Heydeman v Ability Options

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Heydeman v Ability Options [2025] NSWPIC 385
APPLICANT:	Roslyn Heydeman
RESPONDENT:	Ability Options
MEMBER:	Fiona Seaton
DATE OF DECISION:	7 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment; whether the applicant sustained a primary psychological injury in addition to an accepted secondary psychological injury pursuant to section 65A; Held – the applicant sustained a primary psychological injury; there is an entitlement to claim lump sum compensation; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the primary psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury in the course of her employment as a result of the incident on 28 April 2021. The Commission orders: 2. This matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows; Date of injury: 28 April 2021 Body parts/systems: primary psychiatric and psychological disorders Method of assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are; (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents and respondent’s additional documents dated 30 May 2025; (c) respondent’s Application to Lodge Additional Documents dated 11 July 2025 and attached documents, and (d) applicant’s letter of instruction to Dr Kumar dated 12 July 2022. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Roslyn Heydeman was employed as a disability support worker by Ability Option, the respondent, from 2015 and on a permanent part time basis from October 2018 working at a group home.
On 28 April 2021 the applicant sustained a neck injury due to an assault by one of her disability support clients, returning to work on 19 May 2021 on restricted hours which gradually increased. She ceased work on 24 September 2021 as a result of the worsening of her psychological condition.
Liability is accepted for the applicant’s cervical spine injury and a secondary psychological condition and medical expenses continue to be paid.
A claim for lump sum compensation was made by the applicant on 20 September 2023 for 28% whole person impairment as a result of psychological injury.
The notice issued on 9 February 2024 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputes the applicant is entitled to lump sum compensation because she has sustained a secondary psychological condition. A review notice issued on 14 April 2025 maintains that decision.
In the Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 8 May 2025 the applicant claims lump sum compensation for 28% whole person impairment for psychiatric and psychological disorders.
The dispute was listed for conciliation conference and arbitration hearing on 11 July 2025.

ISSUES FOR DETERMINATION

The parties agree the issue in dispute is whether the applicant’s claim for permanent impairment arises from a primary psychological injury on 28 April 2021 or a secondary psychological injury pursuant to s 65A of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 11 July 2025 by audio visual link. Ms Heydeman was present with Mr Tony Heydeman. Mr Ross Hanrahan appeared for the applicant instructed by Mr Anthony McDonnell, legal representative.
Mr Paul Stockley appeared for the respondent instructed by Mr Anthony Pryor, legal representative. Ms Moore was also present.
During conciliation the respondent’s Application to Lodge Additional Documents dated
11 July 2025 was admitted. By consent the applicant’s letter of instruction to Dr Kumar dated 12 July 2022 was also admitted.
I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents and additional documents dated 30 May 2025;
(c)    respondent’s Application to Lodge Additional Documents dated 11 July 2025 and attached documents (ALAD), and
(d)    applicant’s letter of instruction to Dr Mukesh Kumar dated 12 July 2022.

Oral evidence

No application was made to adduce oral evidence.

Applicant’s evidence

The applicant’s evidence is contained in her statements signed on 6 February 2022 and
24 June 2024.
In the statement given to investigators signed on 6 February 2022 the applicant describes prior workers compensation claims for a lower back injury in 2008 and a left knee injury in 2010. She experienced depression in 2011 as a result of workplace bullying, and again in 2019 when she suffered pain and required surgery.
The applicant’s neck was injured on 28 April 2021 due to an assault by a client and an Incident Report was completed. A detailed history of the treatment she received is set out. A gradual return to work commenced on 6 June 2021 and her hours slowly increased until she worked her last shift on 24 September 2021.
The statement contains a detailed timeline of events with respect to the applicant’s claim for psychological injury from 28 April 2021 to 2 February 2022. The applicant describes being subjected to bullying from her colleagues and managers on her return to work on
19 May 2021.
On 20 July 2021 she received an email from a manager regarding her duties which stated the expectation that the group home be up to date with cleaning and administration with the extra person, requiring a daily update on all tasks, positivity was asked for moving forward and no negative comments were to be made.
The bullying the applicant describes following her return to work includes;
(a)    colleagues questioning her about why her recovery was taking so long, why she was there if she could not do the job properly, she was asked what she was getting paid, she felt ostracised and bullied by colleagues and there was increasing pressure from management to perform more duties;
(b)    the applicant sent an email to three managers about staff attitudes severely impacting her, with staff belittling and questioning her every move which she found really upsetting;
(c)    staff were talking to each other about the applicant’s work ethics and practices knowing she could hear their conversation, which made her feel isolated and amounted to bullying;
(d)    her duties increased and her colleagues did not want to work with her as they needed to do all the physically demanding tasks as the applicant was not able or allowed to; and
(e)    the applicant met with managers and said she felt excluded from conversations about the running of the house, for example hand overs, and her concerns were dismissed, the applicant broke down and a manager said ‘what has happened to you’ which she took to mean effectively ‘what is wrong with you’ which made her feel further isolated.
The applicant describes the neck injury on 28 April 2021 caused by a participant pulling her by the neck and depression and anxiety caused by a combination of bullying and belittling by house staff, lack of support from management and unresolved ongoing neck pain with a breakdown in relationships and loss of trust in treating medical providers.
In her statement signed on 24 June 2024 the applicant sets out her employment history before working for the respondent from 2015. The group house where the injury occurred had five female clients between 40 and 70 years of age with a range of physical and intellectual disabilities, each with a behaviour support plan. Three of the clients had violent tendencies. There were generally two disability workers with one manager. The clients needed assistance with showering, toileting, dressing, meal preparation and attending appointments.
The applicant remembered being assaulted by a client who ripped her glasses off her face. Her face was scratched and bled, and she was very scared. She completed an incident report.
There was a further terrifying incident in 2020 when a client ran towards her and pushed her into the kitchen cupboards. The applicant had to escape into the office and close the door. The client was banging on the door trying to get in and yelling and screaming that she wanted to kill the applicant. There were no other staff members in the house at the time.
There were other minor incidents. There was little or no support from management after these incidents, no counselling or debriefing, and management treated her as if she had somehow led to the violent incident taking place. The applicant used the total allocation of Employee Assistance Program telephone counselling sessions and continued to work.
On 28 April 2021 a client forcefully grabbed the applicant’s neck while she was sitting at a table doing clerical work and pulled her neck to the left. The other staff member intervened to restrain the client. The applicant was very distressed and in shock.
The applicant states after the prior incidents and the incident of 28 April 2021, and following the hurtful remarks made by staff members, she felt her psychological state quickly deteriorating.
She was suffering from neck pain but it was the combination of violent assaults, hostility from other staff and management being dismissive and unsupportive that caused her psychological condition.
The Incident Report dated 28 April 2021 includes a description of the discussion with the client that lead to the assault. The client was shaking, she came closer to the applicant and started massaging her back, the applicant asked her to stand back and stop touching her and the client turned back and came in on the applicant’s left hand side, grabbing one hand on the left side of the applicant’s neck and the other hand reached around forcefully and aggressively hugging the applicant. The client was pulled back by another client and a staff member stood up and intervened. The client was crying and was supported to her bedroom.

Dr Therese Roberts, general practitioner

Dr Roberts provided a letter of admission for the applicant to The Hills Clinic on
1 October 2021. The applicant had developed an adjustment disorder with a mix of both significant depressive symptoms and anxiety in the context of a workplace injury which resulted in chronic neck pain and an inability to return to her pre-injury duties in any effective way. Her distress was exacerbated by alleged negative commentary from fellow workers and her manager.
On 5 October 2021 Dr Roberts referred the applicant to Dr Jane Standen for review and further advice as the applicant had been struggling for the last several months with chronic neck pain following an alleged assault while working.
On 11 October 2021 Dr Roberts reports to the insurer that the applicant’s current psychological distress is severe and requires specialist assessment, treatment and stabilisation before any return to physical rehabilitation efforts. The focus of consultations with the applicant had been more to do with her debilitating and severe mental health distress which requires targeted and intensive therapy.
Following five consultations, Dr Roberts’ opinion is the applicant has a severe major depressive illness and her distress “seemed to have developed as the result of pain and disability following a soft tissue injury to her cervical spine”[1] in April 2021. Her distress was further exacerbated by alleged incidents of intrusive questioning by fellow workers.
[1] ARD page 45.
On 8 October 2021 the applicant had become completely overwhelmed and distressed following a conversation with the insurer’s case worker as reported to Dr Roberts by her husband, and she was admitted to hospital.
Dr Roberts believes to a large degree the applicant presented with a history of psychological distress that developed as a consequence of a physical workplace injury, with symptoms likely further exacerbated by alleged intrusive questioning by fellow workers.
Dr Roberts had only been seeing the applicant since 28 September 2021 but was of the opinion the applicant certainly had a vulnerability to depressive mood symptoms particularly in the context of difficult to manage pain symptoms. Dr Roberts was unable to say to what degree the employment may have contributed to the presenting psychological injury.
At a medical case conference held on 7 October 2021 Dr Roberts reports to Ms Lauren McElvaney, senior rehabilitation counsellor, that she engaged the acute mental health team to support the applicant, and the lack of progress with the neck injury and ongoing reported pain caused stress and affected the applicant’s mental health. The applicant had reported some workplace bullying which she feels had also impacted her mental health.

Dr Jane Standen, pain physician and interventional pain specialist

Dr Standen reports to Dr Roberts on a telehealth consultation held with the applicant on
13 October 2021 while she was an inpatient at The Hills Clinic.
The applicant describes the immediate onset of cervical pain as a result of the incident on
28 April 2021 and subsequent mental health issues exacerbated with return to work.
Dr Standen records the applicant’s stress is moderate, anxiety is extremely severe and depression is extremely severe. She notes a history of anxiety and depression.
The applicant required a bone scan, a reduction of strong pain medications once discharged, high dose magnesium therapy to assist with sleep and pain, analgesic cream and a pain management programme with a physiotherapist.
Dr Standen’s report of 19 November 2021 is focused on the applicant’s physical symptoms and treatment, although she records the applicant continues to see her psychiatrist. The report to the insurer on 19 December 2021 is in similar terms.
The bone scan of the applicant’s cervical and upper thoracic spine and shoulders requested by Dr Standen was performed on 7 February 2022.
On 11 February 2022 Dr Standen says the applicant reports significant mental health issues at present and Dr Kumar has requested approval for an inpatient admission.
The applicant received physiotherapy treatment from Ms Justine Walker in the same practice.

Dr Mukesh Kumar, consultant psychiatrist

In a discharge letter for admissions to The Hills Clinic dated 14 November 2021, Dr Kumar notes the applicant was admitted to The Hills Clinic with psychiatric symptoms in the context of work related stressors.
The injury on 28 April 2021 occurred while the applicant was working with a difficult person with disabilities who was very agitated. The client wanted to go out and was invading the applicant’s personal space. The client apprehended the applicant and grabbed the left side of her neck and placed the other hand around her neck and pulled her to a side, an attack the applicant said was without any provocation.
The applicant reported she experienced psychiatric symptoms within three months of the incident and added that she heard a lot of comments and emails from other staff about her injury and its severity. The applicant started to become very anxious and stopped work about three weeks before the admission.
Dr Kumar diagnoses major depressive disorder with anxious distress.
On 8 December 2021 Dr Kumar seeks approval from the insurer for an inpatient admission for the applicant as her symptoms were worsening.
On 3 February 2022 Dr Kumar answered a questionnaire from the insurer about the benefit of inpatient versus outpatient review of medication and medication transition. The diagnosis is of major depressive disorder as a result of work related events. The applicant’s symptoms are not improving and she is not coping.
The same diagnosis is in Dr Kumar’s reports to Dr Roberts and the insurer on 11 February 2022. Dr Kumar agrees with Dr Young’s opinion that the applicant describes sufficient symptoms to meet the diagnostic criteria of major depressive disorder and requires inpatient treatment at The Hills Clinic.
On 6 April 2022 Dr Kumar reviewed the applicant and reports on her progress after a four week inpatient admission. There are some personal life stressors and she is not doing well. The diagnosis remains major depressive disorder with anxious distress.
Dr Kumar says the applicant has treatment resistant major depressive disorder on
13 May 2022 and seeks approval for an admission to commence electroconvulsive therapy (ECT).
On 24 August 2022 Dr Kumar reports the applicant has just been released from a seven week admission to the St John of God Hospital, she has had 14 sessions of ECT and is now receiving maintenance ECT once a week.
On 29 August 2023 Dr Kumar provides a medico legal report. The applicant is on 10 medications and regularly consults Dr Kumar and her psychologist. Dr Kumar sets out the history of the injury on 28 April 2021 and that the applicant started to become very anxious as a result of feeling unsupported by her managers and employers on her return to work.
The history Dr Kumar records is of two workplace incidents, the incident on 28 April 2021 and the earlier incident when she was pushed into a kitchen cabinet and the person threatened to kill her.
The applicant’s symptoms recorded by Dr Kumar include feeling incredibly tired and exhausted, some improvement in her depression with treatment, and her sleep is better although she still has nightmares and intrusive thoughts about the incidents she encountered before. She sees the faces of the participants, especially the ones that assaulted and hurt her, and she is now quite fearful of going out to places such as shopping centres or parks where she may encounter them and be assaulted again.
She is extremely anxious especially with sudden loud noise which reminds her of the workplace events where she was assaulted and hurt. Her appetite is variable and overall she has gained weight. The applicant is now completely dependent on her husband for all tasks. She does not take part in social events, she has lost interest in activities she used to enjoy and she is unable to travel by herself. Her relationship with her husband is rocky, she has lost contact with friends and family and she is unable to concentrate.
Dr Kumar diagnoses major depressive disorder and post-traumatic stress disorder in the report of 29 August 2023.
Major depressive disorder is attributed to being bullied and harassed by coworkers and unsupported by management, as well as the assaults. The symptoms have been present for the last two years.
The post-traumatic stress disorder criteria is also fulfilled in the context of being assaulted at work on two separate occasions; one where she was threatened by a participant that they would kill her and the incident on 28 April 2021 where she was physically assaulted. Criteria A is fulfilled for this condition.
Dr Kumar describes the following;
(a)    the incident on 28 April 2021 has led to intrusion symptoms such as distressing dreams, memories, flashbacks as well as psychological distress;
(b)    she engages in avoidance behaviour;
(c)    there are negative alterations on cognition and mood, characterised by feelings of detachment, estrangement and markedly diminished interest in significant activities as well as persistent, negative emotional state and inability to experience positive emotions, and
(d)    she has marked alterations in arousal and reactivity, characterised by irritable behaviour, reckless and self-destructive behaviour, hypervigilance, exaggerated, startled response, difficulties with concentration and sleep disturbances.

The symptoms have been present for more than a month and have caused clinically significant distress and impairment in several areas of functioning. They are not due to any physiological effect of a substance or a medical condition.
In Dr Kumar’s opinion the causal circumstances of the applicant’s condition are the incidents where she was assaulted twice at the workplace as well as the bullying and harassment she experienced when she returned to work which led to the onset of her symptoms.
Dr Kumar assesses 28% whole person impairment.
On 20 January 2025 Dr Kumar in a supplementary report disagrees with Dr Young’s opinion that the applicant suffers with a secondary psychological injury. Dr Kumar views the incident of the assault as quite significant, as is the bullying and harassment.
“Focusing only on the pain sequalae of the physical injury misses the larger significance of the trauma caused by the assault itself, which is the primary reason for her condition”[2] in
[2] ARD page 131.
Dr Kumar’s opinion, and the applicant has therefore experienced a primary and not a secondary injury.
Regarding criteria A, Dr Kumar says this is fulfilled as she was assaulted by clients where she has sustained serious injury as well as a threat of death. The diagnosis in this case is based on clinical facts and fulfils criteria as per DSM 5.

Mr Nicholas Cherrie, psychologist

Mr Cherrie, psychologist, of The Logic Lounge requested the provision of eight cognitive behavioural therapy and counselling sessions to treat the applicant’s depression and anxiety in an allied health recovery request on 2 May 2022. He notes the applicant’s general practitioner diagnosed generalised anxiety and major depression related to work stressors.
The current signs and symptoms described include “[w]ork injury, attacked by client leading to a neck injury. Felt there was a lack of support relating to injury recovery, felt bullied by coworkers for her inability to perform her usual role.”[3]
[3] ARD page 98.
Mr Cherrie saw the applicant 13 times and provides a Final Progress Report on 4 June 2022. She initially presented with extremely severe levels of anxiety and depression attributed to workplace stressors.
The applicant explained she had suffered from an assault in the workplace and later experienced workplace bullying. She was also experiencing stressors in her personal life. It became apparent she was not benefitting from the therapy provided by Mr Cherrie.

Associate Professor Prashanth Mayur Madhavan, consultant psychiatrist

A/Prof Madhavan provides a report to the insurer on 10 August 2022 regarding a request for further extensions in the course of ECT beyond 5 August 2022.
The applicant commenced ECT for the management of treatment resistant major depressive disorder with a comorbid picture of complex trauma and post-traumatic stress disorder.
A/Prof Madhavan recommends a further review of the applicant after completing 16 continuous ECT treatments. There is a high risk of relapse back into depression due to the presence of comorbid complex trauma and post-traumatic stress disorder.
The final discharge summary of St John of God Hospital dated 12 August 2022 is after a 48 day stay for ECT treatment. Fourteen medicines are noted on discharge.

Respondent’s evidence

The s 78 review notice of 9 February 2024 disputes the applicant is entitled to permanent impairment lump sum compensation for the injury on 28 April 2021 as the insurer believes the permanent impairment results from a secondary psychological injury.
The clinical records of Kellyville Village Medical Centre, Logic Lounge, Acacia Psychology, St John of God Hospital, The Hills Clinic and Dr Kumar attached to the s 78 notice of
9 February are with the Reply.
In accordance with r 67D(2) of the Personal Injury Commission Rules 2021 I do not intend to have regard to a document not specifically referred to in submissions.
The s 287A review notice of 14 April 2025 maintained the decision made on 9 February 2024 to dispute liability under s 65A(1) of the 1987 Act for the applicant’s secondary psychological injury.

Dr Peter Young, independent psychiatrist

Dr Young provides a report to the respondent on 25 January 2022. The history of the presenting complaint includes that the incident on 28 April 2021 culminated in the applicant suffering physical assault when she was grabbed by the shoulders and neck and pulled to one side. She reported that immediately following the incident she felt somewhat shocked but was not excessively or emotionally distressed, and she experienced pain affecting the neck and shoulders.
Dr Young records the applicant said at this time she was not experiencing any significant psychological symptoms however on her return to work she felt that other staff were unsupportive and made negative comments regarding her recovery. She was still in a lot of pain and became increasingly distressed because people thought she was pretending. She felt increasingly frustrated and unsupported by her employer and by her general practitioner. Her mood was continuing to deteriorate progressively.
Dr Young says the applicant presents reporting a history of depressive and anxiety symptoms which have been associated with the consequences of her previous physical injury in relation to chronic pain and associated undergoing disability as well as feeling unsupported by her workplace.
The diagnosis Dr Young makes is of major depressive disorder and employment is the substantial contributing factor. Dr Young notes a history of at least two previous depressive episodes under similar circumstances, indicating there is a predisposition to development of a psychological disorder under stress.
When asked whether the applicant encountered situations or difficulties in employment beyond that which could reasonably be expected or anticipated, Dr Young responded that assaults by clients are common in personal care services. Her prognosis is guarded.
Dr Young’s supplementary report of 2 June 2022 addressed whether the ECT treatment was reasonably necessary treatment. Dr Young recommends approval for blocks of no more than 10 sessions with detailed update reporting at completion. ECT and inpatient treatment review and rationalisation is appropriate. Dr Young thinks work-related factors are substantial.
Dr Young’s report of 7 October 2022 includes that the applicant reported her personal circumstances remained unchanged. As her symptoms of depression progressively deteriorated becoming more severe, she was admitted to St John of God Hospital in June 2022 for seven weeks where she underwent 15 ECT treatments followed by four further ECT outpatient treatments.
The applicant reports she is experiencing increased frequency and severity of intrusive thoughts and memories regarding previous incidents of aggression at work which previously did not bother her. She had become increasingly withdrawn and seldom left the house.
On completing Depression Anxiety Stress Scales - 21 the applicant scored in the extremely severe range on the depression, anxiety and stress subscales.
Dr Young diagnoses persistent depressive disorder and major depressive disorder. The applicant also reports post-traumatic symptoms however she does not have a Category A qualifying event in Dr Young’s opinion to establish a diagnosis of post-traumatic stress disorder.
Additional recommendations on treatment include that the applicant may require more prolonged sessions for further exposure in order to manage more effectively her post-traumatic symptoms, and she may also benefit from other treatment approaches including a Dialectical Behaviour Therapy (DBT) program or a specialist post-traumatic stress disorder outpatient or inpatient program.
Dr Young’s File Review of 7 August 2023 refers to the applicant becoming more regressed over time and that she displays behaviour and symptoms typical of borderline personality disorder. The work injury has exacerbated this condition leading to regression and the emergence of depressive symptoms (referred to as “double depression”) which have characteristically not responded well to treatment, and which have been further exacerbated by non-work stressors.
Dr Young’s report of 22 December 2023 includes that the applicant has had further ECT treatment and has recently begun attending a DBT program. She describes her current symptoms as including disturbing dreams, she is sensitive to noise with increased startle response and she is generally withdrawn.
Dr Young’s opinion is that the applicant’s current condition is best considered to be an exacerbation of pre-existing borderline personality disorder with increased depressive and some post-traumatic symptoms. There also appear to be elements of abnormal illness behaviour.
The reported history is considered by Dr Young to be somewhat unreliable without independent verification and he recommends referral to a clinical psychologist for psychometric evaluation, including application of appropriate instruments including validity scales.
The history obtained and examination leads to the diagnosis made by Dr Young of borderline personality disorder. Her current symptoms have arisen due to the secondary effect of chronic pain which caused an exacerbation of features associated with the pre-injury condition. There has been an aggravation of a pre-existing condition, that being a personality disorder, which is continuing.
Dr Young assesses 23% whole person impairment however as his diagnosis is of a secondary psychological condition whole person impairment is not applicable. This assessment is similar to that of Dr Kumar. Dr Young says Dr Kumar does not describe the applicant as having a primary psychiatric condition.

Associate Professor Craig Waller, independent orthopaedic surgeon

On 18 April 2023 A/Prof Waller diagnoses aggravation of pre-existing cervical disco-vertebral arthritis and spondylosis, for which employment was a substantial contributing factor.
A/Prof Waller’s opinion is that the physical injuries can be considered to have resolved and her ongoing symptoms are due to her long-standing cervical disco-vertebral arthritis and spondylosis.

Acacia Psychology reports

Twelve Acacia Psychology Short-Term Risk Management Reports dated from 10 June 2025 to 8 July 2025 are with the respondent’s application to lodge additional documents.
The applicant was terribly upset in June 2025 and self-harmed. In June and July 2025 the reports disclose on different days the applicant was very tired and depressed, exhausted, felt okay, was in a lot of pain, felt low, and she was worried about an upcoming event related to her work injury.
The Incident Report dated 28 April 2021 referred to above is also with the reply.
The applicant’s letter of instruction to Dr Kumar dated 12 July 2023 was admitted during the conciliation conference.

Applicant’s submissions

The applicant’s submissions were recorded and form part of the Commission’s record. These are also set out below.
The applicant’s primary submission is that she suffers from the combination of both a primary and a secondary psychological condition.
The applicant worked usefully and happily for the respondent for six years until 2021 when the events occurred initiated by an assault sustained on 28 April 2021 in the course of her employment.
There were five clients living at the particular group home where she was employed at that time with behaviour support plans in place for a range of disabilities. On 28 April 2021 a client had what could be described as a failed communication and a particularly strong emotional and physical response in the circumstances, affecting the applicant physically.
After reporting the incident and attending medical practitioners the applicant returned to work to her credit on 19 May 2021. She was certified as having capacity for two days a week, four hours per day as an ‘extra’ staff member.
Not long after that, and as the return to work programme was gradually laid out and the hours increased over time, there is an email from the applicant’s manager following up from a discussion.
The entry on 1 August 2021 in the applicant’s timeline provided to the investigator includes that the position requires some physical work like showering that she was unable to do with her restrictions. Colleagues were questioning her about why her recovery was taking so long and why she was there if she could not do the job properly. This is quite the opposite of what the statute intends. One staff member even asked her what she was getting paid at the time. The applicant was being ostracised and bullied by colleagues, which should be taken as a fact.
Two weeks later on 17 August 2921 an email is sent to the managers about staff attitudes severely impacting the applicant, and that the staff’s behaviour is really upsetting her now. The following day the applicant sent another email describing staff talking to each other about her work ethic and practices. The next day her duties are again increased although colleagues did not want to work with her as they needed to do all the physically demanding tasks.
The applicant broke down following another meeting with management on 24 August 2021 when her concerns were dismissed. She was asked ‘what has happened to you’, effectively what is wrong with you, which made her feel further isolated.
The situation continued through into September and she told Dr Relan, her nominated treating doctor, on 22 September 2021 she was being bullied at work. That is her perception and there can be no doubt, the applicant submits, that they were perceptions based upon real events that occurred in the workplace. The applicant worked her last shift on
24 September 2021.
One of the complexities is the continuous primary impact of the injury with the environment itself on her return to work becoming a stressor and part of the events.
The applicant says the predominant cause of her psychological state is the complex consequences of the direct trauma. This does not exclude the presence of a secondary condition as well, both are present and both should be considered by a Medical Assessor in due course.
The applicant acknowledges she previously experienced an incident in 2020 when she was pushed into a kitchen cupboard, the medical records disclose she had a hysterectomy in 2019, and some previous treatment for depression in 2021 when she was working elsewhere.
This not does detract from this claim. If the applicant is more vulnerable she is more likely to be affected by the traumatic event.
Dr Kumar’s opinion is consistent with the applicant’s submissions.
The challenge to her claim is made by Dr Young. The consultation was done by Zoom with poor internet reception and he did not have the advantage of those subtle sensory elements of the exchange. On that basis the applicant’s submission is that the Commission would accept the applicant’s treating doctor who has had a long exposure to her and prepared a medico legal report.
Dr Young’s opinion is the applicant presented with an exacerbation of pre-existing borderline personality disorder and some post-traumatic symptoms that only became apparent several months after the initial injury.
Dr Young says the diagnosis of post-traumatic stress disorder is not fitting as it did not have category A. The trauma has to be significantly severe for it to fit that diagnosis.
Dr Kumar has addressed that when he commented on Dr Young’s report in his supplementary report of 20 January 2025. Dr Kumar says the diagnosis of post-traumatic stress disorder still applies and the applicant’s symptoms are reflective of that and a major depressive disorder. Criteria A is fulfilled in his opinion as she was assaulted by a client where she sustained serious injury, as well as the threat of death he says.
The applicant’s submission is that the serious physical injury is sufficient for Dr Kumar’s diagnosis to be accepted.
From a commonsense point of view, Dr Young reports that assaults are not uncommon in this type of employment and Dr Kumar comments that even if that were true he is unsure how that would make any resulting trauma somehow less distressing or prevent the onset of a psychiatric condition.
The general practitioner expresses herself in certain unclear terms but she acknowledges there were additional workplace responses by co-workers which aggravated her condition. The doctor does not distinguish between primary and secondary psychological injuries as that is a legal distinction.
Acacia Psychology is supportive of the applicant’s position that the condition is of a multifaceted nature. Her ongoing mental health struggles and the various factors that contributed to them are detailed.
The applicant says the assault is the cause of the primary psychological condition with the exacerbating factor of the behaviour of the co-workers, and there may well be additional features of secondary psychological condition.
There is a complex interplay between those factors that the applicant says should not be appropriate for a Medical Assessor to consider, supporting the arguments for both primary and secondary elements of the injury.
A report of Acacia Psychology describes the fact the applicant was attacked by a client and that the response from the organisation failed to acknowledge the impact upon her of that incident.
The deterioration of the condition has led to the worsening of her behaviours and to self-harming behaviours sufficient to result in a hospital admission.
The reports from the Logic Lounge refer to the trauma the applicant experienced and the fact it was a violent situation which would in the applicant’s submission be threatening to her.
Both the Logic Lounge and Acacia Psychology records support the applicant’s position which is there is a combination of both secondary and primary injury. Acacia Psychology provides a comprehensive picture of all the factors that give rise to her condition, which once again is multifactorial.
There is no doubt in the applicant’s submission that there can be both primary and secondary consequences of an event.
The primary trigger was the assault and the secondary development was the reactions of her co-workers as well as her own subjective experience of pain.

Respondent’s submissions

The respondent’s submissions were recorded and form part of the Commission’s record. These are also set out below.
The applicant had the benefit of significant, careful and focused medical and psychological attention from an early stage. It was not apparent to any of her treating doctors, psychologists or psychiatrists that she was presenting with a history congruent with a diagnosis of post-traumatic stress disorder, or that she was displaying those symptoms, until Dr Kumar issued his medico legal report in August 2023, one to two years after the alleged precipitating event.
The enormous amount of clinical material underscores what is not there; the diagnosis of post-traumatic stress disorder; a history of an event commensurate with criteria A or any of the classic signs of post-traumatic stress disorder.
Another feature of the applicant’s case that is wanting is the applicant’s own opinion of what is going on. The applicant says she was suffering from neck pain but it was the combination of violent assaults, hostility from other staff and management being dismissive and unsupportive that caused her psychological condition. Little weight can be afforded to this statement in the respondent’s submission.
There is another expression of the applicant’s opinion. On 24 June 2022 the St John of God Multidisciplinary Mental Health Recovery and Discharge Plan, which appears to be dictated by the applicant, records that her depression (not post-traumatic stress disorder or symptoms) is getting worse and she is getting suicidal thoughts.
The applicant then says “Neck pain due to work injury, causing PTSD”[4] in the next paragraph, however that is again merely a lay opinion.
[4] Respondent’s additional documents page 55.
Neck pain due to a work injury is entirely consistent with the historical medical material.

The first reference to any psychological condition is a letter from Dr Roberts to The Hills Clinic on 1 October 2021, some five or six months after the date of the injury.
Dr Roberts records that the applicant has developed an adjustment disorder, which is not a condition of sudden onset, with a mix of both depressive symptoms and anxiety in the context of a workplace injury which has resulted in chronic neck pain and an inability to perform pre-injury duties; “[her] distress has been exacerbated by alleged negative commentary from fellow workers…”[5]
[5] ARD page 39.
Dr Roberts does not suggest the applicant has been experiencing any post-traumatic stress disorder symptoms from the time of the injury or in October 2021.
There is a referral made by Dr Roberts to Dr Standen on 5 October 2021 that includes “Roslyn has been struggling for the last several months with chronic neck pain following an alleged assault at work”[6] but not that she has been struggling with flashbacks, distressing nightmare and matters of that nature.
[6] ARD page 41.
On 11 October 2021 Dr Roberts reports to the insurer that the applicant had been treated for several months for chronic neck pain which had developed as a result of an alleged assault, not that she had a sudden onset of neck pain from the assault itself. She had been under regular review and had been seeing a physiotherapist and was awaiting an appointment with Dr Standen. She reported her pain was continuing and debilitating and she felt pressured to return to full pre-injury duties. That was the extent of complaints and symptoms Dr Roberts recorded.
Dr Roberts provides a diagnosis in that report of a soft tissue injury to the cervical spine. The applicant has debilitating and severe mental health distress requiring targeted and intensive treatment. Dr Roberts’ diagnosis is that she has developed a major depressive illness with her psychological distress seeming to have developed as a consequence of a physical workplace incident, exacerbated by other events in the workplace later on.
Dr Roberts does not say the applicant developed a psychological response in the context of a vicious, unprovoked attack at work. While the opinion of a general practitioner may be less potent than that of a qualified consultant psychiatrist, however clinical building bricks for diagnosis must come from observation.
There is no radiological or other diagnostic methodology available to the clinician so a psychiatric diagnosis can only be made by considering the history.
Dr Standen’s report of 13 October 2021 is limited to consideration of the consequences of cervical spine pain. Dr Standen is an expert physician who is an interventional pain specialist. Clearly a differential diagnosis is important to a pain specialist, and obviously if there is some other psychiatric or physical condition that has not been identified that could be an important consideration in the formulation treatment programme. Dr Standen has not attempted to perform a differential diagnosis, the respondent submits, because there was no other history or complaints that invited the consideration of a differential diagnosis.
Dr Kumar’s discharge letter for admission to The Hills Clinic on 14 November 2021 records the pharmacology the applicant was taking at the time of her admission. It contains a history that the applicant reported she experienced psychiatric symptoms within three months of the incident, hearing a lot of comments and emails from other staff questioning her injury. She started to become anxious and stopped work about three weeks before her admission.
The diagnosis is then made of major depressive disorder with anxious distress. There appears to be universal agreement that this is the appropriate diagnosis, and that is all
Dr Kumar is diagnosing at this stage.
The applicant’s submission is that there is a primary psychiatric injury in the nature of post-traumatic stress disorder as well as the depressive effects of the physical injury and workplace problems.
Dr Kumar has provided multiple reports before he refers to post-traumatic stress disorder. On 3 February 2022 Dr Kumar again says the applicant suffers from a major depressive disorder, and the series of Dr Kumar’s reports record the recalcitrant nature of the symptoms with the lack of improvement.
Dr Kumar’s first commentary of a medico legal nature is on 11 February 2022 responding to an inquiry from the insurer. He confirmed major depressive disorder and the proposed treatment. Dr Kumar commenting on Dr Young’s report inferred that the opinions of Dr Young are not different from his own, and she requires inpatient treatment. Questions of diagnosis and causation appear to be unanimous at that stage.
In his report of 6 April 2022 Dr Kumar acknowledges there were other stressors in her personal life, which the respondent agrees with the applicant may be relevant to assessing the level of impairment, but not to the question before the Commission.
Mr Cherrie, psychologist, reports on 4 June 2022 that he has seen the applicant on
13 occasions but there appeared to have been either a lack of progress or a lack of rapport and the applicant decided to seek assistance elsewhere. Mr Cherrie does not touch on the presence of any history of or symptoms of post-traumatic stress disorder.
A/Prof Madhaven at St John of God reports on 10 August 2022 on the treatment provided and considered there had been a discernible improvement in components of the major depressive disorder, however he gives no insight into a diagnosis of post-traumatic stress disorder or the sorts of events that may give rise to such a diagnosis.
No one has identified in any clinical material or expressed an opinion to the effect that the applicant has been exposed to life threatening events and has sustained post-traumatic stress disorder.
Dr Kumar then adds that diagnosis to major depressive disorder on 29 August 2023.
Dr Kumar refers to the applicant being threatened by a participant that they will kill her and in another incident when she was physically assaulted, fulfilling criteria A for post-traumatic stress disorder. That is not part of the applicant’s case and it is not clear where Dr Kumar found that history. It was not in the letter of instruction which also did not supply any documentation to him. It appears to be a new feature of the events and matrix of facts he relies on.
One place where something of that nature appears is in the applicant’s statement of
24 June 2024 where she refers to someone screaming at her in the second half of 2020 that they wanted to kill her.
That reference is not supported by any details of the effect that event might have had on her, an important detail for anyone assessing the nature of post-traumatic stress disorder. She does not say she was terrified or had sleepless nights for example. There is no elaboration.
We do not know what Dr Kumar is referring to. It is an anomalous commentary that does not seem to be supported by the clinical material.
The suggestion of post-traumatic stress disorder is not made until August 2023 and the clinical records contain no contemporary support whatsoever to the case the applicant now presents.
The respondent’s submission is the events that occurred after the applicant returned to work were secondary to her physical condition and that is the only conclusion that could be reached. The most that can be said is that her psychological condition may have become worse at that time. It is not presented as an injury simplicter in its own right.
The respondent accepts an event can result in a primary and secondary psychological condition however there is simply no primary condition at all and all the evidence supports a secondary condition.
If the Commission contrary to the respondent’s submission were to find otherwise it would be important and appropriate to comment on the presence of the secondary condition and ensure that any referral to the Medical Assessor is confined to the assessment to the effects of the primary injury.
If there is no primary psychological condition found there will be no referral made at all.

Applicant’s submissions in reply

Dr Standen notes bullying in her report and the applicant submits Dr Standen does not have the necessary qualifications to make a psychiatric diagnosis.
Regarding the nature of the diagnosis, the applicant doubts whether some particular tag needs to be attached. The applicant has serious concern about people wanting to kill her which is expressed in a metaphorical sense or as a figure of speech that amplifies her objective distress and is a sign of the severity of her symptoms.
There has been a progression of symptoms over time. The general practitioner diagnosed adjustment disorder and adopted Dr Kumar’s early diagnosis of major depressive disorder. Dr Kumar also initially agreed with Dr Young’s opinion about the need for medication, but as time progressed Dr Kumar says that there has been a deterioration of her condition and describes the symptoms which the applicant reported at that stage, that she remained depressed and she also reported she still had nightmares from the incidents she encountered before.
She has intrusive thoughts and she is fearful of going to places where she might run into people from work. She is extremely anxious, especially with sudden, loud noises which remind her of workplace events. All of those are classic symptoms of post-traumatic stress disorder.
There is no impediment in accepting the applicant’s condition has worsened over time and that is justified also by the medication which she is being prescribed.
The applicant says there are two conditions being treated looking at the medications; first
Dr Kumar prescribes six psychotropic type medications, two of those have to do with depression, Pristiq and Mirtazapine, he also refers to other medications that are antipsychotic, Creatapine, and there is epilepsy and bipolar medication, Valproate, there is anxiety medication Lorazepam and Topiramate which is also epilepsy medication used for migraines. The applicant also had electric shock therapy which is very powerful and is said to have been ineffective in her case.
Dr Kumar describes her current treatment; she is still on the same depression drugs and at least another three of the drugs described before, and she is taking Celebrex and Lyrica for pain.
The applicant’s submission is that the drugs prescribed are for two conditions, consistent with the diagnosis of both conditions. The effects of this event have had both of these major consequences to the applicant.

FINDINGS AND REASONS

Did the applicant sustain a primary psychological injury on 28 April 2021

To be entitled to lump sum compensation the applicant bears the onus of proof to establish on the balance of probabilities that she suffers with a primary psychological injury as a result of the incident on 28 April 2021.[7]
[7] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246.
The purpose of s 65A of the 1987 Act is to preclude the payment of permanent impairment compensation resulting from a ‘secondary psychological injury’. It is a disentitling provision.[8]
[8] [2016] NSWSC 346 (Kaur) at [23].
Section 65A(5) of the 1987 Act provides that ‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury, and ‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.
As Campbell J discusses in State of New South Wales (NSW Department of Education) v Kaur[9] the question of whether an injury is a secondary or primary psychological injury is for the Commission to determine.
[9] Kaur at [22]; Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234.
It is not in dispute that the applicant sustained a cervical spine injury on 28 April 2021.
The respondent accepts and there is no dispute that the applicant sustained a secondary psychological injury as a consequence of her cervical spine injury.
Although this does not feature strongly in her statement evidence, there is medical evidence supporting a secondary psychological injury. Dr Young refers to the applicant confirming a history of experiencing psychological symptoms secondary to chronic pain. Dr Roberts refers to the applicant’s distress seeming to have developed as the result of pain and disability following the cervical spine injury on 28 April 2021, and records on 28 September 2021 the applicant reports “distressing and debitating [sic] neck pain”.[10]
[10] ARD page 302.
The applicant asserts that in addition she sustained a primary psychological injury as a result of the incident of 28 April 2021 and there is evidence that supports that finding.
The applicant’s statement evidence is that she was very distressed and in shock as a result of the assault on 28 April 2021.
In August 2023 Dr Kumar opines the applicant suffers with a primary psychological injury, diagnosing major depressive disorder and post-traumatic stress disorder resulting from the employment.
In Dr Kumar’s opinion the trauma caused by the assault itself on 28 April 2021 is the primary reason for the applicant’s condition, and it is a primary not a secondary condition.
The respondent submits the clinical records contain no contemporary support for a diagnosis of post-traumatic stress disorder or symptoms. The applicant had varying severe symptoms and their treatment appears as the priority for her treating practitioners. A diagnosis of post-traumatic stress disorder would seem to be more appropriately made by a psychiatrist in any event.
Dr Kumar had the benefit of regularly observing and treating the applicant from the time of her first admission to The Hills Clinic on 13 October 2021, and as her treating specialist I prefer his opinion. His opinion is careful and considered and he provides his reasoning.
Dr Roberts does not recognise or distinguish between primary and secondary psychological conditions, and as the applicant submits, as a general practitioner that is appropriate.
Following four tele-consultations and one telephone consultation with the applicant from
28 September 2021, Dr Roberts reports on 11 October 2021 the applicant’s symptoms are severe, she is concerned for the applicant’s physical safety, there is a need for acute assessment and she refers her for admission to The Hills Clinic.
Dr Roberts believes the applicant’s distress developed to a large degree as a consequence of the physical injury, likely further exacerbated by alleged intrusive questioning by fellow workers and her manager.
Given the context in which the consultations were held and the nature of the treatment required, I am unable to accept as submitted by the respondent that observations made by Dr Roberts would necessarily form the building bricks for making diagnoses in this case.
I do not place weight on Dr Robert’s opinion regarding the nature of the applicant’s psychological condition, intending no disrespect, considering the circumstances.
The referral made by Dr Roberts to Dr Standen relates to management of the applicant’s chronic neck pain.
Dr Standen first held a telehealth consultation with the applicant while she was an inpatient at The Hills Clinic. Dr Standen notes the applicant’s mental health issues subsequent to the incident, exacerbated with return to work.
As the applicant was under the care of a treating psychiatrist including as an inpatient, I do not accept that Dr Standen makes no differential psychiatric diagnosis as the result of there being no other history or complaints made, as the respondent submits. The focus ofDr Standen’s treatment is on the management of the applicant’s neck pain.
Dr Young records that the applicant felt somewhat shocked immediately following the incident on 28 April 2021 but she was not excessively or emotionally distressed. She said she was not experiencing any significant psychological symptoms at this time. This may accord with Dr Kumar’s note of the applicant reporting she experienced psychiatric symptoms within three months of the incident.
In Dr Young’s opinion the applicant’s current symptoms have arisen due to the secondary effect of chronic pain which caused an exacerbation of features of pre-existing borderline personality disorder.
I do not place great weight on this opinion. There is no history of borderline personality disorder features in evidence. Dr Kumar comments that he could not find any explanation in Dr Young’s report about how he came to that conclusion.
I am not required however to make a definitive diagnosis of the applicant’s psychological condition[11] and I accept the applicant’s submission on this point. A precise diagnosis is a matter for a Medical Assessor to determine at the time of their assessment based on their expertise.
[11] AP v New South Wales Police Force [2013] NSWWCCPD 11; BFZ v Inner West Council [2024] NSWPIC 167 at [13] – [24].
Addressing in general the submissions made by counsel with respect to diagnosis however I note the following;
(a)    there was initial agreement between Dr Kumar and Dr Young on the diagnosis of major depressive disorder as the respondent submits;
(b)    Dr Young adds a diagnosis of persistent depressive disorder and then diagnoses borderline personality disorder as the applicant’s condition further regresses;
(c)    Dr Kumar diagnoses post-traumatic stress disorder in August 2023 in addition to major depressive disorder;
(d)    A/Prof Madhavan refers to comorbid complex trauma and post-traumatic stress disorder, and
(e)    the applicant says a consideration of medications shows she receives treatment for two conditions.
The respondent submits the clinical records do not disclose a diagnosis of post-traumatic stress disorder, a history commensurate with criteria A or any of the symptoms of post-traumatic stress disorder.
I accept the clinical records do not disclose a diagnosis of post-traumatic stress disorder or a description of relevant symptoms, although I note Dr Relan was initially the applicant’s nominated treating doctor and clinical records for the period 7 May 2021 to 27 September 2021 are not before the Commission.
I otherwise do not accept the respondent’s submission. Dr Young notes the applicant reports post-traumatic symptoms and he considers she has some post-traumatic symptoms, however he is unable to establish a diagnosis of post-traumatic stress disorder in the absence of a criterion A qualifying event.
Criterion A of the Diagnostic Criteria for Post-traumatic Stress Disorder in Diagnostic and Statistical Manual of Mental Disorder, 5^th edition includes the requirement of exposure to threatened death or actual or threatened serious injury.
Dr Kumar finds the criterion A qualifying event to be the assault by clients where she sustained serious injury as well as a threat of death. Dr Kumar finds the applicant fulfills the criteria for post-traumatic stress disorder in the context of being assaulted at work on two occasions, once in the 2020 incident when the participant threatened to kill her and in the incident on 28 April 2021 when she was physically assaulted.
I accept the incident on 28 April 2021 involved exposure to actual or threatened serious injury as the applicant submits.
The applicant describes being very distressed and in shock from the incident. Dr Kumar refers to violent assaults that took place in the course of the applicant’s employment as including the incident on 28 April 2021. Mr Cherrie describes the applicant as having been attacked by a client on 28 April 2021.
The records of the Logic Lounge on 11 April 2022 under the heading ‘Work trauma’ include “- Worried about being put into violent situations.”[12]
[12] ARD page 361.
I accept as the respondent submits that the applicant’s statement evidence on diagnosis cannot be accepted as it is lay evidence. The St John of God Hospital discharge plan which includes the description by the applicant of “[n]eck pain due to work injury, causing PTSD”[13] cannot be accepted for the same reason.
[13] Respondent’s additional documents dated 30 May 2025 page 55.

The applicant has symptoms consistent with post-traumatic stress disorder and depression. While it appears likely on a consideration of the evidence that the applicant suffers with post-traumatic stress disorder, I make no finding on the question of diagnosis for the reasons above.
The applicant’s statement evidence is that she was suffering from neck pain “but it was the combination of violent assaults, hostility from other staff and management being dismissive and unsupportive that caused my psychological condition.”[14]
[14] ARD page 17.
There is undisputed evidence the applicant experienced events on her return to work that she perceived as bullying from her colleagues and managers.
These events being ‘extraneous or extrinsic’ to the original cervical spine injury on
[15] Cannon v The Healthy Snack Food Pty Ltd [2009] NSWWCCPD 32; State of NSW (Sydney Local Health District) v Sun [2024] NSWPICPD 68.
28 April 2021 do not form part of her secondary psychological injury.[15]
The applicant’s submission is that the events following her return to work exacerbated her primary psychological injury and I accept that submission.
I also accept the applicant's submission that the applicant’s previous psychological conditions and previous events rendered her more vulnerable.
Having regard to the evidence as a whole, and preferring and accepting the opinion of
Dr Kumar, I am satisfied the applicant has sustained a primary psychological injury as a result of the incident on 28 April 2021.
In accordance with Campbell J’s direction in Kaur I have determined the applicant sustained both a primary psychological injury and a secondary psychological injury. The applicant’s primary psychological injury gives rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act. The extent to which permanent impairment results from the applicant’s primary psychological injury is a matter for assessment by a Medical Assessor.

SUMMARY

The applicant has sustained a primary psychological injury pursuant to s 65A of the 1987 Act. The matter will be remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment resulting from the applicant’s primary psychological injury.

[2025] NSWPIC 385

7 August 2025