Hasselman v Katoomba Scenic Skyway Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hasselman v Katoomba Scenic Skyway Pty Ltd [2025] NSWPIC 426
APPLICANT:	Fiona Hasselman
RESPONDENT:	Katoomba Scenic Skyway Pty Ltd
MEMBER:	Josephine Bamber
DATE OF DECISION:	25 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim pursuant to section 66; respondent disputes applicant’s entitlement to lump sum compensation as she already had an assessment of permanent impairment for workplace psychological injury from deemed date of injury of 17 February 2017; applicant asserts she is suffering from a separate psychological injury as a result of being retrenched with a deemed date of injury of 11 July 2018; respondent disputes this is a second injury; Held – applicant has not discharged her onus of proof to establish the claimed injury in absence of evidence from her treating psychologist and treating psychiatrist; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Fiona Hasselman, the applicant, commenced work with the respondent, Katoomba Scenic Skyway Pty Ltd, as a gardener on 9 July 2013. She made a workers compensation claim for psychological injury with a deemed date of injury 17 February 2017. Her permanent impairment for that injury was assessed by Approved Medical Specialist Dr McClure in his Medical Assessment Certificate dated 28 February 2018 at 13% whole person impairment (WPI).[1]
[1] ARD p 285.
In the current proceedings Ms Hasselman amended her Application to Resolve a Dispute (ARD) to allege she has suffered an aggravation, acceleration, exacerbation or deterioration of her disease with a deemed date of injury 11 July 2018 with her injury being described as “chronic major depressive disorder with anxious distress and PTSD”. The respondent consented to the ARD being amended. 11 July 2018 was when she was notified she was being made redundant from her employment with the respondent.
The applicant’s counsel stated the events giving rise to this alleged injury relate to the circumstances of 11 July 2018, specifically emails around that date in terms of how the redundancy was handled by her employer, the conduct of the return to work coordinator in respect of those emails and what eventuated, exacerbating the applicant’s psychological condition.
The respondent submits that the applicant has not suffered a new injury, her symptoms are a continuation of her initial injury of 2017. Secondly, it relies on a defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act) in relation to retrenchment and dismissal.
The claim for compensation is confined to lump sum compensation under s 66 of the 1987 Act.
The matter is complicated because on 25 May 2021 a former colleague of the applicant intruded into her home and she has been diagnosed as suffering from post-traumatic stress disorder with dissociative features thereafter. The applicant is not relying on this event in these proceedings.

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 and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing with Mr Sciglitano, counsel, instructed by
Mr Tucker, solicitor, appearing for Ms Hasselman, who was present. Mr Necovski, counsel instructed by Ms Farrar, solicitor, appeared for the respondent, together with a representative of the respondent’s insurer.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no oral evidence. Both counsel made oral submissions which were sound recorded, and a written transcript (T) has been made from the recording.

FINDINGS AND REASONS

Applicant’s statements

The applicant has provided an 80 page statement signed on 21 December 2018 given to the insurer’s investigator. [2] However, it appears to be two statements even though the foot of each page is dated 21 December 2018. At [179] an earlier statement starts dated
[2] ARD p1.
15 March 2017 and on the following page the paragraph numbering starts at [1] and ends at [160].
I am required to provide brief reasons for my determination. It is not possible to recount all 80 pages of the statement in these reasons, however, I have read it all. At times the statement is difficult to follow because of the rambling narration.
At [19] the applicant states that she was on an accepted workers compensation injury when Sandie Reid from At Work Occupational Health & Safety Pty Ltd told her she was being made redundant on 11 July 2018. At [54] she says she has been receiving workers compensation payments since 12 December 2017, the date when her first claim was accepted.
She relates going out to watch a band. She does not give a date for this but says it was part of the winter solstice celebrations, (in the medical notes it is referred to occurring around 22 June 2018). At [57] she relates a conversation she had with Brett Metcalf at the band performance. Mr Metcalf was an electrician employed by the respondent. The applicant says he told her that someone else had been doing her job while she was off work, a friend of Tristan. At [58] she says replied that she was a “protected worker”, and she should have her job back as long as she returned by Christmas. At [59] she says Mr Metcalf said, “that would be ok with Richard” and the applicant thought this comment was strange as Richard was not her line manager. She says two weeks later she received a redundancy notice from the respondent’s human resources person, Toni Adler.
The applicant states on 10 July 2018 Sandie from At Work Occupational Health & Safety phoned her to ask to meet her the next day. On 11 July 2018 she met Sandie who advised her that she had been told the respondent was restructuring and six people were being made redundant, including the applicant. The applicant said she felt railroaded when she was told she had two days to respond as to why she should be kept on as a gardener for the respondent. She says at [73] she told Sandie that the things in the redundancy were part of the bullying she had experienced with the respondent. At [76] she says she felt conned when Sandie talked to her about tax options.
She describes Sandie going with her to see a solicitor in Katoomba. At [83] she says at the beginning of the redundancy meeting it seemed as if Sandie was trying to be on her side, saying she was angry how she had been treated, but that later she felt Sandie was trying to get her to accept the redundancy. At [90] the applicant says she was confused as to how the meeting could have been held as her doctor had certified that she was not to have meetings.
At [91] the applicant describes how others at work knew about her being made redundant and she felt this was a breach of confidentiality. She outlines further conversations with Sandie when she was trying to ascertain what the new structure of the workplace would be after the redundancies to see if there was a place for her. At [101] she says the employer had not apologised or accepted what they had done to her was wrong and the redundancy was designed to insult her “by making me redundant for issues of why I ended up on workers compensation”.
At [107] she describes a spreadsheet she was sent of everyone being made redundant with personal information such as financial information, birth dates, pay rates and redundancy payouts etc. She found this to be “a huge slap in the face” because she had been denied information on privacy grounds and now, they were sending her information that breached privacy.
The applicant details further meetings and conversation she had with Sandie including on
[3] ARD p 21.
19 July 2018 when the applicant said she could not stop crying or control her breathing.[3] She relates that she told Sandie she should have killed herself a long time ago. She said after this Sandie phoned her all the time.
The applicant says at [122] she phoned her general practitioner (GP) Dr Louise Karan to inform her, and she went to her psychologist, Daren Wilson. She also describes visiting Dr Kwon in Katoomba and says she was in a bad way there, stuttering, shaking and having panic attacks. She felt she could not drive as it would not be safe and that is why she went to Dr Kwon because she could walk there. At [129] she says she was on medication for the first injury and the doctor has prescribed the same medications for her.
At [134] she describes Warwick wanting to meet her, which they did at a café in Katoomba, and he queried why she was putting in another claim. She says he told her “It was reasonable that they made you redundant because you were on workers compensation”. She said she tried to explain the incidents to him being the redundancy, conversation with Brett and Richard walking past her house. She said he was dismissive of these matters and told her that none occurred while she was working. She told him “the bullying has not stopped and it is reinforced by management”. She said if she was certified sick then he and Sandie could not work with her. She describes meeting with Warwick again on 21 November 2018.
From [139] onwards she describes having visions, reliving what had happened earlier at work. She says before the redundancy this image had disappeared now repeatedly through the day she has this image. She say after the first injury she had bad dreams but never these “transportations” back to the employment and she dreams about suicide.
At [149] she summarises what she perceives were the cause of this “new” injury being failure to offer her alternative employment when they had heard she wanted to return to work, giving her false information during the redundancy process, lack of privacy, and the respondent using her workplace provider to deliver the redundancy notice.
The applicant’s current solicitors have included in her ARD a short supplementary statement dated 21 March 2025[4] to update details about her treatment, work capacity and mental state.
[4] ARD p 81.

Medical Assessment Certificate

In proceedings 5276/17 a Medical Assessment Certificate was issued by Approved Medical Specialist Dr McClure dated 28 February 2018. At that time she was taking Escitalopram 10mg daily, Diazepam 5mg at night if needed (less than once a week) and Gastrostop for diarrhoea. The doctor sets out the applicant’s symptoms at the time of examination that she feels generally anxious. She told the doctor that the situation is ongoing, and it hasn’t ended which makes her anxious. She has continuing sleep disturbance and uses relaxation audio and sometimes Valium to sleep. She dreams, seeing people from work. She feels more reactive when she hears a verbally aggressive conversation. She denied suicide ideation. She has reduced concentration and gets confused. She starts tasks but does not finish.
The doctor diagnosed her as suffering from major depressive episode and panic disorder in partial remission. The doctor stated her symptoms are relatively static, by her description and she has made little progress towards full remission. He found she was capable of doing private gardening in a limited casual capacity on a solitary basis. He assessed her permanent impairment at 13% WPI.

A/Prof Robertson

A/Prof Robertson has provided medico-legal reports for the applicant dated 15 June 2023[5] and 18 December 2024.[6] In his first report the doctor summarises the findings of AMS
McClure. He takes the history that her symptoms fluctuated over time and she,
“felt a trajectory to slow improvement, however, her mental state deteriorated catastrophically following an incident on 25 May 2021. Ms Hasselman had been stalked and harassed by one of the protagonists of the workplace difficulties, a man named “Carey” … On 25 May 2021 Carey entered Ms Hasselman’s property without permission. She found him standing in the doorway of their home, behaving in a bizarre fashion… Ms Hasselman was in fear of her safety.”
[5] ARD p 96.
[6] ARD p 113.
This event was reported to the police. A/Prof Robertson says the applicant had one further chance encounter with Carey at a supermarket which caused her further psychological distress. He refers to a report by Mr Wilson, the applicant’s treating psychologist, who advised that her “mental state deteriorated catastrophically following this incident.” He sets out her symptoms including reporting bizarre nightmares on themes of violence or being pursued as well as flashbacks relating to the original bullying incident as well as the May 2021 incident.
A/Prof Robertson stated that she presented with an acute on chronic exacerbation of a psychological injury that was likely a chronic major depressive disorder as observed by AMS McClure. He then adds “the original psychological injury relating to the date of injury on
11 July 20218 persisted”. However, it seems he is really referring to the workplace events giving rise to the injury in 2017 because he has not mentioned anything about being made redundant in July 2018.
A/Prof Robertson states she has since experienced a severe and seemingly permanent exacerbation of the original psychological injury related to the incident of May 2021. He adds “as such, Ms Hasselman’s current presentation is a severe and permanent exacerbation of the original workplace psychological injury and not a new injury”. He says there has clearly been deterioration since she submitted to a MAC determination in 2018.
When answering questions about causation A/Prof Robertson says, “the original accepted relationship between the nature and conditions of her employment and at Scenic World and the original psychological injury obtains” and he refers to the May 2021 event as an exacerbation.
Nowhere in this report does the doctor deal with the redundancy of the applicant. He assesses the applicant as having 24% WPI. In the report his diagnosis was “chronic major depressive disorder with anxious distress and crosscutting features of PTSD. There are also prominent dissociative features”. In his PIRS assessment it is clear that the doctor is including the May 2021 incident, as he refers to it specifically when assessing social and recreational activities.
In the second report dated 18 December 2024 A/Prof Robertson considers the respondent’s IME reports from Dr Prior. A/Prof Robertson says he asked the applicant about the circumstances surrounding the redundancy in July 2018 and she advised that she had attempted to return to work following the original psychological injury, but she had difficulties with the return-to-work coordinator, Sandie, who she said blocked her return at different work sites. She also told the doctor that she had seen emails that she felt openly mocked her and she felt betrayed that her work rights were removed and that the applicant said she had further exacerbation of her ongoing depressive symptoms at that time.
He advises,
“On the question of the relevance of the redundancy related exacerbation of her previous psychological injury in July 2018, the narrative provided indicates that Ms Hasselman had ongoing psychiatric symptoms at the time that appeared to have been aggravated by the alleged behaviour of the return to work coordinator as well as Ms Hasselman feeling demeaned and belittled (behaviours she sees as constitutive of bullying) in her allegedly good faith attempts to return to work.
I agree with Dr Prior that this represents a point of aggravation of an ongoing psychological injury and there are no psychiatric ground to justify this being a ‘new injury’.”

Dr Prior

Dr Prior, psychiatrist, has provided several medico-legal reports for the respondent including those 9 August 2017,[7] 8 November 2017,[8] 14 December 2023[9] and 8 February 2024.[10]
[7] Reply p 72.
[8] Reply p 90.
[9] ARD p 131.
[10] ARD p 96.
The first report deals with workplace bullying and harassment which led to the earlier claim for which WPI was assessed by AMS McClure. Dr Prior diagnosed the applicant as having a major depressive disorder with melancholic features and secondary panic phenomena. The depressive disorder was likely a complication from an initial adjustment disorder with anxious and depressed mood.[11] At that time Dr Prior considered that the applicant was not fit for any employment until her condition has been effectively treated and she is in substantial remission.
[11] Reply p 87.
Dr Prior re-examined the applicant and provided his report dated 8 November 2017. He says she had continued to see Mr Wilson on a second weekly basis, and she was continuing to take Lexapro 10mg and had halved the dosage of Valium. Dr Prior was of the opinion that her condition had not stabilised. He was of the opinion that the applicant required more aggressive psychopharmacological treatment under the care of a treating psychiatrist to improve.
Dr Prior examined the applicant again and issued his report dated 14 December 2023. He asked the applicant what the rationale was for her further workers compensation claim and she replied that there were things about the redundancy that she did not like such as the workplace provider sent her an email by mistake and writing mocking things about her in that email, but she always had pretended to be on her side.
The applicant informed Dr Prior about the home invasion and stalking by a former co-worker which she said caused a significant exacerbation of her symptoms. She described her fear in this incident. Informing Dr Prior about this he said she became visibly distressed and agitated.
Dr Prior notes that since he last examined the applicant in 2017, she started to see a psychiatrist, Dr Smith at St John of God Medical Centre in Burwood but she has not seen him since the COVID-19 lockdown in early 2020. She remains treated by Mr Wilson. At the time of the 2023 examination she was not taking any psychopharmacological medication and could not give any details of her past treatment due to poor recall. He said since the onset of her symptoms, her depressive and anxiety symptomatology has been ongoing without periods of remission. She said she had become distressed following being made redundant however she stated, “but I can’t say all that worsened things”. She described significant exacerbation in May 2021 after the home invasion.
Dr Prior’s diagnosis is that the applicant suffers from persistent depressive disorder (chronic major depressive type) with associated generalised anxiety and panic phenomena, persisting from the date of the original injury. She also has comorbid chronic post-traumatic stress disorder with its onset following the May 2021 home invasion incident and continuing.
Dr Prior states that he agrees with the opinion of A/Prof Robertson that the applicant’s mental state has deteriorated catastrophically since the May 2021 incident. He also found that the diagnoses made by Mr Wilson and AMS McClure were consistent with the diagnosis he made in November 2017.
In answer to question 6 Dr Prior say he is of the opinion that the applicant did not suffer a new psychiatric injury on 11 July 2018 when she was made redundant. He said the events surrounding that are a continuation of her original workplace injury. He said she reported ongoing distress but no significant exacerbation following her redundancy, and she described significant exacerbation following the May 2021 incident.

Dr Prior provided a supplementary report on 8 February 2024 without further examination, and he adhered to his earlier expressed views.

Blackheath Family Medical Centre

The clinical notes from the Blackheath Family Medical Centre that are in the ARD cover consultations in the period of 27 January 2016 to 16 January 2025. While I have read all the entries there is no need to summarise those in 2017 and earlier in these reasons. The applicant’s counsel submitted that there was “clear air” between the first injury and the redundancy incident. This was one of his main reasons for arguing that the redundancy incident is a new injury, albeit in the form of an exacerbation of the original condition. The GP’s notes show on 16 March 2018 she was still experiencing insomnia, was given a short script of Valium, she was attending a rehab provider but was yet to do a vocational assessment. She had a few near misses when driving and one panic attack on the road while of the freeway. On 27 March 2018 she was teary in the consultation and Dr Karan noted her cognitive and speech slowing was similar to her initial presentation.
On 24 April 2018 Dr Karan recorded that the applicant still had depression, anxiety and panic attacks. I note the respondent’s counsel quoted part of this consultation “Sandra was unable to get her job back. Going to court. Two legal actions”. The respondent’s counsel submitted that this was before any redundancy came along.[12] However, this does not refer to the applicant, but to her friend Sandra who had written a statement to support the applicant with her original injury claim and later was terminated from employment. This is evident from the entry on 3 April 2018 which states she “has reflected upon what happened to her colleague, Sandra, endeavouring to support her…”[13]
[12] T11.09.
[13] Reply p 191.
On 4 May 2018 her sleep was problematic. The doctor notes she “does not feel capable to undertaking work”. The reason for her visit was recorded as “depression, reactive”. Dr Karan discussed with the applicant various concerns and strategies to cope better.
On 6 June 2018 Dr Karan recorded notes about a case conference with the case manager, Warwick. The doctor notes some impediments with return to work involving the applicant being weaned off antidepressants due to faecal incontinence. The doctor planned to consider alternate medication. A suggestion was made for the applicant to take up self-employment as a private gardener. The doctor noted that the applicant was inclined to do this. However, in the next entry on 15 June 2018 the doctor records there was no specific mention of self- employment. On 2 July 2018 Dr Karan records her mood was quite down as she went to a music event and met some people from work. The applicant told the doctor that she had spent a week trying to process stuff. A return to work plan was discussed.
On 18 July 2018 the applicant attended Dr Karan advising it had been a stressful week as she had been given redundancy. She told the doctor that she had said to Brett that she was going back to work, and she feels these guys have managed to influence her life once again. She says the work rehab person Sandie told her about the redundancy and went with her to the solicitor. She said initially the solicitor advised her it was not legal to make her redundant as she was a protected worker for 24 months but then she was subsequently advised to accept the redundancy with a financial payout and open a new work cover case. The doctor records that the applicant told her she had been feeling like she was going to vomit since Sandie mentioned the redundancy and her bad dreams have come back. She had been crying a lot and had panic attacks.
On 25 July 2018 the redundancy had been finalised and the doctor noted she was shaky, teary and distressed. She expressed some suicide ideation she was commenced on Fluoxetine 20mg as the washout period of the former medication had been completed. The applicant advised the doctor that she wanted to see a new GP regarding her new claim.
On 25 July 2018 Dr Karan wrote to Daren Wilson expressing her concern that the applicant had told Sandie “I should have killed myself a long time ago” while upset related to the redundancy.[14] She advised that she was concerned whether Sandie has the skills and training to manage the situation appropriately. Dr Karan says she has recommended to the applicant that she sees Mr Wilson more regularly and that currently she is not fit for work.
[14] ARD p 271.
On 31 July 2018 the applicant told Dr Karan she had attended at the Upper Mountains Medical Centre, and she had a complete mental breakdown, she could not breathe, and she had to talk about everything that had happened in a different environment to somebody new.
On 13 August 2018 Dr Karan notes that the applicant said she feels like Warwick and Sandie are really gung-ho and that they will force her down a certain route. She had difficulty sleeping.
On 8 August 2019 Dr Terry Kohler, consultant clinical psychologist, issued an Independent Consultant Stage 2 Report.[15] He summarises various documents that do not appear to be before the Commission such as AHRR No 5 dated November 2018 which he states:
“the last 8 sessions had enabled Ms Hasselman to recommence part time job seeking activities. She struggled to process her forced redundancy from Scenic World.”
[15] ARD p 274.
However, the report, while informative, does not assist me further in my determination. I have also read the statement from the applicant’s friend Angela Rumble and I find it does not assist my determination as much of the information is not relevant to the issue in dispute.

Applicant’s submissions

The applicant submits that she suffers from a new injury for the following reasons:
(a)    Her earlier injury was “well-controlled”, had “dissipated” and there was “clean air” between the earlier injury and what occurred in July 2018. Her counsel relies on the applicant’s statement as evidence of this position. However, this is not the position taken by A/Prof Robertson or Dr Prior, the two psychiatrists in the matter. Reading the clinical notes of the treating GP, Dr Karan, it is difficult to conclude that the earlier injury was well-controlled or had dissipated. This is because the doctor was tapering the applicant off medication due to her side effects of faecal incontinence and was considering alternatives. It is true that efforts were being discussed about a return to some work, but no plans had been put into place before the redundancy.
(b)    The conduct of the coordinating officer and the emails surrounding redundancy amount to inappropriate conduct by the employer giving rise to the new injury. Only one email is in evidence and is discussed below.
(c)    A/Prof Robertson in his 2024 report diagnoses a chronic post-traumatic stress disorder combined with ongoing major depressive disorder with relevance to what happened to the applicant in 2018. He submits this demonstrates there was a clear and distinct incident which occurred. However, A/Prof Robertson makes it clear that the post-traumatic stress disorder arose from the home invasion in May 2021. This is an incident that the applicant’s counsel specifically advised he is not relying on as part of this claim.

Respondent’s submissions

The respondent’s counsel submitted that the date of injury 11 July 2018 is the day the applicant was told she was being made redundant. He submits in the months leading up to that she was continuing to complain about psychological symptoms with her GP and she is taking medication. He argues there is no change in the clinical notes to suggest a significant new injury.
The respondent submitted that the interaction with Sandie, the rehabilitation coordinator, reveals she was attempting to assist the applicant, and she was being compassionate and empathetic. It was submitted that there is nothing in the applicant’s statement that reveals unreasonable conduct on part of the employer.
It was also submitted that at [73] of the applicant’s statement she concedes that her complaints are wholly attributable to her previous injury because she states that she told Sandie that the things in the redundancy were part of the bullying that she had when she was at Scenic World. She refers to the desk space, the budget, the lack of appreciation of gardening and she says it now forms part of the redundancy.
The respondent submits that the applicant has failed to discharge her onus of proof regarding the 2018 injury. It submits that A/Prof Robertson’s opinion supports the conclusion that the applicant has not suffered a new injury but has a continuation of the previous injury. It submits the clinical records show nothing more than a continuation of her symptoms without a significant change.
Counsel submitted that if a new injury was found by the Commission, the s 11A defence arises because there was reasonable action by the employer with regards to retrenchment and dismissal. It argued that the whole and predominant cause of any injury of the applicant was the redundancy notice.
The respondent’s counsel refers to the various statements in the Reply. Ms Toni Adler is the HR and WHS manager. She states that the insurer referred the applicant to At Work OHS on 28 February 2028. She says when the applicant was off work receiving workers compensation payments, they used contractors to do her work as a gardener and they found this to be a more flexible arrangement and less expensive than having a full time gardener. She says in about October or November 2017 “a thought process” had commenced to make a decision to offer redundancy to a number of employees and they sent the applicant a redacted statement about the business plan as part of the process, it was only in respect to the gardening department. She says a first draft of the plan was put together in May 2018 which included a broader plan for the entire business and some restructuring. Ms Adler does not say if this was sent to the applicant.
At [26] of her statement Ms Adler says the applicant was not in a good place, not in a happy place with them at Scenic World. So a decision was made that Sandie from At Work OH&S would have a meeting with the applicant on 11 July 2018 and they gave Sandie a script to use. She said there were further discussions between the applicant and Sandie and a redundancy agreement was reached which included an ex-gratia payment. Apparently, the agreement was signed in the presence of her then solicitor, Mr Collins. The respondent’s counsel submits that the employer was attempting to support the applicant, and this is evidenced by the fact that they gave her an ex-gratia payment.
Mr Warwick Brown is the Director of At Work OH&S. He says Scenic World contact them on 10 July 2018 and asked if they could provide the applicant with details of her redundancy because the applicant did not want any involvement with the employer. He says they sought information from her psychologist, who supported the redundancy. Much of Mr Brown’s statement is third hand information and as such is not particular helpful.
Sandie Parisi is an employment consultant with At Work OH&S, a workplace rehabilitation provider. Her statement is signed on 18 December 2018.[16] Neither she nor Mr Brown say who spoke to the psychologist.
[16] Reply p 43.
There is no report from the psychologist in evidence before the Commission, which would have been of assistance as he had been treating her before and after the redundancy.
Ms Parisi at [11] of her statement says when she handed the applicant the documents, she had a conversation with her, and they discussed that the money she would receive could help her set up a business she had previously mentioned and also have her car repaired. She says she did not in any way tell the applicant how she should spend the redundancy money. She states that the applicant read the documents and asked her to go with her to see Mr Collins, her then solicitor. Ms Parisi did so and relates some of the discussion held there. Ms Paris says she inadvertently sent the applicant an email which she had meant to send to Mr Brown to tell him how the redundancy meeting went. A copy of this email dated
18 July 2018 says:
“It looks as though she will and I managed to get Toni to offer the additional 4 weeks which Fiona said would make it a little easier to accept! She will meet with Darren before I meet with her and then I assume she will seek Ian’s help to write to them to accept the offer and for guidance to singe(sic) this documents. It’s an extra $3,500 or so.
Have to wait and see what happens tomorrow as she is very stressed over it all! I have spent the afternoon back and further with Fiona and Toni!”[17]
[17] Reply p 60.
Ms Parisi says she tried to recall this email as it was sent in error to the applicant. A copy of the recall notice is on the next page of the Reply. At [105] of the applicant’s statement she said this email was “mocking” of her for her comment it would be easier to accept if she was offered more money.
Ms Parisi does not respond to [83] of the applicant’s statement where she says Sandie said things like “I will read this stupid script”, “they’re a pack of bastards”, “their fucking assholes” and “I can’t tell you how angry I was yesterday, how you have been treated”.
Ms Parisi says at [17] of her statement that during her meeting with the applicant when providing the redundancy documents the applicant was “stressed” and “upset” and Ms Parisi said she asked the applicant if she was at risk of self-harm. She said in the past the applicant had told her she thought about suicide but on this occasion, she told Ms Parisi she was not thinking about it.
The respondent’s counsel submits that the above-mentioned email contains nothing untoward which could give rise to any injury. He describes it as innocuous and mild.
The respondent submits the applicant is not entitled to a further permanent impairment assessment as she has already been assessed by AMS McClure. It also argues that the
s 11A defence is made out that the way the employer provided the redundancy notice and supporting her thereafter was reasonable.
I asked the respondent about the consultation note of Dr Karan on 18 July 2018 when the applicant told the doctor that she felt like she was going to vomit since Sandie mentioned the redundancy and that the bad dreams had come back, and she had been having panic attacks. The respondent’s counsel says this entry does not support the applicant’s case because of the earlier record he referred to in April 2018 that she was going to court with two legal actions. As I have observed previously, this entry refer to the applicant’s friend Sandra who was going to court. The respondent relies on his submission about a continuation of symptoms from the previous psychological injury.

Applicant’s submissions in reply

The applicant’s submissions in reply were brief, as were the submissions in chief. He submits there is no other event apart from 2018 redundancy that causes the applicant to seek the ongoing treatment from her psychologist or causes incapacity for work. He argues that in the absence of anything else the only logical conclusion and on the balance of probabilities the Commission would find that it is the 2018 redundancy that does tip her over the edge.
In relation to the email, the applicant’s counsel says for a number of people it could be regarded as mild but for this applicant even the slightest criticism is enough to tip her over the edge.
In relation to my question addressed to the respondent about the entry in Dr Karan’s notes, the applicant’s counsel says it is clear evidence of another injury. He also submits that A/Prof Robertson says there was a point of aggravation in respect of 11 July 2018 incident.
In relation to s 11A his submission is only that the conduct is completely unreasonable, but he does not explain why.

Determination

A/Prof Robertson refers to eight documents from Mr Wilson from 1 May 2017 to 4 August 2022, including many in 2018. It would have been of assistance had they been placed in evidence because he is the psychologist who has been treating the applicant before and after the redundancy and he would have been best placed to provide information and opinion as to whether the applicant sustained a further injury. I regard this as a serious omission in the applicant’s case, particularly in light of the fact that A/Prof Robertson in his first report does not even refer to the redundancy.
A/Prof Robertson’s 2023 report has the date of injury as 11 July 2018 in its heading and in the second paragraph under the heading “Assessment” he says, “the original psychological injury relating to the date of injury of 11 July 2018 persisted”.[18] However, it is clear from the early parts of the report he is referring to the first injury, assessed by AMS McClure who has the date of injury “17 February 2017 (notional date)” on his MAC. There is not one word in his history about the applicant being made redundant. He just says, “Her employment was later terminated”.
[18] ARD p 104.
Neither counsel referred to the clinical notes of Dr Kwon, GP, from Upper Mountains Medical Centre. The applicant started to consult him on 26 July 2018 after she was made redundant. Yet she still attended on Dr Karan. Dr Kwon says, “her solicitor Ian Collins asked for her to get another Workcover claim, and Dr Karan supported this, hence the appointment today.” On 16 May 2019 the applicant asked Dr Kwon to refer her to Dr Selwyn Smith, psychiatrist, and in the entry on 7 June 2019 it is recorded she was seeing him on 17 June 2019. In the entry on 5 July 2019 it is recorded that she saw Dr Smith and plans to do an outpatient course on depression/anxiety through him. It is also noted she is seeing a new solicitor. She was still seeing Mr Wilson fortnightly. She was prescribed Zoloft on 29 July 2020 but in the entry on 4 November 2020 it is noted her mood was stable and she never started taking the Zoloft as she did not feel there was a strong need.[19]
[19] ARD p 265.
No reports are in evidence from Dr Smith. As the only treating psychiatrist, his reports would have assisted my determination.
The insurer has placed in issue liability under s 4 of the 1987 Act. This was advised in the
s 78 notice issued by EML on 11 February 2019. It asserts that the applicant has not suffered a new injury and says although your symptoms may have increased or exacerbated as a result of your redundancy, they do not accept this reflects a new injury.
The applicant has the onus of proof to establish “injury” under s 4.
Apart from the clinical notes of Dr Karan, the only available evidence from a medical practitioner who examined the applicant before and after the redundancy is Dr Prior. While he is not a treating doctor, he is a psychiatrist whose reports have impressed me with his thoroughness. He examined her twice in 2017, the latter being in November. He next examined her in December 2023. This was after the 2021 incident upon which the applicant does not rely in these proceedings.
I also have the assistance of the MAC from AMS McClure in February 2018.
I find that the diagnosis of Dr Prior in 2017 and AMS McClure in 2018 reveals the applicant was suffering from a significant psychological injury before the redundancy. I find that the records of Dr Karan do not support the applicant’s counsel’s submission that there was “clear air” between that injury and the redundancy. The applicant had not returned to work. In February 2018 she was provided with the services of At Work OH&S but her psychological injury had not “dissipated” as her counsel submitted. On 2 July 2018 Dr Karan was considering prescribing a new antidepressant in three weeks as she had taken the applicant off Escitalopram due to faecal incontinence issues. In this consultation the applicant had difficulty concentrating and felt quite down having seen people from work at the music event. I find this is evidence that her first psychological injury had not “dissipated”.

I find she was upset by being made redundant. Ms Parisi provides evidence of this. The entry from Dr Karan on 18 July 2018 demonstrates, in my view, some worsening of her symptoms as she advised her bad dreams had come back, she had been crying and having panic attacks. And after she finalised the redundancy, there is reference by her of suicide ideation as noted in the entry 25 July 2018.
The question I need to consider is this evidence of a new injury. However, I find I cannot accept the submission of the applicant’s counsel that the reason she was continuing having treatment was the redundancy. Dr Karan had already indicated she would start the applicant on a new anti-depressant. She was just waiting to taper the applicant off the earlier Escitalopram. At this time the applicant was seeing Mr Wilson, and again I find I am greatly hampered by not having evidence from him.
Dr Prior does examine the applicant again, but it is five and a half years after the redundancy. On page 8 of his report he quotes Mr Wilson in an Allied Health Recovery Request form dated 2 July 2018 diagnosing “major depressive disorder…panic features.” I find this is a significant piece of evidence because it is just nine days before the redundancy. Dr Prior’s history in his 2023 report is also significant because he states that the applicant related that she had become distressed following being made redundant and the way she was dealt with by the workplace providers, however, she said to Dr Prior “but I can’t say all that worsened things”. Dr Prior in answer to question 6 states his opinion that the applicant did not suffer a new injury when she was made redundant because she reported ongoing distress but no significant exacerbation. He further advises that she described a significant exacerbation following the 2021 home invasion.
I find the fact that the applicant tell A/Prof Robertson in his first examination about the effects of the redundancy is consistent with the history she gave to Dr Prior that it was not significant. In his second report A/Prof Robertson asked the applicant about the redundancy and he states that she said she had attempted to return to work following the initial psychological injury, however she had difficulties with the return to work coordinator Sandie. She also told the doctor that she was privy to emails between Sandie and other managers that were excessively critical or ridiculing of her with many ad hominem statements. I find these statements to A/Prof Robertson are not entirely factually correct based on the evidence in this matter. The respondent submitted that there is only one email before the Commission, which I have set out in full above. I accept the respondent’s submission that this email cannot be regarded as excessively critical or ridiculing the applicant. Also the impression, that the applicant had attempted to return to work following the initial injury, is capable of misleading the doctor as I find it overstates the position. It is accurate that the applicant was receiving assistance from the rehabilitation provider, but she was not close to undertaking a return to work. The evidence that Dr Prior quotes from Mr Wilson on 2 July 2018 belies such a scenario.
Because of these reasons I find that I prefer the opinion of Dr Prior to A/Prof Robertson where they differ about the sequelae of the redundancy.
I find that the applicant has not discharged her onus of proof that the redundancy in July 2018 resulted in her experiencing a new psychological injury even in the form of aggravating her earlier condition. I find it is a significant omission in her case to not put before the Commission evidence from Mr Wilson, her treating psychologist and also Dr Smith, her treating psychiatrist.
The applicant seeks lump sum compensation for a separate injury confined to the redundancy with a deemed date of 11 July 2018. She has already had her entitlement assessed for the original injury. However, A/Prof Robertson’s assessment of permanent impairment does not assess the claimed “redundancy injury”. His assessment of permanent impairment is contained in his 2023 report which does not mention one word about redundancy. It is clear in his PIRS assessment he is assessing the original injury together with the May 2021 incident. The category “social and recreational activities” specifically refers to the May 2021 incident and again in all the categories there is no mention of the redundancy.
In his 2024 report A/Prof Robertson does not reassess the permanent impairment. If the redundancy is a new injury, he would have needed to consider the potential of a s 323 deduction for the first injury and not assess the May 2021 injury. He says the chronic post-traumatic stress disorder with dissociative features related to the 2021 incident. However, as I have stated he does not re-assess his prior permanent impairment rating made in 2023, which includes the original injury and the May 2021 incident and not the effects of the redundancy.
I find I cannot just rely on the applicant’s statement evidence in a matter such as this where her psychological condition is complex. Medical expert evidence is crucial to determine this matter, particularly from those that were treating the applicant at the time of the redundancy.
Because I have found the applicant has not discharged her onus of proof, I have found an award for the respondent in relation to the alleged psychological injury of 11 July 2018.

[2025] NSWPIC 426

25 August 2025