Hurley v BWN

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hurley v BWN [2024] NSWPIC 279
APPLICANT:	Catherine Hurley
RESPONDENT:	BWN
MEMBER:	Diana Benk
DATE OF DECISION:	27 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” or was a “secondary psychological injury” that was, by virtue of section 65A(1) excluded from giving rise to a claim for lump sum compensation for permanent impairment under section 66(1); Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A that may give rise to a claim for lump sum compensation under section 66(1).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury. Employment is the main contributing factor. 2. The psychological injury is a “primary psychological injury” pursuant to s 65A of the Workers Compensation Act 1987 that may give rise to a claim for lump sum compensation under s 66(1) of the Workers Compensation Act 1987. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 9 January 2023 (deemed). Body parts: psychological. Method: whole person impairment. 4. The materials to be referred to the Medical Assessor include: (a) Application to Resolve a Dispute and all attachments, and (b) Reply to Application to Resolve a Dispute and all attachments.

STATEMENT OF REASONS

BACKGROUND

Catherine Hurley (the applicant) sustained physical injuries from chemical exposure in the course of her employment as a swimming instructor with BWN (the respondent). Liability was accepted for both the physical injury and a secondary psychological condition.
On 9 January 2023, the applicant made a claim for lump sum compensation arising out of her psychiatric injury. As the injury is a ‘disease’ the deemed date of injury is the date of claim.
The respondent assessed the claim and disputed injury relying on the provisions found in the Workers Compensation Act 1987 (the 1987 Act) and specifically ss 4, 9, 9A and 60 maintaining the applicant ‘did not suffer a primary psychological injury’.[1] It also relied on
[1] Folio 21 of the ARD.
ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (late notification provisions) but abandoned that claim during the course of these proceedings.
The matter underwent the usual case management pathway and following conciliation impasse I was asked to determine the liability issue, specifically whether the applicant suffered a psychological injury in the course of her employment with the respondent with regards to s 4 of the 1987 Act.
At conciliation/arbitration, the applicant was represented by Mr Malouf of counsel instructed by Ms Azer. The respondent was represented by Mr Saul of counsel instructed by
Ms Palamara.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply, and the law found in the 1987 Act. No oral evidence was adduced.

Applicant’s evidence

Claim form dated 25 October 2022

This claim form relevantly states (unedited):
“I was exposed to unsafe pool conditions due to high chlorine levels. I would raise concerns and they were either denied or dismissed. After swimming in the pool on various occasions, unsafe chlorine levels were subsequently confirmed. In an meeting on 18/03/2019, I was threatened by BSW that if I make a WC claim for my respiratory and skin symptoms that ‘my past will be brought up’. BPU had also delayed submitting my WHS forms and completed on 17/02 and 04/03. After this meeting the pool safety issues persisted and management became hostile towards me when I raised complaints or discussed my symptoms. Another meeting took place on 06/09/2019 with BTH and BNX. BNX said to me that if I have a high sensitivity to chlorine, then that’s ‘my problem’. This was despite unsafe chlorine levels being confirmed. BNX told me to speak to a counsellor about my attitude. I didn’t have attitude, I was just expressing my concerns because of the persisting pool safety issues and high chlorine levels I was exposed to. Between 06/09/2019 and 22/09/2019, BNX would intercept me at work in an intimidating manner and ask in an authoritative way whether everything was OK now. I could not return to work since 22/09/2022 because of the persisting safety issues which were always denied or disregarded and the treatment from management when I raised concerns about the issues and my safety including the safety of other staff and students”[2]
[2] Folio 10 ARD.

Statement dated 1 December 2023

The statement is extensive and deals with the history of physical injury (chemical exposure) and her treatment by management after escalating the issue.
To the extent that it overlaps, the statement is consistent with the claim form but expands on treatment perceived as bullying and harassment. Specifically;
·        when she suggested she should be on workers compensation leave “they” (the management team) turned hostile on me and failed to send her Work Health & Safety (WHS) forms dated 17 February 2019 and 4 March 2019 to the Safe and Well Department until 18 March 2019. The applicant also alleges that she was threatened that if she put in a complaint “my past will be brought up”;[3]
·        she was refused further WHS forms on 2 September 2019 being told “they were not available” and “everything had been fixed and that my concerns are not valid”;[4]
·        was requested to refrain from discussing symptoms of chemical exposure within the swim centre “with other workers”;[5]
·        attended a meeting on 6 September 2019 in the presence of BTH, [redacted] and BNX, [redacted], where she was informed “to not speak to other staff about me being unwell and said to me words to the effect of that if I have a sensitivity to chloramine, then that is my problem…when I raised the high chloramine levels in the pool, BNX got angry and asked me to call it ‘combined chlorine’ or ‘free chlorine’. I started to speak about the high levels on 25 August 2019 and BNX said he does not want to discuss it as it was before his time. BNX said to me words to the effect of that I should speak to a counsellor about my issues and attitude. I felt threatened, humiliated and belittled”;[6]
·        unable to return to work since 22 September 2019 because of the “hostile and threatening treatment that I was subjected to by management … I was feeling very traumatized, depressed and anxious…” “the unexplained issues, lying, bulling and illness caused me to start binge eating after shifts and my weight surged to 90kg. This was the first time in my life I felt like harming myself. I punished myself by restricting my food to almost nothing for three days. I gained some control and started a pattern of binging, urging and restricting food until I had lost over 30kg again”;[7]
·        continued to feel physically ill yet was reassured by management that “there are no problems”;
·        concerns were dismissed and there was no accountability causing her to feel anxious and depressed and her psychological condition deteriorated in an environment that was intimidating and hostile due to her desire to raise her concerns about the chemical levels, and
·        the fall out of this situation resulted in a suicide attempt on 24 May 2022[8] where she was restrained by police and admitted to Blacktown Hospital for three days; suffered an eating disorder[9]; had a reduction in social and recreational activities[10] sleep disturbance, struggles in concentration, mood disturbance and anxiety.
[3] Paragraph 23 of the statement – Folio 25 of the ARD.
[4] Paragraph 36 of the statement – Folio 26 of the ARD.
[5] Paragraph 37 of the statement – Folio 27 of the ARD.
[6] Paragraph 39 of the statement – Folio 27 of the ARD.
[7] Paragraphs 41 and 42 of the statement – Folio 27 of the ARD.
[8] Paragraph 50 of the statement – Folio 28 of the ARD.
[9] Paragraph 56 of the statement – Folio 29 of the ARD.
[10] Paragraph 58 of the statement – Folio 29 of the ARD.

Dr Kumagaya, consultant psychiatrist

Qualified on behalf of the applicant, Dr Kumagaya recorded an uneventful employment, developmental and family history and recorded with regards to addictions, the applicant commenced drinking regularly in mid-2019 and then reporting binge pattern alcohol consumption on ceasing work.
A diagnosis of major depressive disorder with anxious distress was made and causation was said to be due to her experience of “invalidating, unreasonable, belittling and threatening treatment in the workplace”.[11]
[11] Folio 52 of the ARD.
Specifically with regards to onset of symptoms, the following history was taken (unedited):[12]
“Ms Hurley described how she had been employed as a swimming instructor by BWN since 2007.
Ms Hurley described how the pool at which she worked was located indoors, and was subject to problems with its ventilation system and ultraviolet (UV) treatment system. Ms Hurley stated that this meant that over a period of several years, she was exposed to high levels of chemicals used about the pool, including chloramine, trichloramine, and chlorine.
Ms Hurley stated that as a result of such chemical exposure, she experienced a range of physical symptoms, which included recurrent sore throat, nasal irritation, changes to her voice, skin irritation, headaches, and dizziness. Such symptoms prompted her to seek medical attention, as well as to take various periods of leave from work.
Ms Hurley stated that when she raised her concerns in relation to the water and air quality of the pool to management, her concerns were invalidated, and she was subsequently subjected to unreasonable, belittling, and threatening treatment at the workplace. Ms Hurley described, for example, being yelled at by the chief operations manager, and told statements to the effect of ‘it’s none of your concern’, ‘stay out of it’, and ‘it’s none of your business’. Ms Hurley also recalled being ignored at the workplace. During a meeting with management, Ms Hurley also recalled having her employment being threatened.
Ms Hurley stated that as a result of such stressors, she experienced the onset of depressive and anxious symptoms during approximately April 2019. Such symptoms included low mood, decreased interest and engagement in previously enjoyable activities, sleep disturbance (middle insomnia), concentration difficulties, low energy levels, easy fatigability, anxiety, and restlessness.
Such were Ms Hurley’s workplace stressors and circumstances, that she was unable to continue to work beyond 22 September 2019.”
[12] Folio 50 of the ARD.
The report offers an impairment assessment referencing the criteria found in the psychiatric impairment rating scale (PIRS) reflecting a diagnosis of “major depressive disorder with anxious distress”.

Sevilay Dogan, psychologist

In an undated report, it was recorded (unedited):[13]
“…Mrs Hurley was initially assessed on 30 April 2019 and presented with symptoms indicative of Adjustment Disorder and Generalised Anxiety Disorder in the context of having caught nose and throat infection in her workplace of Blacktown Leisure Centre Stanhope as a swimming instructor/teacher due to unsafe chlorine levels detected in the pools. Mrs Hurley reported having lodged a WorkCover claim in this context and explained her previous return to work attempt and claim process to be highly triggering and stressful. Mrs Hurley reported she has been subjected to workplace bullying and harassment post injury.
Since her initial referral and assessment there has been a significant deterioration in Mrs Hurley’s mental health. She currently reports symptoms indicative of Major Depressive Disorder, Generalised Anxiety Disorder and Avoidant/Restrictive Food Intake Disorder and has had a history of hospital admission. It is my clinical opinion that Mrs Hurley developed these symptoms in the context of having been mistreated by her employer post workplace injury.”
[13] Folio 71 of the ARD.

Clinical notes - Insight Central - Sevilay Dogan

For reasons that are unclear, the clinical notes have been annexed twice to the ARD, and appear to have been derived from two different sources, firstly via UHG[14] and then given to the applicant’s solicitor[15].
[14] Folios 359 to 364 of the ARD.
[15] Folios 365 to 372 of the ARD.
The series of clinical notes commence on 20 March 2020 and cease on 1 December 2023. Despite Ms Dogan stating she initially assessed the applicant on 30 April 2019, there are no presentation notes until 20 March 2020.
Review of the notes shows a total of 25 sessions (approximately) as entries are difficult to read. They record alcoholism, attempted suicide and hospitalisation, her husband’s suspension from work due to a driving incident, her husband’s nephews attempted suicide, negative coping strategies including alcohol, diet restricting and self-damaging acts, multi chemical sensitivity, communication difficulties with her husband and daughter, vivid dreams/nightmares and her belief that she was the subject of surveillance.

Dr Abdul Khan, consultant psychiatrist

Dr Khan commenced treating the applicant following general practitioner referral. In his report following initial assessment on 22 January 2020 he diagnosed adjustment disorder with mixed anxiety and depressed mood and reported (unedited):[16]
“…Mrs Hurley described how she was exposed to chemicals over a number of months to years during her employment as a swimming instructor with BWN. She reported that the chloramine, trichloramine and chlorine levels exceeded recommended safe levels. Mrs Hurley described how the pool was indoors. The UV lights were not working and the ventilation system was faulty. Mrs Hurley took 6 weeks off work and attempted to return to work but her respiratory tract disease was aggravated further. She has not been able to work since September 2019. When Mrs Hurley informed her employer about her physical health issues, her employment was threatened if she went on workers compensation. Mrs Hurley continued to suffer from respiratory tract disease and was being managed by an ENT specialist.
As a result of her work-related physical injury, Mrs Hurley experienced deterioration in her mental state characterised by low mood, anxious ruminations, reduced enjoyment in activities, anergia, sleep disturbance, impaired concentration, and feelings of hopelessness and worthlessness. She described how she avoided eating after midday as this enabled her to distract herself from her psychological distress. Mrs Hurley was currently engaging in psychological treatment. She was reluctant for a trial of psychotropic medication at this stage.”
[16] Folio 73 of the ARD.
In his report dated 11 May 2020 it was reported (unedited):[17]
“She experienced recent deterioration in her mental state, which occurred in the context of completing her fluoxetine prescription and personal psychosocial stressors. Mrs Hurley developed significant anxiety and subsequently consumed 7 standard drinks of alcohol. She described how she blacked out and had expressed suicidal intention in the context of acute alcohol intoxication. She was taken to her local hospital emergency department and was discharged once sober. We discussed the importance of medication adherence and ongoing engagement in psychological therapy.”
[17] Folio 77 of the ARD.
In a further report dated 16 December 2020 (unedited):[18]
“She described deterioration in her mental state in the context of recent challenges with the insurance process. Mrs Hurley's mental state had since stabilised. She described abstinence from alcohol for the past seven weeks. We discussed a trial of suvorexant for her sleep disturbance given ongoing vivid dreams with melatonin SR. Mrs Hurley was adherent with her psychotropic medications and continued to benefit from psychological therapy.”
[18] Folio 83 of the ARD.
In a report dated 19 April 2021 it was recorded (unedited) and relevantly:[19]
“Since our last consultation, Ms Hurley had recommenced fluoxetine. She mentioned that her skin irritation since the subject injury had improved with fluoxetine and her dermatologist had recommended that she continue too. Ms Hurley's ongoing issues with mood dysregulation, agitation, irritability, bruxism and sleep disturbance remained an ongoing concern. She identified how her alcohol use had escalated recently and she was drinking in a consistent pattern in the evenings to help with her mood and sleep issues. Ms Hurley had ceased alcohol use approximately one week ago after recognising her vulnerability to developing an addiction. She was amenable to psychoeducation about the nature of alcohol use disorder. We discussed re-trialling suvorexant at a lower dose to augment fluoxetine. Ms Hurley continued to benefit from psychological therapy”
[19] Folio 87 of the ARD.
Following assessment on 7 June 2021, it was reported (unedited):[20]
“She disclosed a pattern of purging with alcohol use for the past five months in the absence of any other apparent eating disordered behaviour. This behaviour seemed to be perpetuated by her emotional distress and loss of self-confidence and self-identity. Mrs Hurley was engaging with a dietitian but was encouraged to follow-up with her GP to have her electrolytes assessed. We discussed increasing fluoxetine to try and stabilise her mental state further. Mrs Hurley remained adherent with her psychotropic medications and continued to benefit from psychological therapy.”
[20] Folio 88 of the ARD.

Discharge transfer document – Blacktown Hospital 26 May 2022[21]

[21] Folio 93 of the ARD.

Following a self harm attempt, admission and observation, discharge records state (unedited):
“Background
Catherine Hurley is a 50 year old lady, married, living with her husband (known for 30+ years), 2 children aged 19 and 21, in Kellyville Ridge. She used to work as a swimming instructor with the BWN but has been unemployed since 2019 after workplace incidents-workplace bullying and chemical injuries for which she is seeking legal support, workers comp and undergoing medical treatment for chemical injuries”

Rouse Hill Town Medical and Dental Centre clinical notes

The notes reveal the applicant has been a patient of the practice since at least
27 October 2009.
The first complaint of emotional upset is recorded on 19 March 2019 when the applicant reported that “claimed for WC and spoken to work yesterday. They were very rude with her... very upset about that”.[22] A mental health plan was arranged on 18 April 2019 due to “stress and anxiety depression due to her mental condition”.[23] On 16 April 2020 an updated mental health plan was arranged due to “anxiety stress and depression linked to WC claim and feels like needs to talk to someone now”.[24]
[22] Folio 443 of the ARD.
[23] Folio 444 of the ARD.
[24] Folio 434 of the ARD.
On 31 May 2020 the applicant again presented and it is recorded “beginning May – very stressed, then drank alc one day.very sensitivie passed out after 1 bottle wine rushed ed…husband had incident at work the day later, nearly lost his job”.[25] On 10 September 2020 it was recorded “she is here to get referral to dietician, loosing wt and this is under W/c”.[26]
[25] Folio 433 of the ARD.
[26] Folio 431 of the ARD.
On 6 November 2020, a further mental health plan review was arranged.[27] At the presentation on 5 July 2021, it was recorded “having trouble with anxiety..last week had an issue…was exposed to chemicals at work….miss [sic] management and verbal abuse”.[28] At presentation on 23 July 2021[29] the entry records “weight loss unintentional 30kg over 2 yrs, anxiety and stress known to have an eating disorder sees psychologist and dietician”.
[27] Folio 429 of the ARD.
[28] Folio 426 of the ARD.
[29] Folio 423 of the ARD.

On 10 August 2021 it was recorded “developed bulimia earlier this year has since stopped bingeing/purging”.[30]
[30] Folio 420 of the ARD.
On 31 January 2023 at consultation it was recorded” stress++ with workers comp upset that they called her on 23/12/2022 to tell her that she was losing her case felt very demoralized”.[31]
[31] Folio 396 of the ARD.
At presentation on 6 June 2023 it was recorded “history of anxiety challenges at work feels she is being bullied and has struggled seeing psychologist long term”.
On 20 July 2023, it was recorded “seeing psychologist – finding it helpful good isnight(sic) although says not to relase [sic] any notes to anyone will inform reception staff”.[32]
[32] Folio 388 of the ARD.

Clinical notes – Workers Doctors

The clinical notes commence on 25 September 2019[33] and cease on 26 September 2023.[34] The covering page enclosing the clinical notes suggests that there are 647 folios[35] (however I find that this is a typographical error as the consultations are in sequential order and the notes span 138 folios).
[33] Folio 762 of the ARD.
[34] Folio 624 of the ARD.
[35] Folio 621 of the ARD.
At first presentation on 25 September 2019,[36] Dr Lim recorded the history of chemical exposure and management “threatened to check her medical history to find out if she was a smoker etc after going on workers compensation, the insurance advised her to do suitable duties in an office job which the employer refused”.
[36] Folio 762 of the ARD.
At presentation on 29 October 2019,[37] it was recorded:
“was told not to explain or said anything whilst investigation of the problems was blamed of what happened by manager as she returned earlier because workers comp could not accommodate and alternative position [sic] resentment, anger and frustration feelings, low mood, low energy, sleeping difficulties, overthinking”
[37] Folio 759 of the ARD.
On assessment on 28 February 2020[38] a diagnosis of adjustment disorder with anxious mood was offered and it was recorded “got a call from work colleague that manager was terminated for bullying and harassment –Catherine was bullied and harassed by this same person…he undermined her, was unsupportive”.
[38] Folio 749 of the ARD.
On 21 April 2020,[39] it was recorded “upset about daughter meeting someone online …Pt not told about this:Pt upset, angry for days”.
[39] Folio 742 of the ARD.
On 24 June 2020,[40] it was recorded “partner has been moved into ‘run truck’ demoted from grade 8 grade 3”.
[40] Folio 733 of the ARD.
On 18 September 2020,[41] it was recorded:
“daughter also worked at pool, fell ill had tonsils; feels guilty about Emily who plays AFL top grade. Emily missed training and games became slower, and Pt feels responsible for this as Pt got Emily a job at the same pool centre where the Pt acquired the workplace injury… feels guilty about Emily.”
[41] Folio 725 of the ARD.
On 23 November 2021,[42] it was recorded (unedited):
“Major depressive disorder with anxious distress
Unspecified feeding and eating disorder
Symptoms - patient experience Pt reports moderate anxious and depressive cognitions anxious about health
Pt reports ..'BWN said to me after I told them about too much chlorine in the pool ...
dont worry catherine because once you go outside after 10 mins it goes away.. this statement is the one that really makes me get angry with them because they know that there is a problem but treated like .."it will go away after 10 mins,"
[42] Folio 686 of the ARD.
On 23 May 2023[43] at consultation, it was recorded:
“Diagnosis - relation to the injury
Major depressive disorder with anxious distress
Unspecified feeding and eating disorder
Symptoms - patient experience 'It is the wave pool ...thats where the trouble was...work has covered it all up'
Pt reports 'I just do my walking each day...'I am angry and walking helps me with controlling my anger... I am so angry-when I recall engineer at pools told me that the restricted area is full of mould ..you need a shovel itsd think like carpet, rusty railings, things like stalacmites on rails, A/C unit ansd so on...I'm mad as anything..
I was the only one that said to the boss 'Are you going to do something about this all...boss looked at me and said 'you are making it all up, there is no moulds etc..I saw my work colleagues and asked them ...are you standing up on this issue...robbie ther whole centre was evacuated that day...but us...we were made to stay inside...the centre.'.
' Pt is engaged in treatment for eating disorder: Pt is known to local GP and has commenced with dietician loss of confidence broken trust alcohol minimum use”
[43] Folio 632 of the ARD.
Multiple other presentations record similar diagnosis and findings, the results of blood tests, dietician results and hospitalisation and have not been repeated here in the interests of brevity.

Respondent’s evidence

Dr Doron Samuell (clinical and forensic psychiatrist)

Qualified on behalf of the respondent in his report dated 27 September 2020,[44] he acknowledges the hospital presentation although in the absence of ambulance of hospital records admits he did not have a full appreciation of what led to the hospitalisation.
[44] Folio 60 of the ARD.
As regards the psychological history, he recorded (unedited):[45]
“’She said that she first had mental health difficulties in around April 2019 when she saw a psychologist. She was tearful, upset and felt as though she needed to speak with someone. She complained about “the way they were treating her at work’. She said, ‘I had been there for thirteen years and I was good at my job and loved it’. She told me that she had ‘got awards’.
She said that when she went to see her boss, she was told that if she was to go on workers’ compensation, ‘They would even use smoking as a teenager against me’. She added, ‘They went nasty on me’.
She said that she had six weeks off work and then returned to work when she spoke to one of the bosses, Steve, who she says told her that she wasn’t allowed to talk about her injuries and that they may reconsider her employment. She said, ‘he would walk up to my face and ask how I was. I felt it was confronting’. She said that he was subsequently transferred.”
[45] Folio 65 of the ARD.
As regards causation he concluded (unedited):[46]
“Ms Hurley’s depression has arisen as a result of the physical condition. Once an individual is depressed, the natural history of depression means that she could remain depressed for, on average, two years. There are no other identified causes of her depression, and, in my opinion, her employment, therefore, remains a substantial contributing factor to her current condition.”
[46] Folio 69 of the ARD.
With regards to diagnosis (unedited):
“Ms Hurley suffers from Major Depression with anxious distress. She reports significant deterioration in her mood, sleep and appetite. She has observed cognitive difficulties, is socially withdrawn and has a reduced overall level of functioning. Her depressive disorder is at least of moderate severity.”[47]
[47] Folio 40 of the Reply.
In his report dated 19 December 2021,[48] as regards causation it was stated (unedited):
“She remains angry with her employee concerning what she perceives to be a lack of care about her wellbeing. At the same time, it should be noted that she has not been at the workplace for a considerable period. The causal nexus with her employment has become increasingly more tenuous the longer she is away from the workplace. If it is accepted that the Major Depression was caused by her employment, then since she has remained depressed, but improving, the tail end of her Depressive Disorder should also be considered work related.”
[48] Folio 24 of the Reply.
In a further report dated 7 August 2023,[49] it was reported (unedited):
“Her treating psychiatrist initially diagnosed her with an Adjustment Disorder. He has since discontinued her care. When I saw her on the second occasion, I diagnosed a Major Depressive Disorder and reflected on her alcohol use and eating behaviour. Thomas O’Neill, Psychologist, reviewed Ms Hurley and provided a competent report that identified problems with eating and alcohol use. He did not diagnose Depression or an Adjustment Disorder. Dr Kumagaya, in a somewhat superficial and brief report, diagnosed a Major Depressive Disorder. He did so without providing any pathway of reasoning.
When I last assessed Ms Hurley, I was concerned about the relationship between the subject incident and her ongoing psychological difficulty. Years after the subject incident, it is increasingly difficult to connect her current presentation to that incident. She has strongly held views that she was seriously mistreated by her employer. I submit that her views are not rational, from a psychological perspective, irrespective of the facts of the matter. Her level of indignation and anger is clearly excessive for the circumstances. On my third examination of Ms Hurley, it was evident that there was some paranoid, delusional ideation that was tangentially noted by Thomas O’Neill.
[49] Folio 51 of the Reply.
Mr O’Neill identified an endorsement of bizarre symptoms in his symptom validity testing. I do not believe that the claimant was providing invalid responses, but, rather, delusional responses”

Thomas O’Neill (clinical psychologist)

In his report dated 17 November 2022, [50] it is recorded (unedited):
“I questioned Ms Hurley as to whether she has ever been exposed to bullying or harassment at school, home, or in any workplace. She said that when she brought attention to the safety issues at work in 2018 [sic], she felt that her managers became bullying and harassing of her in relation to her submission of a workers' compensation claim. She said they were more interested in dollars and savings rather than the safety of her, the children she worked with, and their families. She believes the company was irresponsible regarding their management of safety issues. She said she was also upset that her manager accused her of being angry at work, and was concerned that she would act out this anger on the children. She was provided with EAP support which she accessed, but found this process distressing, as she felt she was being blamed for the circumstances she found herself in…
Ms Hurley said she was very upset by many of her colleagues who used to support her concerns for safety over the years. However, when she submitted her claim and information was being gathered about her concerns, she said there was no one there to support her. She feels disillusioned and unsupported by her peers. She said that management tried to minimise her concerns over the years, continued to expose her and her peers and the community to safety concerns, and she still harbours strong feelings of anger directed towards them, believing that how they treated her was unfair, unjust, and there is a need for redress. She is hoping that pursuing this claim for psychiatric whole person impairment will achieve this. She is upset that her claim for physical whole person impairment was not successful and has only recently been recommended to pursue a psychological injury claim for whole person impairment…”
[50] Folio 13 of the Reply.
As regards causation:[51]
“Ms Hurley has the perception that her employment was a substantial contributing factor to her physical condition and the development of her psychological problems. However, it is well known that individuals with severe eating disorders and other comorbid conditions such as anxiety, depression, obsessionality, and alcohol misuse have underlying personality structures and comorbidities that are likely accounting for the prolonged symptoms. The fact she is also involved in a personal injury claim where she believes someone else is to blame for her circumstances is potentially maintaining psychopathology. Her primary diagnosis of Anorexia Nervosa relates to factors such as temperament and negative affectivity/neuroticism, a likely inherited genetic predisposition towards her current mental health vulnerability, and environmental stressors related to what she considers to be longstanding exposure to chemicals in the workplace. I understand that there is accepted liability for 1 condition which is the upper respiratory tract inflammation due to workplace chemical exposure. Given the range of factors identified, I am of the opinion that employment is now not a substantial contributing factor towards the present psychiatric complaints, although has been a relevant factor in Ms Hurley’s self narrative about her current circumstances.”
[51] Folio 22 of the Reply.

Submissions

On behalf of the applicant it was submitted;
i)     there were physical injuries at work, however following that claim, the applicant was “bullied and harassed” (exposed to hostile management) and developed a psychological injury which is distinct from the physical injury;
ii)     there is no evidence from the respondent denying the applicant’s version of events about the hostile treatment of management, particularly being dismissed and belittled, delay in the provision and submission of WHS claim forms and the threat her ‘past would be brought up’ if she persisted with her workers compensation claim;
iii)    psychological symptoms arise not from her physical injury but by the constant dismissal of her complaints and poor treatment by management. The psychological symptoms are not secondary to her physical injury but rather constitute a primary injury because of her poor treatment by management particularly during meetings when she felt ‘threatened, humiliated and belittled’;[52]
iv)    the common-sense test is to be applied in determining causation as expressed in Kooragang.[53] As regards matters relevant to the assessment, I was also referred to the authority of Cannon v Healthy Snack People[54];
v)     it is inappropriate for the respondent to now question the veracity of the applicant’s allegations with respect to bullying and harassing conduct in circumstances where such allegations were not previously denied by the insurer in the various s 78 notices;
vi)    if the psychological injury is a secondary one, how can it be argued that it continues when the physical injury has resolved?
vii)   the respondent’s own medical evidence does not diagnose a secondary psychological injury;
viii)     the applicant has discharged her burden of proof with regards to the psychological injury occurring at work (bullying and harassment) and further that it was the main contributing factor;
ix)    the respondent’s medical evidence does not deal with the bullying and harassment allegation and ignores it completely yet concludes that no other factors apart from the workplace injury is responsible for the psychological condition, a flaw that is fatal to the respondent’s case, and
x)     once the issue is determined, the matter ought to be referred to a Medical Assessor for assessment of permanent impairment.
[52] ARD folio 27.
[53] (1994) 35 NSWLR 452; 10 NSWCCR.
[54] 2009 NSWPD 32.

Respondent’s submissions

On behalf of the respondent it was submitted:
i)     the applicant has not demonstrated on the balance of probabilities she has suffered a psychological injury in the course of her employment nor that employment was the ‘main contributing factor’ as per the authority of AV v AW[55];
ii)     the applicant’s medical evidence is deficient in that it quickly jumps to a conclusion taking into account the applicant’s censored version of events without any real reasoning and furthermore fails to take into account the applicant’s diagnoses of anorexia, bulimia, alcohol abuse disorder and paranoid behavior;
iii)    I was also referred to the early history of complaints and it was submitted mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[56] do not constitute psychological injury and this seems to be the bulk of the applicant’s complaints[57] (Stewart);
iv)    that the report of Sevilay Dogan, the treating psychologist must be treated with caution as there is no reasoning for her ultimate conclusion on causation, and
v)     the issues of alcohol abuse, bulimia and paranoia cannot influence a determination as these conditions have not been medically verified as arising from any workplace episode/situation or injury.
[55] AV v AW [2020] NSWWCCPD 9.
[56] New South Wales v Rattenbury [2015] NSW WCCPD46.
[57] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
Submissions in reply:
(a)    The applicant has been consistent in her reporting of the bullying and harassment since 2019 and principally that her serious concerns about chemical exposure were being ignored. To add insult to injury, not only were her concerns ignored and trivialized by management, they were then ignored and trivialized by the respondent’s medical doctors, who whilst acknowledging the complaints, failed to deal with the impact on her overall mental health presentation;
(b)    it cannot over emphasised the respondent does not refute the applicant’s allegations of bullying and harassment; have not called any witnesses or put the applicant’s credibility in question;
(c)    the applicant cannot and does not appreciate the difference between a primary and or secondary psychological injury. Her claim had been accepted and as far as she was concerned she had made her complaint known to various doctors including the respondent’s qualified doctor from the outset, and
(d)    the applicant has established on the balance of probabilities a psychological injury arising out of the behavior of management which can be properly classified as bullying and harassment. This is distinct from any psychological injury that she may have sustained as a result of the chemical exposure and the ‘causal chain’ has not been broken.

APPLICATION OF THE LAW, FINDINGS AND REASONS

A psychological injury (disease) must satisfy the definition of injury within the meaning of s 4 of the Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, authorities demonstrate:
(a)    in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[58] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[59] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b)    the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates;[60]
(c)    the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland,[61] and
(d)    when assessing the balance of probabilities, if the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred: Malec v JC Hutton Pty Limited.[62]
[58] [2000] NSWCC 12; 19 NSWCCR 496.
[59] (2003) 25 NSWCCR 422, [429].
[60] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
[61] [2008] NSWWCCPD 134 (Ireland), [89].
[62] [1990] HCA 20; (1990) 169 CLR 638.

What is a psychological injury?

Section 11A (3A) of the 1987 Act defines;
“‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

Authorities establish the following:
(a)    in order to prove that a psychological injury has occurred, an injured worker must prove that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[63] do not constitute psychological injury[64] (Stewart);
(b)    a finding of psychological injury requires expert evidence that such an injury is present[65] (Calka);
(c)    in considering the issue of establishing psychological injury in circumstances of the worker's perception of events at work, Roche DP in Attorney General's Department v K,[66] provides;
(i)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the 'egg-shelled skull' principle (Spigelman CJ in Chemler at [40]);
(ii)so long as the events within the workplace were real, rather than imaginary, it does not matter that they have affected the worker's psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(iii)there is no requirement at law that the worker's perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(iv)it is not necessary that the worker's reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered (at [52]).
[63] New South Wales v Rattenbury [2015] NSW WCCPD46.
[64] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
[65] HammondCare v Calka [2016] NSWWCCPD 2 at [118]-[123].
[66] Attorney General's Department v K [2010] NSWWCCPD 76.

What does main contributing factor mean?

Whilst not defined in the Act, DP Snell in AV v AW at [76-78] succinctly stated;
“76. Where the relevant aggravation involves both employment and nonemployment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
• (a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
• (b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
• (c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

Psychological injury and permanent impairment

Section 65A(1) and (3) of the 1987 Act provide that no permanent impairment compensation is payable in respect of an impairment “that results from a secondary psychological injury” but that such compensation is payable in respect of an impairment “resulting from a primary psychological injury”, provided that such impairment is “at least 15 per cent”.
A “primary psychological injury” is defined as a “psychological injury that is not a secondary psychological injury”, while a “secondary psychological injury” is defined as a “psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.
Section 65A(4) deals with the situation where “a worker receives a primary psychological injury and a physical injury arising out of the same incident”, making it clear that the fact that a worker who has received a physical injury as a result of an incident or event is not precluded from a finding that he or she has also suffered a primary psychological injury as a result of the same incident. Section 65A(2) further provides that in assessing the degree of impairment “that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”, this indicating that the psychological consequences of an event causing physical injury and primary psychological injury may also and in addition involve a secondary psychological injury.
Put simply and perhaps not exhaustively, a primary psychological injury is one which results from the injurious event, rather than and as distinct from resulting from any physical injury suffered in that same event.[67] The distinction is one easily made in theory but often difficult to draw in the circumstances of any particular case.
[67] Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 (Arsenovic).
In Cannon v The Health Snack People [2009] NSWWCCPD 32 (Cannon), Deputy President Roche, considered the concepts of primary and secondary psychological conditions in a factual matrix not dissimilar to the current claim. In that decision, the worker had suffered a physical injury in the course of her employment and, upon her return to work, on suitable and then normal duties, was alleged to have sustained a psychological injury as a result of harassment, bullying and verbal abuse. In that decision, Deputy President Roche determined that s 65A does not prevent recovery of lump sum compensation in circumstances where as a result of a physical injury, a worker is placed in suitable duties and, as a result of an “extraneous or extrinsic” event, such as harassment or bullying while on those duties, develops a psychological injury, particularly when the events are ‘separate and distinct’.
Also in RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44 (Watkins), Deputy President Roche stated:
“The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]…”

Evidence of bullying and harassment

The applicant has detailed the behaviour of her supervisors following her queries relating to the safety of her workplace. Her evidence throughout has been consistent in that she felt dismissed, belittled and ignored. Dr Samuell noted the applicant’s perceived “bullying and harassment” at the time of his initial assessment 27 September 2020. Despite being made aware of the allegations, he did not engage in analysis of how this behaviour impacted the applicant’s psychological health. He did however accept that the applicant suffered from psychological symptoms but considered it was related to the chemical exposure (however the applicant had already been certified fit to return to work on the basis of physical symptoms). Overall I find that his initial and subsequent reports fail to provide a pathway of reasoning for his conclusions given that he ignored the applicant’s predominant concerns and complaint of bullying and harassment.
I cannot ignore that the respondent has not provided any evidence to refute the applicant’s statements of mistreatment (bullying and harassment). There appears to be no dispute that there were delays in providing WHS forms to the applicant. What is clear is that the applicant was physically certified fit to return to work yet went off completely after her meeting with management in September 2019 and this does not appear to be disputed by the respondent.
The applicant’s ‘upset at management’ was made known to her general practitioner as early as April 2019. The respondent emphasised ‘upset’ and ‘anger’ do not constitute psychological injury (Stewart). This legal position is correct, however review of the medical records summarised above including the early consultation notes with the general practitioner and with Dr Khan reveal the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood and had symptoms associated with that disorder for which she was treated both cognitively and with pharmacotherapy and placed on a mental health plan. As a result I find that there was more than mere upset and anger and this argument fails on the basis of the contemporaneous medical evidence.
The respondent invited me to treat with caution the reports of Ms Dogan, psychologist due to lack of reasoning. I agree with this submission. I give these reports no weight. I have carefully analysed the clinical notes and the final undated report and cannot find any reference to how she concluded that symptoms developed in the context of mistreatment by the employer, when her serial attendance notes are scant on any such detail. The undated report suggests that she first examined the applicant on 30 April 2019 but the serial notes do not commence until March 2020. However, this is not fatal to the applicant’s case.
The reports of Drs Khan and Kumagaya focus on the applicant’s distress and psychological response to the “bullying and harassment”. The respondent was critical of Dr Kumagaya’s report as it was silent on the diagnoses of anorexia, bulimia and alcohol abuse, however the primary diagnosis offered by Dr Kumagaya said to arise out of the workplace bullying and harassment was depression and anxiety which is consistent with the diagnosis made by
Dr Khan who commenced treating the applicant in early 2020 and indeed Dr Samuell who reviewed the applicant on behalf of the respondent in September 2020.
The contemporaneous medical evidence reveals the mistreatment in the workplace was the genesis of mental health decline and the pronouncement of psychiatric symptoms which resulted in various treatments. I appreciate the respondent’s arguments that the applicant has numerous other co-morbidities including alcoholism and eating disorders, however these symptoms were medically verified/pronounced only after the perceived bullying and harassment which resulted in permanent cessation of employment. Clinical notes from 2009 do not disclose such symptoms/diagnoses prior to the bullying and harassment in 2019.
Mr Thomas maintains that the applicant had an “underlying personality structure and comorbidity likely accounting for prolonged symptoms”, however does not explore that the applicant was free from these symptoms until her perceived bullying and harassment and is silent on whether such bullying and harassment could have been responsible for any aggravation, acceleration, exacerbation or deterioration of an underlying disorder. For these reasons, I do not accept the eating disorders and/or alcoholism are the main contributing factor to her psychological condition. I do accept the respondent’s argument that the medical evidence on the causation of such subsequent symptoms is suboptimal, however that issue will ultimately be the jurisdiction of the medical assessor.
Noting my repetition, the reports of Dr Samuell and Mr Thomas, whilst acknowledging the applicant’s complaints of mistreatment (bullying and harassment) fail to take it into account in their overall clinical assessment, conclusion and findings. Dr Samuell concluded the applicant was ‘not rational and her anger was excessive in the circumstances’ and similar findings were made by Mr Thomas. Whilst this assessment may be his observation, there is no evidence by the respondent to dispute the applicant’s claims of mistreatment and authorities clearly state that it is not necessary that the worker's reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered – (Attorney General v K). Further, I cannot ignore that Dr Samuell does not appear to have had the hospital attendance records where the applicant informed the hospital that her suicide attempt was in part due to being overwhelmed at her work situation including bullying and harassment, (which is a contemporaneous entry), not one raised to construct a case for permanent impairment when her physical claim failed to meet the threshold.
Further I find the respondents qualified specialists have failed to explain their reasoning and have also failed to express any balanced view on causation given that they have ignored the applicant’s primary complaint of bullying and harassment. Again, at the risk of repetition, I also note that the respondent has not disputed the claims of “bullying and harassment”.
The respondent extensively raised the multiple non work related stressors which have been summarised above and asked me to find employment was not the main contributing factor. This is acknowledged but the various non work related stressors arose after the workplace incident of bullying and harassment. Further, I also find there is no medical evidence to suggest these non work related stressors are or were the main contributing factor to her diagnosis of “major depression with anxious distress”, apart from the evidence of the respondent which I have not found persuasive for the reasons given above. There is no evidence that the non work related events have broken the causal chain. I also cannot find that the current psychiatric diagnosis is a secondary diagnosis. This is because, the physical effects of the injury have predominantly resolved and the evidence upon which the respondent now seeks to rely does not establish a secondary psychological injury, rather denies any workplace nexus.
Having regard to the legal principles set out above, particularly the principles stated by Deputy President Roche in Cannon and Watkins, and having regard to the whole of the evidence, on the balance of probabilities, I find the applicant sustained psychological injury as defined in paragraphs 53 to 56 above arising out of the harassment and bullying that she perceived to occur in the workplace and that such events are the main contributing factor when all of the competing causal factors have been considered.
Further, I am satisfied on the balance of probabilities the contemporaneous medical and statement evidence demonstrates a causal chain (Kooragang) between the perceived bullying and harassment and the development of a psychological effect on the nervous system, that is, a ‘psychological injury’ as defined in s 11A (3A) of the 1987 Act and that causal chain/connection is sufficient that the psychological injury is a primary psychological injury and is not a secondary psychological injury.
On that basis, I am satisfied that the applicant’s psychological injury is a primary psychological injury pursuant to s 65A of the 1987 Act that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.

SUMMARY

For the above reasons, I find the applicant has on the balance of probability established that she suffered a primary psychological injury as a result of her employment and that her employment was the main contributing factor. Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 279

27 May 2024