Frecklington v Haydn John Jobson (t/as Canowindra Bottleshop Bottlemart)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Frecklington v Haydn John Jobson (t/as Canowindra Bottleshop Bottlemart) [2025] NSWPIC 101
APPLICANT:	Sandra Lee Frecklington
RESPONDENT:	Haydn John Jobson (T/As Canowindra Bottleshop Bottlemart)
MEMBER:	Brett Batchelor
DATE OF DECISION:	20 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66 as a result of primary psychological injury sustained arising out of or in the course of her employment; the respondent resisted the claim on the basis that the applicant had sustained a secondary psychological injury as a result of a physical injury sustained by the applicant in the course of her employment with the respondent; the parties agreed that there had to be a determination by the Commission as to whether the applicant had sustained a primary or secondary psychological injury in accordance with the finding of Campbell J in State of New South Wales (NSW Department of Education) v Kaur; detailed examination of lay and treating and expert medical evidence; Held –finding that the applicant had sustained a primary psychological injury arising out of or in the course of her employment with the respondent, and a secondary psychological injury as a result of physical injury sustained in the course of employment with the respondent; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of the primary psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury on 18 November 2019 arising out of or in the course of her employment with the respondent. 2. The applicant sustained a secondary psychological injury on 18 November 2019 arising out of or in the course if her employment with the respondent, as a result of an injury to her back on that day. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of primary psychological injury on 18 November 2019 arising out of or in the course of her employment with the respondent. 4. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Certificate of Determination and Statement of reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Sandra Lee Frecklington (the applicant/Ms Frecklington) seeks compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of primary psychological injury sustained on 18 November 2019 arising out of or on the course of her employment as a shop assistant with Haydn John Jobson trading as Canowindra Bottleshop Bottlemart (the respondent/Haydn).
The respondent resists the applicant’s claim, alleging that she suffered secondary psychological injury as a result of a back injury on 18 November 2019 when lifting cartons of beer. At that time Ms Frecklington felt back pain going down her left leg, and subsequently sought treatment from her general practitioner (GP), Dr Zambo.
The applicant claims that the primary psychological injury sustained was as a result of the dysfunctional conditions under which she was obliged to work, and abusive behaviour on the part of her former employer.
The applicant claims that her mental health began to suffer as a result of working for Haydn, and she began to dread going to work because she did not know if he was going to be in a good mood, nor did she know if Haydn was going to confront her at work.
One of the tasks that was imposed on her by the respondent was frequent trips to Orange from Canowindra in her own vehicle to collect alcohol from another supplier, which she disliked intensely, and found the heavy physical nature of the work difficult.
The applicant ceased work for the respondent, it appears, on or some time shortly after
18 November 2019.
The applicant was independently medically examined via Zoom at her solicitor’s office on
13 March 2024 by Dr Christopher Canaris, consultant psychiatrist. In his report dated
[1] Application to Resolve a Dispute (ARD) p 15.
22 March 2022.[1] Dr Canaris found Ms Frecklington’s presentation consistent with the diagnosis of persistent depressive disorder (dysthymia) with a persisting major depressive episode and anxious distress. Dr Canaris diagnosed the applicant with reference to the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), published by the America Psychiatric Association.
Dr Canaris assessed Ms Frecklington as having sustained 17% whole person impairment (WPI) as a result of psychological injury from which he deducted 1.7% (one tenth) as a result of Ms Frecklington’s previous psychological or psychiatric issues giving rise to impairment, and added 1% by way of adjustment for treatment effects to reach a final WPI figure of 16%.
The applicant served on icare, the respondent’s insurer, a Permanent Impairment Claim form dated 4 April 2024.[2]
[2] ARD p 12.
The applicant was independently medically examined by Dr Peter Young, psychiatrist, on
[3] ARD p 164.
[4] ARD p 169.
26 July 2024, who produced a report dated 7 August 2024.[3] Dr Young thought it reasonable to conclude that Ms Frecklington had some symptoms of depression and anxiety, best characterised as adjustment disorder primarily as a result her physical injuries and consequences in relation to chronic pain and restrictions in activity. The doctor therefore considered “…that any associated impairments are secondary rather than primary, and that any impairments are also therefore secondary impairments.”[4] For this reason he declined to give an assessment of WPI.
On 24 September 2024 icare issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), nominating a date of injury of 18 November 2019, and containing a denial of liability for the applicant’s claim pursuant to s 65A(1) of the 1987 Act, which provides that no compensation is payable for permanent impairment that results from secondary psychological injury.[5]
[5] ARD p 25.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
· Did the applicant suffer a primary or secondary psychological injury on
18 November 2012, or a primary and secondary psychological injury on that day?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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
The parties attended a conciliation/arbitration hearing on 3 March 2025 conducted via video conference. Mr Gaitanis of counsel appeared for the applicant briefed by Mr Tancred. The applicant attended in her solicitor’s office. Mr Stiles of counsel appeared for the respondent briefed by Ms Cuadros Lu. A representative of EML, which managed the claim for icare, attended.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they as follows.

Applicant

The applicant notes that as the respondent asserts that she has suffered a secondary psychological injury, it bears the onus to prove this. It does so relying on the opinion of
Dr Young.
The applicant submits that Dr Young in his report dated 7 August 2024 posits the wrong test in supplying answers to questions [16] and [25] recorded on the report. That is:
(a) [16] “As noted, the current incapacity for work is related to her physical injuries rather than psychological state.”, and
(b) [25] “As the impairment is related to a secondary condition, this is excluded from the PIRS assessment and therefore not provided.”
The “PIRS assessment” is a reference to the psychiatric impairment rating scale.
The applicant notes that there is nothing in the evidence in the proceedings in respect of her physical injuries, and if the respondent wishes to rely on the submission that she has sustained a secondary psychological injury as a result of physical injuries, evidence of those injuries should be forthcoming.
The applicant submits that she has discharged the onus on her to show that she has suffered a primary psychological injury, and refers to her statement dated 2 December 2022 in support of this submission. Her evidence of the excessive work load placed on her, and Haydn’s unreasonable behaviour is unchallenged. The clinical notes of her treating general practitioners in evidence does not assist with proof of causation of the primary psychological injury, but sets out that medication she was prescribed for the injury, and refers to problems she experienced with the breakup of her marriage.
The applicant submits that Dr Young did not have the report of Dr Canaris before him when preparing his report, although asked to comment on Dr Canaris’ report. If the respondent is seeking to undermine the opinion of Dr Canaris, such opinion should have been referred to Dr Young for comment.
The applicant notes that Dr Canaris recorded a denial by her of any other history of psychiatric illness which does not accord with is shown in the clinical notes in the general practitioner’s file. This shows anxiety issues and somatisation with a prescription for diazepam on 18 April 2018, and the prescription of vexlafaxine (an anti-depressant) on
7 January 2019. This apparent discrepancy leads Dr Canaris at [3] on p 6 of his report to the diagnosis of either a mood disorder arising predominantly from exposure to abusive treatment if the applicant’s oral history given is accurate, or alternatively a diagnosis that the current mood disorder is a major aggravation of a pre-existing condition that had begun in response to relationship difficulties.
The applicant notes that she disclosed relationship difficulties to her general practitioner,
and notes the comment of Dr Canaris that evidence of prior mood symptoms would suggest significant vulnerability, evidence of the “eggshell psyche” phenomena recognised in respect of injured workers.
The applicant notes that other treating practitioners comment upon her existing vulnerabilities, and the usual caution that should be exercised when reference is made to the clinical notes of such practitioners when considering the causation of workplace injuries. The applicant notes that a general practitioner has a duty to record domestic issues of his or her patient when they impact of health, and that such recording may be given greater prominence than work injury related issues.
The applicant refers to the report of Dr Downes, rehabilitation physician addressed to
[6] ARD p 125.
[7] ARD p 126.
Dr Williams dated 18 December 2023.[6] The applicant notes the difficulty that Dr Downes had in pinning down her original correct history, noting the doctor’s belief that, notwithstanding the injury suffered to the back, Ms Frecklington was able to get home, and work on with great difficulty, for three weeks with threats of various issues by her dubious employer at the time.[7]
The applicant notes the “CONFIDENTIAL PSYCHOLOGY ASSESSMENT REPORT” of Rebecca Lawrence, treating psychologist, dated 17 October 2023.[8] Ms Lawrence records the reporting of a long history of bullying, harassment, threatening conduct, intimidation, and unreasonable treatment given by the owner of Canowindra Bottlemart where she worked between 2018 and 2020. Ms Lawrence notes that such history to her is consistent with the history provided by Ms Frecklington in her statement provided by UHG. That reference to a statement provided by UHG appears to be to the applicant’s statement dated
[8] ARD p 188.
2 December 2022.
The applicant also refers to the report of Dr Williams, general practitioner, dated
7 March 2024 addresses “To whom it may concern,”[9] and the comment therein that:
“Sandra has lost considerable mobility and has suffered PTSD, anxiety and panic attacks since her injuries.”
[9] ARD p 193.
The applicant notes that there is no statement provided by the respondent employer, and refers in detail to her own statement dated 2 December 2022,[10] with particular reference to the difficulties, both physical and psychological, she experienced while working for Haydn.
[10] ARD p 1.
The applicant refers to the statement of Jack Traves dated 26 November 2022.[11] Although she and Mr Traves only worked together for the respondent for maybe one week at the end of Mr Traves’ employment by the respondent, the statement gives an insight into the conditions under which the applicant was obliged to work for the respondent.
[11] ARD p 9.
The applicant refers to the case note of Rebecca Stone, registered psychologist at PsychSolutions and Wellbeing, dated 1 June 2023.[12] The applicant notes that she was referred to Ms Stone under a Mental Health Care Plan for management of post-traumatic stress disorder and significant anxiety. The handwritten case notes contain reference to very poor treatment and abuse at work in 2019 in a bottle shop, and the threat of trauma.
[12] ARD pp 212-213.
The applicant notes that from the evidence it is difficult to determine when her employment by the respondent ceased in 2019 or 2020, but that according to the history recorded by
Dr Young in his report dated 7 August 2024, she had a part-time role as a COVID-19 marshall at the Blue Jacket Motel between January and August 2021.
The applicant submits that, having regard to the sketchy evidence as to when she ceased work for the respondent, it was probably in 2020.
In respect of the opinion of Dr Young, the applicant submits that he is guarded, and equivocates in expressing his opinion on the primary/secondary psychological injury issue. This is apparent when Dr Young says in answer to question [5] posed of him on p 5 of his report under “DIAGNOSIS” that the reported symptoms did not appear to be consistent with a primary psychological injury, and appear to have become apparent in the context of a physical injury, associated chronic pain and impairments of functioning.
In answer to question [7], Dr Young says that the symptoms described represent a disease condition occurring as a gradual onset as a result of cumulative stressors and underlying vulnerability. This vulnerability is repeated in answer to question [13].
Later in the report at [10(c)] Dr Young says:
“Clearly the accompanying documents as well as Ms Frecklington’s self-report indicate that her lumbar spine injury and associated radiculopathy is contributing to her psychological state and therefore her condition is a secondary psychological injury.
I do not think there is a substantial portion attributable to a primary injury.”
The applicant submits that Dr Young expresses this opinion without the benefit of any medical reports on her physical injuries, and that his opinion that the applicant has sustained a secondary psychological injury is a bare assertion without explanation.
In contrast to Dr Young, the applicant submits that Dr Canaris has delivered a comprehensive report, although it appears from the doctor’s report that Ms Frecklington understated abusive behaviour in earlier relationships, and the clinical notes of treating practitioners record other issues not related to employment.
The applicant submits that there should be a finding that the applicant has sustained a primary psychological injury.

Respondent

The respondent submits that while the applicant criticises the report of Dr Young, that doctor appears to have had access to clinical notes of the applicant’s treatment and has a better history of her pre-injury state of health. The respondent notes that the date of injury pleaded in respect of the psychological, 18 November 2019, is the same as the date Ms Frecklington received physical injuries.
The respondent notes that from the “PROGRESS REPORT – Period August 2020 – November 2020,”[13] the current return to work goal was 9 April 2020. It is not clear if
Ms Frecklington did go back to work with the respondent after 18 November 2019.
[13] ARD p 128.
There is no reference to psychological symptoms on the second page of that report.
The applicant refers to the clinical note dated 6 January 2020 evidencing a consultation with Dr Touma on 6 January 2020,[14] which refers only to physical injuries, prescription of medicines, and a desire to get back to work. Having said that, the respondent concedes that it is a clinical note only, acknowledging the limitations of relying on such notes.
[14] ARD p 91.
The lack of mention of psychological symptoms is, according to the respondent, evidence throughout the clinical notes, for example the record of a consultation with Dr Zambo on
[15] ARD p 95.
7 May 2020, where pain compatible with left sided sciatica is recorded.[15]
The applicant refers to the report of Dr Brennan, neurosurgeon, addressed to Dr Zambo dated 21 May 2020 containing a recommendation for continuation of physiotherapy, and no role for surgery.[16]
[16] ARD p 418.
The respondent submits that all of the abovementioned reports suggest a psychological reaction as a consequence of adjustments that Ms Frecklington has had to make because of physical injuries.
The respondent refers to consultations with Dr Zambo on 22 November 2021 and 21 January 2022[17] containing references to flare up of sciatica, acute exacerbation of leg pain. Following further through the clinical notes, the respondent submits that until the consultations with
[17] ARD pp 111-112.
[18] ARD p 117.
Dr Williams on 8 and 15 September 2022, there is no reference to psychological injury.[18]
The respondent submits that of the matters complained of by the applicant in her statement evidence, none of those complaints have found their way into the clinical notes of the general practitioners who Ms Frecklington has consulted until the entries by Dr Williams referred to immediately above.
The respondent emphasises that the applicant made her statement attached to the ARD on 16 November 2024, some three years after the injury of 18 November 2021.
The respondent notes that the applicant did not receive treatment for psychological injury until approximately three and a half years after date of injury on 18 November 2019. Therefore, the applicant’s statement dated 2 December 2022 is the only evidence of psychological sequelae from employment with the respondent reasonably contemporaneous with the date of injury. The respondent submits that the applicant’s evidence in that statement is not consistent with the contemporaneous medical evidence recorded at the time.
The respondent relies upon the confused history recorded by Dr Downes on her report dated 18 December 2023, and her belief as to what occurred following the injury of 18 November 2019 when Ms Frecklington was shifting cases of beer.
The respondent submits that the report of Dr Williams, who referred the applicant to
Dr Downes, dated 7 March 2024 supports the case that Ms Frecklington suffered a secondary, and not a primary, psychological injury.
The respondent highlights the inconsistency noted by Dr Canaris in his report between the applicant’s reporting of her previous mental health/psychological condition, and that revealed in clinical notes. The respondent submits that Dr Canaris gives no consideration as to whether the applicant sustained a secondary psychological injury. Although Dr Canaris had the benefit of clinical notes of treating doctors, he has not considered the entries therein.

There is no further report from Dr Canaris commenting on the opinion of Dr Young. The respondent submits that this is more significant than Dr Young not having read the report of Dr Canaris.
The respondent notes that Dr Young has looked at the clinical notes of the treating general practitioner covering the period until Ms Frecklington suffered physical injury on 1
8 November 2019, and there are no entries suggesting that she complained of bullying and harassment in the course of her work.
The respondent refers to Dr Young’s recording of her current functioning, noting that she feels embarrassed because of her physical state, loves reading, and does not suffer significant difficulty with her concentration.[19]
[19] ARD pp 166-167.
The respondent submits that the report of Dr Young, when read as a whole, reveals that the doctor, having had access to the earlier clinical notes of Ms Frecklington’s treating practitioner, has kept an open mind on the issue of whether the applicant has suffered a primary psychological injury. As he diagnosed no such injury, he declined to make a PIRS assessment.
The respondent refers to the supplementary statement of the applicant dated 4 November 2024 and the statement of Jack Traves dated 26 November 2024. Mr Traves only worked with Ms Frecklington for one week during the cross-over period when he was departing from the respondent’s employ, and the applicant commencing her employment. The respondent notes that there is no record of any untoward behaviour in that period.
The respondent submits that if there is a finding of primary psychological injury, there should also be a finding that the applicant has suffered a secondary psychological injury. In this regard, the respondent refers to the judgement of Campbell J in State of New South Wales (NSW Department of Education) v Kaur.[20] The respondent submits that, having regard to the decision in that case, the issue is not a ‘medical dispute’ in accordance with the definition of that term in s 319 of the 1998 Act, but an issue that must be determined by the Commission.
[20] [2016] NSWSC 246 (29 March 2016) (Kaur).
The respondent submits that if there is a finding in favour of the applicant that she suffered a primary psychological injury and the matter is referred to a Medical Assessor for assessment, a copy of the Certificate of Determination and Statement of Reasons should accompany the referral, along with the ARD and attachments and Reply and attachments.

Applicant in reply

The applicant joins issue with the last mentioned submission of the respondent.
The applicant refers to the decision of Parker ADP in Secretary, Department of Education v Egan,[21] noting that assessment of the degree or permanent impairment resulting from primary psychological injury is a matter for the Medical Assessor to determine.
[21] [2022] NSWPICPD 45.
The applicant stresses six matters in reply to the respondent’s submissions. The first is with reference to the consultation with Dr Touma on 6 January 2020. This reveals that, at that time, Haydn had not informed the insurer of the applicant’s injury and she was dealing with the respondent only. That entry, with its reference to ongoing shooting pain down the left leg, shows that Ms Frecklington suffered irreversible nerve damage in the incident of
18 November 2022. This corresponds with the recording by Dr Young of the history of presenting complaint in his report dated 7 August 2024, and the prescription of medication following that injury.
The applicant then refers to the rehabilitation report dated 26 September 2023 prepared by Kairros.[22] That report is concerned with the physical aspects only of the work injury dated
[22] ARD p 135.
18 November 2019 and prepared with the goal of rehabilitation of the applicant back to work. There is an absence of reporting of psychological sequalae of the applicant’s employment with the respondent.
The applicant thirdly refers to the report of Dr Williams, dated 7 March 2024, noting that the doctor had been caring for the applicant since 10 August 2022 when he took over care from Dr Zambo. Dr Williams records that Ms Frecklington had lost considerable mobility and suffered post-traumatic stress disorder, anxiety and panic attacks since her injuries.
The applicant then submits that there had been no response from the respondent to the applicant’s complaints of psychological injury for three or four years after the back injury.
The applicant notes that Dr Canaris has not dealt with any secondary psychological, being precluded by s 65A of the 1987 Act from assessing any impairment as a result of such injury. The applicant submits that it is incumbent on the respondent to establish that she has suffered a secondary psychological injury. The applicant also refers to Dr Canasis’ assessment of permanent impairment pursuant to the PIRS, noting the doctor’s comments in respect of “Travel” and “Employability”.
The applicant finally refers to the statement of Jack Traves dated 26 November 2024, with reference to the tendency rule dealt with in s 97 of the Evidence Act 1995, but acknowledging that such Act does not apply to proceedings in the Commission.
The applicant nevertheless submits that the evidence of Jack Traves in his statement demonstrates the behavioural tendency of Haydn to act in the manner alleged. The statement adds credibility to Ms Frecklington’s account of Haydn’s behaviour.
The applicant refers to what Acting Deputy President Roche said in Attorney General’s Department v K,[23] submitting that what she experienced were real events, unchallenged by the respondent, and that were perceived as creating an offensive or hostile working environment. The applicant’s psychological injury followed from such events.
[23] [2010] NSWWCCPD 76 (AG v K).
With reference to the finding of Parker ADP at [30]-[36] and [41] of Egan, the applicant submits that what is said there confirms the necessity of there being a determination in respect of the suffering of primary psychological injury, and that the referral to the Medical Assessor should simply be to assess WPI resulting from primary psychological injury on
18 November 2019.
The respondent then sought to counter that last submission of the applicant with the observation that in Egan, the fact that the worker had suffered a primary psychological injury was accepted by both the applicant and respondent. Any referral to a Medical Assessor in the current proceedings should simply be for assessment as a result of primary psychological injury, if that is the finding of the Commission, without further comment.

FINDINGS AND REASONS

Medical evidence

Molong HealthOne General Practice

The clinical notes of this practice are in evidence.[24] Ms Frecklington predominantly consulted Dr Zambo, with the first surgery consultation with him recorded on 28 October 2012.[25] Thereafter there are numerous consultations in all years up to and including 2019. On
18 April 2018, as noted by Dr Canaris in his report, there is an entry by Dr Zambo referring to anxiety issues and somatisation with a prescription for diazepam. On 7 January 2019
Dr Zambo recorded seeing Ms Frecklington for “Anxiety/Depression” and was prescribed Efexor. Further visits ensued throughout 2019. Hereunder are relevant excerpts from the following records of consultations:
[24] Commencing at ARD p 31.
[25] ARD p 75.
(a)    “1 August 2019 – Dr Zambo – “Has was struck by Glen once…d/c any children at risk – OK”;
(b)    15 August 2019 – Dr Zambo – “Has separated from Glen a few weeks ago. Moved in with daughter in Orange.”;
(c)    1 November 2019 – Dr Zambo – “Was staying with daughter in Orange- but travelling back/forward to Canowindra stayed at the Blue Jacket! Resides now on property outside Cano. Issues cont with Glen Police involved Rxs”;
(d)    19 November 2019 – De Zambo – “Has some L LBP after lifting cartons beer at work. Has some referred post R thigh tingles when lifting D/C follow up.
Reason for visit:
“Lumbago”, and
(e)    9 December 2019 – Dr Zambo – “Acute L L5-S1 Disc rupture- Severe L sciatica Forms given Meds xcontinued D/c a running contemporary diary Is
W/C naive- Is there W/XC at this Store---"
Reason for visit:
Lumbago
Left Sciatica
Worker's compensation.”
It is clear that there is no record of complaint by the applicant to Dr Zambo during this period of bullying, harassment, or inappropriate conduct on the part of Haydn. This is in contrast with what Ms Frecklington says at [4] of her statement dated 4 November 2024 that:
“The mental health problems I experienced while working for Hayden Jobson existed and commenced before I hurt my back.”
Dr Williams took over the care of the applicant from Dr Zambo on 10 August 2022, as set out in his report dated 7 March 2023 referred to above at [28]. In that report Dr Williams notes that during the time he has treated Ms Frecklington he had numerous consultations with her and assisted her with her workers compensation injuries and other health related matters.
Dr Williams goes on to say:
“Sandra is at risk of further deterioration in her health and I have recently referred her to Orange Health Service Rehabilitation Unit under Dr Ellen Downes. This was necessary due to the impact of the work-related injuries which have caused acute chronic sciatica with L3 involvement and L4-5 distribution numbness and left foot drop.
Sandra has lost considerable mobility and has suffered PTSD, anxiety and panic attacks since her injuries”
The clinical notes of Dr Williams are in evidence, Dr Williams being a member of the same practice as Dr Zambo. They commence with the telephone consultation with Ms Frecklington on 10 August 2022, the date referred to above when he took over the care of
[26] ARD p 116.
Ms Frecklington.[26]
Dr Williams recorded another telephone consultation with the applicant on 8 September 2022 when he had a long discussion with her regarding solicitor’s letter regarding (a) workers compensation claim. The entry by Dr Williams:
“advised that it may wellbe worth pursuing claim for psychological stress following physical injury but tha tshe should take legal advice” [sic]
does not make it clear whether it was the doctor or solicitor tendering such advice, but it is of no consequence either way. The following clinical note of a further telephone consultation between Dr Williams and Ms Frecklington on 15 September 2022 records that she had discussions with her solicitor, who was following up with (a) claim for psychological distress “…from everything that has happened to from the original injury.[27]
[27] ARD p 117.
Thereafter there are two telephone consultations recorded with Dr Williams on 26 September and 13 October, and a surgery consultation on 10 November 2022 at which:
“long discussion
panic attacks in certain situations medication review
tearful- discussed extended family and effects of injury on them”

is recorded. Actions on that day include an extensive list of prescriptions, relevantly for
Diazepam, Lyrica, Oxycodone, and Panadeine Forte.

On 14 December 2022 in a surgery consultation, Dr Williams records:
“ptsd fearful of ex employer discussed medication review”

Clinical notes of PsychSolutions

The clinical notes of PsychSolutions are in evidence. The reports of Rebecca Stone/Rebecca Lawrence (same person) of that practice, dated respectively 19 June 2023 addressed to
Dr Williams, and 17 October 2023, headed “CONFIDENTIAL PSYCHOLOGY ASSESSMENT REPORT”, are referred to above at [31] and [27].
The evidence summarised above reveals that the applicant did not attend an initial appointment with PsychSolutions until 1 June 2023, and did not start receiving treatment for her psychological condition until 26 June 2023, which continued over 14 sessions until 16 October 2023.
Thereafter the applicant saw Dr Downes, rehabilitation physician, on 18 December 2023, whose report addressed to Dr Williams of that date is referred to above at [26].
The evidence also reveals that Ms Frecklington was experiencing significant mental health issues as a result of her physical impairment stemming from the back injury on 18 November 2019, and also from the treatment she received from her former employer, Haydn. On
10 November 2022 the applicant was experiencing panic attacks, and on 14 December 2022 the applicant expressed to Dr Williams fear of her ex-employer.

Conditions of employment

I have no hesitation in finding on the evidence that the conditions under which Ms Frecklington had to work for Haydn were, to say the least, challenging and onerous. This finding is in respect of the physical demands placed on the applicant including trips to Orange using her own motor vehicle to purchase stock, the dysfunctional way in which the respondent’s business was conducted, and the way in which Haydn spoke to his employee. The evidence of the applicant and Jack Traves is unchallenged. I accept that the applicant was in fear of Haydn after she ceased to work for him as a result of the way in which she had been treated during the course of her employment.
In AG v K Acting President Roche considered a worker’s perception of events in the workplace with the following observations (authorities omitted):
“(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;
(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;
(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;
(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;
(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’, 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.”
I find that the real events that occurred in the workplace were perceived by the applicant as creating an offensive or hostile working environment. The question now for consideration is did such events affect the applicant’s psyche such that she sustained psychological injury?

Expert medical evidence

In the history of injury recorded by Dr Canaris in his report dated 22 March 2024, the doctor records that Ms Frecklington had a psychological injury arising in the setting of her employment at the Canowindra Bottle Shop. She had worked eight or nine months before she sustained her injury, loading and unloading heavy cartons of beer into her car, which she had to pick up from Orange. She said that her back “…just went”, that it her back remained a problem “and always will be”. Dr Canaris noted that the applicant had a back lesion.
Dr Canaris also records a fall that the applicant had “…in the early hours of the 25^th of January” (year not specified) while putting on orthotics, sustaining a fractured hip and spending 25 days in hospital after open reduction and internal fixation. No submissions were made addressing the effect of this injury, although if that history is correct, on the face of it surely must have had a significant impact on the applicant. As clarified by Dr Young whose report is discussed hereunder, this fall occurred in January 2024. Dr Canaris then goes on to record the dysfunctional workplace conditions under which Ms Frecklington worked for the respondent, and the fear elicited by her seeing Haydn.
The discrepancies between what Ms Frecklington said to Dr Canaris about her previous psychiatric health and what appears in the clinical notes of her general practitioner are referred to above at [72]. What the applicant told Dr Canaris as to her physical health prior to her employment with the respondent and the fall of 18 November 2019 (“I was always super healthy – super fit – no drama”), is simply not correct. Further, according to the clinical notes, she had not been on good terms with at least one of her ex-partners, Glen, from whom she separated in July or August 2019.
Under “OPINION” Dr Canaris reports:
“Ms Frecklington reports exposure to highly abusive behaviour on the part of the former employer. Apart from physical injuries sustained in the course of her work which have given rise to chronic pain, she has become very anxious and depressed with sadness, anxiety, social withdrawal, insomnia, insomnia, and poor concentration.
While she stopped working because of her physical injuries, she sees herself as unable to do any work because of her psychiatric problems.
There is some evidence in the documentation of prior problems with mood and prior exposure to what may be abusive behaviour in earlier relationships which she appears to understate.”
Dr Canaris diagnoses the applicant as suffering from a persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress.
When asked to give an opinion on the relationship of any psychological condition diagnosed in the applicant “…to the injury…suffered during the course of her employment”, Dr Canaris gives a somewhat qualified response:
“Assuming the broad accuracy of the history on offer, her mood disorder arises predominantly from exposure to abusive treatment at work. That said, I note evidence of prior mood symptoms which would suggest significant vulnerability. Alternatively, her current mood disorder is a major aggravation of a pre-existing condition that had begun in response to relationship difficulties.”
In the PIRS assessment of the applicant’s permanent impairment, Dr Canaris says the following when discussing “Travel” and “Employability”:
Travel: “Her limitations in this category are predominantly physical. However, her avoidance of areas where she might encounter her former partner warrant allocation of Class 2 impairment.”[28]
Employability: “She doubts she would ever have the self-confidence to work again ‘because of what this idiot did’. I came away with the strong impression that she was not employable on psychological grounds alone irrespective of any contribution from physical issues.”[29]
[28] ARD p 21.
e[29] ARD p 22.
Dr Young independently medically examined the applicant via Telehealth on 26 July 2024.
In his report dated 7 August 2024 he recorded that Ms Frecklington commenced work for the respondent in February 2019 (as opposed to the date of April 2019 given by the applicant in her statement evidence). Dr Young recorded the conditions under which the applicant worked for the respondent, noted that the general practitioner clinical records which did not accord with the discussions he had with Ms Frecklington to the effect of not having any intercurrent stressors at the time of the examination. The applicant continued to deny to the doctor such stressors notwithstanding being advised of the discrepancy.
Dr Young recorded the history of the work injury occurring on 18 November 2019, and noted that Ms Frecklington was unable to describe a clear history of further psychological symptoms and their development over time. She indicated that she felt increasingly distressed with her ongoing pain and of being unable to engage in regular recreational activities. She was embarrassed due to physical limitations, and cut contact with people so that she did not have to respond to their requests regarding her condition. Dr Young noted the post injury COVID – 19 marshall work at the Blue Jacket Motel the applicant was able to secure, which ceased in August 2021, turned out to be unpaid, and with which she struggled. The doctor noted that Ms Frecklington was unable to describe further progress or development of symptoms over the months, and that in September 2022 she was referred by her general practitioner to a psychologist without any recalled precipitating incident for such referral.

Dr Young does also record that in January 2024 (emphasis added) the applicant had a fall and fractured her hip. He then said:
“Ms Frecklington reports she continues to feel distressed and anxious in relation to her recent general health deterioration and attributes this to stress related to her former employment.”
Under “ASSESSMENT AND DIAGNOSIS” Dr Young says:
“Ms Frecklington describes a history of experiencing symptoms of depression and anxiety which currently are primarily in relation to the physical effects of her injury. Although she reports having experienced ongoing depressive anxiety symptoms, since prior to the injury as a result of perceived bullying behaviour by her manager, this is not evident from the contemporaneous notes. In particular, Ms Frecklington denies other stresses which are in present in contemporaneous notes and in general she was a poor and unreliable historian.
I think it is reasonable to conclude that Ms Frecklington has some symptoms of depression and anxiety which are best characterised as adjustment disorder primarily as a result of her physical injuries and consequences in relation to chronic pain and of restrictions in activity. Therefore, I would consider that any associated impairments are secondary rather than primary and that any impairments are also therefore secondary impairments.”
Dr Young provides answers in his report to a number of specific questions posed. Relevant answers to these are summarised as follows:
(a)    the lack of contemporaneous evidence of incidents prior to 18 November 2019 in respect of poor treatment by her employer;
(b)    the fact the Ms Frecklington did not commence psychological treatment until more than two years following the injury, or commence antidepressant medication for an even longer period;
(c)    the indication in the clinical notes of the commencement on an antidepressant medication prior to her employment occurring in relation to symptoms associated with domestic violence and the breakdown of her relationship;
(d)    that the reported symptoms did not appear to be consistent with a primary psychological injury and appear to have become apparent in the context of a physical injury, associated chronic pain and impairments of functioning;
(e)    that the most appropriate current diagnosis is adjustment disorder;
(f)    that the symptoms described represent a disease condition occurring as a gradual onset as a result of cumulative stressors and underlying vulnerability;
(g)    clearly the accompanying documents as well as Ms Frecklington’s self-report indicate that her lumbar spine injury and associated radiculopathy is contributing to her psychological state and therefore her condition is a secondary psychological injury;
(h)    that he did “…not think there is a substantial portion attributable to a primary psychological injury”, and
(i)    there appears to be a vulnerability to development of psychological symptoms under stress.
Dr Young does not rule out the possibility of at least some of the applicant’s psychological state being attributable to a primary psychological injury. He also mentions the applicant’s vulnerability to development of psychological symptoms, consistent with the “egg shell psyche” principle discussed in AG v K.

Discussion

My finding is that the applicant suffered a primary psychological injury as a result of her treatment by the respondent, in the form of Haydn, in the course of her employment commencing in either February or April 2019 and concluding with the back injury suffered on 18 November 2019. She suffered a secondary psychological injury resulting from the treatment of that back injury, and the effect it had on her lifestyle and ability to engage in further employment or accustomed leisure time activities. Dr Young does not rule out a primary psychological injury.
I accept the opinion of Dr Young that the applicant sustained a secondary psychological injury.
I make the finding of a primary psychological injury notwithstanding, and having regard to, the following matters:
(a)the lack of contemporaneously recorded complaint about the actions of the applicant’s employer during the course of employment in 2019. Ms Frecklington was in need of the income from her job with the respondent, to the extent that she performed duties outside the course of her employment such as washing the clothes of Haydn and his children, minding the children, and cleaning Haydn’s flat above the bottle shop;
(b)the fact that Ms Frecklington harboured a fear of Haydn well after her employment ceased, to the extent that she moved away from Canowindra to avoid casual contact with him, and was anxious about seeing him. I note that on one occasion, Haydn said to the applicant that he knew where she lived, which can only have had an alarming effect upon her;
(c)the long delay in seeking treatment for her psychological condition. Ms Frecklington was more preoccupied with the effects of the back injury she suffered. She was advised to seek legal advice in September 2022 about pursuing a claim in respect of work caused psychological injury;
(d)the fact that there was another stressor on the applicant while she was employed by the respondent. At that time she was going through a difficult break up in the relationship with her partner, and
(e)the fact that the applicant was such a poor historian, and denied to Dr Canaris and Dr Young previous psychological illnesses for which she was prescribed medication, or that she was in fact going through a difficult relationship break up. Both Dr Canaris and Dr Young had regard to the clinical notes of the treating general practitioner(s) when giving their opinions.
In my view Dr Canaris gave a qualified opinion that the applicant had sustained a primary psychological injury, predicated upon the accuracy of the history on offer from the applicant, and noting evidence of prior mood symptoms which would suggest a significant vulnerability. Dr Canaris says that, alternatively, Ms Frecklington’s current mood disorder is a major aggravation of a pre-existing condition that had begun in response to relationship difficulties.
Notwithstanding the “qualified” opinion of Dr Canaris, having regard to the evidence as a whole, I accept that the applicant sustained a primary psychological injury.
I find that the applicant sustained a secondary psychological injury on 18 November 2019 arising out of or in the course of her employment with the respondent, as result of an injury to her back on that day.

Referral for assessment

In accordance with the submissions of both the applicant and respondent, the referral to a Medical Assessor will be for the assessment of permanent impairment as a result of primary psychological injury on 18 November 2018. In addition to the ARD and attachments and Reply and attachments, a copy of this Statement of Reasons and Certificate of Determination will accompany the referral.

SUMMARY

The applicant sustained a primary psychological injury on 18 November 2019 arising out of or in the course of her employment with the respondent.
The applicant sustained a secondary psychological injury on 18 November 2019 arising out of or in the course if her employment with the respondent, as a result of an injury to her back on that day.
The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of primary psychological on 18 November 2019 arising out of or in the course of her employment with the respondent.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attachments;
(b)    Reply and attachments, and
(c)    Certificate of Determination and Statement of Reasons.

[2025] NSWPIC 101

20 March 2025