Evans v Atura Hotels and Resorts Pty Limited

[2021] NSWPIC 363

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Evans v Atura Hotels and Resorts Pty Limited [2021] NSWPIC 363

APPLICANT:

Lisa Danielle Evans

RESPONDENT:

Atura Hotels and Resorts Pty Limited

Member:

Anthony Scarcella

DATE OF DECISION:

22 September 2021

CATCHWORDS:

WORKERS COMPENSATION - Worker trapped in a lift at work for 85 minutes; whether she suffered a diagnosable primary psychological injury within the meaning of sections 11A(3), 4(a) and 9A of the Workers Compensation Act 1987 (1987 Act); the reliability of clinical records; Davis v Council of the City of Wagga Wagga, King v Collins, Mastronardi v State of New South Wales, Mason v Demasi, Winter v NSW Police Force, NSW Police Force v Hahn, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates and Kirunda v State of New South Wales (No 4) considered and applied; Held - the applicant suffered a diagnosable primary psychological condition arising out of or in the course of her employment with the respondent within the meaning of sections 11A(3), 4(a) and 9A of the 1987 Act; Matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment under the Workplace Injury Management and Workers Compensation Act 1998.

determinations made:

1. The applicant suffered a diagnosable primary psychological condition arising out of or in the course of her employment with the respondent on 11 November 2018 within the meaning of sections 11A(3), 4(a) and 9A of the Workers Compensation Act 1987.

ORDERS MADE:

2.     The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows:

Date of injury:  11 November 2018.

Body System:  Primary psychiatric/psychological disorder.

Method of Assessment:        Whole Person Impairment.

3.     The following documents are to be provided to the Medical Assessor:

(a)    Application to Resolve a Dispute dated 22 June 2021 and attached documents;

(b)    Reply dated 14 July 2021 and attached documents; and

(c)    Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Ms Lisa Danielle Evans, is a 39-year-old woman who was employed by the respondent, Atura Hotels and Resorts Pty Limited (Atura) as a cleaner/housekeeper.

2. On 11 November 2018, at Atura’s Albury premises, Ms Evans alleges that she became trapped in an elevator (lift 3) for a period of time and whilst waiting for a technician to arrive, the elevator suddenly dropped from level 5 to the ground floor, resulting in her suffering a primary psychological injury.

3. On 5 March 2021, Ms Evans claimed permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric/psychological disorder.[1]

   [1] Application to Resolve a Dispute at pages 17-20

4. On 5 May 2021, Atura, through its insurer, Employers Mutual NSW Limited (EML), issued a Dispute Notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of sections 4 and 9A of the 1987 Act and denying an entitlement to lump sum compensation under section 66 of the 1987 Act.[2]

   [2] Reply at pages 17-24

5. Ms Evans lodged an Application to Resolve a Dispute (ARD) dated 22 June 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming lump sum compensation under section 66 of the 1987 Act as a result of the alleged injury sustained in the course of her employment with the respondent on 11 November 2018.

ISSUES FOR DETERMINATION

1. The parties agreed that the following issues remained in dispute:

(a) whether Ms Evans suffered a primary psychological injury on 11 November 2018 within the meaning of sections 4(a) and 9A of the 1987 Act; and

(b) whether Ms Evans is entitled to permanent impairment compensation within the meaning of section 66 of the 1987 Act.

Matters previously notified as disputed

1. The issues in dispute were notified in the Dispute Notice referred to above.

Matters not previously notified

1. No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

1. The parties participated in a conciliation conference/arbitration by telephone on 18 August 2018. Mr Bill Carney of counsel appeared for Ms Evans, instructed by Ms Eva Pryzygoda, solicitor and Mr Paul Stockley of counsel appeared for the respondent, instructed by Mr Scott Murray, solicitor and Mr Albert Shum from EML.

2. During the conciliation phase the parties agreed that if there was a finding of primary psychological injury, then section 9A of the 1987 Act would not be an issue for me to consider in my determination.

3. I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD dated 22 June 2021 and attached documents; and

(b)    Reply dated 14 July 2021 and attached documents.

Oral Evidence

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

Ms Lisa Danielle Evans’ evidence

1. In evidence, there are two statements by Ms Evans both dated 21 June 2021.[3] I will now refer to the relevant parts of those statements.

   [3] ARD at pages 1-5 and at pages 6-16

2. Ms Evans stated that she commenced employment with Atura as a casual cleaner/housekeeper in its Albury hotel on about 28 October 2014.

3. Ms Evans stated that, on 11 November 2018, she was working night shift. She entered a lift on level 6 and pressed the level 5 button. The inside doors of the lift did not close properly. They were ajar by about 2 inches. The lift slowly descended and stopped about 1.5 feet before reaching level 5. Ms Evans pushed the emergency buttons in an attempt to close the doors but the lift became stuck. She telephoned her colleague to call the lift technician. In the meantime, she attempted to open the lift doors with her hands so that she could get out. A co-worker came to level 5 and attempted to open the lift doors from the outside. They managed to open the doors by about 1.5 cm. Suddenly, the lift dropped. The sudden pull of gravity caused her head to be hit on both sides and at the back. She was knocked out and woken when her phone went off with a message from her co-worker.

4. Ms Evans stated that she was stuck inside the lift for about an hour and 25 minutes waiting for the technician to attend to let her out. During that time, she described her feelings as follows:

   “… I was in extreme panic mode, scared very claustrophobic. I felt I was going to die and had shortness of breath and heart palpitations.”[4]

   [4] ARD at page 2 at [8]

5. Ms Evans stated that she completed an incident report on 11 November 2018. At the end of her shift, she drove home. She had a very limited memory of the drive home. She spent the rest of the weekend at home. She attended the Albury Base Hospital two days later complaining of significant pain, vomiting, nausea, severe headaches and high sensitivity to light. Ms Evans stated that she did not complain to hospital staff about her psychological state of mind as she believed that the issues she was experiencing were physical. She was discharged from hospital without undergoing any tests and was prescribed Endone. Ms Evans’ Albury Base Hospital clinical records are not in evidence.

6. Ms Evans stated that she consulted her general practitioner, Dr Ian Cook, of the Gardens Medical Group on the following day complaining of the same symptoms as she had to the medical staff at the Albury Base Hospital. Eventually, Dr Cook diagnosed a post-concussion syndrome. As Dr Cook was focused on her return to work, only her physical injuries were investigated. She underwent x-rays and CT scans and was referred for physiotherapy.

7. Ms Evans stated that she was diagnosed with an adjustment disorder, which later changed to post-traumatic stress disorder (PTSD).

8. Ms Evans stated that she continued to experience both physical symptoms and psychological symptoms. The primary psychological injury was her main ongoing problem and it affected every aspect of her day-to-day life.

9. Ms Evans stated that, since 11 November 2018, she has felt unable to go back to work; she tends to lead a very reclusive life; she is homebound; she avoids crowds and high stimulus environments; her social life has dramatically reduced; she feels very isolated and withdrawn; she continues to suffer panic attacks; she finds travelling near impossible, particularly on her own as she will experience panic attacks and vomiting; she has developed a fear of driving or travelling in a vehicle at over 60 km/h; she is unable to use lifts or escalators; she is unable to travel in aircraft as the noise worsens her symptoms; she finds it difficult to complete domestic chores because of a lack of motivation; she often has to be prompted to change her clothes, shower or eat because, otherwise, she could not be bothered; she feels stressed out by even the smallest things; she feels extremely overwhelmed; she cannot solve even small problems; she feels like something bad is going to happen all the time; she finds that encountering work colleagues is a significant trigger in recalling the incident; she suffers from severe insomnia; she suffers from chronic headaches; she feels hopeless, worthless and without a future; she experiences poor motivation; she feels fatigued and exhausted; she feels depressed; she is very stressed and anxious; and occasionally, she believes that the accident should have killed her because she is a burden on those around her.

10. Ms Evans provided responses to statements by Ms Erin Haddrill dated 21 March 2019 and the letter from Mr Russell Hailey of the Otis Elevator Company Pty Limited dated 29 November 2018. Ms Evans’ responses to the contents of those documents do not assist me in determining the issue in question.

11. Ms Evans provided a critique of the report by Ms Leanne Mathews, Clinical Neuropsychologist, dated 6 May 2019. Ms Evans stated that Ms Mathews became tense and distant when she mentioned to Ms Mathews that she had consulted a clinical psychologist, Ms Gail Yeates. Ms Evans stated that she discovered that Ms Yeates had declined to work with Ms Mathews a few years before. Ms Evans concluded that was what accounted for the tension and distance she experienced with Ms Mathews.

The incident report

1. In evidence, there is an incident report completed by Mr Gareth Roach.[5] The incident report recorded the date and time of incident as 11 November 2018 at 4.15 am. It recorded the incident as having been reported by Ms Evans in person on 12 November 2018 at 11.00 am.

   [5] ARD at pages 21-25

2. Mr Roach described the hazard in the following terms:

   “The staff lift trapped an employee and then dropped a few floors.”[6]

   [6] ARD at page 24

3. Mr Roach described the treatment provided to Ms Evans as follows:

   “Made Lisa sit down and calm down for a while. Lisa was in shock and sore all over. A glass of water was also provided.”[7]

   [7] ARD at page 23

4. Mr Roach described Ms Evans’ injuries as having been caused by jarring when the lift fell with Ms Evans inside it. He described her injuries as sore legs, back, shoulder, neck and migraine.

5. In respect of what Ms Evans did after the incident, Mr Roach recorded that she went home and rested with some painkillers.

Ms Erin Haddrill’s evidence

1. In evidence, there is a statement by Ms Erin Haddrill dated 21 March 2019.[8] I will now refer to the relevant parts of that statement.

   [8] Reply at pages 146-149

2. Ms Haddrill described herself as the general manager of the Atura Hotel in Albury.

3. Ms Haddrill stated that she was aware through an email received from Mr Roach, the night auditor, that Ms Evans had been stuck in a lift on 11 November 2018.

4. Ms Haddrill stated that Atura were waiting for Ms Evans’ doctor to sign off as to when she could return to work. She acknowledged that Ms Evans had no present capacity to work and that they were working with an occupational therapist to confirm what duties Ms Evans would be able to carry out. She noted that Ms Evans’ doctor had made further referrals and then stated:

   “There is also a psychological issue about her returning to work to use the lift. However, we can find things for Lisa to do downstairs that will not involve her using the lift.”[9]

   [9] Reply at page 148 at [12]

Mr Gareth Roach’s evidence

1. In evidence, there is a statement by Mr Gareth Roach dated 3 July 2019.[10] I will now refer to the relevant parts of that statement.

   [10] Reply at pages 150-152

2. Mr Roach stated that he was employed as a night auditor at the Atura Hotel, Albury.

3. Mr Roach stated that, on 11 November 2018, he commenced his shift at the hotel at 10.00 pm. He was stationed at reception. He recalled Ms Evans going upstairs to do the green cleaning check and then receiving a telephone call from her about 10 minutes later saying that she was stuck in the staff elevator.

4. Mr Roach stated that he went up to the seventh floor in the guest elevator, entered the stairwell and asked Ms Evans if she was okay. The lift was stuck between the sixth and seventh floors and he could see that the door was slightly ajar. He could see the top of Ms Evans’ head. At that point, the elevator descended in a noisy jerky way and travelled downward to a point halfway off the first floor. He telephoned Otis the elevator repair people. Eventually, a technician arrived. He believed that Ms Evans had been stuck in the lift for the best part of an hour.

5. Mr Roach stated that he saw Ms Evans when she came out of the lift and checked on her welfare. He observed that she was a bit shaken and then later stated that she was definitely shaken up. Ms Evans advised him that she had had enough and wanted to go home. He was sure that she drove herself home.

Mr Russell Hailey’s evidence

1. In evidence, there is a letter from Mr Russell Hailey of Otis Elevator Company Pty Limited dated 29 November 2018. I will now refer to the relevant parts of that letter.

2. Mr Hailey’s letter was in response to a series of questions posed by Mr Stephen Jones, Principal Inspector of SafeWork NSW.

3. Mr Hailey stated that he received a call at about 4.50 am on 11 November 2018 advising of a trapped passenger in lift 3 at the Atura Hotel, Albury. He arrived on site at 5.15 am and the passenger was released at 5.20 am.

4. Mr Hailey stated that lift 3 was found stopped about 500 mm above the ground floor with one female passenger inside the car. The passenger was released. The car doors were found slightly open. He had to manually force the car doors shut to enable the lift to run for further testing and it was obvious that there was a fault with the car doors at that time because of the force he had to apply to shut them.

5. Mr Hailey opined that lift 3 could not have fallen in the manner described, as it would have required a number of safety features to fail for that to occur.

Mr Stephen Jones’ evidence

1. In evidence, there is an undated email from Mr Jones to Mr Hailey in response to the latter’s letter dated 29 November 2018.[11]

   [11] Reply at pages 153-154

2. Mr Jones stated that he was satisfied that the lift had been repaired and that it was not possible for it to free-fall to the ground floor. He then stated:

   “I understand that if the lift did descend the way Russell describes, it may well have resulted in Lisa’s injury and caused her to feel like she was plummeting, but clearly the fail-safe mechanisms would not have allowed that to actually happen.”[12]

   [12] Reply at page 155

The treating medical evidence

1. In evidence, are Ms Evans’ clinical records dated 21 November 2019 produced by the Gardens Medical Group (the GMG records), where Ms Evans mainly consulted Dr Ian Cook, General Practitioner.[13]

   [13] ARD at pages 114-134

2. The first entry in the GMG records is dated 14 November 2018 and the last entry is dated 19 November 2019.

3. The entry in the GMG records on 14 November 2018 disclosed a surgery consultation, the issue of a WorkCover certificate, the prescription of Targin MR tablets and the referral for a lumbar spine CT scan and MRI brain scan. There was no reference to the incident at the Atura Hotel on 11 November 2018. There was no recording of any history of injury or complaints of symptoms made by Ms Evans or any diagnoses by Dr Cook.

4. On 19 November 2018, Dr Cook recorded in the GMG records that Ms Evans was very upset about neck pain. The GMG records disclosed that he requested an ultrasound of the pelvis and an x-ray of the cervical spine. There were no other details of any substance in the entry.

5. On 21 November 2018, Dr Cook recorded in the GMG records a consultation with Ms Evans. The reason for contact was stated to be post-concussion syndrome. There were no other details of any substance in the entry. On 21 November 2018, Dr Cook referred Ms Evans to Ms Marie Bucher, Physiotherapist for the care of her back and neck injuries related to “a fall down 6 floors at work.”[14]

   [14] ARD at page 103

6. On 28 November 2018, Dr Cook recorded in the GMG records that Ms Evans complained of vomiting after each meal. On examination of her neck, he observed that it was very stiff. He prescribed medications. There were no other details of any substance in the entry.

7. On 5 December 2018, Dr Cook recorded in the GMG records a consultation with Ms Evans and the prescription of medication (Targin MR tablets). No complaints by Ms Evans were recorded and no observations made on examination were recorded. There were no other details of any substance in the entry.

8. On 12 December 2018, Dr Cook recorded in the GMG records a consultation with Ms Evans. There was a reference to her smoking habits. The reason for contact was described as post-concussion syndrome. An alcohol assessment was recorded. Targin MR tablets and other medications were ceased. There were no other details of any substance in the entry.

9. On 9 January 2019, Dr Cook recorded in the GMG records that Ms Evans complained of ongoing issues relating to a fall at work. The reason for contact was described as post-concussion syndrome. There were no other details of any substance in the entry.

10. On 25 January 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans discussing care with her rehabilitation provider. The reason for contact was described as post-concussion syndrome. There were no other details of any substance in the entry.

11. On 6 February 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans discussing care with a rehabilitation provider. The reason for contact was described as post-concussion syndrome. Dr Cook referred Ms Evans to Ms Leanne Mathews, Clinical Neuropsychologist for her work-related post-concussion syndrome.[15]

    [15] ARD at pages 105-106

12. On 18 February 2019, Dr Cook recorded in the GMG records that Ms Evans complained of back pain due to the fall and another medical issue. Dr Cook prescribed Panadeine Forte. There were no other details of any substance in the entry.

13. On 5 March 2019, Dr Cook recorded in the GMG records that Ms Evans complained of some mild disorientation over the weekend. The reason for contact was described as post-concussion syndrome. Dr Cook referred Ms Evans to Ms Gail Yeates, Clinical Psychologist for an opinion and management of her anxiety related to using lifts following a fall of six floors whilst at the Atura Hotel.[16] He also referred Ms Evans to Dr Ronald Brooder, Neurologist for an opinion and management of her suggested post-concussion syndrome following a fall in a lift of six floors, with a head strike and a normal MRI scan.[17]

    [16] ARD at pages 107-108

    [17] ARD at pages 109-110

1. On 18 March 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans because of her persistent confusion post injury. He referred Ms Evans to Dr Katrina Reardon, Neurologist, for opinion and management related to her continued confusion since a fall of six floors in a lift with a head strike.[18] Ms Evans did not consult Dr Brooder because he required payment at the time of his consultation.

   [18] ARD at pages 111-112

2. On 2 April 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans discussing an MRI report. There were no other details of any substance in the entry.

3. On 23 April 2019, Ms Evans consulted Ms Mathews on the referral of Dr Cook for a neuropsychological assessment in respect of a work-related post-concussive syndrome sustained on 11 November 2018.

4. In evidence, there is a report by Ms Mathews dated 6 May 2019. [19] In her report, Ms Mathews took a history that was, in the main, consistent with the evidence. Ms Mathews noted that Ms Evans was consulting Ms Yeates for psychological intervention. Ms Mathews recorded cognitive symptoms to include difficulty in concentration, particularly when multitasking; difficulties with recall; problem-solving difficulties; and an inability to return to her TAFE studies. Ms Mathews recorded the behavioural/emotional symptoms to include becoming panicky; a low sense of self-worth; thoughts of herself as a burden; and low mood.

   [19] Reply at pages 51-61

5. In her report dated 6 May 2019, Ms Mathews noted that, in respect of Ms Evans’ presentation, she presented with an anxious mood and a restricted range of emotional affect. Undertones of anger were apparent when discussing her workplace injury. There was no evidence of psychotic disturbance of form or thought disorder. She sustained her attention over the three-hour and 20 minute interview and assessment, with a short break in the middle. She was able to comprehend and follow all test instructions. She did not require repetition of information and demonstrated sound understanding of tasks. She did not demonstrate any overtly impulsive behaviours. She did not demonstrate any overt signs of fatigue.

6. Ms Mathews concluded that Ms Evans presented with predominantly mild reductions in immediate memory span and memory. There were multiple considerations for factors that contributed to the current cognitive difficulties she experienced. One of those considerations was the possibility of a possible traumatic brain injury. However, Ms Mathews opined that Ms Evans’ presentation was not consistent with a traumatic brain injury considering her neuropsychological profile was limited to memory span and memory. Another consideration was that Ms Evans continued to experience high levels of anxiety and depression symptoms, which can manifest in cognitive symptoms. Ms Mathews opined that Ms Evans’ performance on assessment was not characteristic of a neuropsychological profile typically seen for someone with depression or anxiety as evidenced by intact high-level attention and speed of information processing.

7. Ms Mathews opined that there were two clear considerations which were likely to contribute to Ms Evans’ neuropsychological profile. Firstly, her current medication regimen, including Targin, can be associated with rapid forgetting. Secondly, she also presented with significant impairments in day-to-day functioning with self-reports of significantly poor memory and high levels of psychological distress, which are out of keeping with her performance on assessment. Ms Evans’ profile was not consistent with an organic memory impairment and her levels of psychological distress suggested the possibility of a functional memory impairment associated with her psychological presentation and reaction to a traumatic event. Ms Mathews opined that Ms Evans would require both consideration of the impacts of medication side effects and ongoing therapeutic intervention to assist in improvements of her cognitive abilities.

8. On 15 May 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans discussing care. The reason for contact was described as post-concussion syndrome. There were no other details of any substance in the entry.

9. On 29 May 2019, Ms Yeates reported to EML.[20] Ms Yeates opined that Ms Evans was suffering from an adjustment disorder with mixed anxiety and depression along with physical complications. Ms Yeates noted Ms Evans’ physical pain as being located in the lower back, neck and shoulders, pain when walking and constant headaches. In respect of Ms Evans’ psychological condition, symptoms included anxiousness; panic attacks; difficulty with concentration; difficulty recalling information; anxiety in closed spaces; difficulty sleeping; easily upset over minor issues; and heightened anxiety on the thought of returning to work. Ms Yeates also noted a recent incident where Ms Evans reported suffering a panic attack when going up in a lift to consult her doctor. Ms Yeates opined that further psychological support was required until her depressed and anxious mood was alleviated.

   [20] ARD at pages 201-202

10. On 11 June 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans for the purpose of completing a work injury questionnaire. The reason for contact was described as traumatic brain injury plan questionnaire. There were no other details of any substance in the entry.

11. On 18 June 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans, who reported improving levels of mobility and concentration. The reason for contact was described as closed head injury and back injury.

12. On 11 July 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans, who reported that her closed head injury was getting better. There was a reference to medical certificates and no work at Atura.

13. On 7 August 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans. There was reference to the issue of a medical certificate and the prescription of medication, Melatonin 5 mg SR capsules.

14. On 29 August 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans. There was a reference to creating and printing a letter to WC. I do not know who or what WC is. There were no other details of any substance in the entry.

15. On 10 September 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans. There were no other details of any substance in the entry.

16. On 26 September 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans, who advised that she required two more independent reviewers. There was a long discussion with an EML representative.

17. On 3 October 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans without any other details except for the recording of the cessation of Cephalex capsules.

18. On 29 October 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans without any other details.

19. On 14 November 2019, Dr Cook recorded in the GMG records a consultation with Ms Evans, who advised that EML was not going to support, presumably, her claim. The reason for contact was described as cervical spondylosis, plan and WC reports.

20. In evidence, there were numerous certificates of capacity issued by Dr Cook.[21] The certificates of capacity issued by Dr Cook between 14 November 2018 and 7 August 2019 referred to the diagnosis of the work-related injury as being “fall with severe back pain and head strike”. The first certificate of capacity that referred to PTSD was the certificate dated 29 August 2019. The certificate referred to the diagnosis of the work-related injury as being a “fall with severe back pain and head strike and post-traumatic stress disorder”.[22] Thereafter, the remaining certificates of capacity in evidence to 14 November 2019 recorded the same diagnosis of work-related injury.

    [21] ARD at pages 42-102

    [22] ARD at page 88

21. In evidence, are Ms Evans’ clinical records dated 5 January 2021 produced by Workers Doctors (the WD records).[23] It appeared that Ms Evans consulted a number of medical and allied health professionals, some of whom were unnamed in the WD records.

    [23] ARD at pages 207-484

22. On 25 May 2020, Dr Eric Lim, General Practitioner, recorded in the WD records a telehealth consultation with Ms Evans. The reason for contact was described as being WorkCover. There were no other details of any substance in the entry. The telehealth consultation with Dr Lim on 25 May 2020 appeared to be Ms Evans’ first consultation with any of the Workers Doctors medical and allied health professionals.

23. On 11 June 2020, Dr Lim recorded in the WD records a telehealth consultation with Ms Evans. Dr Lim took a history that, on 11 November 2018, Ms Evans suffered a head, back and psychological injuries at work after an elevator free fell from the fifth floor to the ground floor at a building site. Ms Evans reported symptoms that included headaches; pins and needles in the left shoulder; lower back pain radiating down bilateral legs; poor concentration; lack of motivation; difficulty sleeping; nightmares; flashbacks; stress; depression; anxiety; and nausea. On examination, amongst other things, Dr Lim observed a depressed mood and flat affect. He diagnosed a head trauma; post-concussion syndrome; lumbar spine radiculopathy; and PTSD. Dr Lim opined that Ms Evans would benefit from a multidisciplinary management program. In respect of her psychological condition, he recommended ongoing treatment by a psychologist and a psychiatrist. Dr Lim referred her to Dr David Kumagaya, Consultant Psychiatrist.

24. The WD records disclosed that Ms Evans also consulted an unnamed psychologist via telehealth on 11 June 2020. The psychologist noted Ms Evans’ reported symptoms as feeling overwhelmed; emotional; anxious; teary; with a sense that something bad was going to happen. On the Hamilton Rating Scale for Depression based on assessment responses, Ms Evans’ score was ranked as severely ill.

25. On 18 June 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded Ms Evans’ mood as anxious and her speech as rapid. It was recorded that Ms Evans reported that lifts, escalators and authority triggered her symptoms. She needed to have the toilet door and shower screen open when in the bathroom. She felt guilty that family had to assist her with domestic chores and personal self-care tasks. She experienced flashbacks and nightmares. The psychologist provided her with supportive counselling and breathing exercises.

26. On 29 June 2020, Dr Sebastian Calvache-Rubio, General Practitioner recorded in the WD records a video consultation with Ms Evans. In respect of her mental state, Dr Calvache-Rubio recorded that symptoms included difficulty sleeping due to pain and nightmares; overthinking; poor concentration and attention; frequent panic attacks; and an inability to cope since the injury.

27. On 1 July 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 1 July 2020.[24] Dr Kumagaya took a history that was, in the main, consistent with the evidence. Ms Evans reported to him that she vividly remembered feeling intensely fearful that she was going to die at the point of the incident and that her last memory prior to losing consciousness was the thought of her children having to bury her. Following the incident, Ms Evans reported the onset of a severe headache, nausea and vomiting, neck pain, back pain, cognitive disturbance and post-traumatic disorder symptoms.

    [24] ARD at pages 266-267

28. In his report dated 1 July 2020, Dr Kumagaya referred to Ms Evans’ report of the onset of PTSD symptoms following the workplace incident. Dr Kumagaya identified the PTSD symptoms as intrusive and distressing memories and dreams of the accident; psychological distress at exposure to external cues that resemble the accident; avoidance of external reminders of the accident, such as, avoiding lifts and flying; a negative emotional state; difficulty experiencing positive emotion; markedly diminished interest and participation in significant activities; hypervigilance; exaggerated startle response; consistent initial and middle insomnia; and difficulties concentrating. Dr Kumagaya noted that Ms Evans was commenced on Escitalopram in about June 2019, the dosage of which had been increased to 20 mg. On mental state examination, Dr Kumagaya observed, amongst other things, her mood was described in dysphoric and anxious terms; affect dysphoric and restricted in range/mobility/intensity; thought content consisted primarily of PTSD stresses and ongoing anxious cognitions. Dr Kumagaya diagnosed post-concussion syndrome and PTSD. Dr Kumagaya prescribed Venlafaxine XR 3.5 mg and reduced Ms Evans’ dosage of Escitalopram to 10 mg.

29. On 9 July 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was anxious; speech was rapid at times; and that she recounted the work incident. She reported panic attacks; vomiting; crying in the shower; concern about running into a work colleague at the shops; and anxiety being triggered by lifts. Mindfulness and practising skills to manage anxiety symptoms were discussed.

30. On 14 July 2020, Dr Calvache-Rubio, recorded in the WD records a video consultation with Ms Evans. He recorded that Ms Evans was in psychological distress and looked somnolent. He noted that she had consulted a psychiatrist (Dr Kumagaya) and noted the changes in medication.

31. On 16 July 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was anxious and that her speech was rapid at times with shortness of breath. Ms Evans reported that her anxiety was through the roof; she was vomiting; suffered a panic attack after watching a movie that showed a lift drop; suffered from poor concentration and attention; and had difficulty sleeping. The psychologist provided psycho education about fight/flight response and physiological responses to stress.

32. On 30 July 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 30 July 2020.[25] Dr Kumagaya took a history that Ms Evans continued to report enduring PTSD, depressive and anxious cognitions correlative with an enduring PTSD. On mental state examination, Ms Evans thought content consisted primarily of PTSD stressors and ongoing depressive anxious cognitions. She continued to espouse short-term memory and concentration difficulties. Dr Kumagaya confirmed his diagnosis of post-concussion syndrome and PTSD. He made recommendations as to her ongoing treatment and medications. After her consultation with Dr Kumagaya, Ms Evans had a video call with Dr Calvache-Rubio, who noted the adjustments in her medications.

    [25] ARD at pages 416-417

33. On 20 August 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was anxious and that her speech was normal. Ms Evans reported that vomiting caused an infection in her mouth requiring dental work; that she mostly stayed at home; suffered from ongoing nightmares about being in the lift and in a coffin; avoided sleeping when her husband was not at home; and overthinking. The psychologist diagnosed PTSD. The psychologist discussed the analogy of a toolbox of strategies to manage anxiety/panic. After her consultation with the psychologist, Ms Evans had a telehealth consultation with Dr Calvache-Rubio, who noted the outcome of her last consultation with Dr Kumagaya.

34. On 27 August 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was anxious and that her speech was normal. The psychologist diagnosed PTSD. Ms Evans reported that she was unable to eat solid food; freaked out over minor issues; was angry and frustrated at herself; and felt guilty about her children having to carry out tasks for her.

35. On 31 August 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 31 August 2020.[26] Dr Kumagaya took a history that Ms Evans continued to report prominent intrusion, avoidance, arousal and depressive symptoms. He noted that she had been experiencing panic attacks, at least, two to three times a day, which were frequently associated with nausea and vomiting. She was finding it difficult to leave her home. Her vomiting was so frequent that it had resulted in dental decay. Given the severity of her disturbance, he recommended the commencement of Promethazine 25 mg PO Nocte PRN for insomnia. On mental state examination, Ms Evans’ mood was described in dysphoric and anxious terms; thought content consisted primarily of PTSD stressors and ongoing depressive and anxious cognitions. She continued to espouse a short term memory and concentration difficulties. Dr Kumagaya confirmed his diagnosis of post-concussion syndrome and PTSD and added panic disorder to his diagnosis. He made recommendations as to Ms Evans’ ongoing treatment and medications.

    [26] ARD at pages 271-272

36. On 4 September 2020, Dr Calvache-Rubio recorded in the WD records a video consultation with Ms Evans. He recorded Ms Evans’ reports of recurrent vomiting being referred to in the medical records and that the vomiting had caused enamel corrosion to her teeth. Dr Calvache-Rubio noted the outcome of her last consultation with Dr Kumagaya.

37. On 17 September 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was anxious and that her speech was normal. Ms Evans reported that she felt anxious; stressed; wanted control back; wanted to be able to sleep; could not go out to the shops; was withdrawn; and was avoidant. The psychologist diagnosed PTSD.

38. On 24 September 2020, Dr Calvache-Rubio recorded in the WD records a telehealth consultation with Ms Evans. He recorded Ms Evans’ report of recurrent vomiting resulting in a loss of weight of 10 kg and that she was psychologically deteriorating; was overthinking; and was socially withdrawn. He recommended a review by Dr Lim and by a gastroenterologist.

39. On 30 September 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 30 September 2020.[27] Dr Kumagaya took a history that Ms Evans’ alcohol intake had increased and expressed his concern. On mental state examination, Ms Evans’ mood was described in dysphoric and anxious terms; speech assumed an anxious tone; thought content consisted primarily of PTSD stressors and ongoing depressive and anxious cognitions. She continued to espouse short-term memory and concentration difficulties. Dr Kumagaya confirmed his diagnosis of post-concussion syndrome, PTSD and panic disorder. He made recommendations as to Ms Evans’ ongoing treatment and medications.

    [27] ARD at pages 256-257

40. On 30 October 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 30 October 2020.[28] Dr Kumagaya took a history that Ms Evans continued to report prominent enduring PTSD symptoms. Of particular concern, were ongoing flashbacks; nightmares; anxiety; exaggerated startle response; hypervigilance; concentration difficulty; irritability; low mood; inability to experience positive emotions; a feeling of estrangement from others; and avoidance symptoms. Alcohol intake had been reduced to nil over the past several weeks. On mental state examination, Ms Evans mood was described in ongoing dysphoric and anxious terms; speech continued to assume an anxious tone; thought content consisted primarily of PTSD stressors and ongoing depressive and anxious cognitions. Dr Kumagaya confirmed his diagnosis of post-concussion syndrome, PTSD and panic disorder. He made recommendations as to Ms Evans’ ongoing treatment and medications.

    [28] ARD at pages 243-244

41. On 1 October 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans’ mood was low, that her affect was congruent and that her speech was normal. The psychologist diagnosed PTSD. On the Hamilton Rating Scale for Depression based on assessment responses, Ms Evans’ score was ranked as severely ill.

1. On 22 October 2020, Dr Calvache-Rubio recorded in the WD records a telehealth consultation with Ms Evans. Dr Calvache-Rubio recorded psychological injury; persistent psychological distress perpetuated by re-traumatising events; panic attacks; eating issues; and frequent vomiting. He prescribed medications.

2. On 29 October 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported, amongst other things, sleeping difficulties; nausea; difficulty getting out of bed; not wanting to shower because she felt trapped in the toilet and shower; having to hide her emotions in the presence of the children; and generally struggling to cope. The psychologist recorded that, on mental state examination, Ms Evans was depressed; teary; crying; and that her speech had a spontaneous and anxious tone. The psychologist diagnosed PTSD.

3. On 5 November 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported sadness; vomiting after going out; losing trust in people; anxiety; feeling useless; anger; guilt; loss of appetite; and vomiting. She also reported feeling trapped in the toilet and shower; hiding her emotions from her children; and struggling to cope. The psychologist recorded Ms Evans’ mood as depressed; her affect as congruent; and her speech as anxious in tone and spontaneous. The psychologist diagnosed PTSD.

4. On 12 November 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported that she was not getting much sleep; her anxiety was worse; that she avoided big crowds; she felt trapped in the toilet and shower; and hid her emotions from her children. The psychologist recorded Ms Evans’ mood as depressed; her affect as congruent; and her speech as anxious in tone and spontaneous. The psychologist diagnosed PTSD.

5. On 4 December 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported conflict with the workers compensation insurer; stress; social withdrawal; anxiety about flying to Sydney for an insurer medical examination; ongoing vomiting; and loss of appetite. The psychologist recorded Ms Evans’ mood as depressed; her affect as congruent; and her speech as tired in tone. The psychologist diagnosed PTSD.

6. On 7 December 2020, Ms Evans consulted Dr Kumagaya. In evidence, there is a report from Dr Kumagaya to Dr Lim dated 7 December 2020.[29] Dr Kumagaya took a history that Ms Evans reported stability with respect to her PTSD symptoms with enduring features and little shift from his previous review. He undertook a protracted discussion with Ms Evans in relation to available treatment avenues. In this regard, Escitalopram, Promethazine and Melatonin medications were ceased. Quetiapine was introduced. Ms Evans reported that she continued to derive benefit from her psychological therapy. On mental state examination, Ms Evans’ mood was described in ongoing dysphoric and anxious terms; speech assumed a calmer quality throughout the review; thought content consisted of emerging future orientation, in addition to enduring PTSD stressors. Dr Kumagaya confirmed his diagnosis of post-concussion syndrome, PTSD and panic disorder. He made recommendations as to Ms Evans’ ongoing treatment and medications. After her consultation with Dr Kumagaya, Ms Evans had a telehealth consultation with Dr Ben Dickson, General Practitioner, who noted the outcome of her earlier consultation with Dr Kumagaya. Dr Dickson recorded Ms Evans’ report of a recent increase in anxiety that progressed to panic; disturbed sleep; depressed mood; stress; and being overwhelmed. He provided additional prescriptions of medication to get Ms Evans over the Christmas period.

   [29] ARD at pages 238-239

7. On 11 December 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported disturbed sleep; loss of appetite; and running out of medication. On mental state examination, the psychologist recorded that Ms Evans’ mood was depressed; her affect was congruent; her speech was tired in tone with brief responses; and that in respect of cognition, her thoughts were scattered all over the place. The psychologist diagnosed PTSD.

8. On 16 December 2020, Dr Dickson recorded in the WD records a telehealth consultation with Ms Evans. The reason for the consultation was stated as Ms Evans not receiving her medication from the pharmacy. Dr Dickson contacted the pharmacy and advised Ms Evans of the outcome.

9. On 18 December 2020, an unnamed psychologist recorded in the WD records a telehealth consultation with Ms Evans. The psychologist recorded that Ms Evans reported, amongst other things, being teary and upset; vomiting; passive suicidal ideations; and crying at minor things. On mental state examination, the psychologist recorded that Ms Evans’ mood was depressed; her affect was congruent; and her speech was flat in tone and spontaneous. The psychologist diagnosed PTSD. Ongoing treatment was discussed.

The forensic medical evidence

Dr Richa Rastogi

1. On 19 December 2020, Ms Evans consulted Dr Richa Rastogi, Consultant Psychiatrist via telehealth at the request of her lawyers. In evidence, there is a report by Dr Rastogi dated 19 December 2020.[30] I will now refer to the relevant parts of that report.

   [30] ARD at pages 31-41

2. Dr Rastogi took a detailed history of the injury that was consistent with the evidence. She also took a detailed history of Ms Evans’ post-accident symptoms and treatment that was consistent with the evidence.

3. Dr Rastogi reported Ms Evans’ current symptoms as being homebound and leading a very reclusive life; very fidgety and restless; procrastination; very amotivated; fatigued; poor focus; poor attention span; concentration lapses; middle insomnia and early morning awakening; awakens after weird morbid dreams; autonomic arousal; continuously ruminating on the past; a sense of pervasive sadness, helplessness and worthlessness; crowd avoidant; high stimulus environment avoidant; unable to handle uncertainty and wanting to be in control; living in fear with a feeling of impending doom; extremely anxious; poor sleep patterns; recurrent panic attacks and easily triggered state of arousal; constant fogginess in the head; lacking capacity to make decisions; easily flustered and perplexed; inability to multitask; loss of control; inability to plan events or activities; socially withdrawn and isolated; a sense of despair and dependency; inability to handle minimal stress; feeling overwhelmed; poor problem-solving skills; anxiety with arousal; slowed cognition; severe avoidance; lack of confidence; severe social anxiety; and avoidance of crowded places.

4. In respect of activities of daily life functioning, Dr Rastogi reported that Ms Evans finds it difficult to carry out household chores and sees no purpose in doing so; she is socially isolated without friends and has cut everyone off; requires prompting for meals; lacks routine; only drives short distances due to anxiety and to familiar places and to local shops with a support person; experiences concentration lapses; struggles with decision-making capacity and has short-term memory deficits; she is short fused and irritable; and struggles with preparing meals.

5. Dr Rastogi noted that Ms Evans had no prior history of any psychological disorder or mood disorder or any mental health interventions. She noted that Ms Evans’ uncle had a history of mood disorder with PTSD from his experiences in the Vietnam war.

6. Dr Rastogi noted that Ms Evans’ current treatment included consultations with a psychiatrist every six weeks; fortnightly consultations with the psychologist; and medications, being Effexor 75 mg and 37.5 mg and Quetiapine XR 50 mg. She also noted a trial of Lexapro in 2019.

7. On mental state examination, Dr Rastogi observed that Ms Evans’ mood was very anxious and her affect was agitated. She was trapped with anxiety and fearful about her future, focusing on negatives of her life. She was easily overwhelmed, had poor stress coping and loss of confidence. She was trapped with fears, avoidance and continued to be disappointed about her future. She displayed avoidance behaviours and reported feeling isolated.

8. Dr Rastogi diagnosed a chronic PTSD with anxiety and alcohol use disorder in remission.

9. Dr Rastogi opined that Ms Evans was exposed to an incident where she was locked in a lift for a period of time whilst doing a nightshift. She experienced a panic attack and was in a daze with feelings of impending doom. She also sustained a concussion following the lift dropping suddenly, hitting her head and suffering amnesia. She was eventually released from the lift. Since then, she presented with symptoms of a head injury with vomiting, headaches, light sensitivity and generalised pain. Scans were normal.

10. Dr Rastogi opined that Ms Evans continued to have persistent symptoms of PTSD with minimal shift, severe entrenched avoidance and social anxiety, recurring physiological responses and feelings of impending doom. She is avoidant of places and situations and becomes easily re-triggered. Symptoms have not responded to intensive treatment. There is a significant impact on her social, cognitive and vocational function. Ms Evans’ cognitive deficits and inability to perform complex tasks with poor emotional control, ongoing anxiety and fears impacting social relatedness is impacting her ability to work in any roles.

11. Dr Rastogi opined that Ms Evans’ prognosis was guarded in the presence of entrenched avoidance behaviours and persistent anxiety with poor stress coping that has minimally shifted despite psychological treatment. Ms Evans’ treating team and psychiatrist are of the opinion that she is unfit to perform her preinjury duties or any duties, as such would be a significant trigger for relapse and deterioration. Ms Evans is vocationally impaired by the nature of her chronic PTSD and is permanently unfit to perform any vocational duties.

12. Dr Rastogi opined that the incident on 11 November 2018 and its associated trauma, solely attributed to her incapacity to work in any capacity. Work was a substantial contributor to her psychological condition and deterioration.

13. Dr Rastogi opined that Ms Evans continued to be debilitated by active symptoms of PTSD with poor stress coping and poor adaptability. She is extremely vulnerable to stress. She is likely to have relapses in the future and suffer further disability from a psychological condition. She has no vocational capacity.

Dr Leonard Lee

1. On 27 April 2021, Ms Evans consulted Dr Leonard Lee, Consultant Forensic Psychiatrist via Microsoft Teams video conferencing at the request of the lawyers for EML. In evidence, there is a report by Dr Lee dated 27 April 2021.[31] I will now refer to the relevant parts of that report.

   [31] Reply at pages 42-50

2. Dr Lee took a history of the injury that was, in the main, consistent with the evidence. Dr Lee also took a history of Ms Evans’ post-accident symptoms and treatment that was consistent with the evidence.

3. Dr Lee disclosed that he was unable to establish visual contact during the video conferencing because the screen had frozen. However, he opined that Ms Evans’ voice tone did not reveal distress when discussing the accident and she did not avoid discussing it as one might have expected for a diagnosis of PTSD. Dr Lee also disclosed that Ms Evans stated that she was experiencing trouble with Dr Lee’s assessment due to anxiety and nausea but that she offered to continue.

4. Under the heading of mental state examination, Dr Lee opined that Ms Evans’ report of invariant nightmares was implausible because most PTSD nightmares involve variations on a theme. Further, he opined that Ms Evans’ statement that she could not recall things that she had done, such as driving, was also implausible. He noted that she was able to concentrate for about an hour for his assessment, which was inconsistent with the report that she could concentrate no longer than five minutes. As such, he found that it was not possible to provide an accurate psychiatric diagnosis.

5. Dr Lee reviewed Dr Rastogi’s report dated 19 December 2020 and opined that the symptoms recorded by Dr Rastogi were self-reported and cannot be accepted at face value. Further, Dr Rastogi did not have access to Ms Mathews’ findings, which were inconsistent with clinically significant psychiatric disorder.

6. Dr Lee referred to Ms Mathews’ neuropsychological assessment report dated 6 May 2019 and noted that the latter found that Ms Evans’ neuropsychological profile was not consistent with traumatic brain injury because she did not have reduced speed of information processing and poor new learning, although she reportedly rapidly forgets. Dr Lee opined that Ms Evans’ performance in the assessment was inconsistent with her claim.

7. Dr Lee noted that Ms Evans’ diagnosis changed from post-concussion syndrome to adjustment disorder and more recently, to PTSD. He opined that delayed onset PTSD is uncommon and that it appeared that Ms Evans may have exaggerated the nature of the incident.

8. Dr Lee opined that Ms Evans’ neuropsychological profile was inconsistent with post-concussion syndrome and that imaging had been normal. He concluded that it was unlikely that she had a head injury or post-concussion syndrome to account for her symptoms and there was no clear organic basis for her complaint of pain. He opined that there were indications that she was manufacturing symptoms.

9. In respect of the diagnosis of PTSD, Dr Lee concluded that delayed onset PTSD was unusual and that, if Ms Evans had suffered a traumatic reaction, she would likely have experienced difficulty driving home after the incident. Dr Lee opined that it was most unusual that a psychiatric disorder was not detected at Albury Base Hospital. Dr Lee opined that the report of invariant nightmares was implausible, as was the report that she could not recall complex behaviours she had performed, such as driving home after the incident. Objectively, she did not avoid discussing the incident and did not become distressed when doing so, which was inconsistent with PTSD. Ms Evans’ behaviour is inconsistent with what would be expected with ongoing PTSD. Ms Evans’ report that she has not improved over time was inconsistent with the natural history of PTSD which, for the majority of cases, is for improvement. Ms Mathews’ testing was inconsistent with significant depression or anxiety as evidenced by Ms Evans’ high level of attention and speed of information processing. In view of these compelling inconsistencies, Dr Lee did not consider that Ms Evans suffered a primary psychological injury due to the incident on 11 November 2018.

10. Finally, Dr Lee did not consider that Ms Evans could be reliably assessed as having any psychiatric whole person impairment.

SUBMISSIONS

1. The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

FINDINGS AND REASONS

Did Ms Evans suffer a primary psychological injury?

The legislation and legal principles

1. 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 Act.

2. Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.

3. The onus of establishing injury falls on Ms Evans and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[32] (Ireland) and Nguyen v Cosmopolitan Homes[33] (Nguyen).

   [32] Department of Education and Training v Ireland [2008] NSWWCCPD 134

   [33] Nguyen v Cosmopolitan Homes [2008] NSWCA 246

4. The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[34] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[35] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.

   [34] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

   [35] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136]

5. “Psychological Injury” is defined in section 11A(3) of the 1987 Act as follows:

   “A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder of the nervous system.”

6. In order to prove that a psychological injury has occurred, an injured worker must prove that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[36] do not constitute psychological injury.[37]

   [36] New South Wales v Rattenbury [2015] NSW WCCPD46

   [37] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202

7. A finding of psychological injury requires expert evidence that such an injury is present.[38]

   [38] HammondCare v Calka [2016] NSWWCCPD 2 at [118]-[123]

8. Whether a psychological condition is classified as a personal injury or a disease depends on the evidence in each case. It is necessary that the events complained of had a physiological effect on the worker for it to be found that a worker with a psychological condition has received a personal injury.[39]

   [39] Yates v South Kirkby Collieries Ltd [1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3

Atura’s submissions

1. I will now refer to Atura’s principal submissions in relation to this issue.

2. The identification of the injury by Ms Evans has been unsatisfactory and unclear.

3. The criteria for assessing the evidence in support of Ms Evans’ claim are equally unclear.

4. The medical case presented by Ms Evans makes no attempt to analyse the relationship between workplace events and the symptoms complained of by her.

5. The injury description at page 7 in the ARD did not describe the cause or circumstances of the injury. More importantly, a diagnosis was not identified.

6. The notice of claim under section 66 of the 1987 Act claimed a 22% whole person impairment and provided no more information by way of particulars. However, it annexed a report by Dr Rastogi dated 19 December 2020.

7. Presumably, Ms Evans relies on Dr Rastogi in her case. What was absent from Dr Rastogi’s report was of significance. Included in the history taken by Dr Rastogi, was that Ms Evans experienced a panic attack, a concussion and amnesia. If that be the case, then any psychological condition suffered by Ms Evans would be a secondary one. If Dr Rastogi’s diagnosis of chronic PTSD were accepted by the Commission, it would be a primary psychological condition. Such concession is made on the basis that it is common knowledge as to what constitutes PTSD and the features of its diagnosis. The diagnosis of PTSD, from a forensic psychiatric perspective, is a specific diagnosis identified by well documented criteria. The diagnosis of PTSD carries with it some insight as to its cause and, in that way, is distinct from other psychiatric diagnoses.

8. In order to be satisfied as to the diagnosis of PTSD, one of the forensic commentators in this case should have performed the exercise of informing the Commission of what the diagnostic criteria are and the extent to which Ms Evans may or may not have fulfilled them. Dr Rastogi’s report fell short of performing that requirement. Dr Lee also failed to provide the sort of analysis that ought to have been provided in order to properly assess the matter.

1. Atura accepted that Ms Evans had been locked in the lift for over an hour. No doubt a distressing and unpleasant experience for her. Dr Rastogi opined that Ms Evans had persistent symptoms of PTSD.

2. One also must consider the unfolding clinical picture presented by Ms Evans to her treatment providers. It was difficult to discern from the medical records when it was that any of the symptoms that Dr Rastogi opined to be PTSD related were identified.

3. It was difficult to discern anything that related to a psychiatric diagnosis in the clinical records of the Gardens Medical Group. The clinical records commenced from shortly after Ms Evans’ injury at work to 19 November 2019. There was no material in the clinical records relating to a diagnosis or symptoms of PTSD. The clinical records provided no forensic support for the case put forward by Ms Evans.

4. There was a change of Ms Evans’ medical management when she commenced consulting Dr Lim and his colleagues of Workers Doctors. The Workers Doctors clinical records were not helpful from a forensic perspective, in that, they tended to add a number of different history takers, some of whom were not named. The entry in the clinical records on 25 May 2020, recorded that Ms Evans consulted Dr Lim and reported sustaining a head injury, back injury and psychological injuries after an elevator free fell from the fifth floor to the ground floor at a building site at work. The reported psychological injury was inconsistent with the Gardens Medical Group clinical records. The Commission ought to be cautious about the weight given to Dr Lim’s opinions.

5. The Workers Doctors clinical records made references to a psychologist but no name was provided. There were references to Dr Kumagaya in the clinical records. Dr Lee took a history of Dr Kumagaya being a psychiatrist. There was no report or assessment in evidence by Dr Kumagaya. Decision makers will always be concerned to have an assessment from the treating specialist from a clinical perspective before they embark on the analysis of the competing forensic specialists. The Workers Doctors clinical records contained references to PTSD but the entries appeared to be recorded as a matter of formality and repeated from time to time simply as an artefact of the record-keeping. It was not entirely clear the extent to which they happened to be the opinion of the particular clinician or allied health professional involved in the treatment of Ms Evans.

6. There is no record of the onset of Ms Evans’ PTSD symptoms anywhere. There is a lack of particularity of what is said to constitute the PTSD symptoms. Ms Evans has failed to discharge her onus before one even comes to consider the opinion of Dr Lee.

7. Dr Lee had access to some of the clinical material. He presented his assessment on a file review. Dr Lee referred to the findings of Ms Mathews, who conducted a neuropsychological assessment of Ms Evans. Dr Lee observed that Ms Mathews’ findings were inconsistent with clinically significant psychiatric disorder. Dr Lee also observed that Dr Rastogi did not appear to have had access to Ms Matthews’ findings and regarded it as a deficiency in Dr Rastogi’s assumed data and conclusions.

8. Atura embraced Dr Lee’s conclusions in respect of the diagnosis of PTSD. Ms Evans failed to make out a case that she suffered a personal injury within the meaning of section 4 of the 1987 Act.

9. Atura, through EML, arranged for The Huxley Hill Group to carry out a factual investigation of the subject incident on 11 November 2018. The factual investigation acknowledged that Ms Evans, in the course of her work, was entrapped in a lift for more than an hour. Whilst the factual investigation report challenged some of what Ms Evans had to say about the incident, it was not important because Dr Rastogi’s opinion was simply based on the assumption that Ms Evans was trapped for an hour or so and had a panic attack. Whilst Atura’s witnesses do not accept the dramatic description that Ms Evans gave of the events, that is, the freefalling lift, it is not relevant to Dr Rastogi’s opinion as to causation.

Ms Evans’ submissions

1. I will now refer to Ms Evans’ principal submissions in relation to this issue.

2. Mr Roach confirmed that Ms Evans was affected by the incident. He stated that she had been definitely shaken up.

3. Mr Jones stated that if the lift did descend in the way the local Otis Elevator Company representative, Mr Hailey, described, it may well have resulted in Ms Evans’ injury and caused her to feel like she was plummeting.

4. It was conceded that there was little mention of a psychiatric condition in the Gardens Medical Group clinical records. Dr Cook initially diagnosed a concussive state. However, on 5 March 2019, he referred Ms Evans to a psychologist, Ms Yeates for the opinion and management of her anxiety related to using lifts following a fall of six floors whilst working for Atura.

5. Dr Cook had concentrated on what he thought was an organic brain injury or a post-concussive syndrome, which was not the case as it turned out following investigations. The investigations took some two or three months to complete. On 6 February 2019, Dr Cook referred Ms Evans to Ms Mathews. There were symptoms of a psychological nature being displayed at an early point in time following the incident.

6. Ms Mathews’ report dated 6 May 2019 is significant. She examined Ms Evans fairly soon after the incident. She found no evidence of a traumatic brain injury. However, Ms Mathews found that Ms Evans continued to experience high levels of anxiety and depression symptoms, which can manifest in cognitive symptoms. Clearly, at that stage, there was a manifestation of psychiatric symptoms. Both Ms Yeates and Ms Mathews described them as depressive symptoms and anxiety.

7. By the time Ms Evans consulted Dr Lim, she had depressive symptoms and anxiety. Dr Lim referred her to Dr Kumagaya, who she consulted for the first time in July 2020. Dr Kumagaya in his report to Dr Lim dated 30 September 2020, did not go into a lot of detail, which is typical for treating doctors. Dr Kumagaya diagnosed post-concussion syndrome, PTSD and panic disorder.

8. Dr Rastogi took a history from Ms Evans that she experienced constant panic attacks; could not drive for eight months; was unable to drive the children to school; had to rely on her husband and mother; required care with the activities of daily living; experienced generalised pain and physical deconditioning; and suffered lapses in concentration. Dr Rastogi noted that her symptoms resulted in suicidal ideation associated with an inability to do premorbid activities and anticipatory anxiety. Dr Rastogi noted Ms Evans’ current symptoms to include being homebound; leading a very reclusive life; being very fidgety; being very restless; procrastinating; amotivated; fatigued; concentration lapses; ruminating on the past; a sense of pervasive sadness, helplessness and worthlessness; crowd avoidant; loss of control; living in fear of impending doom; extremely anxious; poor sleep pattern; recurrent panic attacks; easily triggered state of arousal; fogginess; lack of capacity to make decisions; easily flustered; perplexed; inability to multitask; and socially withdrawn and isolated. Dr Rastogi diagnosed a chronic PTSD with anxiety and assessed Ms Evans’ whole person impairment.

9. Dr Kumagaya confirmed a diagnosis of PTSD.

10. Dr Lee’s report contained some deficiencies. Dr Lee obtained a history of the incident consistent with the evidence. Dr Lee was unable to establish visual contact on the audio visual consultation because the screen froze and he relied on Ms Evans’ voice to conclude that she did not reveal stress when discussing the accident. He concluded that the invariant nightmares were inconsistent with PTSD because most PTSD nightmares involved variations on a theme. Importantly, he used the word ‘most’. Dr Lee did not set out what other enquiries he made of Ms Evans in respect of her nightmares. It is on that basis, the basis of a file review and the absence of Ms Mathews’ report that he criticised Dr Rastogi’s report.

11. Dr Lee opined that Ms Mathews’ testing was inconsistent with significant depression or anxiety as evidenced by the high level of attention and speed information processing. Ms Mathews did confirm severe psychiatric symptoms, namely, high levels of anxiety and depression. Ms Mathews recommended treatment of those symptoms. The neuropsychological testing performed by Ms Mathews was done to assess any damage to the brain caused by the accident. Dr Lee cherry picked parts of Ms Mathews’ report.

12. As Dr Lee was unable to conduct a proper audio visual assessment of Ms Evans, coupled with the fact that he cherry picked parts of Ms Mathews’ report, one must call into question his examination and conclusions.

13. The incident that took place was capable, on all the evidence, of causing an injury and the diagnosis of PTSD was available given Ms Evans’ complaints of symptoms from an early point in time. Dr Rastogi was the only medical practitioner who took a full history of her symptoms. It was those symptoms that led her to the conclusion that Ms Evans was suffering from PTSD. Dr Rastogi was not required to explain every step that led her to her diagnosis.

14. There ought to be a finding of primary psychological injury and the matter ought to be referred to a Medical Assessor to assess Ms Evans’ whole person impairment.

Atura’s submissions in reply

1. I will now refer to Atura’s submissions in reply.

2. PTSD was the basis of Ms Evans’ case The question was, did the distressing experience of Ms Evans lead to a diagnosis of PTSD? That question has not been answered on the medical evidence.

Consideration and findings

1. I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.

2. The unchallenged evidence is that, in the early hours of the morning on 11 November 2018, Ms Evans was trapped in a staff lift at the Atura Hotel for about 85 minutes. Soon after the staff lift came to a standstill between floors just short of level 5, Ms Evans unsuccessfully attempted to extract herself from the lift. Whilst Mr Roach’s evidence was that the staff lift came to a standstill just short of level 6, I find such inconsistency with Ms Evans’ evidence irrelevant to the issue I must determine. Ms Evans then called for assistance. A work colleague attended and he was unable to assist her. Shortly afterwards, the lift suddenly dropped to a point just short of the ground floor. The expert evidence was that the lift did not freefall but it may have caused Ms Evans to feel like she was plummeting. During or after the lift came to a stop, Ms Evans struck her head and lost consciousness for an unknown period of time. She regained consciousness whilst still trapped in the lift.

3. I accept Ms Evans as a witness of truth, who did her best to provide a history of her injuries, her treatment and her complaints of symptoms to her various treating doctors and the forensic medical specialists. The histories she provided of injury, treatment and complaints of symptoms were, in the main, consistent over a considerable period of time. I accept that Ms Evans has suffered the symptoms, restrictions and disabilities referred to in her evidentiary statement since the incident on 11 November 2018. I accept that Ms Evans suffered the symptoms recorded in the reports of Ms Yeates, Dr Kumagaya and Dr Rastogi and in the WD records.

4. I accept Ms Evans’ evidence and find that, whilst she was trapped in the staff lift she felt extreme panic, scared, claustrophobic and suffered shortness of breath and heart palpitations. I accept her evidence that she felt she was going to die.

5. Atura criticised the pleading and particularisation of Ms Evans’ case. I find such criticism unjustified. Whilst the injury details particularised in the ARD could have been fuller, when read together with Dr Rastogi’s report, they were sufficient.

6. Atura submitted that the unfolding clinical picture presented by Ms Evans to her treatment providers had to be considered because it was difficult to discern from the medical records when it was that any of the symptoms that Dr Rastogi opined to be PTSD related were identified. In essence, Atura was critical of the absence of complaints of PTSD related symptoms in the GMG records.

7. Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[40]; and applied in King v Collins[41] and Mastronardi v State of New South Wales[42]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[43]

   [40] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34

   [41] King v Collins [2007] NSWCA 122

   [42] Mastronardi v State of New South Wales [2009] NSWCA 270

   [43] Mason v Demasi [2009] NSWCA 227

8. The caution referred to above was confirmed by Roche DP in Winter v NSW Police Force[44] as follows:

   “It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 at [34-36]).”[45]

   [44] Winter v NSW Police Force [2010] NSWCCPD 12

   [45] Winter v NSW Police Force [2010] NSWCCPD at [183]

9. I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard and considered all the evidence.

10. The concerns raised in the above-mentioned authorities would seem to be of relevance in this case. In my view, little information can be obtained from the clincal records of Dr Cook in the GMG records and therefore, they are of minimal probative value. The clinical records merely record the time, date of the consultation and medication prescribed. At times, there is a brief history, but in general, there is minimal, if any, record of Ms Evans’ complaints and symptoms. The GMG records fell far below the standard medical record keeping I would have expected. However, in his referral letter dated 5 March 2019, Dr Cook referred Ms Evans to a clinical psychologist, Ms Yeates, for an opinion and management of her anxiety related to using lifts following a fall of six floors whilst at the Atura Hotel. Yet, there was nothing in the GMG records in respect of Ms Evans’ anxiety when using lifts because of the incident at the Atura Hotel. Some medical practitioners are better record keepers than others.

11. Dr Cook, understandably, focused his attention on Ms Evans potentially having suffered a traumatic brain injury in the incident. He referred Ms Evans to a neurologist and to a neuropsychologist. Traumatic brain injury was excluded. Thereafter, Dr Cook focused on the management of a post-concussion syndrome.

12. Ms Yeates diagnosed an adjustment disorder with mixed anxiety and depression along with physical complications. However, in her report to EML dated 29 May 2019, she recorded no history of injury. She did have the very short history provided by Dr Cook in his letter of referral.

13. In concluding that there was no objective evidence that Ms Evans suffered a primary psychological injury due to the incident on 11 November 2018, Dr Lee relied on Ms Mathews’ opinion that Ms Evans’ performance on assessment was not characteristic of a neuropsychological profile typically seen for someone with depression or anxiety because of her intact high-level attention and speed of information processing. However, Dr Lee failed to refer to Ms Mathews’ opinion that Ms Evans’ levels of psychological distress suggested the possibility of a functional memory impairment associated with a psychological presentation and reaction to a traumatic event.

14. Perhaps another demonstration of the inadequacy of the GMG records was that in certificates of capacity issued by Dr Cook between 29 August 2019 and 14 November 2019, he recorded the diagnosis of work-related injury as a fall with severe back pain and head strike and PTSD. He related the injuries to work by referring to a fall in a lift which descended suddenly six floors to the ground floor.

15. Once Ms Evans changed general practitioners and consulted Dr Lim and other medical and allied health providers of Workers Doctors, the WD records contained far greater detail than those of the GMG records. Atura was critical of the WD records firstly, because there were a number of different history takers, some of whom were not named and secondly, because the WD records were inconsistent with the GMG records. I reject that criticism. The fact that there were no complaints of psychological symptoms recorded in the GMG records does not mean that Ms Evans did not make such complaints for the reasons already referred to above. At least, on 29 August 2019, Dr Cook had diagnosed PTSD. The WD records recorded in detail the symptomatology complained of by Ms Evans. By his second consultation with Ms Evans on 11 June 2020, Dr Lim actioned referrals to a physiotherapist, spinal surgeon, neurologist, psychologist and psychiatrist.

16. Dr Lim and the psychologists at Workers Doctors diagnosed Ms Evans with PTSD.

17. Atura’s submission that there was no report or assessment in evidence by Dr Kumagaya was clearly incorrect. I have already referred to and considered the six reports by Dr Kumagaya in evidence. On 1 July 2020, Dr Kumagaya identified the PTSD symptoms as intrusive and distressing memories and dreams of the accident; psychological distress at exposure to external cues that resemble the accident; avoidance of external reminders of the accident, such as, avoiding lifts and flying; a negative emotional state; difficulty experiencing positive emotion; markedly diminished interest and participation in significant activities; hypervigilance; exaggerated startle response; consistent initial and middle insomnia; and difficulties concentrating. Dr Kumagaya diagnosed post-concussion syndrome and PTSD.

18. Contrary to Atura’s submissions, Dr Rastogi identified Ms Evans’ PTSD related symptoms as severe entrenched avoidance and social anxiety; recurring physiological responses; feelings of impending doom; avoidant of places and situations; easily re-triggered symptoms; cognitive deficits; inability to perform complex tasks; poor emotional control; ongoing anxiety and fears. Dr Rastogi opined that the incident on 11 November 2018 and its associated trauma solely attributed to her incapacity and that work was a substantial contributor to her psychological condition and deterioration. Dr Rastogi diagnosed a chronic PTSD with anxiety and alcohol use disorder in remission.

19. Dr Rastogi clearly exposed her path of reasoning. In NSW Police Force v Hahn, [46] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[47] makes it clear that Heydon J in Makita (Australia) Pty Ltd v Sprowles[48] should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely, on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Doctors do not need to provide elaborate or detailed explanations for their conclusions. However, more than a mere “ipse dixit” (an assertion without proof) is required. This common sense approach leads to the view that Dr Rastogi’s opinion is a satisfactory one.

    [46] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60]

    [47] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

    [48] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705

1. I found Dr Lee’s evidence unconvincing. He was unable to establish visual contact during his audio visual consultation with Ms Evans. He relied on her tone of voice to opine whether she sounded distressed when discussing the accident. Further, his comment that she did not avoid discussing the accident was not expected for someone who had been diagnosed with PTSD, carried no weight. He disclosed that Ms Evans stated that she was experiencing trouble with the assessment due to anxiety and nausea but had offered to continue.

2. Dr Lee found that Ms Evans’ report of invariant nightmares was implausible because most PTSD nightmares involve variations on a theme. The fact that Dr Lee used the word ‘most’ contradicted his use of the word ‘implausible’. Dr Lee formed the view that if Ms Evans had suffered PTSD, she would likely have experienced difficulty driving home after the incident. Ms Evans’ evidence, which I have accepted, is that she had a very limited memory of the drive home. Dr Lee did not accept that Ms Evans could concentrate no longer than five minutes because she participated for one hour in his audio assessment.

3. Dr Lee opined that it was most unusual that a psychiatric disorder was not detected at Albury Base Hospital. Whilst the Albury Base Hospital clinical records were not in evidence, Dr Lee did refer to some documents in his possession in this regard. I exercise caution in relation to this alleged inconsistency raised by Dr Lee for the same reasons referred to in Mason v Demasi.[49]

   [49] Mason v Demasi [2009] NSWCA 227

4. Dr Lee was critical of Dr Rastogi’s report because the symptoms recorded by her were self-reported and could not be accepted at face value. I do not understand the criticism, nor do I give it any weight. Self-reported symptoms form a basis of the assessment of a psychological condition. Dr Lee was also critical of Dr Rastogi because she did not have access to Ms Mathews’ findings, which he interpreted as being inconsistent with clinically significant psychiatric disorder. I do not accept the criticism for the reasons I have already stated above in respect of Ms Mathews report. It appeared that neither Dr Lee nor Dr Rastogi had the benefit of some or all of Dr Kumagaya’s reports or, alternatively, did not refer to them.

5. Dr Lee opined that, for the majority of cases, the natural history of PTSD is for improvement over time. In this regard, I note that Dr Lee used the word ‘majority’. He concluded that delayed onset PTSD was unusual. He did not accept Ms Evans’ symptoms at face value because they were self-reported. Dr Lee expressed the view that it appeared that Ms Evans may have exaggerated the nature of the incident on 18 November 2018. Further, he concluded that it was unlikely that she had a head injury or post-concussion syndrome to account for her symptoms and there was no clear organic basis for her complaint of pain. He opined that there were indications that she was manufacturing symptoms. It was on this basis and his opinions in respect of what he perceived were inconsistencies in Ms Evans’ evidence, that he concluded it was not possible to provide an accurate psychiatric diagnosis.

6. Dr Lee did not meaningfully engage with the symptoms complained of by Ms Evans. Nor did he meaningfully engage with Dr Kumagaya’s and/or Dr Rastogi’s diagnoses of PTSD. He did not adequately engage in the issue of causation. He failed to clearly expose his line of reasoning. However, it was clear that he did not accept Ms Evans’ evidence.

7. I prefer the evidence of Dr Kumagaya and Dr Rastogi over that of Dr Lee for the reasons referred to above. Certainly, Dr Kumagaya as the treating psychiatrist was in the best position of the three, having had six consultations to the date the WD records had been produced. The preponderance of medical evidence concluded that Ms Evans suffered PTSD as a result of the incident at work on 18 November 2018.

8. I find that the incident on 18 November 2018 had the physiological effect on Ms Evans as evidenced by the symptoms complained of by her in evidence and accepted by me.

9. I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Ms Evans suffered a diagnosable primary psychological condition arising out of or in the course of her employment with Atura on 11 November 2018 within the meaning of sections 11A(3), 4(a) and 9A of the 1987 Act.

Permanent impairment compensation

1. What remains to be determined is the degree of permanent impairment resulting from the injury.

2. I am satisfied that it is appropriate to remit the matter to the President for referral to a Medical Assessor to assess Ms Evans’ whole person impairment.

CONCLUSION

1. My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.