.

Evidence of treating practitioners

The applicant filed extensive evidence of well over 2000 pages. I will refer to particularly pertinent parts of that evidence.

Dr Rita Singh, general practitioner

Dr Rita Singh was the applicant’s treating general practitioner. Dr Singh’s evidence is contained in her reports and clinical notes and clinical notes of the Rita Singh Family Practice and updated clinical notes.
On 13 August 2015, Dr Singh noted that the applicant attended for depression and alcohol dependence. Dr Singh noted some stressors related to the applicant’s family. Dr Singh completed a referral form for treatment by psychologist, Ms Infeld, Allied Health Services. The applicant completed a K10 assessment which identified that the applicant had a number of symptoms of psychological distress including feeling nervous, hopeless, restless, depressed, tired and worthless.

On 13 August 2015, Dr Singh referred the applicant to psychiatrist, Dr Cyriac Mathew. Dr Singh’s referral letter requested treatment for the applicant for major depression, alcohol excess and “lots of issues”.
On 13 August 2015, Dr Singh referred the applicant to psychologist, Ms Infeld, under a Mental Health Care Plan. The referral letter noted the applicant’s depression and history of alcohol dependence on 13 August 2015. The Mental Health Care Plan referred to the applicant’s desire to have a closer relationship with her children and to improve her self-esteem. A K10 assessment identified that the applicant was moderately psychologically distressed.
On 28 August 2015, Dr Singh prescribed the applicant antidepressant medication.
On 8 October 2015, Dr Singh noted that the applicant attended her for alcohol excess.
On 27 November 2015, Dr Singh noted that the applicant attended for a review and that the applicant was then under psychologist guidance. The applicant stated that she was still dependent on alcohol but trying to cut down.
On 4 December 2015, Dr Singh noted that the applicant attended. He noted that the applicant’s alcohol intake had reduced. Dr Singh made a further referral to Ms Infeld under a Mental Health Care Plan of the same date. The Mental Health Care Plan noted that the applicant had “a physical attack while at work [and] ... is having a difficult time getting resolution with work & work cover. This has taken the [sic] toll on her – she has had loss of appetite, anxious, lack of sleep unless using medication”. It stated a provisional diagnosis of Generalised Anxiety Disorder/Depression and noted that the applicant was commenced on Cymbalta medication which should be increased if the applicant’s symptoms did not improve. The plan referred to a history of alcohol dependence on 13 August 2015 and alcohol excess on 8 October 2015. The plan referred to the applicant’s stresses in relation to her children and stated “this is on top of other stressors. Works as security guard – difficult since the attack [sic]”. The plan stated a provisional diagnosis of generalised anxiety disorder/depression. A K10 assessment indicated that the applicant was at least moderately psychologically distressed.
On 1 February 2016, Dr Singh noted that the applicant attended for the reason of alcohol dependence.
On 6 May 2016, Dr Singh referred the applicant to psychologist, Ms Ramplin. The referral referred to a past history of “depression” and sought Ms Ramplin’s opinion regarding “work related chronic pain syndrome/depression”.
A revised return to work plan prepared by the insurer, dated 12 May 2016, referred to a case conference between the applicant, Dr Singh and a representative of the insurer. It noted that “Dr Singh advised that she would first like Ms Carnell to commence psychological treatment to support her recovery and return to work, before returning to her normal hours and days”. Dr Singh recommended reduced initial hours to be worked. The revised return to work plan appears to be accompanied by undated handwritten notes, possibly written by the applicant, which apparently list various physical and psychological difficulties experienced by the applicant, which includes “the mental anguish in recutting the scars..nightmares/sweats... sheets are soaked... anxiety/crying snaps... anger frustration...”.
An insurer Progress Report dated 12 May 2016 addressed to Dr Singh referred to a recent case conference and stated that:
““You advised you were concerned if Ms Carnell returns to her normal hours and days it would be too much of a big step and the return to work should be gradual. You advised your concerns about the psychological impact of Ms Carnell’s injury and the impact this will have on her return to work. You recommended Ms Carnell undertake psychological treatment to support her recovery and return to work...”.
On 17 May 2016, Dr Singh noted that the applicant experienced insomnia that appears to be related to the applicant’s WorkCover claim.
An insurer Progress Report dated 20 May 2016 stated that “Dr Singh advised she would first like Ms Carnell to commence psychological treatment to support her recovery and return to work, before returning to her normal hours and days”.
An insurer Progress Report dated 23 June 2016 stated that:
“Dr Singh advised that the Psychologist, Ms Ramplin, has reported she has diagnosed Ms Carnell with Post Traumatic Stress Disorder (PTSD), as a result of the reported assault that sustained Ms Carnell’s workplace injury. Dr Singh advised that due to the symptoms of Ms Carnell’s PTSD, Ms Carnell is unable to work over the next 28 days as she requires further treatment to settle her symptoms, such as night sweats, before further return to work can be considered”.
An insurer Progress Report dated 29 July 2016 stated that the applicant was then undertaking psychological counselling sessions with Ms Ramplin. The report stated that the applicant reported on 11 July 2016 that her psychologist advised her that she will not be able to return to pre-injury duties as a Security Guard and the applicant had not renewed her Security licence. The report also noted that:
“Dr Singh reported that Ms Ramplin has diagnosed [the applicant] with Post Traumatic Stress Disorder... As recommended, Ms Carnell no longer works in the area of Security... [the applicant] reported that she has not recently renewed her Security Licence and hence is uncertain vocationally”.
An insurer Progress Report dated 31 August 2016 again noted that the applicant expressed concern about returning to work in the security industry.
On 16 November 2016, Dr Singh completed a referral to psychologist, Mr Phillip Screen, seeking counselling and support in relation to the applicant’s anxiety and depression. An attached K10 assessment indicated that the applicant had moderate psychological distress.
On 6 February 2017, Dr Singh’s clinical notes recorded that the applicant had “PTSD” in the context of her being assaulted by multiple people.
A letter from John Hunter Hospital Maternity and Gyneacology dated 17 March 2017 to Dr Singh noted that the applicant presented with symptoms of night sweats and long bouts of amenorrhea which were to be investigated.
On 2 May 2017, Dr Singh completed a further referral to psychologist, Mr Phillip Screen and completed a Mental Health Care Plan which sought continuation of previous counselling “due to traumatic violent assault whilst working”. The plan noted various psychological symptoms and stated a provisional diagnosis of post-traumatic stress disorder .
On 18 May 2017, Dr Singh’s clinical notes recorded that the applicant experienced “Anxiety... night sweats after accident”.
On 26 June 2017, a letter from Dr Shamasunder Acharaya, consultant endocrinologist at the John Hunter Hospital to Dr Singh noted that the applicant continued to complain of recurrent night sweats however all relevant testing excluded any form of serious pathology contributing to night sweats and he thought it may be “constitutional”.
On 4 August 2017, a letter from Dr Eliza Griffiths, Fellow, of the John Hunter Hospital Maternity and Gyneacology to Dr Singh stated that investigations of the applicant’s night sweats and irregular periods had been normal. Dr Griffiths stated that the applicant said that she:
“has significant anxiety and PTSD following an assault at work for which she has had multiple surgeries on her left arm over the last 12 months. We discussed that potentially anxiety and depression may form some part of the aetiology of her sleep disturbance and night sweats”.
On 28 July 2017, Dr Singh’s clinical notes recorded that the applicant was very distressed and anxious and experienced pain, chest pain and panic attacks.
In a report dated 3 June 2018, Dr Singh described the incident and physical injury and subsequent three surgeries for tendon repairs and one surgery for removal of scar tissue. Dr Singh noted that the applicant had been suffering from severe neuropathic pains due to the facture itself and the consequent surgeries and had to rely on opiates on and off for her chronic pain syndrome. Dr Singh stated that the applicant was being treated by Dr Marc Russo for her neuropathic pains and had been getting intense psychotherapy from her psychologist. Dr Singh stated that the applicant had reached maximum medical improvement in relation to the physical injury. Dr Singh stated that the applicant mentally “still remains very anxious” and had “moderately severe anxiety and ptsd type symptoms”. Dr Singh stated that “At this stage it seems difficult considering her dependence on pain medications and her severe post traumatic stress syndrome type symptoms and inability to deal with simple situautions [sic] that she can be employed in a gainful employment”.
In a report dated 13 July 2018, Dr Singh noted that the applicant had been suffering from severe neuropathic pains due to the fracture of her left ring finger and three surgeries for tendon repairs and another surgery for removal of scar tissue. She noted that the applicant was being treated by Dr Russo for her neuropathic pains and had made some progress although not to the level of having any sort of gainful employment. She stated that the applicant had reached maximum improvement as far as the physical injury was concerned and the applicant had decided not to have a fourth surgery for the right carpal tunnel syndrome symptoms in her right hand. She noted that the applicant also had chronic pain syndrome. Dr Singh also noted that the applicant had also been getting intense psychotherapy from her psychologist but mentally “she still remains very anxious”. Dr Singh stated that the applicant “has moderately severe anxiety and ptsd symptoms”. Dr Singh later referred to the applicant as having “severe post traumatic stress syndrome type symptoms and inability to deal with simple situations that she can be employed in a gainful employment”.
On 29 October 2019, Dr Singh wrote a referral to Mr Phillip Screen, psychologist, seeking his opinion regarding counselling and support “in relation to [the applicant’s] PTSD, anxiety and depression”. The referral noted past history which included “18 May 2017 PTSD (post-traumatic stress disorder)”. The attached Mental Health Care Plan also dated 29 October 2019 noted that the applicant had been seeing a psychologist to assist “with her traumatic past events, anxiety, depression” which she wished to continue. The plan stated that the applicant had worked as a security guard which was “difficult since the attack that resulted in PTSD. Has friends she can lean on. But her social interaction has dwindled since the attack.” The plan noted that the applicant’s symptoms included decreased concentration, impaired memory, erratic appetite, varying motivation, preoccupied thought content, erratic mood, reactive affect and erratic sleep. A K10 Plus assessment indicated that the applicant had a moderate mental disorder.
On 29 October 2019, Dr Singh referred the applicant to Mr Phillip Screen regarding counselling and support “in relation to her PTSD, anxiety & depression” by way of a Mental Health Care Plan which referred to “traumatic past events” and sought treatment for “PTSD, anxiety & depression”. A K10 assessment indicated that the applicant had a moderate mental disorder.
On 26 March 2020, Dr Singh completed a further referral to Mr Screen in similar terms. A K10 assessment indicated that the applicant had a moderate mental disorder.
Following the incident, Dr Singh completed numerous WorkCover Certificates which certified the applicant unfit for work due to the physical injuries. A number of the WorkCover Certificates (including in 2016 and 2017) refer to the applicant experiencing “anxiety” and a number of them (including in 2016 and at least during June 2019 to September 2020) refer to the applicant having “PTSD”.

Ms LDG Infeld, psychologist

Ms Infeld treated the applicant upon referral by Dr Singh under a Mental Health Care Plan.
Dr Singh’s referral letter to Ms Infeld dated 13 August 2015 noted the applicant’s depression and history of alcohol dependence on 13 August 2015. The Mental Health Care Plan referred to the applicant’s desire to have a closer relationship with her children and to improve her self-esteem. A K10 assessed the applicant to be moderately psychologically distressed.
In a report dated 14 August 2015, Ms Infield stated:
“I saw [the applicant] for the first time today. She has a history of moderately severe recurrent depression. We have agreed to meet regularly for cognitive behavioural therapy. I plan to explore identification of automatic thoughts, the utilization of mood and thought logs and cognitive reframing...”.
Ms Infeld’s letter to Dr Singh dated 19 August 2015 stated that:
“I had the pleasure in reviewing Amanda today. Fortunately she has reduced her alcohol consumption. She continues to make steady gains in self-esteem and confidence. Amanda demonstrates a growing capacity for greater pleasure in relationships. The ongoing treatment plan includes continued support and maintenance of the psychotherapeutic process and continued support of Amanda’s self-exploration and understanding.”
Dr Singh made a further referral to Ms Infeld on 4 December 2015 under another Mental Health Care Plan. The Mental Health Care Plan stated that the presenting problem was that the applicant “Had a physical attack while at work as a security guard – she is having a very difficult time getting resolution & work cover. This has taken the toll on her – she has had loss of appetite, anxious, lack of sleep unless using medication”. The plan referred to a history of alcohol dependence on 13 August 2015 and alcohol excess on 8 October 2015. The plan referred to the applicant’s stresses in relation to her children and stated “this is on top of other stressors. Works as security guard – difficult since the attack [sic]”. The plan stated a provisional diagnosis of generalised anxiety disorder/depression. A K10 assessment indicated that the applicant was at least moderately psychologically distressed.
In a report dated 11 March 2016, Ms Infield stated:
“I had the pleasure in reviewing [the applicant] today. She has a history of moderately severe recurrent depression. Unfortunately [the applicant] has had a temporary worsening of her symptoms of anxiety and depression. The ongoing treatment plan will include continued support and maintenance of the psychotherapeutic process, continued self-exploration and understanding and the enhancement of Amanda’s self-esteem...”

Roz Ramplin, psychologist

The applicant attended Ms Ramplin upon referral by her general practitioner, Dr Singh.
Dr Singh’s referral dated 6 May 2016 referred to a past history of “depression” and sought Ms Ramplin’s opinion regarding “workrelated chronic pain syndrome/depression”.
Ms Ramplin’s clinical notes dated 17 May 2016 state that the applicant first presented as anxious and agitated. The applicant described the incident and reported feeling depressed in the context of the work related injury. The applicant also noted other personal stressors particularly in relation to her relationship with her children and financial difficulties.
Ms Ramplin’s clinical notes dated 31 May 2016 state that the applicant reported having gone back to work but that it wasn’t good. The applicant noted physical limitations and discomfort that she had experienced. The applicant also reported being “irritable, snappy with children”.
Ms Ramplin’s clinical notes dated 21 June 2016 noted that the applicant had a very odd presentation including teeth grinding and labile mood. The applicant denied recent alcohol or recreational drug use.
Ms Ramplin’s clinical notes dated 5 July 2016 noted that the applicant’s mood was somewhat improved. The applicant reported vivid nightmares although she was unable to recall the content. The applicant disclosed using alcohol for sleep and anxiety. The applicant was tearful and discussed the death of family members in recent years. Ms Ramplin found it difficult to engage the applicant in therapy and the applicant stated “you just don’t get me”. The applicant reported that she had booked weekly sessions because she understood the insurer would pay for them and she wanted the work related sessions “over and done with”. The applicant appeared angry by Ms Ramplin’s reluctance to engage in weekly therapy sessions. The applicant disclosed that she was seeing another psychologist for personal matters. Ms Ramplin noted that the applicant did not want to talk about various matters including her upcoming hand surgery. Ms Ramplin noted that the applicant’s presentation was “unusual” and queried “BPD behaviour” and “abandonment”.
In a report dated 6 July 2016, Ms Ramplin recorded that the applicant initially presented to her on 17 May 2015 and had regularly attended follow up appointments. Ms Ramplin stated that the applicant was involved in an assault whilst working as a security officer, obtaining serious injuries. Ms Ramplin noted that the applicant was suspicious of attending a psychologist and establishing trust was initially difficult, however she had been committed to attending regular sessions and was more open to discussing her pain management and associated difficulties. She noted that the applicant reported “increased anxiety related to her loss of job and this financial impact. Treatment has included anxiety management, mindfulness based CBT, and supportive therapy”.
Ms Ramplin’s clinical notes dated 9 August 2016 noted that the applicant had recently undergone hand surgery. The applicant reported that she was anxious, worried and in pain and the applicant continued to grind her teeth. The applicant said that the injury had “ruined her life”.
Ms Ramplin’s clinical notes dated 15 August 2016 noted that the applicant had negative thought patterns. The applicant reported being unable to think about going back to work. The applicant was tearful and continued to grind her teeth.
In a report dated 6 September 2016, Ms Ramplin stated that:
(a)    the applicant initially presented on 17 May 2016 with a diagnosis of depression and chronic pain syndrome and Ms Ramplin treated her with various treatment modalities during approximately a four month period until treatment was ceased. The applicant reported having been assaulted at work by a number of people and being hit from behind and to the front of her body. The applicant reported having been unconscious (which I note appears to be inconsistent with the hospital triage nurse notes made upon the applicant’s hospital admission following the incident) and being attended by police and ambulance. The applicant reported that her “head was split open” and her left ring finger was damaged which necessitated several surgeries to her finger. She was unable to recall treatment for head injury;
(b)    the applicant reported low mood, poor sleep, decreased memory and poor concentration. The applicant struggled financially and with work opportunities and experienced a sense of hopelessness. She reported that she was keen to get back to work which she had previously experienced to be a positive action for her. The applicant always presented well groomed, with poor eye contact and fixated on her injured finger. The applicant reported having lost friends since the work injury but also reported unstable friendships prior to injury and ongoing difficulties with her ex-husband and children who were living with their father. The applicant reported having been prescribed many medications for pain and depression which she felt had largely not worked. She complained of night sweats and vivid medication during medication changes, but she was unable to recall the content of her dreams. She denied the dreams were about the incident. The applicant reported “flashbacks” of being hit but did not appear distressed when discussing this. Ms Ramplin was unable to determine if they were flashbacks or reflection. The applicant regularly grinded her teeth during sessions with Ms Ramplin which she appeared to be unaware of;
(c)    the applicant reported having in the past been a multiple substance user and disclosed recent increased alcohol intake. Ms Ramplin found it difficult to assess the applicant’s current substance use due to the applicant being guarded;
(d)    Ms Ramplin observed that the applicant’s affect fluctuated at each session. The applicant was often tearful and she presented as angry during one session particularly in relation to feeling rushed to return to work when she was not physically or emotionally ready. The applicant discussed the death of her grandmother but it was difficult to assess the relationship between that and the work incident other than it reflected a sadness in her life. The applicant questioned Ms Ramplin’s qualifications which Ms Ramplin considered to be splitting behaviour. The applicant reported having booked weekly visits claiming she “wanted to get them over and done with” because she was “sick of the work injury discussions”. She claimed the insurance company were paying for Ms Ramplin and disclosed she was seeing another psychologist for ‘private matters’. Ms Ramplin noted that the applicant decided not to continue sessions with her due to dissatisfaction over Ms Ramplin’s reluctance for her to be treated by two psychologists at the same time and to have weekly treatments;
(e)    the applicant’s presentation was complex in its mixture of pre and post injury stressors and her black and white thinking was incorporated in her resistance to treatment. The applicant demonstrated some borderline features, and symptoms of depression. Anxiety and mood fluctuations were observed but that was difficult to assess in the context of the applicant’s increased alcohol use and queried other substance use. The applicant’s resistance to treatment made it difficult to measure her progress;
(f)    the applicant did have significant injury to her left ring finger, and the loss of income had impacted on her mood. The applicant reported feeling she had lost control of her life and reported spending much of her day in bed. Her resistance to treatment was likely to impact negatively on her recovery and may delay her goals directed opportunities for employment, and
(g)    Ms Ramplin opined that the applicant has adjustment disorder.

Phillip Screen, psychologist

Mr Phillip Screen appears to have commenced treating the applicant during 2016.
Mr Screen’s handwritten clinical notes dated 4 April 2016 stated:
“Discussed continuation of ... techniques regarding assault – confronting perpetrators in Court... Amanda engaging very well – feeling confident that she will manage court . In addition – needs operation on finger – cannot close hand properly – Amanda feels she has no choice... this will help healing process – no major triggers of late...”.
Mr Screen’s handwritten clinical notes dated 13 September 2016 stated:
“Amanda currently WC – injury from assault during duties as a security guard – operations on tendons/finger – take a long time to identify injury – several ops – Amanda returned to work and ‘reacted’ to an incident – did not manage with usual professionalism – appears to have gone back to work too soon – still traumatised from first incident – assault > Currently feels she is pushed back to work by rehab provider very emotional...”.
Mr Screen’s handwritten clinical notes dated 18 October 2016 stated “... Amanda reported increase in frustration/anger outbursts – no other identified triggers – consider adjustment to current processes; also PTSD...”.
Mr Screen’s handwritten clinical notes dated 8 November 2016 stated:
“Constant frustration – regarding security work – gets affected in large crowds – cannot work venues with large crowds – supermarkets > Security work appears out of the question.> Displaying avoidance behaviours (goes shopping late at night and/or sends daughter).”
On 16 November 2016, after the applicant ceased to be treated by Ms Ramplin, Dr Singh completed a referral to Mr Phillip Screen seeking counselling and support in relation to the applicant’s anxiety and depression. An attached K10 assessment assessed the applicant to have moderate psychological distress.
Mr Screen’s handwritten clinical notes dated 22 November 2016 stated:
“Amanda very emotional – combination of family issues... dealing with WC process – not being able to work – play the guitar due to recent operation ... PTSD symptoms may be exacerbating symptoms of anxiety – difficult to ascertain at this stage – will continue”.
Mr Screen’s handwritten clinical notes dated 29 November 2016 noted that the applicant had been “under high stress for (ongoing) long period – appears to be affecting her ability to manage every day duties/activity – appears to be developing symptoms of depression”.
Mr Screen’s handwritten clinical notes dated 11 January 2017 referred to the applicant experiencing anxiety.
Mr Screen’s handwritten clinical notes dated 25 January 2017 stated:
“Amanda presents with Type 1 trauma – provided desensitisation techniques – Amanda able to articulate traumatic events regarding her assault – mild abreaction relating to actual assault however; no observable concerns at this stage > Family going very well... Ongoing stress association with WC process... Typical with WC process...”.
Mr Screen’s handwritten clinical notes dated 8 February 2017 stated:
“Amanda managed desensitisation very well however; continues to experience anxiety in social situations – lack of confidence regarding perceived confrontation > no major avoidance concerns > indecisiveness – procrastination > Amanda feels her injuries need mor time to heal and that she is being forced into employment that she unable to tolerate with current injuries – very emotional – crying...”.
Mr Screen’s handwritten clinical notes dated 22 February 2017 stated:
“Amanda thinking about going to court – has to face perpetrator – has had two panic attacks – once in a supermarket – left shopping and went home – left shopping – In addition; attack (pain) at home... Appears upcoming Court appearing regarding previous assault has triggered abreaction responses...”.
Mr Screen’s handwritten clinical notes dated 8 March 2017 stated “May – Court > Amanda continues to experience abreaction associated with having to confront perpetrators of assault in Court...”.
On 2 May 2017, Dr Singh completed a further referral to psychologist, Mr Phillip Screen, and completed a Mental Health Care Plan which sought continuation of previous counselling “due to traumatic violent assault whilst working”. The plan noted various psychological symptoms and stated a provisional diagnosis of post-traumatic stress disorder.
Mr Screen’s handwritten clinical notes dated 2 May 2017 stated “Amanda very emotional – appears associated with the changes in her life – Since the work accident trauma & physical injuries, Amanda has to re-evaluate her life – finding it difficult to see a future”.
Mr Screen’s handwritten clinical notes dated 25 May 2017 stated:
“Amanda attending Court regarding assault charge – Anxiety for a week – no sleeping – not eating – migraines; In addition – Amanda is scheduled for further operations > Focus on adjusting to lifestyle changes... accepting she cannot work as a security guard again... ”.
Mr Screen’s handwritten clinical notes dated 22 June 2017 stated that the applicant “appears to be in a depressive state” and noted “major life changes over previous years” including relationship breakdown, WorkCover claim and issues with her children.
Mr Screen’s handwritten clinical notes dated 13 July 2017 noted that the applicant continued to “adjust to current situation – life changes as they have been significant since WC incident”.
Mr Screen’s handwritten clinical notes dated 27 July 2017 noted that the applicant was very emotional and had “had enough of everything – WC no direction – unsure at... her capacity to use her hand difficulty to maintain fulltime work? Amanda needs to accept her situation...”.
Mr Screen’s handwritten clinical notes dated 24 August 2017 stated “... Anxiety is complex; type 1 trauma from assault; adjusting to significant life changes...”.
Mr Screen’s report dated 16 February 2018, noted that the applicant had a diagnosis of “Anxiety – Depression – Post Traumatic Stress Disorder” with a mechanism of injury being “physical assault”. The report noted pre-existing injuries or conditions included “Anxiety – Depression – PTSD”. The report stated that the applicant presently had no capacity to work and that barriers stopping the applicant from returning to pre-injury duties were “Pending operation to wrist – Anxiety”. It stated that the reasoning for no capacity was “Physical injuries at this point/stage”.
Mr Screen’s handwritten clinical notes dated 15 March 2018 referred to the applicant’s “anxiety” in the context of managing the physical injury.
Mr Screen’s handwritten clinical notes dated 3 May 2018 noted the applicant’s “anxiety” about a request to return to work at her previous employer or alternate employment. At the conclusion, Mr Screen wrote “adjustment disorder/depression”.
Mr Screen’s handwritten clinical notes dated 20 June 2018 stated “...Anxiety return to work > Amanda reported feeling anxious about her capacity to return to work – what she can do – how long she can work before her wrist starts to ache...”
Mr Screen’s handwritten clinical notes dated 4 July 2018 referred to the applicant’s “anxiety” about returning to work and what she could endure with her physical injury.
Mr Screen’s handwritten clinical notes dated 1 August 2018 stated that the applicant was “working hard on managing her anxiety”.
Mr Screen’s handwritten clinical notes dated 13 September 2018 stated:
“Discussed with Amanda returning to work at the office of previous employee Discussed anxiety... Amanda afraid of triggers regarding previous assault however; Amanda has agreed to attend – discussed strategies for anxiety... will monitor outcome”. [Having regard to the context, it appears that “employee” was intended to refer to “employer]
Mr Screen’s handwritten clinical notes dated 4 October 2018 stated “Sleep issues – Amanda reported continuing anxiety – appears associated with her injuries...”
Mr Screen’s handwritten clinical notes date 5 November 2018 stated:
“Amanda continues to have night sweats – appears associated with anxiety – nightmares – Amanda taking Catapres – mood stabiliser – has helped her sleep however; still waking throughout the night – sweating > Life Insurance has helped Amanda validate that she is a victim – assaulted at work – several operations – injuries not healed (wrists) – PTSD from assault > Positive outcome”.
A referral by Dr Singh to Mr Screen dated 29 October 2019, sought counselling and support in relation to “PTSD, anxiety & depression” pursuant to a Mental Health Care Plan. An attached K10 completed on 29 October 2019 assessed the applicant as having psychological distress. A Mental Health Care Plan completed on 29 October 2019 noted that the presenting problem were “traumatic past events, anxiety, depression”. The plan noted that the applicant had worked as a security guard which was “difficult since the attack that resulted in PTSD”. It stated a provisional diagnosis of “Major depression”. The stated goals included to “continue developing coping tools & strategies for her PTSD, anxiety & depression”.

Dr Cyriac Mathew, consultant psychiatrist

Dr Cyriac Mathew treated the applicant upon referral from the applicant’s general practitioner, Dr Rita Singh.
Dr Singh’s referral letter to Dr Matthew dated 13 August 2015 sought treatment for the applicant for major depression, alcohol excess and “lots of issues”.
In a letter to Dr Singh dated 14 November 2015, Dr Mathew stated that he saw the applicant that day. He noted that the applicant described a history of depression for the last four years which was precipitated by the death of her grandmother and perpetuated by separation from her partner. The applicant reported disturbed sleep, weight loss, crying spells, feeling tired, lack of self-esteem and self-confidence and worries. She also described having anxiety symptoms including palpitations, increased sweating and “pins and needles” in her legs. He noted the applicant’s alcohol and cannabis use. Dr Mathew stated “Unfortunately she was assaulted last week during her job and is on workers compensation. However, she denies any psychological symptoms related to the assault”. He noted that the applicant was upset that her children were not talking to her much and described herself as having a “short temper” and experiencing night sweats. In his opinion, the applicant presented with chronic depression, which partially responded to the current treatment. He stated that it was likely that the applicant’s multiple psychosocial stressors like separation, missing her children and work related problems were causing some influence on her depression. He recommended continued medication and psychotherapy.
In a letter to Dr Singh dated 13 February 2016, Dr Mathew stated that the applicant “has chronic depression and her response to treatment has been poor. Currently she is not fit for work and it is likely that her condition may remain unchanged for another few years”.
In a letter to Dr Singh dated 4 June 2016, Dr Mathew reported:
“I reviewed Amanda today.
Amanda continues to feel depressed and tired. She describes lack of motivation, lethargy and anxiety.
Although Amanda reports better sleep with the addition of Valdoxan and Melatonin, she has terminal insomnia.
Amanda describes short temper and increasing frustration with her limitation of hand movements.
On examination, Amanda was pleasant with normal psychomotor activity. Her affect was reactive and her speech was loud and spontaneous.
I would recommend the addition of Mirtzapine to Duloxetine after stopping the Valdoxan.
Please continue Melatonin.
There is possibility of Mixed picture and worth giving a low dose SGA like Olanzapine if the anger continues.
I have encouraged Amanda to continue therapy.”
In a letter to Dr Singh dated 1 August 2020, Dr Mathew stated:
“I reviewed Amanda today via teleconference.
Amanda stopped Zoloft in Feb this year and replaced with Valdoxoan due to poor response and night sweats. She noticed relapse of depression since May.
This episode was precipitated by her son leaving home to join army which brough on many emotions and past memories. Also, she has had 5 surgeries for the carpel tunnel and the pain persists. She is not on any regular pain medications. She is trying to manage pain with minimum medications.
Often she gets angry and describes stress with multiple medico legal assessments for the work cover.
For the past few months, she reports obsessive behaviour of keeping things in a particular way and indecisiveness.
Also, she has sleep disturbance and gets agitated with wearing jewellery. She describes lack of self confidence, crying spells and guilt.
Amanda has been seeing Phillip Screen, o and off for 4 years but planning to see a new psychologist for more more [sic] frequent sessions.
Amada is still on work cover and yet to return to work.
No illicit drugs abuse. She has cut down drinking since started Campral 12 months ago.
There are no psychotic symptoms.
History of sweats with SSRI.
Current Medications
Valdoxan 50mg nocte
MSE- Amanda was articulate and easy to engage. She was teary at times. Described depressive thoughts and low self confidence. No psychotic symptoms or suicidal thoughts. Good insight.
Opinion and recommendations
Amanda presents with recurrence of depressive disorder complicated by multiple stressors. I would recommend the addition of Cymbalta and continue psychotherapy. Please continue Valdoxan.”

Clinical notes of John Hunter Hospital

In a Discharge Referral dated 7 November 2015, Triage Nurse notes stated that the applicant had been allegedly assaulted the previous evening by parents from a function where the applicant was security guard. It noted that the applicant was hit over her head with an umbrella and the applicant sustained an approximately 3cm laceration and lump to the rear of her head, deformity and swelling to her left hand ring finger. It noted that the applicant reported nil loss of consciousness, vomiting and amnesia and a history of depression. The applicant was diagnosed with a head laceration and fracture of the left middle phalanx which were treated.
Outpatient Progress Notes dated 17 March 2017 recorded that the applicant experienced night sweats, depression and long bouts of amenorrhea.
On 26 June 2017, a letter from Dr Shamasunder Acharya, consultant endocrinologist, of the John Hunter Hospital, to Dr Singh stated that the applicant “continues to complain of recurrent night sweats... I have reassured her that all the relevant testing exclude any form of serious pathology contributing to night sweats. This may be constitutional”.
Outpatient Progress Notes dated 3 August 2017 recorded investigations in relation to the applicant experiencing night sweats and irregular periods. The notes stated that the applicant “has significant anxiety, depression and PTSD following an assault at work for which she has had multiple surgeries on her arm over the past 12 months – discussed that anxiety and depression may form part of the aetiology of these night sweats”.
On 4 August 2017, a letter from Dr Eliza Griffitths, Fellow, of the John Hunter Hospital Maternity and Gyneacology to Dr Singh stated that investigations of the applicant’s night sweats and irregular periods had been normal. Dr Griffiths stated that the applicant said that she:
“has significant anxiety and PTSD following an assault at work for which she has had multiple surgeries on her left arm over the last 12 months. We discussed that potentially anxiety and depression may form some part of the aetiology of her sleep disturbance and night sweats”.

Clinical notes of Hamilton Medical Centre

On 31 July 2013, general practitioner, Dr Michalski, completed a Mental Health Care Plan for the applicant which noted a diagnosis of depression. The applicant reported that she had recently separated from her long term partner and her grandmother had died the previous year. He completed a referral to a psychologist with a presenting problem of “Depression – multi high stressors in life”.
On 6 January 2014, Dr Michalski completed a Mental Health Care Plan for the applicant which noted a diagnosis of mixed anxiety and depression.
A letter dated 1 July 2014 from Victoria Maher, Clinical Psychology Registrar, Hunter Medicare Local Mental Health Services to Dr Hinder stated that the applicant had attended 12 psychological therapy sessions between 19 September 2013 and 25 June 2014, and that her main presenting concerns revolved around the stress of her separation from her partner and accommodation and financial issues. Ms Maher stated that it was agreed to cease counselling due to the completion of the therapeutic goals. Ms Maher stated that given the current positive state of the applicant’s mental health, Ms Maher did not anticipate that further ongoing therapy would be required.
On 11 August 2014, Dr Hinder completed a Mental Health Treatment Plan for the applicant which noted a diagnosis of depression. He completed a referral to the Hunter Medicare Local Psychology Service with a presenting problem of “Depression”.
A letter dated 11 August 2014 from Sarah Swanson, Senior Clinical Psychologist/Clinical Manager, Hunter Medicare Local Mental Health Services to Dr Hinder stated that the applicant attended for an appointment with a different psychologist that day. The applicant:
“described a history of a two year decline in her mental health, commencing with the death of her grandmother in July 2012, the onset of what sounds like some somatic anxiety symptoms in September 2012, losing her driver’s license for DUI (and subsequently her job) in July 2013, and the dissolution of her relationship around the same time. She stated she is finding it difficult to get a job... ”.
A DASS-21 assessment assessed moderate stress and extremely severe anxiety and a K10 assessment assessed severe psychological distress. The applicant reported that she was taking anti-depressant medication but thought it did not suit her.
A letter dated 8 December 2014 from Ms Swanson to Dr Hinder stated that the applicant had attended the equivalent of six psychological sessions and reported that she was feeling much better on changed antidepressant medication and changed living circumstances. The letter referred to Dr Hinder investigating the applicant’s regular night sweats which she reported interfered with her sleeping. Ms Swanson reported significant improvement and normal results in the applicant’s K10 assessment scores.
On 4 February 2015, Dr Hinder completed a GP Mental Health Treatment Plan Review. He noted that in relation to the previous diagnosis of depression and anxiety, that the applicant had reduced symptoms, improved functioning and improved self-confidence. He noted that the applicant found the change to her anti-depressant medication to be beneficial and she was coping with situations better. He noted that the applicant had ongoing custody issues and considered that she would benefit from ongoing psychological treatment.
On 3 March 2015, Dr Hinder completed a referral for the applicant to Dr Lucas Murphy with a presenting problem of “Major Depressive Symptoms”. He noted that “Everything is a high stressor especially children” and he noted “Long history of depressive symptoms with little resolve despite antidepressive therapy and long term psychological intervention”

Evidence in relation to the physical injury

Dr Tanya Burgess, hand surgeon

A report of Dr Tanya Burgess of Hunter Hand Surgery dated 20 January 2016 recorded that during the incident the applicant sustained injury to her head and left hand. The applicant continued to have significant problems with her left hand, consistent with a significant tendon injury, which warranted further investigation.
A report of Dr William Walker, hand and plastic surgeon, dated 17 February 2016, noted that Dr Burgess’s diagnosis of ruptured deep flexor tendon to the left ring finger was confirmed by MRI performed on 29 January 2016 and that Dr Burgess recommended repair of the tendon with surgery and physiotherapy. Dr Walker opined that such treatment was reasonable and necessary.

A report of Dr Burgess dated 1 March 2016 recorded that the applicant that day underwent first stage surgical reconstruction of her left ring finger tendon.
Reports of Dr Burgess dated 14 March 2016 and 6 April 2016 recorded the applicant’s post-operative healing and progress.
A report of Dr Burgess dated 19 July 2016 recorded that the applicant that day underwent second stage surgical reconstruction of her left ring finger tendon.
In a report dated 10 August 2016, Dr Burgess noted that the applicant was doing well post-operatively.
A report of Dr Burgess dated 31 August 2016 recorded the applicant’s post-operative healing and progress.
Dr Burgess’ report dated 7 November 2016 noted that the applicant was very agitated and frustrated with the multiple degrees of input into her care and somewhat conflicting viewpoints in her opinion. She described her pain as being very severe in both hands and restricted her activities. Dr Burgess noted continued post-operative progress of the applicant’s left finger.
Dr Burgess’ report dated 7 December 2016 noted that the applicant seemed better in herself and was slowly making progress with her hand rehabilitation.
A letter to Dr Singh dated 13 June 2017, noted that Dr Burgess performed surgery on the applicant that day for Tendon adhesions left ring finger.
Dr Burgess’ report dated 22 March 2017 noted that the applicant’s hand rehabilitation was progressing reasonably well although she was experiencing some ongoing difficulties.
In a report dated 10 May 2017, Dr Burgess noted that the applicant now presented with a fixed flexion and contracture of her PIP joint which remained consistent at 30 degrees for the past six months and unresponsive to regular hand therapy. Dr Burgess sought the insurer’s approval for further surgery being a left ring finger flexor digotorum profundus (“FDP”), and flexor digitorum superficialis (“FDS”) tenolysis and proximal interphalangeal (PIP) joint release surgery.
On 13 June 2017, Dr Burgess performed the third surgery being left ring finger FDP and FDS tenolysis and PIP joint release surgery.
Dr Burgess’ report dated 26 July 2017 noted that the applicant was progressing well following surgery.
Dr Burgess’ report dated 8 September 2017 noted that the applicant continued to do well but had not improved in terms of her PIP joint extension.
Dr Burgess’ report dated 18 October 2017 noted that at four months post surgery, that the applicant was making very slow and steady progress in terms of range or motion of the left ring finger and was more positive in regards to her progress. Dr Burgess noted that she could offer nothing further to the applicant in terms of her management and discharged the applicant from her care.
In a report dated 10 January 2018, Dr Burgess sought approval for right endoscopic carpal tunnel release surgery due to ongoing issues with numbness and tingling with pain and cramping in her right hand.
In a report dated 10 August 2016, Dr Burgess noted that the applicant’s left hand was proceeding as expected following surgery and stated that the applicant had more problems with her right hand where the donor site was.

Dr Marc Russo, specialist pain medicine physician

From about October 2016, Dr Russo treated the applicant for bilateral forearm pain upon referral by Dr Singh.
In a report dated 17 October 2016, Dr Russo noted that the applicant had a history of depression. He recorded that on psychometric testing, the applicant was absent for anxiety, depression and stress on the DASS-21 however she showed impaired pain self-efficacy and fear avoidance thought processing. Following examination, Dr Russo diagnosed neuropathic forearm pain due to functional entrapment of the posterior interosseous nerve from some muscle spasm and similarly some irritation of the median nerve on the right hand side. He recommended a multi-modal treatment approach.
In a report dated 31 October 2016, Dr Russo noted a reduction in pain following treatment.
In a report dated 21 November 2016, Dr Russo noted that the applicant’s depression “remains significant, ongoing and disabling to her” and necessitates adjustment of anti-depressant medication.
In a report dated 12 December 2016, Dr Russo noted that the applicant was struggling with continued neuropathic forearm pain.
In a letter to Dr Singh dated 31 January 2017 (which was included in Dr Singh’s clinical notes) Dr Russo noted that the applicant had some ongoing pain that was not entirely clear neuropathic or nociceptive and she presented with active symptoms of irritation of the posterior interosseous nerve. He opined that the applicant was “moving further away from work focus and functional restoration and I think that is related to her underlying depression...”.
In a report dated 13 February 2017, Dr Russo responded to the insurer’s questions in relation to the opinion of Dr Vickery. Dr Russo stated that:
“Dr Vickery has documented that [the applicant] has some symptoms of a mood disorder that predated her work injury of November 2015 and documents that [the applicant] was prescribed a Serotonin antidepressant by her General Practitioner, Dr Rita Singh. Dr Vickery opines that her ongoing mood state is part of a pre-existing chronic adjustment disorder.
I would accept that the evidence suggests that [the applicant] had a pre-existing mood disorder. Her mood disorder continues and certainly has worsened with the development of chronic pain which is a not uncommon finding. My opinion therefore is that her work-related injury that has led to the chronic pain has exacerbated her pre-existing mood disorder.
At no point can I see that Dr Vickery is stating that her persistent pain, which is neuropathic in nature and has arisen after her work-related injury and was non-existent prior to her work-related injury, is in fact non-existent or is in fact a manifestation of her pre-existing mood disorder. I think all parties concerned are accepting that she has developed a persistent neuropathic pain after her tendon grafting and the reason for the tendon grafting was her tendon rupture which she sustained at the time of her work-related injury.
Therefore her current incapacity is a mix of her ongoing neuropathic pain due to her work injury and also a component of pre-existing mood disorder exacerbated by the pain...”
In a report dated 13 April 2018, Dr Russo stated that the applicant’s symptoms were stable and ongoing in terms of her bilateral forearm and wrist pain. He noted that Dr Burgess had requested a right carpal tunnel release and the applicant was considering her options in relation to that surgery. He noted that she remained on medication and wore nocturnal hand splints. He suggested trialling other medication and closure of the applicant’s workers compensation claim.
In a report dated 12 June 2018, Dr Russo stated that the applicant’s symptoms were ongoing, but more or less stable.
In a report dated 7 August 2018, Dr Russo noted that the applicant was experiencing ongoing distressing side effects of medication. He noted that the applicant’s pain symptoms were likely to be ongoing and recommended that the applicant attend a pain management program.

Mr Dion Sanchez, certified hand therapist

Mr Sanchez treated the applicant following her stage 2 surgery in July 2016.
In a report dated 30 January 2017, Mr Sanchez noted that whilst the applicant continued to make steady recovery and progress, she still struggled with pain in both hands and forearms which was now the limiting factor to further improvement.
In a report dated 13 March 2017, Mr Sanchez noted that the applicant continued to make slow progress in relation to the pain and function in her hands.
Mr Sanchez also treated the applicant following her stage 3 surgery in June 2017.
In a report dated 13 December 2017, Mr Sanchez noted that in the six months after the stage 3 surgery, the applicant had made slow and steady progress but improvements were starting to plateau, the PIP joint extension remained stiff, scarring was apparent and the applicant reported ongoing pain with functional limitation. Mr Sanchez also noted symptoms in the applicant’s right hand.
In a report dated 2 March 2018, Mr Sanchez noted that the applicant was clinically positive for carpal tunnel syndrome in both right and left carpal tunnels, having also developed right carpal tunnel syndrome following the attempted harvesting of a donor tendon. The applicant preferred to be treated with conservative treatment rather than surgery.
In a report dated 12 March 2018, Mr Sanchez noted that whilst the applicant had received a reasonable result following the second stage surgery, she continued to have pain and altered sensation in both hands and was clinically positive for carpal tunnel syndrome in both left and right carpal tunnels. The applicant was reluctant to have further surgery and no further hand therapy treatment was planned.

Alix Bilton, senior psychologist, Innervate pain management

Alix Bilton conducted chronic pain assessments upon referral by Dr Singh.
In a report dated 24 January 2017, Alix Bilton noted that the applicant was “a low functioning woman with chronic pain due to workplace injury whose clinical presentation was severe in my opinion with strong pain behaviours and high psychological stress related to her pain, initial injury and loss of lifestyle”. The report noted that the applicant’s:
“tolerances were low, she has dysfunctional medicated sleep, she has decreased her capacity and increased work. He reported pain and disability was also very high. She is well above the level where she would need intensive assistance for a return to work, and is at high risk of further developing pain and disability”. They opined that the applicant’s presentation supported a recommendation for high intensity, interdisciplinary, group based, chronic pain program.
Alix Bilton also completed a Psychological Chronic Pain Assessment Report which noted that the applicant “Reported trauma related symptoms from assault that affect her mood and cognition. Recent reported episode of depression around late 2015, however she reported that she feels she is making improvements since seeing a Psychologist”.

Dr Con Kafataris, injury management consultant

At the request of the insurer, Dr Kafataris provided an independent report dated 3 April 2018 in relation to injury management. Dr Kafataris noted the physical injury and various treatments to the applicant’s left hand which was her non-dominant hand. He also noted the development of symptoms including carpal tunnel syndrome in her right hand which was her dominant hand.
Dr Kafataris made limited reference to the applicant’s psychological condition. Dr Kafataris stated that the applicant’s “medical history includes anxiety and depression in 2013”. He noted that current medication included Zoloft, Lyrica and Melatonin. Dr Kafataris stated that in his opinion “There is no evidence of major depression”. His report did not set out the evidence that he relied on in that regard nor explain his reasoning for that opinion.
Dr Kafataris opined that the applicant was fit for suitable duties on the basis of four hours per day and four days per week as an initial step, with some physical restrictions and limitations. He noted that the applicant was unlikely to return to pre-injury duties and that some form of external redeployment would be required.

Dr Andrew Myers, hand surgeon

Hand surgeon, Dr Myers, reviewed the applicant for a second opinion upon referral by Dr Singh.
In a report dated 12 April 2018, Dr Myers stated that the applicant had bilateral significant hand problems post work related injury in 2015 with poor outcome from her ring finger two stage tendon reconstruction and neuropathic pain post harvesting of palmaris longus tendon from right arm and that the applicant was having ongoing carpal tunnel symptoms. He noted that the applicant was reluctant to have further surgery at that time. Dr Myers opined that it was reasonable to pursue surgery on the right arm at a later stage but heavily cautioned about the applicant’s goals and outcomes of surgery and the risk of reactivating complex regional pain syndrome.
In a report dated 4 April 2019, Dr Myers noted that the applicant still had ongoing bilateral hand problems significant pain and restricted movement of her left hand and ongoing carpal tunnel symptoms.
In a report dated 17 May 2019, Dr Myers stated that the applicant’s left hand symptoms had further deteriorated and had reached maximum medical improvement. The applicant continued to have carpal tunnel symptoms.
In a report dated 5 December 2019, Dr Myers stated that following further right hand surgery two and a half months previously, the applicant’s symptoms were continuing but diminishing.
In a report dated 16 January 2020, Dr Myers stated that the applicant’s right hand had continued to improve and she planned to undertake left hand carpal tunnel surgery.
In a report dated 9 April 2020, Dr Myers stated that following further left hand surgery, the applicant’s left hand was progressing well although she experienced ongoing hand pain and also experienced neck and shoulder pain.
In a report dated 16 June 2020, Dr Myers stated that the applicant’s hand pain levels remained fairly static and the applicant now experienced ongoing neck and shoulder pain.
In a report dated 30 July 2020, Dr Myers stated that the applicant continued to have bilateral discomfort.
In a report dated 10 September 2020, Dr Myers stated that the applicant continued to have some hand discomfort but was planning to seek gainful employment following receipt of an independent medical opinion.
In a report dated 28 January 2021, Dr Myers stated that the applicant had been working a lot and had an extreme increase in pain which he believed to be early tendinitis.

Dr James Masson, hand and plastic surgeon

Dr Masson provided an independent medical opinion at the request of the insurer.
Dr Masson’s report dated 6 June 2018 noted that the applicant was diagnosed with FDP avulsion of the left ring finger and underwent a two-stage flexor tendon graft and a subsequent PIP joint release and flexor tenolysis but still has incomplete flexion of the finger and a PIP joint contracture. The report also noted that the applicant also has right carpal tunnel syndrome and bilateral upper extremity neuropathic pain. Dr Masson opined that the applicant’s injuries were causally related to the incident. He stated that the applicant’s prognosis remains guarded. He calculated 6% WPI.

Dr Michael Shelley, health psychologist

Dr Shelly assessed non-medical treatment options upon referral by Dr Singh.
In a report dated 23 August 2018, Dr Shelley stated that the applicant’s psychometrics suggested she was well above the level where she would need intensive assistance for a return to work and she was at high risk of further developing pain and disability. Her presentation supported a recommendation for intensive treatment. He noted that the applicant was cautious about commitment to an Intensive Pain Program.
In a report dated 4 October 2018, Dr Shelley noted that the applicant had recently completed a four-week outpatient Intensive Pain Program.
A follow-up report dated 12 March 2019, six months after completion of the Intensive Pain Program, stated that the applicant reported that a rehabilitation provider was assisting the applicant to return to work. The report noted that the applicant’s “depression has increased, despite a significantly decreased [sic] in her anxiety, it is recommended that she be referred for further sessions with her current psychologist or to Innervate” and supported a referral for further psychology treatment to assist the applicant with her depressive symptoms, anxiety and stress.

Dr Robin Mitchell, occupational physician

Dr Mitchell provided an injury management consultation at the request of the insurer.
In a report dated 12 September 2018, Dr Mitchell noted that on 10 September 2018, Dr Singh stated that the applicant would be fit for suitable duties up to four hours per day, two days per week, with an upgrade of hours in the future. Dr Mitchell reported that Dr Singh said that the applicant did not presently have capacity to work additional hours “due to the significant ongoing psychological issues present” and that the applicant “would attend her rooms on 1 or 2 occasions each week, mainly for her psychological issues including panic attacks and anxiety”.
In a report dated 26 October 2018, Dr Mitchell reviewed the applicant’s history including her recent completion of an Intensive Pain Program. Dr Mitchell noted that the applicant reported ongoing left hand pain and reduced movement and pain in her neck and both forearms in addition to significant psychological symptoms. Dr Mitchell stated that in her opinion, the applicant had a current capacity for suitable work on a part-time basis of up to five hours each day, five days a week at this time, and return to normal full-time hours within four to six weeks provided that the applicant avoided sustained, forceful or awkward left-hand gripping actions, especially of a repeated nature, and avoided fixed and awkward spinal postures. Dr Mitchell stated that he had contacted Dr Singh who provided a “significant and realistic upgrade at this time” and who advised that the applicant continued to have significant psychological problems including panic attacks even when discussing her rehabilitation and possible return to work.

Dr Daniel Posel, orthopaedic surgeon

Dr Posel provided an independent medical opinion at the request of the insurer.
In a report dated 27 July 2020, Dr Posel opined that the applicant had reached maximum medical improvement in relation to her left and right hands and assessed total WPI of 7%. Dr Posel stated that he did not believe that there had been a particular injury to the applicant’s cervical or lumbar spines following the incident and did not apportion any permanent impairment in that regard. However he noted that the applicant perceived stiffness in her axial skeleton. Dr Posel noted that the applicant was continuing to have regular psychological counselling sessions and was due to be reviewed by her treating psychiatrist in the near future and he stated that “her major problem at present appears psychological”. Dr Posel stated that a psychologist opinion would be appropriate “to assess the possibility of a post-traumatic anxiety condition” and further stated “I believe that such does require treatment as a consequential condition of the injury of 6 November 2015”.

Other evidence

A RehabCo Rehabilitation Closure Report dated 22 May 2019 noted that the rehabilitation file was being closed due to Dr Singh’s advice that the applicant had nil capacity for employment for an extended time period. The report noted that the applicant had ongoing significant pain and reported a significant increase in her anxiety issues. The applicant reported that she was continuing to attend psychologist, Mr Phillip Screen, now under a mental health care plan. The report recorded that Dr Singh stated that the applicant “is very honest and agreed her case is very complicated with several interlinked factors holding her back from recovery and return to work”. Dr Singh recommended continuing psychological counselling.
On 2 July 2019, Dr Lewington, Approval Medical Specialist, issued a Workers Compensation Commission Medical Assessment Certificate which assessed total WPI of 13% in respect of the physical injury. Dr Lewington described the physical injury as:
“Injury to left ring finger 6 November 2015 sustaining a Flexor Digitorum Profundus (F.D.P.) tendon avulsion fracture of the left ring finger distal phalanx. She proceeding to reconstruction graft procedures on 1 March 2016 and 19 July 2016 and a third operation to release the left ring finger P.I.P. joint and tenolysis of the F.D.P. and F.D.S. tendons on 13 June 2017. Grafts were taken from the right and left forearms leaving her with multiple scarring. She subsequently developed symptoms of right carpal tunnel (medial peripheral nerve lesion).”

I accept that the incident, described by the applicant in her evidence, involved the applicant being physically assaulted by a number of persons whilst she was working as a security guard for a function and included: the applicant approached a man who was a patron of the function who was drinking beer out of a jug; the applicant said words to the effect “I can’t let you drink out of the jug”; the man replied to the effect of “I paid for it and I’m going to drink it"; the applicant sought advice from a work colleague who offered the man a glass; the man looked at the applicant and then threw the contents of the jug of beer over the applicant’s face which spilled onto her clothing; the applicant’s face and clothing were soaked with beer; the man was escorted from the function by the applicant’s colleagues; the applicant was permitted to leave and go home as it was late and she was soaked in beer; later as the applicant was exiting the function, the man who threw the beer and other patrons were nearby; the man grabbed hold of the applicant’s left arm; as the applicant attempted to escape his grip, a woman stepped in and punched the applicant in her right eye; the applicant was engaged in a wrestle with those persons and was pushed to the ground; the applicant was able to use her knees to push the woman off her and to stand up; the applicant was then hit from behind on the head (she was later informed that the man who had thrown the beer had hit her with an umbrella); after the applicant regained her senses, she was able to stand up; the applicant observed the man who had thrown the beer had her colleague in a headlock and she came to assist; another colleague pulled the applicant away as the applicant was bleeding from her head; the applicant noticed that she was suffering from pain and discomfort in her left ringer finger, wrist and hand. After the incident, the applicant attended a hospital emergency department where she was treated by stitches to a laceration in her scalp and her left finger was strapped.
The incident was clearly a significant, serious and shocking assault causing physical injury. I accept that the incident would have been experienced by the applicant as a traumatic event.
Following the incident, the applicant’s treating practitioners noted the following:
(a)    on 14 November 2015, psychiatrist Dr Mathew noted the applicant reported being assaulted but denied any psychological symptoms related to the assault. Mr Mathew noted that the applicant reported disturbed sleep, weight loss, crying spells, feeling tired, lack of self-esteem and self-confidence and worries. The applicant described having anxiety symptoms including palpitations, increased sweating and “pins and needles” in her legs. The applicant reported personal stressors in relation to her children. He opined that the applicant’s multiple psychosocial stressors like separation, missing her children and work related problems were influencing her depression;
(b)    on 4 December 2015, the applicant first reported the incident to Dr Singh. At that time, Dr Singh noted that the applicant exhibited symptoms which included loss of appetite, anxious, lack of sleep unless using medication. Dr Singh diagnosed Generalised anxiety disorder/Depression. A K10 assessment indicated that the applicant was at least moderately distressed. Dr Singh referred the applicant to Ms Infeld under a Mental Health Care Plan. Dr Singh noted that the applicant had been attacked when working as a security guard it had taken a “toll” on her and it was “difficult since the attack”. Dr Singh also noted other stresses in relation to the applicant’s children;
(c)    on 1 February 2016, Dr Singh noted the applicant attended for the reason of alcohol dependence;
(d)    on 13 February 2016, Dr Mathew stated that the applicant has chronic depression and her response to treatment has been poor;
(e)    on 11 March 2016, Ms Infeld noted that the applicant had had a worsening of her symptoms of anxiety and depression;
(f)    on 4 April 2016, Mr Screen noted that the applicant discussed confronting the perpetrators of the assault in court and noted “no major triggers of late”;
(g)    on 6 May 2016, Dr Singh referred the applicant to psychologist, Ms Ramplin and sought Ms Ramplin’s opinion regarding “workrelated chronic pain syndrome/depression”;
(h)    on 12 May 2016, Dr Singh recommended to the insurer that the applicant undertake psychological treatment to support her recovery and return to work before returning to normal hours;
(i)    on 17 May 2016, Ms Ramplin noted the applicant presented as anxious and agitated. The applicant described the incident and reported feeling depressed in the context of the injury. The applicant also noted other stressors in relation to her children and financial difficulties;
(j)    on 17 May 2016, Dr Singh noted the applicant experience insomnia which appeared to be related to the WorkCover claim;
(k)    on 31 May 2016, Ms Ramplin noted the applicant’s attempted return to work was unsuccessful and the applicant reported being irritable and “snappy”;
(l)    on 4 June 2016, Dr Mathew reported the applicant continued to feel depressed and tired, has terminal insomnia, reported short temper, reported frustration with her limited hand movement;
(m)     on 21 June 2016, Ms Ramplin noted the applicant had an odd presentation including teeth grinding and labile mood;
(n)    on 5 July 2016, Ms Ramplin noted the applicant’s mood was somewhat improved. The applicant reported vivid nightmares although could not recall the content, using alcohol for sleep and anxiety. The applicant was tearful and appeared angry in response to Ms Ramplin expressing reluctance to continue treatment sessions. The applicant did not want to talk about her upcoming hand surgery;
(o)    on 6 July 2016, Ms Ramplin reported increased anxiety related to the loss of the applicant’s job and the financial impact;
(p)    on 13 September 2016, Mr Screen noted that the applicant was “still traumatised” from the “assault” and that an attempted return to work was unsuccessful when the applicant “reacted” to an incident and she returned to work too soon;
(q)    on 18 October 2016, Mr Screen noted an increase in frustration/anger outbursts and noted post-traumatic stress disorder as a possible diagnosis;
(r)    on 9 August 2016, Ms Ramplin noted the applicant was anxious, worried, in pain and grinding her teeth following recent hand surgery;
(s)    on 15 August 2016, Ms Ramplin noted the applicant had negative thought patterns, was unable to think about returning to work and continued to grind her teeth;
(t)    on 6 September 2016, Ms Ramplin reported the applicant experienced low mood, poor sleep, decreased memory, poor concentration, having lost friends since the incident, vivid dreams which she was unable to recall, “flashbacks” of being hit but did not appear to be distressed when discussing that. The applicant denied dreams about the incident. The applicant regularly ground her teeth. The applicant’s affect fluctuated each session and she was often tearful and presented as angry in relation to feeling rushed to return to work. Ms Ramplin noted that the applicant’s presentation was complex in its mixture of pre and post injury stressors. The applicant demonstrated some borderline features and symptoms of depression. Anxiety and mood fluctuations were observed. Ms Ramplin diagnosed adjustment disorder;
(u)    on 8 November 2016, Mr Screen noted that the applicant experienced constant frustration regarding security work, was affected by large crowds, could not work in venues with large crowds including supermarkets, that security work appeared out of the question, and that the applicant was displaying avoidance behaviours avoiding large crowds;
(v)    on 16 November 2016, Dr Singh referred the applicant to Mr Phillip Screen seeking counselling and support in relation to the applicant’s anxiety and depression. A K10 assessment identified moderate psychological distress;
(w)   on 22 November 2016, Mr Screen noted that the applicant was very emotional and considered that post-traumatic stress disorder symptoms may be exacerbating symptoms of anxiety;
(x)    on 29 November 2016, Mr Screen noted that the applicant had been under “high stress” for a long period which appeared to be affecting her ability to manage everyday duties and activities and that she appeared to be developing symptoms of depression;
(y)    on 11 January 2017, Mr Screen noted that the applicant experienced anxiety;
(z)    on 25 January 2017, Mr Screen noted that the applicant presented with “Type 1 trauma” in relation to traumatic events of the assault and he was treating the applicant with desensitisation techniques;
(aa)    on 6 February 2017, Dr Sing recorded that the applicant had post-traumatic stress disorder in the context of her being assaulted by multiple people;
(bb)    on 8 February 2017, Mr Screen noted that the applicant continued to experience anxiety in social situations, experienced indecisiveness, felt forced into employment that she was unable to tolerate and was very emotional and crying;
(cc)     on 22 February 2017, Mr Screen noted that the applicant had two panic attacks thinking about having to face the perpetrators of the assault in court and that it appeared that the applicant’s upcoming court appearance had triggered abreaction responses;
(dd)    on 8 March 2017, Mr Screen noted that the applicant continued to experience abreaction associated with having to confront perpetrators of the assault in court;
(ee)    on 2 May 2017, Dr Singh completed a further referral to Mr Screen under a Mental Health Care Plan and sought continued counselling “due to traumatic violent assault whilst working”. Dr Singh stated a provisional diagnosis of post-traumatic stress disorder;
(ff)    on 2 May 2017, Mr Screen noted that the applicant was very emotional and finding it difficult to see a future since she had to revaluate her life since the work accident trauma and physical injuries;
(gg)    on 18 May 2017, Dr Singh noted anxiety and night sweats after the accident;
(hh)    on 25 May 2017, Mr Screen noted that the applicant experienced anxiety for a week regarding attending court in relation to the assault, she was not eating or sleeping and was experiencing migraines. The applicant accepted that she could not work as a security guard again;
(ii)    on 22 June 2017, Mr Screen noted that the applicant appeared to be in a depressive state and noted major life changes over previous years including relationship breakdown, WorkCover claim and issues with her children;
(jj)    on 13 July 2017, Mr Screen noted that the applicant continued to adjust to her life changes since the incident;
(kk)     on 27 July 2017, Mr Screen noted that the applicant was very emotional and “had enough of everything”;
(ll)    on 28 July 2017, Dr Singh noted the applicant was very distressed and anxious and experienced pain, chest pain and panic attacks;
(mm) on 4 August 2017, Dr Eliza Griffiths, Fellow of the John Hunter Hospital, reported that results of investigations of the applicant’s night sweats and irregular periods had been normal. Dr Griffiths noted that the applicant had “significant anxiety and PTSD following an assault at work... potentially anxiety and depression may form some part of the aetiology of her sleep disturbance and night sweats” (although I note other evidence that the applicant experienced regular night sweats which interfered with her sleeping in 2014, which was well prior to the incident);
(nn)    on 24 August 2017, Mr Screen noted “complex anxiety” and “type 1 trauma from assault” and “adjusting to significant life changes”;
(oo)    on 16 February 2018, Mr Screen noted that the applicant had a diagnosis of anxiety, depression, post-traumatic stress disorder with a mechanism of injury being “physical assault”;
(pp)    on 15 March 2018, Mr Screen noted the applicant’s anxiety in the context of managing the physical injury;
(qq)    on 3 May 2018, Mr Screen noted the applicant’s anxiety about a request to return to work at her previous employer or alternate employment and noted “adjustment disorder/depression”;
(rr)   on 3 June 2018, Dr Singh noted the applicant had moderately severe anxiety and post-traumatic stress disorder type symptoms;
(ss)     on 20 June 2018, Mr Screen noted the applicant’s anxiety about returning to work and her physical injury;
(tt)    on 4 July 2018, Mr Screen noted the applicant’s anxiety about returning to work and what she could endure with the physical injury;
(uu)    on 13 July 2018, Dr Singh noted the applicant had moderately severe anxiety, post-traumatic stress disorder type symptoms, pain and inability to deal with simple situations that she can be employed in gainful employment;
(vv)     on 1 August 2018, Mr Screen noted anxiety;
(ww) on 13 September 2018, Mr Screen noted the applicant experience anxiety about returning to her previous employer and she “was afraid of triggers regarding previous assault”;
(xx)     on 4 October 2018, Mr Screen noted sleep issues and continuing anxiety associated with the physical injury;
(yy)     on 5 November 2018, Mr Screen noted anxiety, nightmares, waking through the night, sweating and post-traumatic stress disorder from the assault;
(zz)     on 29 October 2019, Dr Singh completed a further referral to Mr Screen under a Mental Health Care Plan which noted a diagnosis of post-traumatic stress disorder, anxiety and depression and that the incident had resulted in post-traumatic stress disorder, and
(aaa) an 1 August 2020, Dr Mathew reported a change in the applicant’s antidepressant medication in February 2020, relapse of depression in May 2020 precipitated by her son leaving home to join the army, the applicant experienced anger and frustration with the WorkCover process, sleep disturbance, agitation, lack of self-confidence, crying spells and guilt. Dr Mathew diagnosed recurrence of depressive disorder complicated by multiple stressors.
In his report dated 9 November 2016, Dr Vickery diagnosed pre-existing chronic adjustment disorder with anxiety and depression and substance abuse (cannabis and alcohol). Dr Vickery noted that the applicant also appeared to present with borderline personality features however that condition appeared to fluctuate as noted by the absence of “anxiety, depression and stress on the SASS21” in October 2016. In Dr Vickery’s opinion the applicant’s current symptoms were primarily due to her pre-existing conditions and to subsequent personal and financial stressors since she had ceased working. Dr Vickery opined that the applicant’s employment was “not a substantial contributing factor to her current condition as it was pre-existing and has been exacerbated by financial and personal stressors since she ceased working”. Dr Vickery opined that the applicant was not psychologically fit for pre-injury employment but believed that the incapacity was ongoing and pre-existing and unrelated to the physical injury and incident. It is apparent from Dr Vickery’s report dated 9 November 2016, that Dr Vickery reviewed the applicant’s history including the reports of Dr Mathew and Ms Ramplin. Dr Vickery considered that it was significant that the applicant was suffering from a four year history of pre-existing anxiety, depression and substance abuse (alcohol and cannabis) and for which she was commenced on antidepressant medication and was referred for counselling only several months prior to her alleged injury. Dr Vickery noted that the applicant was taking antidepressant medication and that she had undertaken psychological counselling with psychologist Roz Ramplin from May to September 2016. Following cessation of counselling with Ms Ramplin, the applicant commenced psychological counselling with another psychologist, Phillip Screen. She had also attended another psychologist for ‘private matters’ since 2016. Dr Vickery noted that both the consultant psychiatrist, Dr Mathew, and Ms Ramplin had noted that the applicant had significant personal stressors in the past five years that were unrelated to the incident and physical injury. Dr Vickery noted that the applicant denied had her psychological symptoms in early 2016 were related to the assault. Dr Vickery acknowledged that it was significant that the applicant reported dreams and nightmares but noted that the applicant denied that her dreams were about the incident. He noted that in addition to nightmares, the applicant reported physical difficulty with hygiene and grooming, variable appetite, social withdrawal, reduced motivation, being very indecisive, having a “short fuse”, reduced memory and reduced concentration with forgetfulness. Dr Vickery noted, upon mental state examination, that the applicant maintained good eye contact and was spontaneous and co-operative. Her affect range was not restricted and her behaviour and mood were appropriate. She expressed frustration in relation to the physical injury but there was no presentation of melancholic depression, paranoid delusional ideation or formal thought disorder and no cognitive impairment. Dr Vickery opined that the applicant’s psychological condition was not consistent with the history of the incident and unrelated to the incident.
In his report dated 25 April 2021, Dr Vickery diagnosed generalised anxiety disorder. Having regard to the applicant’s history and other factors, he opined that there was “pre-existing anxiety and depression which has been exacerbated by personal stressors”. Dr Vickery assessed 0% WPI and opined that there was “no permanent impairment”. It is apparent from Dr Vickery’s report dated 25 April 2021 that Dr Vickery examined the applicant on 7 April 2021 and reviewed the applicant’s history and additional documents noted by him. Again, he noted the applicant’s psychological history which pre-dated the incident. He considered the reports of Dr Mathew and Ms Ramplin and noted they identified ongoing personal stressors. Dr Vickery considered it to be particularly relevant that Dr Mathew recorded, both on 14 November 2015, which was a week following the incident, and on 13 February 2016, which was approximately three months after the incident, that the applicant had no psychological symptoms apparently related to the assault. Dr Vickery noted that the applicant reported that following surgery, she had returned to work last year and “felt really good about working and meeting people and I was going really well” but ceased after six weeks when she was dismissed. He noted that the applicant then worked for four weeks in a kitchen in a small club but experienced increased pain due to over-use and lifting. Dr Vickery noted that the applicant had recently relocated to Queensland “due to hibernating over winter for three or four months and ‘I am hoping that the warmer climate will help me have a sustainable recovery and employment’”. The applicant reported that she could become emotional “when I have to talk about personal areas and it’s the anxiety when I become upset and I’m searching hard for a path ahead”. The applicant reported anxiety with:
“how I look and what people think of me since I was sacked and I had made a huge effort to get out and find work but after that I’ve lost my confidence but I was able to work in a kitchen job over the Christmas break but it got too busy it was difficult as my hands would let me down in the meal preparation”.
The applicant had suffered recent loss of her belongings through flood and theft. There was no psychological impairment in hygiene, grooming or driving. She reported close relationships with her parents, family members and two close friends. She regularly visited her children and had regular contact with two close friends. The applicant reported reduced organisation as her “head is so full of thinking”. She could read for 90 minutes. The applicant stated that she had told a rehabilitation service that she “would like to go back to sales as I enjoyed the work I was doing and I know I can do it”. On mental state examination, Dr Vickery noted that the applicant was casually dressed and groomed, appeared to be seated comfortably and there was eye contact. The applicant appeared to be spontaneous and co-operative. The applicant’s affect range was not restricted and her behaviour and mood were appropriate to the topic being discussed. Her history and presentation were consistent and she was able to relate a coherent and chronological history. She was emotional at times when discussing recent setbacks that she had experienced. There was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent incapacitating cognitive impairment and no apparent psychiatric impairment. Dr Vickery noted that the applicant reported recent increase in dosage of antidepressant medication. Dr Vickery diagnosed Generalised Anxiety Disorder and “pre-existing anxiety and depression which has been exacerbated by personal stressors” was unrelated to the incident.

Dr Vickery did not specifically address the applicant’s symptoms having regard to the post-traumatic stress disorder criteria from the DSM 5.
In his reports, Dr Vickery identified that material the material that he relied upon as a basis for his opinion. I am satisfied from a reading of Dr Vickery’s reports that that he had adequate information including knowledge of the applicant’s history and psychological history to make a qualified and informed opinion about the applicant’s diagnosis. However, I note that it does not appear that he considered the clinical notes of Dr Singh and Mr Screen.
I note that Dr Vickery’s diagnosis of the applicant’s psychological condition changed over time: in November 2016, he diagnosed chronic adjustment disorder with anxiety and depression and substance abuse (cannabis and alcohol); in April 2021, he diagnosed generalised anxiety disorder. I note that whilst Dr Vickery did not diagnose depression in April 2021, he noted that the applicant reported recent increase in her antidepressant medication.
In his supplementary report dated 10 May 2021, Dr Vickery stated that the applicant’s anxiety was due to pre-existing anxiety and depression which was exacerbated by personal stressors and that the applicant did not suffer a primary psychological injury on 6 November 2015.
In his report dated 11 November 2020, Dr Oldtree Clark diagnosed that the applicant was suffering from post-traumatic stress disorder which was a primary psychiatric disorder which directly resulted from, and had a direct causal relationship with, the incident which he described as a “shocking assault”, and had been ongoing since 2016. Dr Oldtree Clark also diagnosed that the incident caused an aggravation of the applicant’s pre-existing depression and anxiety, for which she was being treated at the time of the incident. It is apparent from his report that Dr Oldtree Clark examined the applicant on 22 October 2020 and reviewed various documents including clinical notes of Dr Rita Singh, Dr Philip Screen, Hamilton Medical Centre, John Hunter Hospital and Ms Ramplin. Dr Oldtree Clark noted the history of the incident and the physical injury and treatment. Dr Oldtree Clark noted that the applicant “has a prior history of depression and noted that the applicant had been treated by a psychologist and a psychiatrist and had been prescribed medication. Dr Oldtree Clark noted that on psychiatric state examination, the applicant suffered no signs or symptoms of psychosis, showed not abnormal signs in manner or posture, exhibited no hallucinations, expressed no delusionary beliefs and her thought systems were normal. The applicant stated that she liked to keep herself “in a protective wall”. Dr Oldtree Clark noted that the applicant had bad sleep, flashbacks and intrusive recollection of the incident and consequent surgeries but did not have nightmares. Dr Oldtree Clark identified noted that the applicant experienced the following relevant predominant symptoms within the post-traumatic stress disorder criteria from the DSM 5:
(a)directly experiencing the traumatic event(s);
(b)recurrent, involuntary, and intrusive distressing memories of the traumatic event(s);
(c)recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s);
(d)dissociative reactions (eg flashbacks), in which the individual feels or acts as if the traumatic event(s) were recurring;
(e)avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s);
(f)avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s);
(g)persistent negative emotional state (eg fear, horror, anger, guilt or shame);
(h)markedly diminished interest or participation in significant activities;
(i)hypervigilance, and
(j)Sleep disturbance (eg difficulty falling or staying asleep or restless sleep);
Dr Oldtree Clark opined that the applicant’s employment was the main contributing factor to her psychiatric injury. Dr Oldtree Clark stated that the applicant was totally unfit for her pre-injury work. He opined that she had reached maximum medical improvement, that her condition was permanent and stable. He assessed total WPI of 16%, which was calculated on the basis of 17% personal impairment less 2% pre-existing impairment with an adjustment of 1% to reflect treatment by a psychiatrist and psychologist.
In his supplementary report dated 19 October 2021, Dr Oldtree Clark noted that he had also reviewed further material being the s 78 Notice, the report of Dr Vickery dated 10 May 2021 and clinical notes of Dr Mathew. Dr Oldtree Clark specifically disagreed with the opinion of Dr Vickery. Dr Oldtree Clark restated his opinion that the applicant suffers a diagnosed psychiatric disorder, post-traumatic stress disorder, and is impaired by her psychiatric condition. He stated that is a primary psychiatric injury and causation of the injury the assault at the applicant’s work and the consequent surgery. He confirmed his previous assessment of WPI.
In his reports, Dr Oldtree Clark identified the material that he relied upon as a basis for his opinion. I am satisfied from a reading of Dr Oldtree Clark’s reports that that he had adequate information including knowledge of the applicant’s history and psychological history to make a qualified and informed opinion about the applicant’s diagnosis.
I do not accept the respondent’s submission that Dr Oldtree Clark’s report should be given lesser weight because he did not refer in detail to and does not appear to have fully considered the applicant’s pre-existing psychiatric problems and her treatment for those problems. In his reports, Dr Oldtree Clark identified the various reports and documents that he considered in forming his opinion. Dr Oldtree Clark noted the applicant’s prior history of depression and pre-existing anxiety.

Post traumatic stress disorder

Dr Oldtree Clark clearly considered the applicant’s symptoms in the context of the post-traumatic stress disorder criteria from the DSM 5. Dr Oldtree Clark identified symptoms experienced by the applicant within those diagnostic criteria that were related to the incident, which the applicant experienced as a traumatic event.
In contrast to Dr Oldtree Clark, Dr Vickery did not specifically address the DSM 5 diagnostic criteria of post-traumatic stress disorder. Further, it is not apparent from his reports that Dr Vickery did not significantly engaged with the evidence in relation to the traumatic nature of the incident and physical injury and the various psychological symptoms experienced by the applicant in relation to the incident, particularly the evidence of the treating practitioners, Dr Singh and Mr Screen.
Dr Vickery considered it relevant that when he examined the applicant, she did not demonstrate psychological symptoms related to the incident. The applicant’s presentation to Dr Vickery in that regard appears to be at odds to her presentation to other medical professionals at various times since the incident, particularly Dr Singh, Mr Screen and Dr Oldtree Clark who all diagnosed post-traumatic stress disorder.
Dr Vickery considered it to be particularly relevant that Dr Mathew recorded, both on 14 November 2015, which was a week following the incident, and on 13 February 2016, which was approximately three months after the incident, that the applicant had no psychological symptoms apparently related to the assault.
Dr Oldtree Clark diagnosed that the post-traumatic stress disorder commenced and was ongoing from 2016. This is consistent with the applicant’s treating practitioners who noted symptoms relating to the incident in 2016. Dr Oldtree Clark’s opinion that the was not immediate onset and did not manifest until some time after the incident, provides a rational explanation for the applicant’s failure to report symptoms soon after the incident, particularly when also considered in the context of the applicant’s evidence that she did not want to talk about the incident.
I do not accept the respondent’s submissions that the opinion of Dr Oldtree Clark should be given lesser weight because Dr Oldtree Clark noted that on psychiatric state examination, the applicant suffered no signs or symptoms of psychosis and no abnormal signs in manner or posture; she experiences no hallucinations, expresses no delusionary beliefs and her thought systems are normal. Those features are not identified as predominant symptoms within the criteria for post-traumatic stress disorder from the DSM 5.
Having regard to the evidence as a whole, I am satisfied that the applicant does experience psychological symptoms of a post-traumatic stress disorder, related to the incident and in the context of the applicant’s experience of the incident as a traumatic event. These include:
(a)    directly experiencing the incident, recurrent, involuntary, and intrusive distressing memories of the incident and dissociative reactions such as “flashbacks” of the incident: for example, the evidence of the applicant and on 6 September 2016, Ms Ramplin reported the applicant experienced “flashbacks” of being hit;
(b)    avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the incident: for example, the applicant’s evidence is that she avoided talking about the incident;
(c)    avoidance of or efforts to avoid external reminders of the incident: for example, Dr Singh’s evidence regarding the applicant’s anxiety about returning to work with the respondent; failure of the attempted return to work; the applicant’s evidence that she did not renew her security licence;
(d)    persistent negative emotional state: for example, evidence of the treating practitioners as to the applicant’s symptoms subsequent to the incident, the applicant’s evidence that she has been unable to return to full-time employment;
(e)    markedly diminished interest or participation in significant activities: for example, the applicant’s evidence that she no longer enjoys or participates in hobbies that she previously enjoyed such as fishing and playing musical instruments;
(f)    hypervigilance: for example, the applicant’s evidence that she is fearful of injury working as a security guard and has not renewed her security guard licence and that she was fearful of where she was living and consequently relocated interstate, and
(g)    sleep disturbance: for example the evidence of the applicant and her treating practitioners regarding her ongoing sleep disturbance.
Considering the evidence as a whole, I prefer and give greater weight to the opinion of Dr Oldtree Clark.

Aggravation of pre-existing depression/anxiety

In her report dated 19 August 2015, which was her last report prior to the incident, Ms Infeld noted improvement in the applicant’s psychological symptoms. Clearly, the applicant’s psychological condition did not prevent her from working full-time at the time of the incident. Indeed there is no evidence that the applicant’s depression or anxiety prevented her from working full-time at any time prior to the incident.
The evidence of the applicant’s treating practitioners as a whole indicates that the applicant had significant symptoms of anxiety and depression following the incident.
I note that Dr Vickery’s diagnosis of the applicant’s psychological condition changed over time: in November 2016, he diagnosed chronic adjustment disorder with anxiety and depression and substance abuse (cannabis and alcohol); in April 2021, he diagnosed generalised anxiety disorder. Whilst Dr Vickery did not diagnose depression in April 2021, he noted that the applicant reported recent increase in her antidepressant medication.
Dr Vickery’s opinion in April 2021 that the applicant no longer had depression seems to be at odds with the contemporaneous evidence of the treating practitioners who consistently noted symptoms of depression and anxiety.
Considering the totality of the evidence, I prefer and give greater weight to the opinion of Dr Oldtree Clark. I accept that the applicant has exacerbation of pre-existing anxiety and depression.
Turning to the cause of the aggravation of the applicant’s pre-existing anxiety and depression, I note that in his supplementary report dated 10 May 2021, Dr Vickery stated that the applicant’s anxiety was due to pre-existing anxiety and depression which was exacerbated by personal stressors rather than the incident.
I accept that the applicant experienced personal stressors following the incident, which include financial stress, treatment and pain arising from the physical injury.
However, the evidence of the applicant and the treating practitioners indicates the applicant’s traumatic experience of the incident had such a significant and lasting impact on the applicant that it aggravated her pre-existing depression and anxiety.
For example, by 4 December 2015, in the context of the applicant’s symptoms of depression and anxiety, Singh noted that the applicant found “work as a security guard difficult since attack”.
By May 2016, Dr Singh recognised that the applicant’s psychological symptoms of depression and anxiety were of such a degree that they caused difficulties for the applicant in returning to her work. Insurer Progress Reports in May 2016 and June 2016 note Dr Singh’s request that before the applicant return to work on a full-time basis, that the applicant undergo psychological treatment to support her recovery and return to work.
It is also clear from the evidence of the other treating practitioners that the applicant experienced significant anxiety about return to work. The applicant’s attempted return to work was unsuccessful. The applicant’s evidence is that she has not been able to return to full-time employment.
Considering the totality of the evidence, I prefer and give greater weight to the opinion of Dr Oldtree Clark. I accept that the applicant’s pre-existing depression and anxiety were aggravated by the incident.

Conclusion

There is no dispute, and I accept, that the applicant has a psychological injury within the meaning of s 11A(3) of the 1987 Act.
For these reasons, I am satisfied that the applicant has a primary psychological injury of a post-traumatic stress disorder arising from the incident and aggravation of the applicant’s pre-existing depression and anxiety arising from the incident.
I am satisfied that there is a causal chain between the incident and the psychological injury and that the psychological injury is a primary psychological injury within s 65A of the 1987 Act.
On that basis, I am satisfied that the applicant’s psychological injury is a primary psychological injury that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act.

ORDERS

Accordingly, it is appropriate that I order that:
(a) the applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the 1987 Act that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act, and
(b) the lump sum claim is remitted to the President for referral to a Medical Assessor for assessment.

COSTS

It is appropriate that a costs order is made now in the applicant’s favour as she was successful on the liability issue. Accordingly, I order that the respondent is to pay the applicant’s costs as agreed or assessed.

COMPLEXITY

In accordance with Schedule 6 Table 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with 20 per cent increase in the costs otherwise available to both parties due to the multiple issues in dispute requiring consideration in relation to s 4 and s 65A of the 1987 Act.

[2022] NSWPIC 185

28 April 2022