Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank [2024] NSWPIC 429
APPLICANT:	Sasha Delbridge
RESPONDENT:	Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank
MEMBER:	Kathryn Camp
DATE OF DECISION:	9 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Worker Compensation Act 1987; psychological injury; series of events; aggravation of a disease; sections 4(b)(ii) and 66; claim for permanent impairment compensation; assessment of the reliability of evidence; Federal Broom Co Pty Ltd v Semlitch, AV v AW and Attorney General’s Department v K considered and applied; Held – disease injury found pursuant to section 4(b)(ii); matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment claim.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a disease injury being a psychological injury in the course of her employment with the respondent, pursuant to s 4(b)(ii) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant’s employment with the respondent was the main contributing factor to the aggravation of the disease with a deemed date of injury of 11 January 2021. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 11 January 2021 (deemed) – disease. (b) Body systems: psychological. (c) Method of Assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 20 March 2024, and attached documents; (b) Reply to Application to Resolve a Dispute dated 11 April 2024, and attached documents; (c) Application to Admit Late Documents dated 31 May 2024, and attached documents, and (d) A copy of this Certificate of Determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for lump sum compensation for a psychological injury. In particular, it concerns whether the applicant suffered an aggravation of her pre-existing psychological condition and whether employment with the respondent was the main contributing factor to the aggravation of that condition, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On 3 April 2018, Sasha Delbridge, the applicant commenced employment as a receptionist with Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank, the respondent.
On 4 October 2019, the applicant was diagnosed with multiple sclerosis (MS). She suffered depression following this diagnosis and saw a psychiatrist.
On 5 March 2020, the applicant sustained an injury to her right knee in the course of her employment with the respondent. This injury was the subject of proceedings in the Personal Injury Commission (Commission) (W1568/22), which resolved in a Certificate of Determination – Consent Orders dated 31 May 2022. The applicant was awarded lump sum compensation pursuant to s 66 of the 1987 Act in respect of 14% whole person impairment for injury to the right lower extremity (knee).
On 11 January 2021, the applicant resigned from her employment with the respondent. The applicant has not worked since that date.
On 26 February 2021, the applicant made a claim for compensation in respect of a psychological injury.
On 19 May 2021, the respondent insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining ongoing weekly payments and medical treatment in respect of “major depressive disorder, single episode, unspecified” deemed to have occurred on 7 October 2019. Amongst other things, the insurer found that the applicant had not received a psychological injury as required by s 11A(3) of the 1987 Act.
On 1 December 2022, the applicant made a claim for permanent impairment compensation in respect of the psychological injury.
On 23 October 2023, the respondent denied liability for the claim for permanent impairment compensation in respect of “major depressive disorder, single episode, unspecified” deemed to have occurred on 7 October 2019. The respondent’s insurer issued a notice pursuant to s 78 of the 1998 Act, declining the claim on the basis that the “accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by s 65A(3) of the 1987 Act”. In the reasons for the decision, the respondent relied on the report of Dr Pothala to find that the applicant had not “received a psychological injury as required by section 11A(3)” of the 1987 Act.
On 20 March 2024, the applicant lodged an Application to Resolve a Dispute (Application) in respect of a claim for lump sum compensation where liability was in dispute.
On 11 April 2024, the respondent lodged a Reply.
On 31 May 2024, the respondent lodged an Application to Admit Late Documents.

ISSUE FOR DETERMINATION

The parties agree that the only issue for determination is:
(a) whether the applicant suffered an aggravation of her psychological injury and whether employment was the main contributing factor to the aggravation of the disease, pursuant to s 4(b)(ii) of the 1987 Act.
While the respondent’s s 78 notices do not appear to put in issue s 4(b)(ii) of the 1987 Act, the parties proceeded on the basis that this was an issue for determination. It is unclear what, if anything, was disused on this issue during the preliminary conference before the Senior Member. Indeed, the applicant raised no objection to the respondent raising this issue for determination before the Commission and her written submissions proceeded on the basis that the dispute had “been validly raised”.
It is agreed that, if I find in favour of the applicant the matter should be remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment arising from the psychological injury deemed to have occurred on
11 January 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 23 April 2024, the parties attended a preliminary conference before Senior Member Haddock.
On 5 June 2024, the parties attended a conciliation conference and arbitration hearing before me following reallocation of the matter. Mr Hammon, of counsel, appeared for the applicant. Mr Stockley, of counsel, appeared for the respondent.
During the conciliation phase, by consent, the Application was amended to change the deemed date of injury to “11 January 2021” and the Application to Admit Late Documents, dated 31 May, was admitted into the proceedings.
Following a lengthy period of conciliation, it was apparent that the parties were unable to reach agreement by settlement. I provided the applicant an opportunity to obtain instructions in respect of:
(a) whether the applicant maintained its position to rely on the reports of Dr Teoh, consultant psychiatrist, dated 23 April 2021 and 15 May 2021, qualified by the respondent, in addition to the reports of Dr Dinnen, consultant psychiatrist, dated 23 May 2022 and 19 October 2022, and
(b) the events said to be causative of the disease injury, which I asked to be put on the record.
Mr Hammon indicated that he pressed reliance on the reports of Dr Teoh. The respondent objected. I delivered an extempore decision and found that reliance on the opinion of Dr Teoh contained in his reports was in contravention of cl 44 of the Workers Compensation Regulation 2016. In the circumstances, I admitted the reports of Dr Teoh into the proceedings for the limited basis as evidence of the histories taken. My reasons are record.
Mr Hammon advised that he was unable to respond to the request to put the causative events on the record due to technical difficulties in obtaining instructions from the applicant. As a result, Mr Hammon sought leave to lodge written submissions. This application was unopposed. Accordingly, on 5 June 2024, I issued the following direction:
“(a) By 14 June 2024, the applicant is to lodge and serve submissions that:
i) identify precisely (in a list) each event she relies on that is causative of the injury claimed, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act), and
ii) address whether she suffered an aggravation, acceleration, exacerbation or deterioration of a disease injury, pursuant to s 4(b)(ii) of the 1987 Act.
(b) By 21 June 2024, the respondent is to lodge and serve submissions in response.
(c) By 28 June 2024, the applicant is to lodge and serve any submissions in reply.”
On 19 June 2024, the applicant sought an extension of time to 21 June 2024 to comply with the direction due to illness. On 20 June 2024, the respondent consented to the extension of time. I granted the extension of time and issued a direction setting out a new timetable for submissions.
On 21 June 2024, the applicant lodged and served written submissions.
On 27 June 2024, the respondent sought an extension of time to 5 July 2024 to lodge submissions in reply due to an administrative error. On 28 June 2024, the applicant advised the Commission that it did not object to the extension of time. I again granted an extension of time and issued a further direction setting out a new timetable for submissions.
On 8 July 2024, the respondent lodged and served written submissions following a further request for an extension of time.
On 16 July 2024, the applicant advised the Commission in writing that it did not propose to make any further submissions in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application, dated 20 March 2024, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 11 April 2024, and attached documents;
(c)    Application to Admit Late Documents, dated 31 May 2024, and
(d)    Directions dated 23 April 2024, 6 June 2024, 20 June 2024, and 28 June 2024.
The documentary evidence contains various medical reports and notes, together with approximately 13 original lay statements (some of which are in-part duplicates) and an Investigation Report which reproduces several lay statements. I have closely reviewed this evidence and will only refer to this evidence where relevant and where a party has referred to it in their submissions.

Lay evidence

Applicant’s statements

In evidence are five statements made by the applicant. The first statement, dated
30 March 2021, is comprised of 23 pages. The second statement, dated 6 June 2021, is comprised of two pages. The third statement, dated 10 March 2022, is comprised of four pages. The fourth statement, dated 5 June 2023, is comprised of 13 pages. The fifth statement, dated 20 April 2021, is unsigned and comprised of 23 pages. This statement appears to be a duplication (or duplication in part) of the statement dated 30 March 2021. I have reviewed and closely considered each statement and do not propose to repeat all of the detailed contents.
The applicant states that she commenced employment with the respondent in April 2018 as a receptionist. She undertook administration for the respondent’s Property Management Team, and then after approximately a year she undertook administration for the respondent’s Valuations Team. She also managed the reception during this time. She resigned from employment with the respondent on 11 January 2021.
The applicant also states that she was divorced on 3 August 2018. She also states that she took two days off work during this period to relocate and felt that work never ever acknowledge it.
The applicant attended psychological sessions, with Ms Stewart. She also attended a psychiatrist Dr Vamos who was allocated following her MS diagnosis.

MS diagnosis and related events

The applicant states that she was diagnosed with MS in October 2019. Dr Lobanov said that she might have MS and wanted to send her for an MRI to confirm. The applicant returned to work and told Ms Killey, her direct report, that she had to leave that afternoon to get the MRI but Ms Killey said she had to check that someone could look after reception. The applicant could not understand why Ms Killey “was antagonising” her. Following the MRI it was confirmed that she had MS and she sent Ms Killey a message that she was in hospital. Ms Killey rang the applicant and asked when was she going to be back to the office. She was in hospital for a week. She states that work did not send her flowers when they had to other colleagues “for much less”.
The applicant asserts that she called Ms Killey and said she might return to work on the Tuesday, but on that day she again called and said she was not able to return. Mr Killey said that “no, we need you…when do you think you’re going to be able to come back, then”. The applicant said that she would come in tomorrow. The applicant states that on her return to work Ms Killey said that she had a “disability”, kept comparing her to her nephew, was difficult with accommodating shorter breaks, and attending appointments.
The applicant states that Ms Killey did the “bare minimum to be compliant in her job”. She was given a special mouse, keyboard and chair but she didn’t really need those things. The applicant said that whenever she would say “anything, she was like ‘we got you that mouse, what more do you want?’”. She requested a larger monitor to assist with her vision and
Ms Killey initially said no and after two months she received it.

Knee injury

The applicant states that on 5 March 2020, she slipped over in the respondent’s kitchen. She claims that Ms Killey said that she had “those stupid shoes on. If you didn’t have those shoes on, you wouldn’t have had that issue”. The applicant states that Ms Killey made her feel that she slipped over because it was her fault. She adds that she had flat shoes on and the kitchen floor was “a slippery marble”. A work colleague brought her home that day but she later attended hospital by ambulance. She was diagnosed with a dislocated right knee and had subsequent knee surgery on 11 December 2020.
The applicant states that she initially took one day off work and returned the following Monday on crutches because she was “petrified” of Ms Killey, “after everything she put [her] through with having time off when [she] got the diagnosis of MS”. She adds that she was “so scared, not to go to work” and was “frightened of losing” her job. She states that she later took four weeks leave and then gradually increased her hours, to two hours per week, during the COVID-19 pandemic. The applicant further adds that she was initially denied work from home by Ms Killey but that Mr Cooper, the respondent’s Managing Director, later approved the arrangement.
The applicant also states that she was petrified to say anything to Ms Killey about the location of a reception button/buzzer that would release the front door, which was in a place which was causing a lot of problems. She states that Ms Killey “screams, yells, carries on”. The applicant states that she raised the issue about the buzzer with her orthopaedic surgeons.

General complaints

The applicant states that she contacted her (presumably Dr Vamos) as she was hyperventilating and in the foetal position. Her medication was later changed. The applicant claims that she mentioned this to Ms Killey but she just dismissed it and talked about the next thing on the agenda. There are no dates specified for this event/s.
The applicant asserts that Ms Killey:
(a)    would never take her into a room to discuss issues and all discussions were at the reception desk, and everyone knew what was going on;
(b)    denied requests or made it difficult to take time off work to attend medical appointments and would call medical centres to confirm that there was an appointment, for example contacting PRP Imaging to confirm she had an appointment or when she needed leave for her knee surgery or when she had no personal leave left and needed time to attend appointments for her MS treatment;
(c)    would complain why the buzzer had to be moved and why “Workcover” were involved;
(d)    screamed at her when she did not tell her the locksmith attended for the buzzer;
(e)    advertised for a valuations assistant, which was 80% of her role. The applicant said Ms Killey noticed that she was crying and they talked about the role. The respondent later appointed someone for the role. Ms Killey said “it’s because you’re not here…you weren’t here for the staff meeting.” The applicant was not able to attend the monthly staff meeting because of “Workcover”;
(f)    chastised her at the front desk about her timesheet, which had to be filled in a certain way for “Workcover”;
(g)    denied a request for a trolley to assist her with collecting coffee cups from staff desks for washing up;
(h)    denied the request for slip mats to be put in the kitchen, as she had a fear going back into the kitchen after her fall, but Ms Killey stated “No!, Can’t do that. They look terrible”, and
(i)    said that a Perspex screen would ruin the visual effect of the office, when she requested one during COVID-19 and because she had a compromised immune system. A screen was later installed.

Christmas party

The applicant states that Ms Killey denied her a support person for the Christmas party, and, as a result she did not attend. The following year, she asked someone else for approval to bring a support person, which was again denied as the party was “solely just for partners”. She did not attend that party as she did not feel safe to go.

Resignation

The applicant states that she resigned due to the ongoing antagonisation from Ms Killey and the stress and anxiety she was experiencing. She asked a friend to speak to Mr Cooper to resign on her behalf, and she later confirmed her resignation in email.
The applicant further states that the ongoing bullying and harassment at work from Ms Killey broke her. She felt humiliated and discarded once everyone found out she had MS. She continues to experience ongoing and intrusive thoughts about her workplace and Ms Killey. She states that she has participated in recommended treatments for post-traumatic stress disorder and major depressive disorder for over two years but has not had any significant improvement to her condition or symptoms.

Pamela Delbridge

In evidence is a statement from Ms Pamela Delbridge, dated 9 June 2023. Ms Delbridge is the applicant’s mother. Her statement largely provides information about the applicant’s personal, social and work life. She states that she believes that the applicant’s confidence and self-esteem were eroded by the respondent’s workplace and the bullying she experienced by Ms Killey. Ms Delbridge does not refer to any specific events of bullying or workplace events.

Ross Cooper

In evidence is a statement from Mr Cooper, dated 8 April 2021. Mr Cooper is the respondent’s Managing Director.
Mr Cooper states that there was not “an underlying conflict” between the applicant and
Ms Killey but that at different times “something might pop up”. He adds that the applicant “might not have gotten exactly what she wanted 100% of the time…[h]owever we try and accommodate staff as best we can”.
Mr Cooper states that he had a meeting with the applicant about Ms Killey giving her time to attend medical appointments.

In relation to the Christmas party, Mr Cooper does not recall the applicant consuming a huge amount of alcohol but noticed she started to become intoxicated. He thought it was due to her being on medication following surgery. He then describes a series of events that occurred between staff and the applicant and between the applicant and other people not from work. He states that after the Christmas party he received a complaint from two staff members about the applicant’s behaviour. He advised the applicant via email of the formal complaint by one staff member, and that he planned to sit down and go through it on her return after Christmas.
Mr Cooper confirmed that the applicant resigned by email on 11 January 2021, after he did not accept her resignation made in-person by her carer that day. He thinks that the applicant was too embarrassed to come back to work.

Katrina Killey

In evidence is a statement from Ms Killey, dated 8 April 2021. Ms Killey is the respondent’s Office Manager.
Ms Killey states that she always checked up on the applicant after her diagnosis of MS and told her to come back to work when she was ready. She told the applicant to attend her medical appointments, “go when she had to go” and that she just needed to know how/when to cover reception. She never said that she could not “do an appointment”. The applicant’s workstation was altered based on her requests.
In response to the front door buzzer/knocker, Ms Killey said she made a lot of enquiries about moving it. She asked the applicant where she wanted the doorbell knocker and just worked with the applicant. It was moved in October or November (presumably in 2020).
In response to the event about the conversation about the applicant’s change in medication and medical episode, Ms Killey said she advised Mr Cooper and told Ms Roberts from APM Workcare (who contacted the applicant that night).
Ms Killey states that she never openly discussed the applicant’s divorce in the reception area, but is silent on the management of the applicant’s knee injury and MS diagnosis. She states that she offered the applicant to go into her office for a break which she “did on a few occasions”.
Ms Killey concedes that she mentioned that a relative had been diagnosed with MS but was not comparing it. She was just trying to let the applicant know she had a “little understanding of her condition and be sympathetic”.
Ms Killey states that she “never made [the applicant’s] life difficult”. The applicant worried about being made redundant and she always ensured her that they needed a receptionist.
Ms Killey took the applicant to the 2020 Christmas party. She denies that she refused the applicant’s request for a support person. She states the applicant never made the request. A previous year, she was denied a request for her mother to attend the Christmas party but that denial was not made by her.
Ms Killey acknowledges that the applicant was upset about the valuation secretary role being advertised and that it was mentioned at a staff meeting which the applicant did not attend, due to being on reduced hours. She also acknowledges that she only notified the applicant of the role on the day the advert was placed on Seek. She told the applicant to apply for the job if she wanted but that it was not a 9-5pm job and reminded her that at her interview she said she did not want a stressful job.
Ms Killey denies not allowing her to go home when she was unwell from MS treatment, or that she told staff that the applicant was suffering from MS and that she was disabled. She states that she told the applicant to take normal lunch breaks and that we would work with her, but the applicant took shorter lunches on her own terms.
Ms Killey provides details of the Christmas party and that the applicant had a fair bit to drink and “totally embarrassed herself”. She also details that she received two complaints the next day from employees regarding the applicant’s behaviour. The applicant was on leave and due to return to work on 11 January 2021, but her support worker attended and advised that she did not want to return. She states that the applicant resigned due to the incidents at the Christmas party.
Ms Killey acknowledges that the applicant wanted mats in the kitchen, but she said they were trip hazards.

Natalie Wicks

In evidence is a statement from Ms Wicks, dated 8 April 2021. Ms Wicks is Mr Cooper’s Executive Assistant.
Ms Wicks attended the Christmas party but says she did not really socialise, and went to catch up with a few of the other couples. She states that the applicant offended a few people but could not remember the exact details of what happened.
Ms Wicks states that the applicant complained to her at the Christmas party about not receiving flowers when she was diagnosed with MS.
Ms Wicks states that the applicant reached out to her about her concerns and conflicts regarding Ms Killey. She states that the applicant did not want to report to Ms Killey and felt that she did not give her time off for “appointments etc”. A meeting was organised with Mr Cooper around October 2020. The applicant said Ms Killey made it difficult for her to “get to appointments or Katrina would ring her up and asked her to come back to work when she could not”.

Email – 31 December 2020

In evidence is an email from the applicant to Mr Cooper, dated 31 December 2020. This email was in response to Mr Cooper’s email of 23 December 2020 notifying the applicant of complaints against her from her colleagues in relation to the Christmas party. The applicant states that she sincerely apologised for her behaviour and the manner she spoke to a colleague.
The applicant also took this opportunity to raise concerns about how she had been unjustly treated after her MS diagnosis and Ms Killey making her “feel guilty for being sick, taking time off work and unable to come back sooner”, together with how she was treated post her knee injury. The applicant refers to a series of incidents, which is consistent with her statement evidence:
(a)    feeling pressured to return to work after her MS diagnosis;
(b)    no assistance or consideration provided on how to manage her symptoms in the workplace in relation to her MS diagnosis;
(c)    no support or solution to attend medical appointments in the absence of leave in relation to her MS diagnosis;
(d)    no planning in place to continue to work safely and not feel disadvantaged and ostracised by fellow team members in relation to her MS diagnosis;
(e)    Ms Killey describing her MS condition as a “disability”;
(f)    following her return to work after the knee incident on suitable duties for two hours a day, Ms Killey advising that her role had been delegated to others and there was no capacity for her to return. She was petrified she was going to lose her job;
(g)    feeling victimised by Ms Killey, when reprimanded because a colleague took her to medical appointments;
(h)    Ms Killey questioning why she needed a day of leave to attend a special scan, and then Ms Killey contacting the imaging centre to question whether it was required;
(i)    Ms Killey stating that her surgery would not be ideal timing and her leave would need to be approved by management;
(j)    Ms Killey stating that a valuations role had been advertised and her role in valuations was uncertain;
(k)    no safety procedures put in place to prevent another incident, following her fall. Ms Killey declining a request for mats in the kitchen and a trolley to collect cups from staff, and
(l)    publicly reprimanded or spoken to in relation to her personal affairs at her desk without any privacy, including her timesheets by Ms Killey.
The applicant stated that she did not condone her behaviour at the Christmas party but that this occurred on a background of workplace events and she just wanted to “appear normal for one night … and not feel ostracised” from her peers.
The applicant sought a series of workplace measures to ensure she could safely return to the office on 11 January 2021.

Email – 18 February

In evidence is an email from the applicant to several recipients, including iCare and the applicant’s solicitor, dated 18 February (year undated). In that email, the applicant provides a series of incidents that she states attributed to her state of mind. Those incidents largely related to how she was treated at work and appear fairly consistent, if not identical in parts, to her email of 31 December 2020 to Mr Cooper.

Evidence from treating practitioners

Dr Alexander Lobanov

In evidence are the clinical notes and reports of Dr Lobanov, the applicant’s treating general practitioner. In the report dated 8 March 2021, Dr Lobanov records that the applicant presented with psychological symptoms on 12 February 2021 in the context of what “[the applicant] described as a toxic work environment and significant stressors on the background of physical injury sustained at work and poor management of this by her workplace”.
Dr Lobanov records that the applicant has experienced worsening of her mental health secondary to the workplace. Dr Lobanov states that this is “largely secondary to the handling of a previous workers compensation claim in relation to her knee which she believes was poorly managed and that she was bullied”.
Dr Lobanov records that the applicant suffers from an underlying generalised anxiety disorder which was aggravated by her employment in the context of a workers compensation claim.
In response to a question whether disciplinary action taken by the employer is the whole or predominate cause of the applicant’s psychological condition, and if not, what was the whole or predominant cause; Dr Lobanov records:
“Disciplinary action taken by Sasha's employer in relation to her recovery from her previous work related injury and denying her access to timely treatment has been a major factor in her current condition.”

Clinical notes

In the clinical notes from Hunter Health Hub it is recorded:
(a)    on 19 March 2019, the applicant’s “anxiety symptoms worsening”;
(b)    on 16 April 2019, “really challenging separation 8/18. Physical & verbal abuse…has accessed free counselling with Victim services”;
(c)    on 29 May 2019, “anxiety has been resolved by higher dose of Effexor. This is the best her anxiety has ever been in her whole life. She has always had anxiety”;
(d)    on 22 October 2019, diagnosed with MS;
(e)    on 19 November 2019, “feels back to her normal self…still quite down cast about life. Feels depressed. Anxiety is hard some days. Poor motivation. Frightened about fuuure [sic, future]. Sees therapist 2 weekly through victims services”;
(f)    on 23 February 2020, “long review discussion re: MS. Has been struggling dog able to be put down too”. Reason for visit noted MS, relapsing-remitting;
(g)    on 6 March 2020, “…had a fall yesterday and went to the hospital”;
(h)    on 13 March 2020, “had fall in kitchen at work”, right knee injury a week ago, presented to ED;
(i)    on 25 March 2020, “can work from home if work available and assessment favourable”;
(j)    on 7 April 2020, “wants [t]o work from home but apparently no work available?”;
(k)    on 23 July 2020, “mental health better. Psychiatrist ‘made things worse’ (Marina Vamos)”;
(l)    on 22 December 2020, “Depression still problematic. Accepts MS. Most of depression comes from her employment à looking at new job”, and
(m)     on 12 February 2021, the applicant “resigned from her job over Christmas as she felt better with time off work” and made the decision due to stress, that her treatment at work was “horrific” and “toxic” and pressure was “horrendous”.

John Hunter Hospital

In evidence are several reports from staff specialists in John Hunter Hospital, from April 2020, which record a diagnosis of relapsing/remitting MS and post-traumatic stress disorder. In particular, Dr Lechner-Scott, neurologist and senior staff specialist, provides a series of reports from 28 November 2019 to 23 May 2023. In those reports, Dr Lechner-Scott provides a diagnosis of relapsing/remitting MS and post-traumatic stress disorder with severe anxiety and depression. The main focus of these reports concerns the applicant’s physical treatment for her MS condition.
In a report of 26 May 2020, Dr Marina Vamos, conjoint associate professor and psychiatrist, in John Huner Hospital records:
“Sasha describes several months of difficulties with her mood and problems with anxiety. These probably began at the time of her very stressful marriage breakup and then were worsened markedly by the onset of symptoms which turned out to be MS. She remains overly fatigued but is otherwise doing well neurologically.
…
Her past history includes mood issues and anxiety problems on and off for most of her adult life and indeed for some of her childhood.
…
[Her husband] was also abusive both emotionally and physically however the
breakup of this marriage was nevertheless very traumatic. Sasha is currently receiving therapy as a victim of domestic violence.”
On 15 December 2020, Dr Vamos records that the applicant has some residual anxiety however this is “mostly considerable [sic] less than it was and she is almost free of panic attacks. Her overall mood is mostly very good”.

Ms Jenny Stewart

In evidence is a report from Ms Jenny Stewart, psychologist, dated 12 June 2020. In that report, Ms Stewart records that the applicant had attended one psychological session. She also records that the sessions will focus on cognitive behaviour therapy to combat unhelpful thinking styles and behaviours, and interpersonal therapy to address interpersonal issues. The applicant’s “protective factors include her job”.
In Ms Stewart consultation notes of 12 June 2020, it is recorded that the applicant fell and dislocated her knee at work. Ms Stewart records that the applicant is “experiencing difficulty while at work. She feels as though she is not being taken seriously. S enjoys working but her boss is making this process difficult for S. S worries her boss may force S to engage in activities that may be harmful to S’s body/injury”. Ms Stewart also records a series of predisposing factors, including the applicant’s relationship with her former husband.
Ms Stewart again refers to the workplace knee injury and records:
“S is finding that her workplace is not being helpful in this matter. S reports that it should have never happened. She reports feeling unheard and manipulated by her boss. S finds it difficult to manage her stress, anxiety, injury and the insurance process.”
Under the heading, “Perpetuating factors”, Ms Stewart records that the applicant feels unsupported at work and that she “worries that her injury and her workplace may make it difficult to progress forward”.
In Ms Stewart’s consultation notes of 26 June 2020, it is recorded that the applicant’s symptoms have not changed. She adds:
“Really wants to work but the pain is quite bad. S's boss also placed S in a position that makes it more difficult for S to engage in. S also reports that she is struggling to complete the required workload in the small amount of time she has. Her employer is not understanding the extent of S's injury or her multiple sceloris [sic]. S is finding it difficult to advocate for her needs as it will not be heard and only makes things worse for S while at work.”
In Ms Stewart’s consultation notes of 26 June 2020, it is recorded that the applicant continues to struggle with her symptoms. It is also recorded that the applicant is a hard worker and unsure why she is being “treated so poorly”. They discussed safety plans and preparing for manipulative behaviour.
In Ms Stewart’s consultation notes of 18 March 2021, it is recorded that the applicant reported a series of interpersonal conflict events with Ms Killey while at work. She adds:
“S would walk on eggshells.
She would be criticised all the time and threatened. S was not given the appropriate breaks. She was not allowed to attend Psychology sessions or go to any other appointments. S also wasn't allowed the time off for surgery. She was then unable to go back to the position that she was doing prior to her injury. S felt as though her boss controlled S's every movement/behaviour. S reports that she now feels as though she cannot return to normal. S feels that everything triggers her.
…
S felt as though she was unable to express her emotions while at work for fear that she would be threatened. S reports that everyone at work knew how S's boss behaved but everyone was afraid to advocate for S for fear of what S's boss may do.”
The applicant attended on Ms Stewart on several further occasions between 1 April 2021 and 5 December 2021. Ms Stewart records similar notes about bulling and manipulative behaviour in the workplace in consultation notes on 1, 8, 20 April 2021, 23 June 2021 and
7 July 2021.
In response to a letter and a series of questions from EML, Ms Stewart records, on
28 April 2021 that the applicant is experiencing major depressive disorder but does not believe it stems from her diagnosis of MS. She adds that the applicant reported that her symptoms are due to her workplace incident and bullying she received from her employer. She also records that the applicant experiences symptoms of post-traumatic stress disorder due to her workplace incident as well.
In response to a question about the main contributing factor to the diagnosis of major depressive disorder, Ms Stewart states that the “incident within the workplace and the copious amounts of bullying she received while working there, her self-esteem has lowered”. She later adds, that if the applicant was “not bullied within the workplace and did not slip over she would not have symptoms of Post Traumatic Stress or Major Depression”.
In a report dated 12 July 2021, Ms Stewart states that the applicant meets the criteria for post-traumatic stress disorder and depression, anxiety and stress on the “extremely severe” range.
In a report dated 26 July 2021, Ms Stewart states that she has been treating the applicant since June 2020. She records a history of the applicant’s personal and social life, together with a history of her right knee injury and diagnosis of MS. In respect of her personal and social life, Ms Stewart records a history of her relationship with her parents and the former relationship with the applicant’s husband. In respect of work, Ms Stewart records that the applicant was bullied by Ms Killey and that the applicant would be criticised all the time and threatened. She would walk on eggshells. She was not given appropriate breaks and not allowed to attend her medical appointments.
Ms Stewart records a diagnosis of post-traumatic stress disorder and major depressive disorder specified with severe severity. In response to a question as to whether the respondent substantially contributed to the psychological injury, Ms Stewart said that:
“In my professional opinion [the applicant’s] psychological and physical injury was contributed by her duties with her employer. The duties in which she engaged in while at work and the bullying she received, worsened her injuries and impact [the applicant’s] life significantly.”

Verona Lonsdale

In evidence is a letter in support of an application for NDIS assistance to “TO WHOM IT MAY CONCERN” from Ms Verona Lonsdale, dated 7 February 2020. Ms Lonsdale appears to be a “Medicare, EAP And Victims Services Provider” but it is unclear whether she has medical qualifications. In the letter she records that the applicant presented with symptoms consistent with a diagnosis of post-traumatic stress disorder. She noted that the applicant had a past history of childhood abuse and domestic violence, drug and alcohol abuse. She also noted that the applicant is recovering from social and psychological effects of violence, separation from ex-partner (“realising the extent and impact of domestic violence”), changes to work and recent diagnosis of MS. She further notes that the applicant believes her “trauma has contributed to” her MS diagnosis.

Evidence from independent medical experts

Dr Anthony Dinnen

In evidence are two reports of Dr Dinnen, consultant psychiatrist, dated 23 May 2022 and 19 October 2022, qualified by the applicant. Dr Dinnen took a detailed account of the applicant’s personal and work history. That history included that:
(a)    the applicant had separated three years prior, which she had described as “…pretty brutal. He got his residency and left”. The applicant had psychological treatment and was able to “move through” this reaction successfully;
(b)    the applicant had taken Lexapro for a long time, following prescription from her treating general practitioner. That she was diagnosed with generalised anxiety disorder at the age of 30;
(c)    the applicant says she was diagnosed with “trauma of where I worked”;
(d)    the applicant had been diagnosed with MS. She woke up one morning and found her foot asleep but went to work. She found the culture at work to be “horrible” and “was afraid not to go to work”, and
(e)    the applicant was referred to Ms Vamos, psychiatrist, following her MS diagnosis and after a 12 month wait period to see her. She also started seeing Ms Stewart, psychologist, following the knee injury.
Dr Dinnen provides a history of the workplace problems. He records that there were no real problems with the applicant’s boss, Ms Killey, until she developed MS in October 2019. The applicant said that Ms Killey seemed to target her and she couldn’t do anything right. She complained to Mr Cooper, and his Executive Assistant, but the antagonism persisted. She was not allowed to take time off for her medical appointments, Ms Killey would challenge her account that she needed time for medical tests and would phone the medical centre to check.
Dr Dinnen provides an opinion that the applicant has “suffered from symptoms of anxiety and depression, aggravating a pre-existing generalised anxiety disorder, as a result of the workplace stressors described”. Dr Dinnen states that these stressors “appear to have been precipitated by the development of MS”. He diagnosed the applicant with adjustment disorder with anxiety and depressed mood. Dr Dinnen said that the causative factors are complex and apart from the “workplace bullying and harassment, it seems that the ongoing problems caused by MS contribute, as does the injury to the knee”. He later adds that her condition is “an aggravation of a pre-existing condition. The workplace was a major contributing factor to this aggravation and continues to remain so”.
In his supplementary report, Dr Dinnen confirmed his diagnosis of adjustment disorder with anxiety and depressed mood. He states that the applicant’s pre-existing condition of anxiety disorder did not appear to have caused impairment until the subject of this claim, and, as a result, no adjustment to the degree of permanent impairment was made. He assessed the applicant’s degree of permanent impairment at 22%, inclusive of 3% for treatment effect.

Dr Vasantha Pothala

In evidence are two reports from Dr Pothala, consultant psychiatrist qualified by the respondent, each dated 4 September 2023. Dr Pothala recorded a history of the presenting illness. She recorded that the applicant had an unpleasant experience with Ms Killey and describes a series of interpersonal events where she would nag, yell and reprimand the applicant in public which she found humiliating. She was also not given preference when she asked for leave. She was humiliated and degraded after she was diagnosed with MS. She was treated as disabled and a liability. She had to attend appointments and Ms Killey would ring to make sure she actually had an appointment. Ms Killey would also not use the office but discuss things in public so everybody could hear.
Dr Pothala records a history of the knee injury and how she returned to work the next day “as she was so scared of Katrina”. That the applicant reported her issues with Ms Killey to Mr Cooper and Ms Wick, after she returned to work. She did not recall the exact time she initially experience psychological symptoms but it was after the knee surgery that she realised the impact and resigned from her job.
Dr Pothala also records a history of the applicant’s treatment following the diagnosis of MS. She was referred to Dr Vamos, psychiatrist and Ms Stewart, psychologist, after her diagnosis as part of a standard process. She said she did not feel depressed and coped well.
Dr Pothala further records a history of past psychiatric history, including generalised anxiety disorder managed with medication. Dr Pothala notes that the applicant saw a counsellor when she went through a divorce which was horrible but she is happier now.
Dr Pothala comments on several medical reports and lay statement evidence. Dr Pothala states that there was an omission in Dr Dinnen’s report about the Christmas party in December 2020 and the written complaints about the applicant’s behaviour that led to her resignation.
Dr Pothala diagnosis the applicant with adjustment disorder with mixed anxiety and depressed mood. Dr Pothala also notes the applicant’s pre-existing conditions of generalised anxiety disorder and major depressive disorder. Dr Pothala states that:
“[The applicant’s] personal stressors including divorce and diagnosis of multiple sclerosis were the main contributing factors [to the aggravation/exacerbation of the pre-existing disease].
Allegations of misconduct at the Christmas party in December 2020, written complaints by her colleagues and subsequent communication by the managing director culminated in her resignation in early 2021. She made claims for psychological injury following these events.”
Dr Pothala records that the applicant did not provide any information related to the events that occurred at the Christmas party in December 2020.
Dr Pothala assessed the applicant’s permanent impairment as a result of the psychological injury at 7%.

Dr Ben Hooi-Beng Teoh

In evidence are two reports of Dr Teoh, consultant psychiatrist, qualified by the respondent, dated 23 April 2021 and 15 May 2021. As discussed above, these reports have only been admitted for the limited purpose of evidence of the histories taken.
Dr Teoh records a history that the applicant was diagnosed with MS in October 2019 and her supervisor was unsupportive and other workers antagonised her. It also records that she was pressured to return to work and she managed to return to work because she was worried about losing her job. She was not provided with any leave to attend medical appointments and had to work extra hours to attend those appointments during work hours. She reduced her lunch hours but her boss was not happy and made it impossible for her to attend her medical appointments. She did not feel safe to go to the Christmas party and was denied a request of a support person. She became fearful of going to work and being reprimanded.
Dr Teoh also records a history of the right knee injury in March 2020 and that the applicant continued to work because she was scared of losing her job.
Dr Teoh further records a history of depression 15 years ago, for which the applicant was treated with medication and psychotherapy. He notes that the applicant was divorced, had no history of childhood trauma or abuse.

SUBMISSIONS

The applicant and respondent provided written submissions. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant refers to the decision in Federal Broom Co Pty Ltd v Semlitch[1] and the four-step process to establishing an injury within the meaning of s 4(b)(ii) of the 1998 Act. The applicant states, as the current proceedings concern a claim for permanent impairment only, the first three steps are only relevant.
[1] [1964] HCA 34; (1964) 110 CLR 626.
The applicant submits that she has a “pre-existing psychological injury which was aggravated by work events”. The applicant refers to the general principles in Attorney General’s Department v K.[2]
[2] [2010] NSWWCPD 76.
In response to my Direction to identify precisely (in a list) each event relied on that is causative of the injury claimed, the applicant submits:
“It is respectfully submitted that the applicant in such a proceeding is not required to so identify the facts upon which she relies.
Notwithstanding that submission, there are two ways in which to identify such facts.
The first is to do so in a general manner and the applicant relies upon the actions of Ms Killey who it is alleged bullied and harassed the applicant or alternatively the applicant perceived Ms Killey’s actions to be bullying and harassment to which she psychologically reacted.
The applicant alleges that Ms Killey did so generally and also did so specifically in relation to the applicant’s work-related knee injury which occurred on 5 March 2020 and also did so with respect to the applicant’s diagnosis of multiple sclerosis.”
The applicant refers to her statement evidence, which she asserts should be accepted. The applicant refers to a conversation with Ms Killey which occurred following her return to work after her knee injury, and asserts that Ms Killey does not specifically deny that conversation occurred. The applicant asserts that the actions and discussions with Ms Killey affected her psychologically, but does not otherwise specify those actions. The applicant also refers to her statement that records “issues she had with Ms Killey with respect to her diagnosis of multiple sclerosis” but does not specifically identify those issues in her submissions.
The applicant also refers to her second statement dated 6 June 2021, which “provides a more concise summary of some of the relevant events” but does not identify those relevant events in her submissions.
The applicant then refers to her third statement dated 5 June 2023, which “provides ample examples of types of interactions the applicant was having with Ms Killey which were aggravating her pre-existing psychological condition” but does not specifically identify those examples in her submissions. The applicant states that Ms Killey does not specifically deny “many of the allegations made”.
The applicant contends that it was clear she was “reacting to real events which occurred in the workplace”. The applicant adds that “[i]t could not seriously be claimed by the respondent that there was not a change in how the applicant was treated post her knee injury and post the multiple sclerosis diagnosis”. The applicant further adds that even if she perceived that she was being treated in a hostile manner due to “those events occurring” it would still be a reaction to actual events which is compensable.
The applicant relies on the statement of her mother, in support of her condition being “in a fairly stable and positive state prior to her commencement of work with the respondent”.
The applicant refers to the respondent’s statement evidence. In relation to Ms Killey’s statement, the applicant asserts that:
(a)    Ms Killey does not deal with every allegation made;
(b)    Ms Killey confirms that various events relied upon occurred but puts “a different slant on the conversations that followed such events”;
(c)    Ms Killey confirms that she was involved in altering the applicant’s working environment in response to applicant’s MS diagnosis;
(d)    Ms Killey confirms that there were conversations regarding the advertisement for a new valuation secretary to which the applicant seemed to react negatively;
(e)    the events at the Christmas party are not relied on by the applicant as being causative;
(f)    Ms Killey’s opinion as to the reason the applicant resigned is unsupported opinion, and
(g)    Ms Killey’s eagerness to provide detail with respect to the applicant’s conduct is an unnecessary attempt to portray the applicant in a negative light.
The applicant refers to the statement of Ms Wicks and Mr Cooper, which is focussed on the applicant’s actions at the Christmas party.
The applicant then refers to the evidence of Dr Dinnen. The applicant submits that “perhaps Dr Dinnen’s history provides a most cogent outline of the events relied upon” but does not identify those events in her submissions. Dr Dinnen refers to the applicant’s significant life events, including her prior diagnosis of “psychological injury”, problems with her former husband, and the diagnosis of MS. Dr Dinnen provides a summary of the applicant’s complaints at work. He finds that the applicant’s underlying adjustment disorder with anxiety and depressed mood was aggravated by her work and the work was a major contributing factor to the aggravation. This opinion is, the applicant submits, “well supported and reliable and persuasive”.
The applicant submits that Dr Pothala takes a shorter history and provides no comment, examination or evidence of a real understanding of her psychological state prior to work with the respondent. Dr Pothala criticises Dr Dinnen’s report based on his omission of events occurring around the Christmas party. He ultimately finds that the applicant sustained either an adjustment disorder or a relapse of a major depressive disorder in the context of the diagnosis of MS. He does not consider whether the applicant has reacted to a change in the way she was being treated following the MS diagnosis in 2019 and the knee injury in 2020. Dr Dinnen’s opinions are more persuasive and reliable.
The applicant also refers to Ms Stewart’s report of 26 July 2021, which provides an opinion “supportive of the applicant’s claims”. The applicant refers to a clinical note dated
12 June 2020 and submits that this evidence “cuts against the denials that Ms Killey makes in her statement and also against the theory that the applicant resigned due” to events at the work Christmas party.
The applicant further refers to the clinical records, with a specific reference to the entry of 22 December 2020 where the general practitioner notes most of the depression comes from employment. This, the applicant submits, “goes a long way to disprove the theory” that the MS diagnosis aggravated the applicant’s condition and/or the Christmas party which caused the applicant’s resignation.
The applicant submits that she was reacting to events at work well prior to her resignation date. She also submits that she has established a compensable injury in the nature of an aggravation of an underlying psychological condition. The matter should be referred for medical assessment.

Respondent’s submissions

The respondent submits that the applicant alleges injury consisting of the aggravation of disease. However, the respondent submits that she has not identified the particular work events that are said to constitute aggravation. Nor does her submission engage with the question of how employment is the main contributing factor to the aggravation.
Applying Federal Broom v Semlitch,[3] the respondent asserts that the applicant fails at the first step in not identifying the disease that is said to have been aggravated. The respondent submits that this is unsatisfactory as it means that the respondent has to assume or guess the applicant’s case and then respond to it.
[3] [1964] HCA 34; (1964) 110 CLR 626.
The respondent submits that the applicant must show not only that her employment was a contributing factor but also the main contributing factor to the aggravation of her disease condition. The respondent refers to and relies on the decisions in Murray v Shillingsworth[4] and Av v AW,[5] and states that the applicant has not engaged with relevant test of causation.
[4] [2006] NSWCA 367.
[5] [2020] NSWCCPD 9.
The respondent states that the first step is to identify the disease. However, the Application is silent, merely referring to a psychological condition. The respondent then refers to the applicant’s three statements, the clinical notes of Hunter Health Hub, Dr Vamos, Dr Lechner-Scott, Ms Verona Lonsdale, which are either silent on diagnosis or provide reference to different conditions including, generalised anxiety disorder, anxiety, anxiety disorder, mood and anxiety problems, and anxiety and post-traumatic stress disorder.
The respondent refers to evidence from Ms Lonsdale which notes a history of childhood abuse and victim of domestic violence, but states the applicant’s account is largely devoid of any details of this part of her life. This evidentiary deficiency diminishes any attempt to discharge her evidentiary and legal onus.
The respondent asserts that, on the basis of the clinical material the applicant’s pre-existing disease was a long standing generalised anxiety disorder and post-traumatic stress disorder.
The respondent contends that the applicant’s “[u]reliability in providing an account of her pre-existing condition creates a forensic difficulty for the applicant” in the next step of whether, when and why that condition was aggravated. The respondent submits that, “[w]ithout a reliable datum reference for the condition and its symptoms, it is difficult to assess the extent to which her condition has worsened at any given time (let alone as a result of employment)”. The respondent contends that the most reliable way to assess the question of aggravation is by reference to the clinical record.
The respondent submits that the applicant records complaints that seem sufficient to reflect a deterioration in her anxiety disorder as a result of the consequences of her workplace knee injury but to this extent they can only represent a secondary psychological condition within the meaning of s 65A of the 1987 Act. The respondent adds that while these complaints may constitute a competing aggravation of the disease they cannot support an injury compensable pursuant to s 66 of the 1987 Act.
The respondent refers to Dr Vamos’ letter of 26 May 2020 which records the applicant attributing her declining mood and anxiety problems to her marriage breakup and her MS symptoms, without complaint about work. By September and December 2020, Dr Vamos recorded an improvement in anxiety symptoms, again without complaint about work. These records do not support a finding of injury.
The respondent then refers to Dr Lobanov’s report to EML on 8 March 2021, where he inculpated the applicant’s knee injury and its management as responsible for her worsening mental health. However, the respondent submits that this is not supportive of a relevant work related aggravation.
The respondent asserts that the report from Ms Stewart, dated 26 July 2021, is of limited utility other than to confirm the applicant’s reported symptoms. The report does not acknowledge any of the formalities of an expert opinion and reads as an exercise in advocacy rather than an expert opinion.
The respondent submits that the diagnosis of post-traumatic stress disorder made by
Ms Stewart is difficult to fathom, and no such diagnosis is offered by Dr Dinnen, Dr Vamos or Dr Pothala. The respondent adds that this diagnosis is entirely inconsistent with the presented case of an aggravation of disease. While Ms Lonsdale and Dr Lechner-Scott record a diagnosis of post-traumatic stress disorder, Ms Stewart does not record the history of childhood abuse and family violence mentioned by Ms Lonsdale and others.
The respondent adds that the clinical notes do not provide a history of long standing post-traumatic stress disorder or significant childhood events. The respondent further submits that none of the contemporaneous clinical history supports a finding of a work related aggravation of disease.
The respondent contests the applicant’s complaints and relies on the accounts of Ms Killey and Mr Cooper. The respondent submits that these statements do not leave room for a mere misperception on the applicant’s part. However, these submissions are not further developed.
The respondent further submits that the date of injury is set by reference to her date of resignation, as there is no obvious onset of psychological incapacity, and that this is significant. The respondent then provides a chronology of events preceding the applicant’s resignation. The medical evidence leading up to the Christmas party on 18 December 2020 indicates that the applicant had an apparent sound psychological state. The Christmas party is the only event which occurred between the applicant’s sound psychological state and her resignation on 11 January 2021. However, this event is not recorded as part of the opinion of Dr Dinnen or are pleaded as part of the applicant’s claim.

The respondent then turns to the independent medical expert reports. The respondent submits that neither Dr Pothala nor Dr Dinnen had a complete history. Dr Pothala did not have a history of childhood abuse or trauma and the effects of the applicant’s marriage breakdown were downplayed. Dr Dinnen did not have a history of the Christmas party preceding the applicant’s resignation. The respondent adds that neither Dr Pothala or Dr Dinnen provide any explanation for their conclusions on causation and therefore are of limited assistance.
The respondent concludes that the applicant has failed to discharge her onus and her application should be dismissed. The respondent submits:
“She cannot prevail on the contested facts. Her uncorroborated accounts cannot be relied on. The contemporaneous records of her treating professionals do not record any relevant complaint about her employment until after her resignation. Even if she were to prevail in showing a work aggravation of her existing generalised anxiety and PTSD conditions, she has made no attempt to advance a medical case that employment was the main contributing factor in the light of contribution from her marriage breakdown, her MS diagnosis and her knee injury.”

Applicant submissions in reply

On 16 July 2024, the applicant advised the Commission in writing that it did not propose to make any further submissions in reply.

FINDINGS AND REASONS

Relevant law

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the 1987 Act.
The term “injury” is defined in s 4 of the 1987 Act. Relevantly, s 4(b)(ii) provides that injury includes a “disease injury”, which means:
“(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
In determining the application of the disease provisions the Commission has routinely applied the four-step process set out in Austin v Director General of Education.[6] In that decision and applying Federal Broom Co Pty Ltd v Semlitch,[7] Clarke JA said the following questions should be asked:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
(d)     If so, did a partial or total incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?” [8]
[6] (1994) 10 NSWCCR 373.
[7] [1964] HCA 34; (1964) 110 CLR 626.
[8] (1994) 10 NSWCCR 373.
An aggravation of a disease under s 4(b)(ii) of the 1987 Act “occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms”.[9] As Justice Windeyer said in Semlitch:
“[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[10]
[9]Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71, [66]; Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [7] (per Windeyer J).
[10] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [9] (per Windeyer J).
The test of “main contributing factor” in a disease injury is one of causation which involves consideration of the evidence overall.[11] In Av v Aw,[12] Deputy President Snell said “in a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[13]
[11] AV v AW [2020] NSWWCCPD 9, [77]-[78].
[12] [2020] NSWWCCPD 9, [77]-[78].
[13] AV v AW [2020] NSWWCCPD 9, [77]-[78]; see also Murray v Shillingsworth [2006] NSWCA 367.
“Psychological injury” is defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological condition may constitute a “disease”, as described in s 4(b)(ii) of the 1987 Act.[14]
[14] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [632] (per Kitto J).
In Attorney General's Department v K,[15] Roche DP considered the relevance of a worker’s perception of workplace events in determining the causation of a “psychological injury”:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[16]
[15] [2010] NSWWCCPD 76.
[16] Attorney General v K [2010] NSWWCCPD 76, [52].
Deputy President Roche further stated:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.” [17]
[17] Attorney General v K [2010] NSWWCCPD 76, [54].
The applicant bears the onus of proof, to establish her case on the balance of probabilities.[18] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[19] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[20]
[18] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[19] [2008] NSWCA 246.
[20] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

The respondent’s main argument is that the applicant has failed to address the four step approach in establishing a disease injury, and, in particular, failed to meet the test of causation for an aggravation of a disease. Accordingly, the respondent submits that the applicant has failed to discharge her onus of proof.
For the reasons discussed below, despite the way in which the applicant has presented her case, she succeeds.

Assessment of the reliability of evidence

The respondent purports to put in issue the reliability of the applicant’s evidence and the histories she gave to medical practitioners, on two main bases, in support of a finding that she has not discharged her onus of proof. Firstly, that the applicant has not provided a complete account of her psychological history, childhood trauma and history of domestic violence. Secondly, that the applicant has not provided a history of the work Christmas party and the significance of that event in the context of her resignation of employment with the respondent.
While the respondent has not sought an adverse finding of credit against the applicant, and I note that the applicant has not been cross-examined in these proceedings, it is important that I deal with this issue of reliability at the outset.

Past history

The respondent criticises the applicant’s account of events on the basis it is largely devoid of any details of her past psychological symptoms and diagnoses, together with a history of childhood abuse and domestic violence. I do not accept that the applicant’s account is devoid as the respondent suggests.
Contrary to the respondent’s submission the medical evidence provides for a history of the applicant’s past psychological symptoms, albeit varied descriptions of symptoms and diagnoses. I have set that evidence out above. To the extent this has been raised as an issue by the respondent, it is undeveloped and untenable.
The only evidence the respondent has identified that refers to a history of childhood abuse and domestic violence is that of Dr Vamos and Ms Lonsdale. Dr Vamos, in the report of
26 May 2020, notes that the applicant is receiving therapy as a victim of domestic violence. Ms Lonsdale, in a letter dated 7 February 2020, records that the applicant has a past history of childhood abuse and domestic violence and is recovering from the impact of domestic violence following the separation from her ex-partner.
I accept that the medical evidence and applicant’s statement evidence otherwise does not address to any real extent a history of childhood abuse and domestic violence, but that does not mean it was not reported to medical practitioners or its absence from the evidence is determinative of the applicant’s reliability as a witness. The evidence clearly indicates the applicant’s present problems concerned events that occurred over the past few years, and understandably the evidence focuses on those events. Those events include, the MS diagnosis, right knee injury, workplace stressors and the divorce.
The evidence includes a history of the impact of the relationship with the ex-partner/husband which has been described as difficult and in some instances involving domestic violence. The applicant’s treating psychologist, Ms Stewart, in her notes of 12 June 2020, records a series of predisposing factors including the relationship with the former husband. However, notwithstanding that, Ms Stewart records that the perpetuating factors concerned the workplace and belief that she was being treated poorly. This is confirmed in subsequent clinical notes and reports by Ms Stewart, in particular the report of 26 July 2021. Similarly, Dr Dinnen in his reports records a history of the applicant’s relationship with the ex-partner which the applicant described as “pretty brutal” but that she successfully moved through this reaction with psychological treatment. Again, notwithstanding that history, Dr Dinnen finds that the applicant’s condition was aggravated by work stressors. This is consistent with the applicant’s statement evidence.
It follows that I do not consider any absence of recorded past medical history, identified by the respondent, gives me cause to treat any evidence with caution.

Christmas party

The respondent focuses in its submissions and evidence on the absence of a history, to various medical practitioners, of the work Christmas party and related events and the fact that the date of injury was initially nominated as 18 December 2020 (the date of the Christmas party). To the extent that the respondent seeks to suggest the applicant is unreliable or the applicant’s evidence should be treated with caution, I do not accept that proposition.
Firstly, the date of injury may have been initially nominated as 18 December 2020 (date of the Christmas party) in the Claim Form but it was later amended to 7 October 2019 (a date a few days after the applicant’s MS diagnosis and return to work) in correspondence with the respondent and the Application and then 11 January 2021 (date of resignation) by consent during the Conciliation stage of the present proceedings. In all instances, the applicant has either referred to her statement evidence or indicated that her injury was a result of workplace stressors following her return to work after her MS diagnosis and knee injury. There is no reference in that material or the evidence relied on by the applicant in these proceedings to the Christmas party or events surrounding it as causative of the injury.
Secondly, that the history of the Christmas party was not recorded in the medical evidence does not mean that it was not reported.
Thirdly, that the applicant may not have reported or provided a history of the Christmas party to her treating practitioners or Dr Dinnen does not mean that she is not a reliable witness or that her claims should be discounted or disbelieved.
Fourthly, there is no medical evidence that supports a causal nexus between the events of the Christmas party and the applicant’s condition. Indeed, Dr Pothala (who had a clear history of the Christmas party from the respondent) does not state that the events of the Christmas party were causative of the applicant’s condition or aggravation. Dr Pothala find that personal stressors including the applicant’s divorce and diagnosis of MS were the main contributing factors to the aggravation of her condition, and that the events surrounding the Christmas party caused her to resign from her employment with the respondent. On the applicant’s own evidence, in her email of 31 December 2020 to Mr Cooper, she confirms that while she was apologetic and did not condone her behaviour at the Christmas party she just wanted to appear normal for one night and not feel ostracised from her peers. In that same email, the applicant provides specific details about how her condition has been affected by workplace stressors which are unrelated to the Christmas party and requested steps to ensure her safe return to the workplace. I do not accept, as the respondent submits, that the applicant resigned solely due to the events at the Christmas party. Even if it formed a reason for her resignation there is no evidence to indicate the applicant brought these proceedings for reason of the events surrounding the Christmas party and perhaps more importantly there is no medical evidence to indicate that the Christmas party was causative of the applicant’s condition or aggravation.
Fifthly, contrary to the respondent’s submission, Dr Vamos does not record that the applicant is of sound state on 15 December 2020. While Dr Vamos records that the applicant’s overall “mood is mostly very good” she records that the applicant has some “residual anxiety” and is “almost free of panic attacks”. To the extent that the respondent relies on this evidence to support a submission that the Christmas party was the only event between an apparent “sound psychological state” and her resignation it cannot be accepted.
Finally, I do not accept the failure to report a history of the Christmas party (alone or together with the absence of the history of childhood trauma and domestic violence), which has not been proven, or the original recorded date of injury, gives me cause to find the applicant is not a reliable witness.

Was the applicant suffering from a disease?

It is not disputed that the applicant suffered from a psychological condition.
However, the respondent asserts that the applicant has failed to identify the disease which is said to have been aggravated.
I accept that the applicant, in the Application, identifies the disease as a “psychological condition”. While I acknowledge that this is unhelpful, particularly in circumstances where the applicant has had a long history of psychological symptoms and diagnoses, this must be considered against the applicant’s medical evidence and submissions. The applicant submits that she relies on the report of Dr Dinnen. Dr Dinnen provides a diagnosis that the applicant has an underlying adjustment disorder with anxiety and depressed mood. It is that condition (a disease condition) which Dr Dinnen finds was aggravated by her employment with the respondent.
In any event, it is not necessary that a precise psychological medical diagnosis (or precise nature of the injury received) be provided or that I find a specific diagnosis of the psychological injury.[21] Indeed, while it is desirable that a diagnosis be determined, it is not essential before causation is established and will depend on the circumstances and evidence in the particular case.[22] As Roche DP stated in Inman v New South Wales Police Force:[23]
“The first point to note is that it is of no consequence that the diagnoses are slightly different. Though it is preferable that a diagnosis be determined, it is not essential for that to happen before causation can be established (Grace v Elmasri [2009] VSCA 111 at [131]–[137]) and a finding made on injury (Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104 at [82]). Diagnosis in a psychiatric injury case is never an exact science and will always depend on the symptoms with which the patient presents at the time of examination.”[24]
[21] Murray Goulburn Co-op Co Ltd v Filliponi [2012] VSCA 230, [25]; Kempsey Shire Council v Kirkman [2010] NSWCCPD 104, [82]; BFZ v Inner West Council [2024] NSWPIC 167.
[22] Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCCPD 15, [222].
[23] [2013] NSWWCCPD 11, [243].
[24] [2013] NSWWCCPD 11, [243].
I accept the evidence demonstrates that the applicant has been diagnosed with generalised anxiety disorder from early childhood and into adult life, post-traumatic stress disorder, adjustment disorder and depression. However, for the reasons discussed above, that there are varied and differing diagnoses is of no consequence. To the extent required, I find that the applicant relies on the disease identified in the report of Dr Dinnen.

Was the disease aggravated, and, if so, how?

The applicant proceeds on the basis that her psychological condition was aggravated by the actions of Ms Killey who is alleged (or perceived) to have bullied and harassed her “generally” and also “specifically” in relation to the applicant’s work-related knee injury and diagnosis of MS.
The respondent contends that it is unclear whether the applicant’s condition was aggravated, and, if so, when and why. The respondent contests the applicant’s complaints and asserts they do not leave room for a mere misperception of events on the applicant’s part.

Factual events

In order to determine the cause of the aggravation, it is necessary to resolve the contested factual events (or complaints) regarding what occurred in the workplace.
The chronology of workplace events is difficult at times to follow, as the incidents giving rise to the claimed psychological injury is not in chronological order and often dispersed with details of treatment and symptoms regarding work and non-work related stressors over different periods of time. This is complicated by the general absence of any specificity regarding dates of incidents. It is further complicated by the existence of several statements from the applicant, some of which have a non-sequential order to events, and the statements of colleagues which have been prepared in response follow the same pattern. I have also been largely unassisted by the parties in identifying with any precision the events relied on and which are contested.
In respect of the applicant’s treatment in the workplace and interactions with Ms Killey, which the applicant asserts affected her psychological state, the applicant asserts:
(a)    In relation to the treatment following the MS diagnosis: Ms Killey antagonised her; did not send her flowers while in hospital; pressured her to return to work by stating “we need you” and asking when she would return; stated that she had a “disability”; compared her to her nephew who had MS; was difficult accommodating shorter breaks and attending medical appointments; and was difficult in timely providing needed office equipment stating “what more do you want”.
(b)    In relation to the treatment following the knee injury: Ms Killey said that she had “stupid shoes on” and would not have fallen if she did not have those shoes on.
(c)    In relation to general treatment following the MS diagnosis and knee injury: Ms Killey dismissed her symptoms and report of psychological episode and increase in medication when she raised this with her; never took her into a room to discuss issues and all discussions were at the reception desk; made it difficult to take time off work for medical appointments when she needed to and had no personal leave available; complained about the need to move the door buzzer and screamed at her when she did not tell her the locksmith attended about the buzzer; did not tell her about the advertisement of the valuations assistant role until the date it was released on Seek; chastised her at her desk about her timesheet (in relation to “Workcover”); declined a request for a trolly to assist her with collecting coffee cups from staff desks; and denied the request for slip mats to be put in the kitchen following her knee injury.

Mr Cooper states that there was no underlying conflict between the applicant and Ms Killey, but some things would “pop up” between them. He states that the applicant did not get what she “wanted 100%” of the time, but did not explain this further. He confirms that he had a meeting with the applicant about Ms Killey giving the applicant time to attend medical appointments. He otherwise did not deny or confirm any of the other complaints raised by Ms Killey.
Ms Wicks confirms that the applicant complained that she did not receive flowers from work when she was diagnosed with MS. She also confirms that the applicant spoke to her about Ms Killey not providing her time off for her appointments and that a meeting was organised with Mr Cooper and the applicant in October 2020. She otherwise did not deny or confirm any of the other complaints raised by Ms Killey.
Ms Killey does not specifically deny the occurrence of each event relied on by the applicant as affecting her psyche. While Ms Killey may deny she said certain things or that she was not accommodating to the applicant’s needs, the actual existence of the majority of these events are not denied. In this regard, I accept the applicants submission that Ms Killey “puts a different slant on the conversations that followed such events” but that she confirms the events occurred. For example:
(a)    Ms Killey states that she told the applicant to return to work after her MS diagnosis when she was ready and that she never said she could not go to a medical appointment. The applicant clearly felt there was an issue with granting leave to attend medical appointments, so much so that she raised a complaint with Ms Wicks which resulted in a meeting with Mr Cooper. This is confirmed by Ms Wicks and Mr Cooper;
(b)    Ms Killey confirms she was involved in the workplace response to the applicant’s MS diagnosis and involved in altering the applicant’s work environment to accommodate her needs. However, it is clear that while the applicant acknowledges she was provided with new office equipment she perceived that the Ms Killey was being difficult and not supportive;
(c)    Ms Killey also confirms that she was heavily involved in arranging for the door buzzer to be removed but does not deny the alleged conversations which the applicant complains;
(d)    Ms Killey states that she reported the conversation she had with the applicant about her psychological episode and medication change to Mr Cooper;
(e)    Ms Killey states that she was trying to be sympathetic when referring to her nephew’s diagnosis of MS, when discussing the applicant’s condition with her;
(f)    Ms Killey states that the applicant was upset after she found out the valuation secretary role was advertised and this prompted a conversation with her; she also states that she only told the applicant about the role the day it was advertised, and
(g)    Ms Killey confirms that the applicant wanted mats in the kitchen but that she thought they were a trip hazard. Ms Killey does not deny the conversation described by the applicant or that she declined the applicant’s request for mats.
Ms Killey does not deny that she openly discussed the applicant’s personal matters at the reception, only that she did not discuss the applicant’s divorce in the reception area. Although, I note that Ms Killey states she offered to have private conversations in her office which was accepted on a “few occasions”.
Ms Killey does not otherwise specifically deny or refer to the other complaints made by the applicant.
I do not accept the respondent’s submission that the respondent’s lay statement evidence of Ms Killey and Mr Cooper provide a clear rejection of the applicant’s version of events and leave no room for a mere misperception on the applicant’s part. The respondent fails to refer to the evidence of Ms Wicks or acknowledge that the statement evidence of Ms Killey, Mr Cooper and Ms Wicks confirms many of the complaints raised by the applicant.
Whether or not the applicant’s reaction to the events in the workplace, in relation to her treatment following her MS diagnosis or knee injury, were ‘rational, reasonable and proportionate’ is not relevant.[25] Nor does it matter whether there was any intention to create a hostile work environment or bully or harass or even that that those events may not fall into such categories of conduct, it is enough that the applicant perceived them to be so. To this end, I accept the applicant’s submission that it is not necessary to find positively which version of the events occurred, namely the applicant’s version or Ms Killey. These events were “real events”,[26] confirmed by the lay statement evidence of Ms Killey, Mr Cooper and Ms Wicks, which the applicant consistently reports in the medical and lay evidence as affecting her mental health.

[25] Attorney General v K [2010] NSWWCCPD 76, [52].

[26] Attorney General v K [2010] NSWWCCPD 76, [52].

Aggravation and causation

The medical evidence supports a finding that the applicant’s psychological condition had worsened, and this is demonstrated by the contemporaneous medical evidence.
The general practitioner records from Hunter Health Hub provide a series of entries regarding the applicant’s mental health. On 29 May 2019, the applicant’s treating general practitioner records that the applicant’s ongoing anxiety had been resolved by a high dose of medication. The applicant was diagnosed with MS in October 2019, and her treating general practitioner records on 19 November 2019 that the applicant “feels back to her normal self” but still feels depressed and has some anxiety. It is not until 23 July 2020, that it is then recorded that the applicant’s mental health is “better” but that Dr Vamos made things worse. On 22 December 2020, it is noted that the applicant’s depression is “still problematic”, that she accepts MS and “most of the depression comes from employment”.
Ms Lonsdale, whose medical qualifications are unclear and is noted as a “Medicare, EAP AND Victims Services Provider”, records on 7 February 2020 that the applicant was presenting with psychological symptoms for a range of reasons. Those reasons include the impact of domestic violence, changes to work and recent diagnosis of MS. However, Ms Lonsdale does not expand on these reasons in any significant detail.
Dr Vamos, the applicant’s treating psychiatrist appointed following her MS diagnosis, records on 26 May 2020, that the applicant has had difficulties with her mood and problems with anxiety. This is said to have began “probably” at time of the marriage breakup and worsened by onset of MS symptoms. I accept that this letter is silent on any workplace events as causes of psychological complaint. However, it is well accepted that psychological injuries or an aggravation of a pre-existing psychological injury may be multifaceted and that these injuries may only manifest after a period of time. That Dr Vamos recorded the applicant’s mental state at this point in time was attributed to non-work stressors must be considered against the totality of the evidence. In Dr Vamos’ letter of 15 December 2020, she states that the applicant has some residual anxiety but does not explain the cause.
Ms Stewart, the applicant’s treating psychologist, records as early as 12 June 2020 that the applicant was experiencing difficulties at work and that she was finding it difficult to manage her stress and anxiety. On 26 June 2020, Ms Stewart records that the applicant continues to struggle with her symptoms and was unsure why she was being treated so poorly at work. Ms Stewart attributes the applicant’s condition to workplace stressors, regarding management of her knee injury and MS symptoms in the workplace.
The respondent submits that Ms Stewart’s opinion does not conform with the requirements of an expert opinion, reads as an exercise in advocacy and is of limited utility. No legal authority is offered in support of this submission. Ms Stewart is the applicant’s treating psychologist and is not a medico-legal expert, and for these reasons her opinion may not conform with the strict requirements of an expert opinion. However, the Commission is not a court of strict pleadings and is not bound by the rules of evidence.[27] Notwithstanding this, Ms Stewart’s evidence is of probative value in that it provides a consistent record of the applicant’s complaints over the relevant period from June 2020 into early 2021. It confirms that the applicant’s psychological condition (whatever the diagnosis) had deteriorated and was attributed in her view to a series of workplace events. While Ms Stewart may not record a history of the events surrounding the Christmas party or childhood abuse, she records a history of the applicant’s relationship with her ex-partner, the MS diagnosis, the knee injury and workplace stressors. There does not need to be an exact history recorded before it can be accepted that Ms Stewart’s opinion is made in a “fair climate”.[28] Ms Stewart’s evidence was given in a fair climate and must be given some weight.
[27] Personal Injury Commission Act 2020, s 43(2).
[28] Paric v John Holland Constructions Pty Ltd [1985] HCA 58.
Dr Lobanov records in a report of 8 March 2021 that the applicant presented with psychological symptoms on 12 February 2021 on the background of what the applicant described as a toxic workplace. He attributed this to the handling of the workers compensation claim in relation to her knee which was poorly managed by the respondent and being “bullied”. Contrary to the respondent’s submission, this is supportive of a work related aggravation. This evidence is consistent with the applicant’s statement evidence, and the evidence of Dr Dinnen and Ms Stewart regarding the cause of her psychological symptoms.
Having regard to the medical evidence set out above, it is clear that the applicant’s psychological condition worsened and she experienced heighten symptoms from on or around June 2020.
Both Dr Dinnen and Dr Pothala describe the applicant’s psychological condition to have been aggravated but by different causes. Dr Dinnen records that workplace bullying and harassment was the main contributing factor to the aggravation. Dr Pothala records that personal stressors including the applicant’s divorce and diagnosis of MS were the main contributing factors to the aggravation.
I accept the respondent’s submission that the evidence of Dr Dinnen and Dr Pothala are affected by an incomplete history and a failure to provide an adequate explanation for conclusion on causation. However, I do not consider Dr Dinnen’s evidence to be affected to the extent suggested by the respondent. I prefer the opinion of Dr Dinnen over Dr Pothala, which is supported by the evidence of Dr Lobanov and Ms Stewart.
Dr Pothala provides an opinion that the applicant’s personal stressors including divorce and diagnosis of multiple sclerosis were the main contributing factors to the aggravation. However, he does not adequately explain how or why he formed that opinion particularly on the background of a detailed recorded history of work-related stressors.
Dr Pothala’s opinion appears to have been unduly focused on the absence of a history of the work Christmas party and based on a premise that the workplace events, which I have found were real, did not occur or were of no relevance to his assessment. Despite recording a detailed history of a series of workplace stressors, Dr Pothala does not address these events or explain why those events had no impact on the applicant’s condition. As the applicant submits, there is no evaluation of whether the applicant has reacted to a change in the way she was being treated following the MS diagnosis in 2019 and the knee injury in 2020. Indeed, there is no assessment of whether those events caused the aggravation of the applicant’s condition. It is on the basis that Dr Pothala’s opinion is flawed, as it is founded on a misconception that the applicant cannot have a psychological injury based on her perception of real events.
Dr Dinnen provides a detailed history of the applicant’s personal, social and work life. While Dr Dinnen does not record a history of the events around the Christmas party, I do not consider that this is fatal to the acceptance of his opinion or because of this his opinion was not given in a “fair climate”.[29] He records that the interpersonal conflict with Ms Killey developed after the diagnosis of MS in October 2019 and records a series of events/workplace stressors consistent with the applicant’s statement evidence and the evidence of Ms Stewart. Dr Dinnen acknowledges the complexity of the causative factors, noting that the workplace stressors, ongoing problems caused by the MS and injury to the knee were contributing factors. Having regard to the history recorded, Dr Dinnen finds that applicant’s condition was aggravated as a result of the workplace stressors. His opinion is well balanced and he provides an explanation for his opinion based on the history recorded.
[29] Paric v John Holland Constructions Pty Ltd [1985] HCA 58, [9].
The overwhelming evidence demonstrates the applicant’s treatment in the workplace, in particular by Ms Killey, was the cause of her decline in mental health.
I find that, on the balance of probabilities, the events complained of by the applicant as causative of the aggravation of the applicant’s psychological condition were “real” events that occurred in the workplace. That the applicant may have had a disproportionate reaction to those events or a distorted perception of what occurred is not to the point. These events were real and the evidence supports that they affected her psyche.[30]
[30] Attorney General v K [2010] NSWWCCPD 76, [52].
Having regard to all of the evidence, I am satisfied that the applicant’s pre-existing psychological condition was aggravated as a result of workplace events.

Secondary psychological condition

The respondent in its submissions submits that the applicant’s complaints relating to the consequences of her knee injury, on the face of them, seemed only sufficient to reflect a deterioration in her anxiety disorder. To the extent that this was the case, the respondent submitted that they cannot support an injury compensable pursuant to s 66 of the 1987 Act.
I do not accept the respondent’s submission. However, I accept the respondent’s submission as a matter of legal principle.
The applicant is required to show that she has sustained an injury within the meaning of s 4 of the 1987 Act. Section 65A(1) of the 1987 Act precludes any compensation being payable for any secondary psychological injury. Section 65(A)(2) of the 1987 Act provides that, in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
In Cannon v The Healthy Snack People Pty Ltd,[31] Roche DP said:
“…Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of a lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed in suitable duties and, as a result of an “extraneous or extrinsic” event, such as harassment or bullying while on those duties, develops a psychological injury.”[32]
[31] [2009] NSWWCCPD 32.
[32] Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32, [103].
This is not a matter where the applicant’s condition has developed or been aggravated as a consequence of physical pain or loss of function as a result of the accepted right knee work injury. It is a matter where there is evidence that the aggravation of the applicant’s psychological condition is a result of a series of events, namely, the manner in which the applicant was treated on her return to work following her MS diagnosis and knee injury. This is separate from and distinct to the accepted physical injury of the right knee. For these reasons and the reasons set out above, the applicant has a compensable injury, subject to satisfying the test of main contributing factor.

Was the employment the main contributing factor to the aggravation of the disease?

The test of “main contributing factor” to the aggravation of the disease involves a broad evaluative consideration of potential competing causative factors. It is a question which must be determined on the totality of the evidence, and not merely medical evidence.[33] Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both.[34]
[33] Av v Aw, [70], [77]-[78].
[34] Av v Aw, [76], [78].
The applicant did not provide any detailed submissions on main contributing factor and the respondent asserts that the applicant has failed to discharge her onus. The only evidence that deals with the test of “main contributing factor” is found in the reports of Dr Dinnen and Dr Pothala. For the reasons discussed above, I prefer the evidence of Dr Dinnen.
Dr Dinnen finds that the applicant’s condition is “an aggravation of a pre-existing condition. The workplace was a major contributing factor to this aggravation and continues to remain so.” He does not adequately deal with the test of “the main contributing factor”, as described in Av v Aw.[35] However, it is clear that he considered that the workplace stressors were the main contributing factor to the aggravation and that the knee injury and MS diagnosis were only contributing factors.
[35] [2020] NSWWCCPD 9, [77]-[78].
Having regard to the totality of the evidence I am satisfied that the series of workplace stressors, involving the interpersonal relationship with Ms Killey and how the applicant perceived those interactions, caused the aggravation of her disease condition. While non-work stressors, including the diagnosis of MS, the knee injury and the applicant’s divorce, may have been factors in the applicant’s current condition, I do not find that they are significant factors or the main contributing factor in the aggravation. The evidence indicates that the applicant had recovered from the effects of her divorce, her knee was not causing much complaint, and that she accepted her MS diagnosis which she was managing. The overwhelming evidence indicates that it was the series of workplace stressors, listed above at [180], that was the main contributing factor to the aggravation.
It follows that I am satisfied that employment with the respondent was the main contributing factor to the aggravation of the applicant’s pre-existing psychological condition.[36]
[36] Av v Aw [2020] NSWWCCPD 9, [77]-[78].

SUMMARY

The applicant has sustained a disease injury, namely an aggravation of an underlying psychological condition. The applicant’s employment with the respondent was the main contributing factor to that aggravation.
It follows that the applicant’s claim for permanent impairment compensation payable under s 66 of the 1987 Act must be remitted to the President for referral to a Medical Assessor for assessment, consistent with the orders set out above.

[2024] NSWPIC 429

9 August 2024