Jarvis v State of New South Wales (Northern Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jarvis v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 20
APPLICANT:	Juanita Jarvis
FIRST RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
SECOND RESPONDENT:	State of New South Wales (Southern NSW Local Health District)
senior Member:	Kerry Haddock
DATE OF DECISION:	18 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses for psychological disease injury, pursuant to sections 4(b(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); applicant unreliable historian regarding previous psychological conditions and alcohol abuse; first respondent disputed that the applicant had given notice of injury and made a claim in accordance with sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); both respondents disputed injury; substantial contributing factor; main contributing factor; incapacity and necessity for medical treatment; Held – the applicant failed to give notice of injury to the first respondent in accordance with section 254 of the 1998 Act and did not establish that special circumstances applied; award for the first respondent; the applicant sustained the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to section 4(b)(ii) of the 1987 Act, in the employ of the second respondent; the applicant has at all material times had no work capacity; award for the applicant against the second respondent for weekly benefits and medical expenses.
determinations made:	1. That there is an award for the first respondent. 2. That the second respondent is to pay to the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,788.94 per week from 13 April 2020 to 13 June 2022. 3. That the second respondent is to pay, pursuant to s 60 of the Workers Compensation Act 1987, the applicant’s medical, hospital and related expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Juanita Jarvis (Ms Jarvis) claims to have sustained psychological injury arising out of or in the course of her employment as a registered nurse (RN) with each respondent, State of New South Wales (Northern Sydney Local Health District) (first respondent/NSLHD) and State of New South Wales (Southern NSW Local Health District) (second respondent/SNSWLHD).
The first respondent was insured at relevant times by QBE Workers Compensation (NSW) Limited (QBE) and the second respondent by Employers Mutual NSW Limited (EML).
The second respondent completed an Injury Notification to EML on 13 December 2019. The date of injury was recorded as 18 October 2019 – “While working in Emergency Dept, this triggered off flash backs of past traumas experienced in ED and past negative dealings with management.” The respondent had been notified of the injury on 9 December 2019.
The applicant had ceased work on 21 October 2019. She had provided a medical certificate dated 7 November 2019, certifying her totally unfit for work to 20 December 2019, due to post-traumatic stress disorder (PTSD).
The second respondent’s Accident Investigation Form is also dated 13 December 2019. The description of the incident was “Staff member states suffering PTSD after working in the Emergency department, related to previous bad experiences in other facilities”.
The second respondent commented that the incident was related to the normal duties and responsibilities of an ED (Emergency Department) nurse. The applicant had not been in the role long enough to warrant a PPAD (Personal Performance Appraisal & Development).

The applicant completed a Worker’s Injury Claim Form (the claim form) on 23 September 2020. The date of injury was stated to be 18 October 2019. The claim form, which was not completed by the applicant, also stated that the injury/condition occurred from 2003 onwards.
The particulars of injury related to the applicant’s employment at Crookwell Hospital (Crookwell), where she commenced work on 19 September 2019. They are numerous, and I will summarise them.
The applicant referred to an “unsafe and unsustainable workload, lack of clinical support”; disregard for patient safety; unstable and unsafe rostering; lack of security or administrative support after office hours; hospital culture of “keep up and shut up”; cleaners bullied by patients; gossiping; poor morale (which she believed came from poor leadership); inadequate training and record-keeping; lack of provision for culturally appropriate treatment; and threats to staff by patients, which she was unable to monitor due to poor security.
The claim form stated that “The build-up of these issues suffered by the claimant resulted in the manifestation of a psychological injury due to the nature and conditions of her employment.” The injury was claimed to be PTSD and Major Depressive Disorder (MDD).
The delay in reporting the injury was stated to be that “The claimant was unaware that the nature and conditions of her employment had caused a psychological injury until it manifested in October 2019.”
On 17 March 2020, EML issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML maintained that the applicant’s “PTSD” was primarily due to traumatic incident exposure that took place prior to her employment with SNSWLHD. It was “of the view” that her condition was not sustained in the course of her employment with SNSWLHD, nor was employment a substantial contributing factor to such injury. The claim was declined on the basis of ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act).
In the alternative, EML relied on s 11A of the 1987 Act, referring to the applicant’s roster. It regarded her seeking beneficial rostering arrangements as falling “well within the bounds of ‘provision of employment benefits’”. Liability was declined as her injury was caused by reasonable actions on the part of the employer in relation to her roster, or the provision of employment benefits.
On 23 April 2020, EML issued the applicant with a notice pursuant to ss 78 and 287A of the 1998 Act. It advised that it had treated an email from Ms Jarvis dated 9 April 2020 as a request for a review.
EML advised the applicant that she was no longer entitled to weekly compensation and medical and related services, effective from 9 April 2020 (the date on which the original decision took effect).
EML disputed that the applicant had sustained an injury and that employment was a substantial contributing factor to any injury. It maintained that her injury was classified as a disease, and her employment was not a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration [of the disease], and therefore not compensable under ss 15 and 16 of the 1987 Act; and that her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of her employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal, or provision of employment benefits, and is therefore not compensable under s 11A of the 1987 Act.
EML maintained that the applicant had no total or partial incapacity for work as a result of a workplace injury, so that she had no entitlement to weekly compensation; and any further medical treatment was not reasonably necessary.
On 25 May 2021, the applicant’s solicitor completed a Notification of Injury/Illness to NSLHD. It stated that the date of injury was 18 October 2019. The injury was claimed to be PTSD, MDD.
The incident was described as “cumulative traumatic stress throughout nursing career”, for NSLHD and SNSWLHD between 2008 and 2019. The applicant’s manager/supervisor was informed on 29 April 2021 that she wanted to claim workers compensation.
On 2 June 2021, QBE issued the applicant with a notice pursuant to s 78 of the 1998 Act, with respect to injury on 18 October 2019.
QBE disputed that the applicant had sustained injury; that her employment was a substantial contributing factor the injury; and that her employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her disease injury.
QBE also disputed that the first respondent was the applicant’s last employer in employment to the nature of which her disease injury was due; or in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
QBE maintained that the applicant had failed to give notice of her injury and to make a claim for compensation, as required by ss 254 and 261 of the 1998 Act. It disputed that she was entitled to payment of either weekly benefits or medical expenses.
QBE stated that the applicant’s employment with the first respondent commenced on 26 February 2015 [sic] and ceased on or before 15 October 2015, and her employment was terminated on the basis that she had not worked in six months.
On 6 October 2021, the applicant’s solicitors requested a review of QBE’s decision. They advised that it was her position that she developed PTSD in the course of her employment with NSLHD, which was asymptomatic and undiagnosed until she commenced work at Crookwell.
The applicant’s solicitors submitted that her failure to give notice of the injury was occasioned by ignorance of the fact that she had suffered a recognised psychiatric injury. She was not aware that she was suffering from PTSD until late 2019. Her failure to make a claim was also occasioned by ignorance. She was suffering “serious and permanent disablement”. Her injury was taken to have been received when she made the claim against SNSWLHD, on or about 12 December 2019
On 14 October 2021, QBE issued the applicant with a notice pursuant to s 287A of the 1998 Act. It had reviewed and maintained its decision to dispute liability.
On 22 April 2022, EML issued the applicant with a notice pursuant to ss 78 and 287A of the 1998 Act. The date of injury was stated to be 4 December 2019.
EML disputed that the applicant had sustained injury; that employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation or deterioration of a disease injury; and that employment was a substantial contributing factor to the injury.
EML maintained that the applicant’s injury was wholly or predominantly caused by the second respondent’s action with respect to transfer and/or the provision of employment benefits. It disputed that she was entitled to payment of either weekly benefits or medical expenses.
On 3 May 2022, QBE issued the applicant with a further notice pursuant to s 287A of the 1998 Act. It had again reviewed and maintained its decision to dispute liability.
The applicant lodged an Application to Resolve a Dispute (the Application) on 9 August 2022.
The applicant claimed to have sustained a disease, deemed to have occurred on 18 October 2019. The only description of the injury was that she sustained a psychological injury during the course of her employment as an emergency ward nurse.
The Application claimed weekly benefits from 9 April 2020 to 2 June 2022; and medical expenses of $2,526.60.
The first respondent lodged its Reply on 23 August 2022.
The second respondent lodged its Reply on 31 August 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
First respondent:
(a)    whether the applicant gave notice of injury and/or made a claim for compensation within the appropriate time period/s;
(b)    whether the applicant has sustained injury arising out of or in the course of employment;
(c)    whether employment was a substantial contributing factor to any injury;

(d)    whether employment was the main contributing factor to a disease injury;
(e)    whether the applicant is entitled to an award of weekly benefits;
(f)    whether the applicant is entitled to an award in respect of medical expenses, and
(g)    whether it was the last employer in employment to the nature of which any disease injury is due.

Second respondent:
(a)    whether the applicant has sustained injury arising out of or in the course of employment;
(b)     whether employment was a substantial contributing factor to any injury;
(c)    whether employment was the main contributing factor to a disease injury;
(d)     whether the applicant is entitled to an award of weekly benefits;
(e)    whether the applicant is entitled to an award in respect of medical expenses, and
(f)     causation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference on 7 September 2022. Ms Butcher appeared for the applicant, who was present. Mr Galea appeared for the first respondent; and Ms Watts appeared for the second respondent. Ms Le Paige of QBE and Ms Khanna of EML also attended.
The Application was amended to plead that the deemed date of injury is 20 October 2019; and to claim weekly benefits pursuant to s 37 of the 1987 Act from 13 April 2020 to 13 June 2022, as the applicant was paid weekly benefits by the second respondent for 17 weeks. The applicant and the second respondent agreed that her pre-injury average weekly earnings (PIAWE) were $2,236.17.
The matter was listed for conciliation/arbitration hearing on 14 November 2022. Ms Balendra of counsel, instructed by Ms Butcher, appeared for the applicant, who was present, with her two daughters. Ms Goodman of counsel, instructed by Mr Galea, appeared for the first respondent. Mr Adhikary of counsel, instructed by Ms Jenkins, appeared for the second respondent. Ms Le Paige attended. Ms Mitreva of EML proposed to attend by Teams, but both she and Ms Le Paige were excused. They were both available to provide instructions had they been required. The applicant was at various times excused and absented herself from the hearing.
Ms Balendra advised that the applicant relied on both ss 4(b)(i) and 4(b)(ii) of the 1987Act.
The second respondent withdrew its reliance on s 11A as a defence to the claim.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    first respondent’s Reply and attachments;
(c)    second respondent’s Reply and attachments;
(d)    Application to Admit Late Documents dated 2 November 2022 and attachments, filed by the first respondent, and
(e)    Application to Admit Late Documents dated 8 November 2022 and attachments, filed by the second respondent.

Oral evidence

There was no application by any party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Juanita Jarvis

Ms Jarvis’s statement is dated 23 June 2021. It is lengthy and detailed, and I do not intend to reproduce it in full.
She was employed by the first respondent at Hornsby Ku-ring-gai Hospital (HKH) as a RN, and by the second respondent at Crookwell as a registered emergency nurse.
She had previously had “situational mental health concerns”. In 2007, she was going through financial and family stress and was drinking more than normal. Her general practitioner (GP), Dr Sally Tsin, referred her to a psychologist, Vicky Richards. Her records indicate she attended two counselling sessions. After leaving her husband, and being under care and counselling, her health improved substantially, and she did not require ongoing counselling.
Throughout 2010 and 2011, she went through a period of depression. She was stressed due to being unable to return to HKH after long service leave. She was considering starting a relationship with her ex-partner, which had caused her to drink more than usual. She was also struggling to cope with events that happened at HKH.
She was able to rectify this after seeking advice from Dr Tsin. She is aware that her medical records indicate Dr Tsin considered a diagnosis of bi-polar. Neither Dr Tsin nor any other medical professional had discussed this with her.
She met her partner a few months later, started tutoring and lecturing at UTS (University of Technology Sydney), returned to work at Royal North Shore (RNS) (NSLHD) and was promoted to CNE (clinical nurse educator) AMU-Division of ED. Her mental health improved vastly until she started work at Crookwell.
Her father took his own life when she was 30 years old.
She commenced full time employment with HKH as an emergency nurse in about 2003. She was there from 2003 until 2009. She started an antique and gift store in 2005. She continued to work permanent part-time at HKH in the ED ward, frequently taking overtime and extra shifts.
After 2010, she worked within NSLHD, including at Hornsby and occasionally RNS. The hours per week varied. She commenced employment with UTS as an academic, clinical facilitator and lecturer, on a casual basis, in 2010. She continued to work casually for NSLHD until 2016.
Between about November 2015 and February 2016, she was employed as a full-time teacher by Careers Australia. She left after it was closed and de-registered.
In about March 2016, she was employed at NSW TAFE, teaching the Diploma of Nursing. She worked for two years out of Ultimo, Western Sydney and Nepean.
Between 2015 and 2019, she worked on a casual basis as a nurse, first aid trainer, facilitator, researcher, assessor, and instructor for Healthcare Australia. It was a third party that allocated shifts to NSW Health staff. She was allocated shifts at various hospitals around North Sydney.
On 18 October 2019, during her employment at Crookwell, she sustained a psychological injury and lodged a claim. She had not returned to work since.
To the best of her recollection, she first started employment with HKH in about April 2003. She consolidated her service and in or about September 2009, it was calculated that she had 10 years’ service. She went on long service leave for six months. During this time, she and her family moved to Queensland, where she owned a house, which she renovated to get it ready for sale. They lived in Queensland for about six months.
In 2010 she returned to Sydney and was told there was no longer a position available in Emergency at HKH. She understands her medical records indicate she was hesitant to return to work there because she did not feel supported.
She was advised that if she did not return to the employment offered at HKH, she would be placed on the casual roster and could work at any hospital in the NSAHS (Northern Sydney Area Health Service). She worked in 2011 at RNS in the Acute Medical ED as a clinical educator and was happy to stay in that line of work.
During her employment with HKH, she witnessed numerous traumatic events. She had carried the experience with her ever since. She had frequently referred to them throughout her years as a clinical educator. She cannot recall the exact dates of these events but has provided dates where possible.
Since she started at Crookwell and throughout the claims process she had relived a lot of these experiences. She had always previously felt supported, respected, and purposeful at work. She thinks that part of the reason she has been so heavily impacted by her employment is that she associates a huge part of her identity with being a critical care nurse.
She has referred to incidents at HKH between 2003 and 2009, which I will summarise.

In about 2003, three children, whose mother had been murdered after a domestic violence incident, were brought in. The police said they had been subjected to a satanic ritual. They had been sexually assaulted and had faeces and urine on them.
The children needed to wait overnight for sexual assault testing. The nursing unit manager (NUM) instructed her to leave them overnight. She said she wouldn’t leave them on their own and stayed with them until the sexual assault team came in the morning. She found the incident confronting, particularly as a mother. She enquired about the children the next day and was told it wasn’t her business. She has often thought about them.
In about 2008, she was caring for a baby who had asthma. She was really concerned that the baby wasn’t improving, and escalated her concerns to the doctor in charge of the ED. For hours, she suggested they call the Care Flight helicopter to take the child to Westmead Hospital (Westmead). The consultant did not support this. She eventually called Care Flight. They stated they needed the consultant’s approval, but she gave them information about the patient in preparation for transfer.
She rang the consultant at Westmead, who said she would speak to the other consultant. The baby’s condition continued to decline. Another doctor intubated the baby, who had stopped breathing. She was then flown to Westmead.
She knew the baby was not okay. She felt frustrated, angry, and scared that the child could have died. She put in an IIMS SACs1, which is a notification of a critical incident. It was recorded as a “near miss”. It was never mentioned to her again.
On another occasion, a woman rushed into the ED with a child, screaming that he was not breathing. The emergency nurse on duty “froze”. She told her to open the doors and let her in.
The mother rolled the child into her arms. He was cold and visibly blue. She put him onto oxygen, and she and the team commenced CPR (cardiopulmonary resuscitation). The child lived. Staff at HKH never mentioned the incident again. In her experience, meetings with senior staff were only held if something went wrong.
On another occasion, a psychiatric patient had been left by another nurse unsupervised. He had tried to hang himself, using a blood pressure cuff. She thinks he was successful. Her memory around this is particularly foggy. It really affected her. She thinks the nurse was demoted or deregistered. It made her highly anxious about leaving psychiatric patients with suicidal ideation unattended.
In or about 2008, she was working as a triage nurse in the ED at HKH. A man told her he had “cut himself”. She asked to look at the wound, and saw he had no testicles. He told her he “got a steak knife and cut it off”. His scrotum was “in the bin at home”. He was taken away for urgent medical attention. She continued working until the end of her shift.
In or about mid-2009, a woman who was having an allergic reaction had parked in the ambulance bay. The woman had treated her reaction and was improving. She asked the woman to move her vehicle in case of emergency. She was speaking and not at risk of immediate harm.
The woman made a formal complaint, and she was asked to attend a meeting with her supervisor on her day off. She was not supported for keeping other members of the community safe. To her knowledge, no disciplinary action was taken. She was told it would be on her record, and an apology to the patient was prepared on her behalf.
Shortly after, she discussed with her boss that she felt she needed a break and intended to use some of her long service leave. Her best recollection is that this was due to commence on 10 September 2009. She thought she was functioning well, but after the incident she did not feel supported.
On her last day of work, she was working as a triage nurse. She heard a loud bang that she thought was a gun shot. She was sure she could see a hole in the glass doors. It seemed like at the same time a man appeared on the other side of the glass. He put his hand under the slot (triage window) and showed her a bullet. She spoke calmly to him. He did not move or speak.
She pressed the code black buzzer. The man nodded but kept staring. She noticed he had a backpack. She started to move patients inside the emergency doors, as was the protocol.
She went back to triage shortly after and the police were coming through the ambulance doors. They were securing their weapons. The patient could not see through to the ambulance doors. The police indicated to let him in. They wrestled him to the ground and he was secured and sedated. They either took him to Mental Health Intensive Care [sic]. She believed at the time he remained under police guard.
Staff continued working. The after-hours director of nursing (DON) told her she had to report the incident. She got the impression she did not support her decision to call the police. She gave her a Swiss army knife and told her this was the weapon that was recovered. She pulled out the knife blade and observed it. She asked the DON jokingly if she was “Crocodile Dundee”.
She was grateful to be going on leave and could tell she was feeling more heavily impacted by events at work. She received no support following any incident. She was confused and scared.
She started long service leave on or about 10 September 2009. She was anxious and unwell and felt she needed a holiday. She had no experience of being supported. She was called by HKH management and asked to withdraw the SACs 1 IMMs. She was confused, as she had no access to the system. She moved to Queensland, tried to forget about work, and kept busy.
When she returned from long service leave in about March 2010, she returned to Dr Tsin. She had tried to reconcile with her husband, but the relationship was over.
By this time, she felt HKH would not support her in returning to the ED because of the code black incident. She started getting more work lecturing at UTS and took up a six month contract to work as a clinical nurse educator at RNS. She was still employed by NSAHS.
While working at HKH on a casual list in 2015, she noticed that a call sheet read “no ED”. This usually meant a nurse was not trained in ED. She raised this with the after-hours nursing manager, who had no explanation, except that she had seen it before and some staff had been targeted to “ease them out”.
After Careers Australia collapsed, she was excited to move to TAFE NSW in early 2016. Until this time, her employment was maintained on a casual basis at HKH. She approached it to increase casual work and was told there were no vacancies and no shifts.
She was able to access more clinical contact hours by working for a “tier one” agency, preferred by NSLHD. In 2016, her casual status at NSLHD was withdrawn, for reasons not known to her.
After that, she relied on employment with TAFE NSW and Healthcare Australia, across various Health districts, mainly in ED or ICU. She often still worked as a facilitator, supervising students, including at HKH ED.
Between 2015 and 2019, she was fine and happy. In hindsight, she was very hypervigilant. She always faced open doors and planned an escape should it be necessary. She did not recognise this as unusual and felt normal. After the Lindt Café siege and other incidents involving guns, particularly in hospitals, she became more vigilant, introduced more trauma training, and studied WHS protocol for dealing with armed and violent patients.
In January 2016, a service revolver was taken from a police officer in the ED at Nepean Hospital and three people were shot. Her fears about procedure not being followed came to fruition and she felt more justified in having been more cautious about the gun incident at HKH.
On 16 September 2019, she started employment as a full-time registered nurse emergency at Crookwell. She reported to NUMs Vanessa Chapman and Debbie Hay.
She felt she had the experience and qualifications to perform this job. Crookwell was a shock. She found it to be completely under-resourced and providing inadequate care. The attitude of some staff was very nonchalant, and she found this potentially dangerous and stressful.
There was no apparent roster system in place when she started. Initially, she would only find out she was working the day or night before a shift. She worked eight hour shifts on a seven day rotating roster, with rarely any breaks. She felt this was unsafe and unsustainable. There was inadequate staff and no security or administrative support.
The rostering left her feeling overworked, run down and sleep deprived. She had a low sense of energy, fatigue, and was feeling very overwhelmed. She tried to raise issues with the roster process with Vanessa Chapman. She said it would continue to be a seven day roster. It was explained this is sometimes referred to as “disaster rostering”. It is done so NSW Health can have as much flexibility as possible. However, staff are often tired and work-life balance is not considered.
The staff appeared sad, not cohesive, and frustrated. It felt unsafe and there was limited support. There were no enforced staff/patient ratios, which meant that, particularly on night duty, there was no ED support. There was no clerical, security, pathology, psychiatry, or cardiac staff in case of emergency. Staff morale was abysmal. [At] every handover, there were nurses crying from exhaustion. She wasn’t used to this and found it shocking.
She informally discussed with staff that these conditions were unacceptable. She mentioned that Coolamon Hospital was closed with only one RN on duty. She was told this was just the way it is in regional NSW. On 15 October 2019, Vanessa Chapman told her Debbie Hay wanted to speak to her about this conversation. She confirmed it was an informal conversation, taken out of context.
When she started at Crookwell, Vanessa Chapman called her “Bubbles” because she was always happy. Over the next few weeks, she became increasingly hypervigilant. She felt there was a lot of pressure on her and the nurses.
One night, a police officer brought in a man threatening suicide. The police officer was wearing his gun. She was concerned he was not following proper procedure by putting it in a safe that would normally be located in the ED. She had no idea if there was a gun safe, despite asking during her safety tour.
For the patient threatening suicide, the treatment was via Telehealth. He was in his forties, had lost his job and dog, and had no means of support. She questioned why a doctor was not treating him and was told that wasn’t an option. She was told to leave him alone in the Telehealth room. It made her anxious that she would not be able to supervise him.
The Telehealth room was essentially a storage room. The blood pressure cuffs were especially triggering as she became concerned the patient could try to commit suicide, as had happened at HKH. She started to feel he was unsafe, and if he used a blood pressure cuff to strangle himself, she would not be able to keep her registration. She felt unsafe. She is not sure what happened to him.
It was not uncommon for staff to be snide toward her, roll their eyes, or say there were things they could not do in a country hospital, or “you’re not going to get the same here as Royal North Shore”. She felt she was being admonished and unreasonable for wanting better patient care and safer workloads for staff who were unhappy, crying, and blaming each other. Many staff said there had been frequent changes in management and divided loyalties. Management staff were being promoted, demoted, and transferred to Goulburn. She was told this resulted in staff being uneasy about speaking out.
She experienced various incidents that caused her concern. A non-compliant diabetic presented with high blood sugar. He continued to eat and drink. He was aggressive to staff and others and had a confusing care plan. She spoke to the doctors, who understood her concerns. There would be huge implications for her employment and the hospital if it followed an incorrect resuscitation plan.
The patient also smoked in the ambulance bay whilst connected to an oxygen tank. She asked him not to do this and told him he was blocking the bay. He became aggressive. She discussed this with other staff, who said “He always does that”. She felt she wasn’t safe and had no support.
On another day, or the same day, a man came in with his wife, yelling for Dr Velu (Dr Thangavelu), and that she needed to be admitted. She was afraid the patient wasn’t being assisted to dress or shower, suspecting possible neglect and/or abuse. She felt a safety check and home visit were appropriate, but when she discussed it with senior staff, they said things like “He’s always like that.”
The complicity of staff made her start to doubt her interpretation of events. She felt she was starting to lose confidence in her judgment, which she had always relied on and been confident in.
On 19 October 2019, she returned to work and saw Dr Lisa (Opie). She told her she was struggling as there was a lack of staff to patient ratio and she was concerned she could not keep her registration for very long if this was not addressed. Lisa tried to provide some support, but there was not much she could do.
Later in the shift, a seven-year-old came in due to a drug overdose. Her foster mother/carer said she had recently been sexually assaulted by male carers. The child needed to be transferred from Crookwell. She spoke with Goulburn Hospital and the ambulance to arrange transfer. The mother requested female officers as the child was terrified of men. She requested at least one female officer. It was deemed an urgent ambulance request.
Two male officers arrived about 30 to 60 minutes after she made the call. They had not treated it as a priority. She raised these concerns with other nurses and prepared to do an IIMS. She was again told “You’re in the country now”.
After the child was transferred, she finalised the paperwork. This took some time, due to the computer system being old. She had worked an eight hour shift without going to the bathroom or taking a break. It was about 9.00pm and she still had other tasks.
The same nurses who had rolled their eyes at her earlier told her the EN had handed over and they “knew everything”. One mentioned a cannula she had inserted the day before had “blown”. The patient’s veins were “temperamental”. The cannulas were an older version she had not used in about 10 years. The environment felt unsupportive and the tone unprofessional.
As she completed the roster book, the RN said if she wrote the time she finished, she would have to ring the general manager (GM), because she was supposed to call before overtime as they were “cracking down” on overtime payments. She wrote in the book the time she finished and ran a copy of the memo to take with her. She dialled the GM but there was no answer.
She left about midnight. She felt strange during the drive home. The car felt like it was floating, and she was unable to focus. She had never felt anything like it before. Her head felt like it was splitting. When she got out at home, she wet herself as she stood up. She felt ashamed and embarrassed. They live “off-grid” so she couldn’t shower and wash her clothes at the same time. She can’t remember anything else from that night, or recall going to bed.
The following morning, she felt like her legs were made of lead. She couldn’t move or stop crying. She thought she might be run down or have a virus. She had broken out in shingles and had rashes over her upper right leg and buttock. Her lips were covered in cold sores, she vomited bile all day, and couldn’t eat. She kept trying to make herself go to work but couldn’t.
She couldn’t call work. She felt so ashamed, scared, and sad. She didn’t know why. Her hands were sweating so she felt she couldn’t hold a phone. She felt she couldn’t breathe, much less speak. She was terrified.
On 24 October 2019, Vanesa Chapman called to see if she was coming in. She told her she had diarrhoea and vomiting and would not be coming in. She was told to get a medical certificate. She started to feel ashamed she was not coping.
On 25 October 2019 she saw Dr Godfrey in Goulburn. He told her she could not go to work because of the diarrhoea and cold sores. He wrote a certificate for three days. She returned to him but was told to go to her usual GP, as this may be a WorkCover claim, which he “didn’t do”. She thinks she was given a referral to a psychiatrist.
She saw Dr Tsin on 7 November 2019. She gave her a certificate for seven days off work and suggested she re-think her employment.
She had three Employment Assistance Program (EAP) sessions. The EAP psychologist told her she had PTSD and to consult her GP. Dr Tsin suggested she may have PTSD, and she was referred to a psychiatrist.
The psychiatrist to whom she was referred by Dr Godfrey did not “do WorkCover” . The secretary of the doctor’s office phoned to tell her the psychiatrist she had been referred to could not see her due to being employed by SNSWLHD for insurance. She did not understand and cried.
On 20 November 2019, she received a letter from NSW Health needing support for her ongoing absence and threatening to terminate her employment. She consulted Dr Tsin and lodged a claim on 9 December 2019.
She saw Dr Shen via Skype on 21 January 2020. He told her she had PTSD and suggested she start taking medication. She was deemed unfit for work from 21 January 2020 to 28 February 2020.
Her claim was assigned to EML. It denied liability on 17 March 2020. On 24 March 2020, EML called and told Dr Tsin that it had withdrawn liability due to a note in her medical record relating to HKH.
Her solicitor from New Law did not want to dispute the claim [sic]. She did not offer any further advice. She changed solicitors in August 2020 after a recommendation from her daughter. EML continued to deny the claim, stating that as the injury occurred at HKH, she should apply there.
Her new solicitors lodged a claim against HKH in early May 2021 and she went through the claims process again.
As regards the delay in making the claim, she was not aware she had PTSD until she was diagnosed in or about December 2019. Whilst on long service leave in Townsville, she was functioning quite well. In her years as a clinical educator, she had less exposure to trauma and was not responsible for care of patients. She only became ill after feeling she did not have the support or resources at Crookwell to look after patients effectively.
Her treating doctors, EAP counsellors, the Nursing and Midwifery Help Line, and independent examiners are of the opinion that her current mental health state is the result of PTSD from employment with HKH. In hindsight, she had been hypervigilant and more anxious since working there.
She is undergoing counselling with Melinda Gemmell, funded by Victims’ Services. This started in June 2021. This has been the most effective treatment.

Evidence of Lesley Hills

Ms Hills is an administration officer with Crookwell. Her statement is dated 31 January 2020.
She had known the applicant since 19 September 2019, when she commenced at Crookwell as a registered nurse in the ED. Until recently, they only had RNs working on a rotational basis through ED. She believes the applicant’s position was advertised as an emergency nurse.
She described the applicant as pleasant, yet she seemed to be highly strung. She always wanted to chat, but there was no time for this. She did not believe the applicant was as good as she said she was, as she did not appear confident, and made simple errors.
One of the RNs had advised the applicant she was not doing an ECG correctly, and she “showed her the hand”. The applicant stated she was an experienced RNS nurse and knew what to do. The other nurse said it was not how it was done in Crookwell, “and for starters you have one of the pads upside down”. She was aware the nurse did not wish to be interviewed.

At times when there was a break in ED, the applicant would run around getting everyone a bottle of water, saying “hydration, hydration, hydration.”
The applicant never spoke to her about any issues she may have been experiencing. She was never seen to be crying or angry at work.
The applicant repeatedly made simple errors when entering patient documentation in the system. She said she knew the way she had been told to do it, but was rushed and made errors. The applicant then wanted her to fix the problem.
The applicant was not happy with working more than five days in a row. She worked eight hour shifts. Sometimes staff attach an ADO to their days off if they end on a night shift or come back on a late shift.
Patients come through the front door or the ambulance bay, so the applicant would know they were there. If via ambulance, there are two officers, and if they walk in, they know to press the green button and take a seat. The applicant had requested an ED clerk and appeared to have some problems with the admin work.
To her knowledge, the applicant just didn’t turn up one day, and everyone had to scramble to fill her shifts. This was upsetting and difficult for a rural hospital with the bare minimum of staff.
The applicant came across as extremely chatty, happy, and full of confidence, but she feels she may not have worked well under pressure. She was not confident in the applicant’s skills. The applicant had no real emergencies, for example, no heart attacks or motor vehicle accidents “etc” whilst she was there.
There is no way the diabetic male alcoholic would have been allowed to take the oxygen bottle outside, and he is not allowed to smoke in the ambulance bay. Patients usually go out the front to a different area outside the grounds to smoke.

Evidence of Benjamin Burnett

Mr Burnett is an RN with Crookwell. His statement is dated 30 January 2020.
He got talking to the applicant about two to three weeks before she commenced. He asked if she had any ED experience, as he was aware Crookwell was looking for ED nurses. She said she had experience as an educator and ED experience at RNS. She sounded like she was keen to apply.
He saw the applicant leaving the hospital a few weeks later. She said she had just had an interview and was looking forward to starting work.
He usually got 48 hours off on his two rostered days off, or added this as an RDO, which is usually the case after a night shift. They usually work seven on, two off, three on, two off. Most are tired after working seven days. However, this is usually in their contract from the outset.
Some hospitals do 10 hour shifts x four for night shift, with overlapping staff. That does not occur there, and it is not a high dependency unit or overloaded with patients. They get busy, but not to the extreme. Some procedures that occur during the day do not happen at night, to keep the load lighter.
The expectation is that if there are no patients in ED, the RN will go to the ward to assist. His experience, from a placement of seven weeks, is that ED is not busy 24/7. ED staff are seen as the most experienced, to be “in charge”, and paid accordingly. There is only one NUM, Vanessa Chapman.
The diabetic alcoholic is a frequent patient and they have a good idea of how to manage him. Dr Thangavelu told them to give him some orange juice. The applicant was confrontational with the patient and his wife. She took it away from him, got in his face, and said “Do you want to live or do you want to die?” This was unprofessional and not the way they spoke to patients.
The applicant stated she would not lose her registration over the patient’s actions. He was shocked and the patient’s wife looked shocked. The next day he apologised to them and asked them to complete a complaint form.
The day before, the applicant took the patient’s orange juice from the table and told him he could not be having it. The patient is usually in for weeks and they are very familiar with him. He is non-compliant with his care. It was as if the applicant needed to be right and was not interested in what was right for the patient.
He could not believe how abrasive the applicant was in a community driven area when they were all welcoming, helpful, and supportive.
A patient came weekly for a blood transfusion. The applicant put the cannula in and didn’t get blood coming as you should. The patient was still bruised from elbow to shoulder. He complained it was hurting, so the applicant moved the cannula to his right arm, with the same result.
There was another incident when the applicant had an issue with the iStat machine. She said no one had ever told her she needed to take blood out of the green tube to use the machine. Donna, their educator, signed him off on it and it was stressed how important this was at the time.
Staff must be signed off to use the machine. He phoned Donna and asked her to follow up with the applicant on how to use it. She had been working in ED for over a week, and this was a pretty important procedure. A student told him the applicant had been getting her to do the testing as she was not a pathologist and shouldn’t be doing it. To have a student do this is a risk.
It appeared the applicant had not understood things are different in the country, and resources are different. He could not speak highly enough of the staff there now and when he did his placement training. He had received nothing but encouragement and support
As he and Rose (McDonald) were handing over to the applicant on night shift, Rose had a patient with significant mental health issues. She suggested they put the patient in contact with a mental health specialist.
The applicant raised her arms and crossed them over her forearms in a “no deal” type movement, whilst saying “No, no, no, that’s not what we do here, we don’t get involved in that”. She cut Rose off, and it turned out they were saying the same thing. It was over the top and unnecessary. The applicant was unprofessional and was supposed to be the role model.
He worked a double shift to cover the applicant the day she left. He answered the call and she said she was sick and couldn’t come in.
The applicant mentioned a few times she was going to the union about the hours “etc” but that was in their contract. They have mature aged nurses that work long hours and nights and seem to manage. They all work similar hours.
He was not aware of any significant ED incidents that would have caused any trauma. He did not believe the claim was genuine.

Evidence of Deborah Hay

Ms Hay is a senior nurse manager at Crookwell. Her statement is dated 31 January 2020.
She had known the applicant since 19 September 2019, when she commended work at Crookwell as a RN, primarily to work in ED. However, all nurses are required to work in all areas if necessary. She was part of the interview panel, and reference checks appeared positive.
The applicant stated that she had been an educator and believed she could work five days, when that was not how the roster was there. She confirmed from her referees that she was an educator. She completed a pre-injury [sic] questionnaire and “ticked no to everything indicating there were no prior issues.”
From her observations, the applicant had reasonable clinical experience. If she had been an educator, she may not have the acute clinical skills. They had a complaint that she had hurt a patent during a cannulation.

She described the applicant as very pleasant, bubbly, and enthusiastic when she applied, which was at times a little excessive. She was open about being on her third relationship and did not mention any issues in her personal life.
The applicant worked 18 days at Crookwell. She worked one weekend double shift, which she offered to do, as they were in a staffing crisis. RNs usually work seven on, two off, three on, two off, and this is normal. After the seven days, staff usually have an ADO in addition to their two days off.
She could not understand why the applicant wanted to work 10 hour shifts, when complaining she was tired working eight hours. Ten hour shifts have to be approved by the union, and other staff have to agree. The most patients the applicant saw on any shift was 11, so she was not overloaded with work.
Crookwell is an 18 bed acute facility with a two bay ED, and an average of 13 patients. The ED is only funded to be staffed on a morning shift, and on an afternoon shift there are three nurses for the whole hospital. One is allocated to the ED.
There is a doorbell in the ED waiting room so there was no need to rely on watching the CCTV.
Overtime was being monitored and required approval. It was rarely declined, as it was usually for clinical reasons.
It was after a seven day stretch that the applicant called in sick. When she returned to work on 15 October 2019, she came to see her and nurse manager Vanessa Chapman to advise she couldn’t possibly work seven days straight as this didn’t fit with her work/life balance. This had been discussed in her interview and she agreed it would not be a problem.
They advised the applicant the roster was appropriate for a full-time staff member and met award requirements. They asked her to provide a roster that would better suit her. They advised set days could not be supported, as this would not be fair to other staff or business needs, and would require approval of the GM. They suggested she might like to reduce her hours, and this would require approval from higher management. She never asked for a reduction in hours.
The applicant freely voiced her opinion on the roster and had no issue speaking with her or Vanessa about these concerns, so she is surprised to be advised she blamed the workplace for her injury. She had phoned and asked the cleaner to pass the message that she would not be coming in. She knew better than to do this.
She had been made aware that the applicant stated she had PTSD as a result of the workplace and her date of injury was 18 October 2019. She was not aware of any significant incidents that occurred in ED whilst the applicant worked there.
There were a few complaints by patients that the applicant had spoken offensively to them. She did not appear to have any filter or awareness of what was appropriate when speaking with patients, in particular in rural areas. One elderly male patient stated she had been judgmental and very sarcastic toward him, telling him he should have called an ambulance. He believed ambulances were for emergencies and didn’t want to jeopardise the service.
There were a lot of elderly patients in the area, and after December 2018, the GP clinic closed. There was only the health care clinic next door, and Dr Velu, who was nearing retirement. A lot of locals came to the ED as a result, some travelling up to two hours, plus the Christmas influx. The majority of ED patients were level three.
The applicant never spoke about having any flashbacks. She was offered EAP.

Evidence of Serina Lynch

Ms Lynch is a RN. Her statement is dated 31 January 2020.
The applicant commenced on 19 September 2019, primarily in the ED unit. Most of those who work there assist in other areas when ED is not busy. The applicant may have had knowledge but was not demonstrating this well. It was her impression the applicant had sat at a desk too long, or been teaching, and had lost some of her clinical application skills.
She described the applicant as pleasant, very flighty, overly friendly, and chatty, with an intense personality. She was intense about everything she did, which was a bit off putting.
She conducted the applicant’s first orientation day, and she took a long time to do things. It was as if she wanted to do a head to toe assessment, when they don’t have that time in ED. She had the doctors offside from the beginning, by her personality and manner.
She came on a morning shift after the applicant had been on night shift. The applicant apologised for not completing the paperwork, as she had forgotten her glasses. She was shocked, as she could have gone home to get them.
The applicant often made comments about putting her registration at risk. This would be on handover when she said there was not enough staff “etc”. They are expected to remain professional and this was not the way the applicant was behaving.
On occasion, the applicant came into the dining room, which is situated where the patients can hear what is being said. She stated in a loud and emotive voice that she was putting her registration at risk, was upset about lack of staff and skills mix, and [staff] were inadequately educated, but that was not an issue, as that was what she was there to do, she was going to the union, and in her opinion the hospital should be closed immediately until these things were sorted out.
She was shocked by this verbal tirade and reported it to Vanessa Chapman, as she loved the hospital and had worked there for over 40 years. It was an older hospital, but they all worked well together as that is what they had to do.
The applicant did not want to work seven days in a row and requested to work less and more specific days. Although they have flexible working hours, this was not doable.
As a CNE, she was on the floor all the time with her students, demonstrating and observing, so she wondered why the applicant was not demonstrating a high level of skills on the floor. The applicant appeared to work OK and not sit around much, but she did not have much opportunity to observe her. She was a constant talker and invaded personal space. She had outbursts of frustration and possibly had borderline personality disorder.
A lot of hospitals have 10 hour shifts, where there is an overlap at either end, but this was not feasible with their staffing levels.
The applicant seemed to find it difficult to manage the fast pace of an ED where she couldn’t prioritise workloads or levels of illness. She commented that she was tired due to the workload and lack of staff. She had worked in a bigger hospital, things were better there, and staff were more educated, but she was coming there to save the place. This offended a lot of staff, and they already had an educator. They don’t have onsite doctors and are required to manage things until the doctors arrive. This seemed to frighten the applicant.
Dr Opie is a senior doctor who had major issues with the applicant. However, she is difficult to work with at the best of times.
The applicant was slow at attending to patients and was not using her clinical judgment to manage what the patient came in for.
She was not aware if the applicant had any personal issues, as she only chatted about her experience and knowledge, not her personal life. Crookwell has four doctors next door to the hospital and two others in town, so she did not know why the applicant needed to go outside the town to see a doctor.

Evidence of Rose McDonald

Ms McDonald is an enrolled nurse. Her statement is dated 31 January 2020.
She had known the applicant since 19 September 2019, when she commenced work at Crookwell, She would describe her as a split personality, where she would be in her face, swearing and aggressive, then become over the top friendly.
She was once given instructions from a doctor to perform a task. The applicant said she was not competent to do it and it was less straightforward than she thought. The task was simple and very straightforward. It was as if the applicant wanted to belittle her in front of somebody else, this time the patient. This was embarrassing. It was passive aggressive and unprofessional.
During a handover, she suggested they give a patient with concerns about their mental health caseworker a number to call. The applicant walked over with her arms raised and forearms crossed, stating “No, we don’t do that here, little old Crookwell Hospital isn’t going to help anybody.” She kept interrupting, saying “No, we don’t do that here”. This was in front of five other staff and was very demeaning and bullying. She started making notes to complain about the applicant to Vanessa Chapman.
She recalled a number of patient complaints. She was concerned the applicant had a mental health condition as she was very unpredictable, which was demonstrated in front of and toward patients.
The applicant “went off at a diabetic patient.” She grabbed the orange juice from him, and said with a raised voice, “Do you want to die?” The patient was in shock and his wife was very upset. The wife made a complaint. She thinks it was at this time that the applicant had stopped coming to work.
The applicant came in to cannulate a long time patient, who ended up with bruising from his forearm to his shoulder for weeks and wanted nothing more to do with her. She did not believe the applicant had been clinical for a long time, as she ignored what the patient said. She did not follow usual procedure.
The applicant got right up in her face and swore at her when she had only been there a week. She turned up the next day all bright and overly friendly. She thought the applicant was crazy and wondered how long it had been since she had actively been a nurse.
The applicant said she had been an educator and studied law etc but didn’t talk about her last clinical position. She repeatedly stated how dangerous and illegally the hospital ran and how she was going to do something about it. This felt intimidating.
The applicant would look through the roster and say she was not doing night shifts. She then phoned in sick on those shifts. Not long after, she stopped turning up for work.
She was not aware that the applicant had any personal issues, as she was very vague about her personal life. She kept things professional after the way the applicant treated her, and minimised contact with her.
As they needed staff, she held off making the complaint about the applicant. She could tell in the second week that she was not working with others, and she started writing notes. When she finally made the decision to put forward her complaint, the applicant stopped coming to work.
She does not believe the claim is genuine. There were no overly traumatic cases during the period the applicant worked there. The applicant caused more trauma to the staff.

Evidence of Vanessa Chapman

Ms Chapman is acting nurse manager. Her statement is dated 31 January 2020.
The applicant commenced work as an RN on 19 September 2019, primarily to work in ED, but was required to work in other areas when required and when ED was quiet. The night shift works on the ward. She had mentioned historically working permanent night shift and told one doctor she would be seeing more of him, given she would be working nights.
Within the first day of the applicant working there, she nicknamed her “Bubbles”, as she was so effervescent and positive, stating she was there to help, happy to be there, and was going to make such a difference. She was employed to be a team player and support the locum doctors.
The applicant was bombastic, and “would speak at you rather then with you”. She was advised of the environment she would be coming into and was asked to approach things softly but did the opposite.
The applicant was usually there at 6.00am or 6.30am and remained an hour after her shift. She advised her to go home and pace herself, not take on too much and run herself into the ground. She would say she was there to help and was told to concentrate on what she had to do. She interrupted conversations with trainees and other staff, and it was as if she wanted to insert herself into everything. She saw her try and hug someone she had never met, and the person was taken aback.
The applicant repeatedly stated she was an ED nurse, educator, manager, and had done it all. It was very much a self-focused conversation.
The applicant’s work was not as good as she would like them to believe. Her knowledge was dated, and it appeared she was not current in her clinical presentation. She was considering what was needed to get her up to speed. The applicant didn’t stay there long enough, as “the roadblocks started to go up”.

After the first week, the applicant started telling her and others that things needed to change and pointed out the areas. She advised the applicant they had limited resources. The applicant would say the workload was too much and she had concerns about staff and their capacity. She didn’t see certain things as her role and at one point asked for the GM’s phone number.
If they had a student, the applicant constantly tried to tell them things. They had a CNE to do this. The CNE is very personable and they all tried to approach the applicant’s concerns. However, they needed to continue with what they were doing. She wanted a wards person on her shift, and a PA to enter her patients onto the system.
The applicant had said the hospital was like working in a third world country and she was contacting the union, who would close it down. This was very distressing for the staff and said in an area where patients may have heard.
She and “Deb” spoke to the applicant about this. She stated she had spoken to the union, “but the thing is that I should hear what the staff talk about me”. She said she did not want to know that, and the conversation was about the applicant’s comments.
The applicant kept deflecting and changing the topic to avoid answering. She would say, “But you have to understand…” and “I am passionate about this…” This was within the three weeks she worked there. She also had three names, and they had to work out which one to use.
On one occasion the applicant asked to meet with her and Deb Hay, yet when she came in, she just sat there. She stated she had spoken to the union about her time off between shifts, and they confirmed it was fine. She was upset about this.
The applicant’s first shift was 16 September 2019 and her last was 20 October 2019. On 9 October 2019, she phoned at 6.30am and advised the cleaner she would not be coming that night. It took them many hours to contact her to ask if it was just one shift. She took three night duties off. She did not provide certificates and had no sick leave accumulated.
The applicant returned for six shifts. On 23 October 2019, when she was on night duty, she phoned at 8.30pm to advise she was not coming in. It was after this that it became difficult to contact her to find out what was happening.
They had conducted a review of all ED patients since the applicant’s commencement, and no life threatened patients were identified.
The applicant complained about her shifts, and they asked her what a suitable roster would look like for her. She wanted to reduce her hours to three days per week – Tuesday, Wednesday, Thursday – as this would allow her to continue with educational pursuits. This was escalated to the GM, who was unable to provide set days.
On 6 October 2019, the applicant emailed to advise that, due to a prior arranged event, she was unable to perform night shift on 10 and 11 October 2019. On 9 October 2019, she phoned to say she was not coming in. The prior event had never been mentioned.
She asked what they could do to support the applicant, and was preparing this, but she never returned.
It was interesting that after all the years the applicant stated she had been in the nursing environment or a nurse, she had never seen a roster where staff work seven days. This is common in nursing. It appeared she was used to working day shift, Monday to Friday.
It was only once Workforce became involved that medical certificates were provided. The applicant attended several doctors, and when things appeared to become more serious, she went to her GP in Sydney.
Staff had reported some incidents in relation to the applicant’s behaviour. This was towards the time she left, and they didn’t get time to discuss them, given she was only there a few weeks.
The applicant presented as manic at times. Her approach was racy and overwhelming at times. She commented to Deb Hay that things did not seem right.
Angry outbursts appeared to have been toward other staff. However, she witnessed outbursts of “oh my God, this is wrong, you’ve got to understand”. The applicant seemed to limit her behaviours for a time, but this was not sustainable.
She had had reports that the applicant had bailed staff up and sworn at them. She spoke openly in a raised voice in the dining room, telling everyone the union were coming in and the place would be closed down. She had told a very experienced nurse what she was doing was wrong.
She was aware of client complaints and a client showed her the evidence of her clinical skills, for example, bruising. She was aware the applicant was not able to perform point of care testing, which was a major part of working there.
An elderly gentleman complained that the applicant was dismissive toward him, and he left without being seen. A patient complained that they were spoken at and not listened to by the applicant. She challenged doctors in their treatment and would not necessarily do enough observations. The doctors would work around the applicant and come back to her later.
She is aware that the applicant has stated she has PTSD as a result of the workplace and stated her date of injury as 18 October 2019. During the interview, she was asked to complete a form that asked if she had any pre-existing illnesses or injuries that could affect her capacity to work, and she said no.
It was as if just because the applicant could not get what she wanted, she went off sick, when she was well aware of the policies and rostering. All they wanted was for her to be honest and professional. She has been seen around town and at the swimming pool.
There are plenty of medical practices in Goulburn where the applicant could have attended. She had stated she wants to return to work but had avoided contact with them. She was offered EAP.
She was not aware of any current personal issues the applicant may have. She was aware she had been in several relationships, as her names had changed. The applicant told her she was passionate about mental health and had a daughter with a mental health condition.

Evidence of Shayne Abernethy

Mr Abernethy is the roster systems administration manager. His statement is dated 30 March 2020.
He had never met the applicant and had no professional or personal relationship with her.
After review, there appeared to have been no breaches of award conditions in relation to the applicant’s rostering since she commenced employment.
The applicant was never rostered to work more than seven consecutive shifts and there were no “quick shifts” where she was asked to work more than seven days in a row. Night duties were rostered appropriately and minimum breaks between shifts were observed.
He had been provided by Samantha Allen with a timeline of the shifts and times worked by the applicant since she commenced, and agreed it was correct. He provided a copy.

Emails between the applicant, Ms Chapman and Ms Hay

On 6 October 2019, the applicant emailed Ms Chapman. She advised that due to a previous arrangement, she was unable to do night duty on 10 October and 11 October. She would be happy to discuss replacing those shifts, “however, to be totally honest, the roster currently does not allow a lot of wriggle room”. She was “Happy to discuss further”.
On 8 October 2019, Ms Chapman emailed the applicant, copying Ms Hay.
Ms Chapman thanked the applicant for identifying a conflict of the roster and personal need. At the time, they were potentially unable to support her request, due to a directive from the Executive. In discussion with Ms Hay, any leave requests post-roster publication needed to be approved by the Cluster GM. The prerequisite was that they could still staff the service, which at that time they could not satisfactorily do.
They could support shift swaps, which it was the applicant’s responsibility to source, but it appeared she had identified “not a lot of wriggle room”. Due to the newness of her contract, she also did not have any leave to support the request. LWOP (leave without pay) must also be approved by the Executive.
Ms Chapman was “Happy to discuss to source a positive resolve [sic] and to consider and support future requests were [sic] able. Thank you for your consideration in this matter.”
On 22 October 2019, the applicant emailed [email protected], and copied Ms Chapman. The subject line was “Discussion of Roster Meeting Tuesday October 15.”
The applicant thanked Ms Chapman and Ms Hay for making time to discuss a resolution of her roster. She would like to reduce her hours from full time to part time, consisting of three consecutive days per week. She was flexible with 24/7 rostering. This would allow the applicant to further her educational opportunities, which would support her role at Crookwell.
The applicant was working three consecutive shifts, commencing on Wednesday 23 October 2019. She could “happily do three consequent [sic] days” in the week commencing Tuesday 29 October 2019, and three consecutive days in the week commencing 12 November 2019.
She did not have a copy of the roster from 18 November 2019 to 15 December 2019 but would like three consecutive days per week. The new roster issued to her on 15 October 2019, start date 16 December 2019 to 12 January 2020, reflected this request.
On 23 October 2019, Ms Chapman responded, copying Ms Hay, “…Acknowledged – this will need to be raised to Executive Level for consideration.”
Later on 23 October 2019, Ms Hay sent the applicant an email, copying Ms Chapman. She advised that she had discussed with “Denis” that morning, and unfortunately, the request had been declined, as they could not support set days. They had to roster according to the needs of the facility.

Factual investigation of M & A Investigations

The first respondent commissioned a factual investigation, and M & A Investigations reported on 27 April 2022.
I do not intend to refer in detail to the report. Relevantly, the investigator reported that the applicant could not provide exact dates of the incidents she claimed to have occurred at HKH. The investigator was able to locate one person from the first respondent who may have been able to provide information, Ms Leonie Hillard, retired NUM.
Ms Hillard provided a draft statement, which she later declined to sign and return. It is not attached to the report.
The investigator was also provided with contact details for Mr Bryan McKee Hata, who may have been able to assist, but who did not respond to calls or emails.
The first respondent was unable to find a record of any incidents reported by the applicant, absent further information such as patient names or a better time frame. Without that information, it was not possible to locate potential witnesses.
The first respondent confirmed that the applicant was “separated” from NSLHD on 15 October 2015, as she had not worked in more than six months. That employment does not appear to have been at HKH.

Medical evidence

Berowra Family Medical Practice

The clinical records commence in 2003. It is not my intention to refer to every entry.
On 2 November 2006, Dr Tsin recorded “Exhaustion last month – closed shop. Helped by a bit of rest. Exhausted again since reopening shop. Not too stressed”.
On 6 November 2007, Dr Tsin recorded that the applicant was stressed with managing her shop and working in A & E. She ran into debt and wanted to spend more time in her business pre-Christmas to make up for losses. She was doing night shifts and having to leave her kids at home. She had to consider getting back with her “ex” for financial reasons. She would like to see a psychologist.
On 13 November 2007, Dr Tsin recorded that the applicant was stressed with business, work as an RN, both ex-husbands and her 15-year- old son, who was seeing a doctor for suicidal ideation.
The applicant had financial problems “will lose house. Chaotic life. No time to self”. She was depressed, anxious, tired, worried, had sleep problems, her appetite was increased, weight gain. Dr Tsin recorded “Suicidal ideation - wants to escape. No plans b/c of kids”.
The applicant’s father suicided. He was an alcoholic and “bipolar untreated”. Her mother was depressed, not treated, “ETOH (ethyl alcohol) more recently”. “Poverty. All her siblings were taken away and adopted out”.
The applicant was drinking six standard drinks on a day drinking alcohol, which she did three to four days a week (although it is also recorded that she drank six or more standard drinks on one occasion “weekly”). She was concerned about drinking.
Dr Tsin recorded a referral to Vicki Richards.
On 27 November 2007, Dr Tsin recorded that the applicant had tried to get a loan. She would consider selling her house. Her boss was uncooperative with her roster, especially being rostered for Christmas Day. She planned to close the shop in January. She had stopped ETOH.
On 30 April 2008, Dr Tsin recorded that the applicant was working night duty. “Less stress.” She had shut the shop, refinanced the house, and was debt free. She was getting a divorce from Shane.
On 4 November 2008, Dr Tsin recorded that the applicant had tried education and hated it after three weeks. She was getting burnt out with work in A & E.
On 29 January 2009, Dr Tsin recorded that the applicant had applied for a nurse management course “finally”. She wanted to get out of clinical nursing.
On 5 March 2009, Dr Tsin recorded that the applicant had been off Duromine for one week. She “felt great” on it. She had more energy and motivation. She had stopped alcohol. She used to feel tired and down, tearful, felt overwhelmed. She was frightened of night duty. She had started to feel similar symptoms since stopping Duromine.
On 13 May 2009, Dr Tsin recorded that the applicant had to have dental work. She hadn’t been able to go to work. Her close elderly ex-husband’s grandmother had died suddenly of her AAA (abdominal aortic aneurysm). She was depressed “+++”, numbed, amotivated and stopped caring. She was drinking more ETOH. She would like to restart Duromine – “felt good, lost wt and didn’t need ETOH”.
On 7 July 2009, Dr Tsin recorded that while the applicant was in the waiting room, a teenage patient aggressively threw a chair towards her for no reason. “Stressed. Teary”.
On 22 April 2010, Dr Tsin recorded that the applicant had quit her job at HKH because of stresses in A & E, especially with poor management of psychiatric patients at triage. She had renovated a house in Townsville. She had realised she had been neglecting herself. Duromine helped her stop binge eating and drinking alcohol.
The applicant met up with Shane in Townsville, had sex with him and “started feeling again”. He had moved on and was moving to Melbourne. She was staying with him at his place. She had opened an antique shop with her daughter. Dr Tsin noted “Teariness ++ Poor focus. More forgetful. Ups and downs and lots of fluctuations. Confusion. Restart alcohol”.
On 13 May 2010, Dr Tsin recorded the applicant had stopped drinking alcohol. She started AA when she realised alcohol was controlling her. She felt supported in the group. She focused on positive things. Shane left for Melbourne. She had to pack his stuff and found an eviction notice. She had been offered a job managing retrievals of patients from overseas. She had decided against opening a shop and would auction most of the antiques.
Dr Tsin wrote a referral to Dr Adrienne Gould. “As discussed on the phone”, she suspected the applicant may suffer from bipolar disorder. She had been turning up every so often to see Dr Tsin, “often in crisis or on a high”.
The applicant’s flighty decisions included opening a shop that failed badly and “2(?) bad marriages”. Dr Tsin had not talked to her about bipolar disorder yet. Her concern was that the applicant needed treatments, most were weight gaining, “and she’ll miss the highs”.
There is a handwritten note to Dr Tsin, dated 25 May 2020, stating that the applicant did not turn up for her appointment.
On 9 June 2020, Dr Tsin recorded that the applicant had ceased Duromine because she couldn’t afford it. She also couldn’t afford to see Dr Gould and had to sell her car. Shane moved to Melbourne. The landlord let her stay one week for free. The electricity was cut off.
The applicant tried to get her first ex-husband to look after one daughter. He got abusive. Her other daughter got cranky with her for trying to get together with Shane. The job offers fell through. She had “hit rock bottom with debts building up”,
The applicant had tried to get work through Hornsby Hospital. She had been charged with dereliction of duties when she didn’t return to work after long service leave that ran out in March 2010. She had tried to contact her boss, who did not respond. She had been told she needed to write a letter to remove the charge. She needed to go back to Townsville to sort out the sale of her property. She was still going to AA and stopped alcohol.
On 11 August 2010, Dr Tsin recorded that the applicant was living in Lavender Bay in a four bedroom waterfront house. “Loving it. Walking the dog”. She didn’t sort the problem at Hornsby Hospital and decided not to work in the public hospital system. She was going to do business with her daughter. She was “not too worried about getting a job yet. May look into working in a clinic”. She wanted to get well emotionally and [have a] stable home life.
On 26 August 2010, Dr Tsin recorded that the applicant had started markets and online selling. She had stayed off alcohol. She stopped and started Duromine because it caused agitations and racy thoughts.
The applicant was reading up on CBT and attending psychology lectures with her daughter. Ongoing contact with Shane kept her hooked. She wanted to stay married to him to give a measure of comfort.
On 15 February 2011, the applicant’s daughter rang Dr Tsin. She was “[C]oncerned about mum’s behaviour in the last year. Erratic behaviour with restarting smoking and drinking caffeine +++ and drinking alcohol++. Spending money +++. Not working. Irritable and argumentative. Losing more weight”.
Dr Tsin advised her to bring the applicant to her. If she resisted, to talk to the MH (mental health) team. If she was getting aggressive, she needed to call the police. If the daughter’s health was in danger, call DOCS. She needed to recognise that “mum” may not have insight into her problems and may resist help. She needed to get external help.
On 12 May 2011, Dr Tsin recorded that the applicant had opened a shop with her mother. It didn’t work out as “Mum was too controlling”. She lost the rest of her savings. “Mum doesn’t talk to her”.
The applicant had done some work for “Corporate triage” for a few months but was dismissed when she refused to sign the contract one month ago. She was lecturing part time at UTS. She would hopefully get more work in July. She wrote a letter to Hornsby admin and didn’t hear back.
The applicant was living with two of her children. Her other daughter was “very demanding with her high expectations”. The applicant was feeling good and positive about her future. She did not want to work the long hours she used to do, “doing things for everyone and gaining.” She was eating badly, smoking and drinking again in the last month when mum and her daughter hassled her again.
The applicant saw a counsellor through “Emotional Intelligence”, who helped her make some changes in her life. She had had a boyfriend for three weeks. “Known him for ages”.
Dr Tsin recorded the reason for contact as mental health review, and noted “?Bipolar affective disorder.”
On 11 November 2011, Dr Tsin recorded that the applicant was smoking again, drinking too much. “Wants to stop”. Her relationship was going well. She was working at RNS teaching nursing students and tutoring at UTS. She had applied for work at RNS A & E.
On 9 December 2011, Dr Tsin recorded that the applicant had started Duromine, quit smoking, and stopped alcohol. She finished teaching today and would be doing casual shifts at RNSH. She was very happy in her relationship. It was very normal, “with no manipulations or co-dependence”.

The applicant also denied any past psychological issues to both A/Prof Robertson and Dr Roberts. That is clearly incorrect. However, the qualified practitioners were provided with factual evidence and/or the clinical records, allowing them a more complete history than that provided by the applicant. It is not apparent that Dr Shen is in the same position.

Notice and claim

As regards the claim against the first respondent, it is appropriate that I deal first with the issues of notice and claim. If the applicant does not satisfy the requirements of ss 254 and 261 of the 1998 Act, or establish that she is exempted from those requirements, it is not necessary to further consider the claim against the first respondent.
Section 254 of the 1998 Act provides as follows:
“(1)    Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 .
(4)     In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances--
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 ,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Section 261 of the 1998 Act provides as follows:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The onus is on the applicant to establish that special circumstances, including the absence of prejudice, exist: Gregson v L and MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson); and Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12 (Westlake).
As s 254(3) of the 1998 Act provides that “each of the following constitutes special circumstances”, even extreme prejudice to the employer is irrelevant where the applicant is able to prove any other of the special circumstances applies. Deputy President Roche said in Zheng v Xie [2011] NSWWCCPD 58 from [193]-[197]:
“[Section 254] does not provide that prejudice to the employer is a defence against a late claim. It states that one of the special circumstances in which the failure to give notice of injury is not a bar to the recovery of compensation or work injury damages is where the person against whom the proceedings are taken has not been prejudiced.” (at [196]). (Emphasis added.)
The applicant submitted both that there had been no prejudice to the first respondent, and that she was “ignorant”, in that she was unaware of her diagnosis of PTSD, and until 2019 was not even aware that there was an injury significant enough to make a claim against HKH.
I do not accept that the first respondent has not been prejudiced by the failure of the applicant to give notice of the injury. Mere effluxion of time forms a reasonable basis upon which a presumption of prejudice can be made (Westlake). However, in Camden Council v Hancock [2005] NSWWCCPD 6 Byron DP said:
“I do not agree that lengthy delay alone must always give rise to prejudice and injustice. Actual injustice must be demonstrated, not merely potential injustice (see Holt v Wynter [2000] NSWCA 143)”.
In my view, the report of the factual investigation is sufficient to establish that the first respondent has been prejudiced by the applicant’s failure to give notice of injury. However, that is not the end of the matter, if she is able to establish that one of the other special circumstances exists.
Both s 254 and s 261 of the 1998 Act provide for exemption from the time limits for giving notice of an injury or making a claim if the failure to do so was occasioned by ignorance, mistake, absence from the State or other reasonable cause. The case law with respect to this exemption that deals with s 261 of the Act is therefore also relevant to s 254.
While the applicant referred in her submissions to reliance on s 254(3)(b) of the 1998 Act, and in particular her “ignorance” of her diagnosis, it appears that she also relied on s 261(6) of the Act, in that she claims to have become “aware” of the injury some time after it occurred.
His honour Judge Burke held in Gregson that “ignorance” means ignorance of legal rights and obligations, including ignorance of time limits. His honour said:
“[t]he ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim...” (at [61]).
The chronology of events appears to be that the applicant ceased work with HKH in 2009, although she had some later employment with the first respondent. She commenced work at Crookwell on 19 September 2019 and claims to have sustained a psychological injury with the deemed date of 20 October 2019.
The applicant’s Notification of Injury/Illness to the first respondent is dated 25 May 2021. She apparently advised it on 29 April 2021 that she wanted to claim compensation.
The applicant has given evidence that she had three EAP sessions, and the psychologist told her she had PTSD. This appears to have been in or about November or December 2019. On 7 November 2019, Dr Tsin certified her as unfit for work and suggested she re-think her employment. She also suggested the applicant may have PTSD.
In January 2020, Dr Shen reported that the applicant had PTSD from difficult work-related experiences that had been re-activated by a stressful work environment from a new job.
EML disputed liability for the claim on 17 March 2020. It is not clear from either the s 78 notice or the review notice dated 23 April 2020 that it provided a copy of Dr Allen’s report dated 10 March 2020, but the report was referred to in the review notice.
EML stated that Dr Allen had opined that the applicant was suffering from PTSD as a result of her employment with HKH. It is likely that this was the first time the possibility that her condition was related to her employment with the first respondent had been clearly articulated to her. Her evidence is that EML told Dr Tsin it had disputed liability due to a note in her medical records about HKH.
The applicant had obtained legal advice at least by 31 March 2020, when Dr Tsin recorded that she had been assisted by the union to find a lawyer. There is evidence in the clinical records that she was in contact with the lawyer in April and May 2020.
The applicant changed lawyers in August 2020. The first respondent was notified of the injury on 29 April 2021.
The applicant has given no evidence that she was unaware of her rights and obligations regarding giving notice of injury. She has given no evidence that she was “ignorant” of the time limits, or that her lawyers did not advise her of such limitations. Her lawyers have given no evidence in this regard.
The applicant made no submissions on whether there was any “other reasonable cause” for her failure to give notice of the injury as soon as possible after it happened.
The applicant did not give notice of the injury as soon as possible after it happened. She has not established that her failure to do so was occasioned by ignorance, or that the first respondent has not been prejudiced by that failure.
The applicant is therefore not entitled to recover compensation from the first respondent, as she has failed to comply with the requirements of s 254 of the 1998 Act. It is unnecessary that I consider whether she has failed to comply with the requirements of s 261 of the 1998 Act.

Injury

Section 4 of the 1987 Act provides as follows:
“In this Act--

‘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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant claims to have sustained a disease injury, deemed to have occurred on 20 October 2019. She relies on ss 4(b)(i) and 4(b)(ii) of the 1987 Act. A psychological injury may be a “disease injury” – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
As I have noted, the applicant is not a reliable historian. She clearly had a long history of psychological issues, dating back to at least 2007, on the evidence of the GP’s clinical records.
I do not accept that, because the applicant may have been referred for treatment only twice before 2019, her previous psychological history was not of clinical significance. Dr Tsin’s records suggest otherwise. That does not mean she has not sustained a psychological injury in the course of her employment.
The applicant’s evidence is that when she took long service leave from HKH in September 2009, she felt that she needed a break, and was feeling anxious and unwell. I accept that, as an ED nurse in a busy hospital, she would have been exposed to stressful events.
Dr Tsin noted in November 2008 that the applicant was getting burnt out with work in A & E, and in January 2009 that she wanted to get out of clinical nursing. She had quit her job in April 2010 because of stresses in A & E.
After leaving HKH, the applicant’s employment appears to have been largely outside a clinical setting, although she did some shifts at HKH and RNS. She did some shifts in ED and ICU. While she was “fine and happy” between 2015 and 2019, she feels that in hindsight she was very hypervigilant.
It appears that the circumstances of the applicant’s employment at Crookwell were very different to those she was used to in city hospitals. She was once again working full-time in a clinical setting, and primarily in ED.
The applicant was confident, perhaps over-confident, in her abilities, to the extent that she felt she was coming into Crookwell to “save the place”. The staff with whom she worked did not share her confidence, feeling that she lacked both clinical skills and awareness of how to interact with them and with patients in a rural hospital.
It appears to me that the applicant’s concerns with her roster were due to her inability to manage the workload (variously described by the second respondent’s witnesses as “fast pace[d]” and having “no real emergencies”).
I have found little assistance on the issue of causation from Dr Shen’s reports. As well as containing an inaccurate history, his reports are quite brief. However, he did record that the applicant had started to ruminate on the past and had ongoing flashbacks. He diagnosed her with PTSD arising from difficult work experiences that had been re-activated by a stressful environment in her new job. (Emphasis added).
Dr Shen’s conclusion is similar to those of Dr Allen (at least in his first two reports) and A/Prof Robertson.
Dr Allen’s reports are, as the applicant submitted, somewhat of a moveable feast. For that reason, I am not greatly assisted by his evidence.
Dr Allen initially opined that the applicant had MDD and PTSD, related to historical events. She was clearly not coping at Crookwell, and her mental health deteriorated due to the “typical stressors” there.
After being provided with the applicant’s clinical records, Dr Allen became aware of her previous history of psychological symptoms and alcohol dependence. He then opined that the stress associated with rostering at Crookwell caused a slight exacerbation of her longstanding difficulties. He no longer believed PTSD was an appropriate diagnosis. He attributed 90% of her difficulties to her longstanding problems, and 10% to the recent exacerbation.
When Dr Allen next reported, he appears to have overlooked or failed to review his second report. He again opined that the applicant had MDD and returned to his diagnosis of PTSD. They were in large part attributable to her alleged difficulties at Crookwell. On this occasion, he did not regard her past experiences as having caused her condition.
Dr Allen opined that the aggravating effects of the work injury (at Crookwell) persisted. The applicant’s subjective experiences there appear to have led to her psychological conditions. Her view of events indicated a concerning workplace that led to her developing MDD and PTSD.
In his report dated 7 June 2021, Dr Allen, having been advised that the applicant attended the workplace at Crookwell for only 20 days, opined that the mild exacerbation of her condition while she was there, and any effect of the exacerbation, should be considered as having resolved. Her PTSD had its origin at HKH.
In my view, the duration of the applicant’s attendance at Crookwell is not relevant, given the nature of the alleged injury and, in any event, Dr Allen recorded a history in his report dated 10 March 2020 that she had worked at Crookwell for three weeks, so he was aware of that matter. The duration of her employment also does not appear relevant to the duration of the exacerbation of her condition.
Dr Allen opined that, as the applicant was no longer at Crookwell, the exacerbating effects of her difficulties could be regarded as having ceased. However, her psychological distress remained of concern. It appeared clear she had enduring psychological problems before commencing at Crookwell.
While Dr Allen referred to the conflicting evidence about what occurred at Crookwell, it should be noted that much of the applicant’s evidence was confirmed by the second respondent’s lay witnesses, albeit that they viewed the events differently.
The applicant clearly had issues with her roster, which she had made known. She did have concerns about a diabetic patient (and appears to have expressed them inappropriately), and about a patient whom she suspected may be being abused by her husband.
The applicant’s evidence about a patient threatening suicide and a child having taken an overdose of drugs after having been sexually assaulted, has not been refuted by the second respondent’s evidence.
Roche DP extracted the following from the authorities, in Attorney-General’s Department v K [2010] NSWWCCPD 76; (2010) 8 DDCR 120 (citations omitted):
(a)     employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle;
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment;
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established;
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind;
(e)     there is no requirement at law that the worker’s perception of events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’, and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.

The medical evidence suggests that the applicant had an “egg-shell psyche” when she commenced work at Crookwell. Real events that occurred there, while they may have been perceived by her colleagues as routine, were perceived by her as creating an offensive or hostile environment. Her perception may have been flawed because of her already “disordered mind”, but her reaction to the events need not be rational, reasonable, or proportionate.
I have found A/Prof Robertson’s evidence of most assistance in this matter.
While the applicant denied to A/Prof Robertson any past psychiatric history, he recorded in his report dated 2 February 2021 that she had a history of heavy alcohol use, the referral to Dr Gould in May 2010, the reference to bipolar disorder, and her family history. He was therefore aware of events of which he may not have been advised by the applicant.
A/Prof Robertson agreed with the diagnosis of PTSD and MDD. He concluded that the applicant had subclinical manifestation of a post-traumatic syndrome that reached its full flourishing in the context of comparatively minor stresses at Crookwell. He saw no evidence of bipolar disorder, but this required consideration, given the family history.
Specifically, A/Prof Robertson opened that the applicant had a pre-existing vulnerability to a psychiatric disorder (that is, an “eggshell psyche”), which was attributable to aspects of her employment prior to working at Crookwell. They were aggravated, accelerated, and deteriorated into the workplace injury at Crookwell. That employment, in his opinion, was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her psychological disease injury.
When the lay and medical evidence is considered, it appears to me that A/Prof Robertson’s conclusion is supported by that evidence and is most likely to be the correct one.
Ms Tyler accepted the applicant “at face value”, and that she had a genuine mental illness, but not that she had PTSD. The applicant had not been exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence. At the same time, she recorded that Ms Jarvis had been shot at, punched in the face, and spat at.
The actual diagnosis may be in dispute, but Ms Tyler did not suggest that the applicant did not have diagnosable psychological conditions. Dr Allen was respectful of her opinion, but ultimately appears to have returned to his diagnosis of PTSD (and MDD).
Dr Roberts opined that the applicant had either bipolar disorder or a schizoaffective disorder. Her disavowal of psychopathology before she began work at Crookwell, in his view, negated a claim that she developed a condition due to pre-existing events at HKH.
Dr Roberts reported that exposure to traumatic events would be the universal experience of doctors and nurses. That is the case that the applicant and A/Prof Robertson advance – that she was exposed to trauma at HKH.
The applicant may well not have been aware that she had a psychological condition when she commenced work at Crookwell. However, having reviewed the evidence of the second respondent’s lay witnesses, Dr Roberts opined that her behaviour was characteristic of a mentally ill person attempting, and failing, to function in the workplace.
I agree that the applicant was clearly psychologically ill when she commenced work at Crookwell. Her behaviour could by no stretch of the imagination be described as normal. However, I do not accept that she had bipolar disorder or a schizoaffective disorder. I prefer the diagnoses of Dr Shen, who has treated her since January 2020, Dr Allen, and A/Prof Robertson, that she most likely has PTSD and MDD.
Dr Roberts opined that the assertion that rostering issues could give rise to PTSD was untenable. I agree, but in my view the applicant’s preoccupation (and virtual obsession) with her roster and “work/life balance” were merely manifestations of her inability to cope in the workplace.
Dr Roberts also initially opined that the diagnosis of PTSD was not tenable if the applicant was free of symptoms before she commenced work at Crookwell. He later recorded that her statement that she had no pre-existing psychopathology was an error.
Dr Roberts noted that a review of studies confirmed that the onset of PTSD symptoms is almost never delayed. However, the study he quoted referred to cases where it might appear there is a delayed onset of PTSD, but the person has not been wholly asymptomatic during the period after the trauma and prior to meeting full criteria for the condition.
It may be assumed that Drs Shen and Allen and A/Prof Robertson are aware of the studies referred to by Dr Roberts, but they diagnosed the applicant with PTSD. A/Prof Robertson thought bipolar disorder should be considered, but ultimately did not diagnose it. I prefer their opinions on the diagnoses of the applicant’s condition.
I am satisfied on the balance of probabilities that the applicant sustained injury in the employ of the second respondent due to the aggravation, acceleration, exacerbation, or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act. A/Prof Robertson, whose evidence I accept, opined that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of her psychological disease injury. The injury is deemed to have occurred on 20 October 2019, the first date of incapacity.

Incapacity

The applicant submitted that she was unable to return to work. The second respondent submitted that, if there was an aggravation of her condition, it has ceased. She has the capacity to work in other than hospital settings. It referred to her plans, for example, to run for the Senate, and her attendance at the nurses’ strike.
I do not accept that the applicant has had, at any relevant time, any capacity for work. She certainly has the qualifications to work in other than a hospital setting and has experience as an educator. However, the medical evidence is to the effect that she has a significant psychological condition, or conditions. None of the doctors who has treated or examined her has suggested she has any capacity for work. It does not appear that she has had optimal treatment.
The fact that the applicant may believe she has the capacity to, for example, enter politics, does not mean she has the ability to do so. In Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41, Acting President Roche, as he then was, held that, even if a worker’s subjective view is that he or she is fit for certain jobs, this had to be weighed against other evidence, including in respect of the nature of the injury, its consequences, and the medical evidence.
The applicant may believe that she has the ability to enter politics. That needs to be weighed against the other evidence, which in my view establishes that she has had no capacity for work since she ceased work with the second respondent. Her belief in her own abilities is similar to her misguided beliefs that she was there to “save” Crookwell, and that her clinical knowledge was superior to that of her colleagues. It does not appear to be based in reality.
The applicant’s PIAWE are agreed to have been $2,236.17. The claim for weekly benefits is made pursuant to s 37 of the 1987 Act from 13 April 2020 to 13 June 2022.
The second respondent is therefore to pay to the applicant, pursuant to s 37 of the 1987 Act, weekly benefits at the rate of $1,788.94 per week (80% x $2,236.17) from 13 April 2020 to 13 June 2022.
The applicant, having succeeded in her claim, is entitled to a general order for payment of medical and related expenses, pursuant to s 60 of the 1987 Act.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 20

18 January 2023