Lavelle v Mid Richmond Neighbourhood Centre Inc

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lavelle v Mid Richmond Neighbourhood Centre Inc & Ors [2024] NSWPIC 631
APPLICANT:	Bernadette Lea Lavelle
FIRST RESPONDENT:	Mackillop Family Services Limited
SECOND RESPONDENT:	Life Without Barriers
THIRD RESPONDENT:	CASPA Services Limited
FOURTH RESPONDENT:	Mid Richmond Neighbourhood Centre Inc
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	12 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation due to psychological injury; there was no dispute that the applicant was totally unfit for work due to a psychological injury; the dispute was if subsequent employment (after the first respondent) was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease or if there has simply been a continuation of the injury sustained with the first respondent; Held – subsequent employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease; the applicant’s injury with the first respondent simply continued in subsequent employment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 whilst employed with the first respondent. 2. I do not accept that the nature of the applicant’s injury is one of disease such that the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease has been her employment with the second, third or fourth respondents. 3. The first respondent is liable to pay the applicant’s weekly benefits as pleaded together with outstanding s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

Bernadette Lavelle (the applicant) has made a claim seeking weekly compensation for a psychological injury. There is no issue that the applicant has indeed sustained a psychological injury, the exact nature of the psychological injury is in dispute. Essentially the nature of the dispute is if subsequent employment (after the first respondent) was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease or of there has simply been a continuation of the injury sustained with the first respondent.
The applicant has been employed by each respondent from a period starting in February 2020 and ceasing work in December 2023. There is no issue that she is totally incapacitated for work, this determination will direct which respondent is to pay the relevant weekly compensation.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) what is the nature of the applicant’s injury within the meaning of s 4 of the Workers Compensation Act 1987 (1987 Act)?
(b) Is the nature of the injury by way of main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease thereby invoking
ss 15 and 16 of the 1987 Act?
(c) What is the appropriate pre-injury average weekly earnings (PIAWE) to employ (as determined by the liable respondent).

ISSUES NOT IN DISPUTE

The applicant is totally incapacitated to work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply to the Application and attached documents dated 3 July 2024 (x 2), and
(c)    Applications to Admit Late Documents dated 19 July 2024, 29 July 2024, 30 July 2024 and 4 October 2024.

LEGISLATION

Section 4 of the 1987 Act provides:
“4 DEFINITION OF ‘INJURY’
(cf former s 6 (1))
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.”
Section 15 of the 1987 Act provides:
“15 DISEASES OF GRADUAL PROCESS--EMPLOYER LIABLE, DATE OF INJURY ETC
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a)the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
I will now turn to the evidence in this dispute. I have focused on the evidence that has been referred to in submissions.

Lay evidence

Applicant’s statement

The applicant has prepared three statements in relation to this matter, the first dated 16 September 2022[1] and the second dated 3 June 2024.[2]
[1] Application page 3.
[2] Application page 10.
The applicant says that when she commenced her employment with Mackillop Family Services Limited (the first respondent) as a Senior Youth Worker she reported to Karen Gaudoin. She was required to manage a team of up to eight staff and support the team throughout their job. She also managed young people’s movements if they had doctor’s appointments.
The applicant explains that while she was only supposed to work 76 hours a fortnight she regularly worked between 100 to 140 hours per fortnight. The extent of the overtime was significant, the applicant reports in the last year of her employment with the first respondent she made $60,000 in overtime.
The applicant described resources as scarce for funding for the house and despite requests to approve a key card to use to fund purchases, she was given no approval. Finally, she reached out to Michael Kelly who was the National Residential Care specialist.
She was invited to call Mr Kelly personally which she did on 26 July 2022. At that stage she mentioned that the house was in lockdown and was wondering what they could do to support the young people during this time. He agreed that it would be a good idea to buy a television for bedrooms. She also mentioned that there was no funding in the house keycard which she needed to have to purchase pain relief and electrolytes for the clients.
There was an occupant of the house who shall be known as “V”. He had been observed on 8 August 2022 creating a PlayStation account privately so that he could play violent games without the youth workers knowing.
On arrival at work the applicant was informed of this and she explained to V that they were aware of the unauthorised games and account and that they were needed to remove his PlayStation to remove the account.
As a result of the interaction, V became angry and mentioned that the only way he would settle himself down was to kill someone in his video games. The applicant suggested that there were other alternatives to calm down and this would include going for a walk or a bike ride.
V continued to be aggressive and made threats that included words such as “he wanted to slit your throat and watch you bleed out”. He was banging on the office door wanting to get in to where the applicant was. V put a hole in the wall and made a reference that he wanted the wall to be the applicant’s head.
The applicant also explained to Karen Gaudoin, her supervisor, that the office was not appropriate as it was necessary to have two exits to escape in case of emergency and it did not.
On 9 August 2022 V was asking about the Playstation as it had been taken from him for some time. The applicant told V that the Playstation will be discussed as a team meeting, and he would be updated in his communication book. V behaviour heightened but the applicant was able to redirect him. V continued to ask about the Playstation whilst the applicant was involved in supporting maintenance people on site and she told him that she'd be able to complete the communication book later that afternoon.
Once the communication book was finished the applicant gave it to a coworker to hand to the young people. Within seconds, V’s behaviour escalated, and he verbally abused staff in the office mainly directed to the applicant. V said that he would investigate all staff and kill them all by slitting their throats. V’s voice was getting louder he was yelling at the office door and banging aggressively. The applicant reminded V in a calm voice that staff would call the police if he continued to threaten and intimidate staff. Unfortunately, V did not quieten down and kept on making threats and threw his mobile phone across the bedroom.
A co-worker of the applicant felt unsafe and called the police who attended the home and arrested V and took him to the police station.
V was then transported home together with the applicant and two other workers. The applicant then finished her shift at 12.15am. An Apprehended Violence Order (AVO) was subsequently lodged by the police on the applicant’s behalf.
The applicant says that after these events there were some changes to the safety plan, but these were verbal changes with no real changes.
The applicant describes that after that prolonged incident on 8 August 2022, V’s behaviour appeared to settle until 14 August 2022 when V had been fishing and had access to sharp objects such as pliers and a fishing knife. Once they finished fishing, V got in the car and sat behind the applicant with the fishing knife under his shirt. Fortunately, another youth worker had noticed the fishing knife and as a result the knife was moved to the car boot.
On 15 August 2020 to the applicant started her shift and went to see a therapeutic specialist, Alja Hopkins, about the safety of youth workers and the fishing knife due to the previous events. There was a further issue about a complaint being made against a fellow coworker by the applicant, a complaint that the applicant says she did not lodge. The applicant observed that her supervision notes had been altered. The applicant then sent an email to her supervisor and Human Resources (HR) highlighting the areas that her supervision had been altered. The applicant received no response to her complaint in respect to the alteration. The applicant felt that this was the last nail in the coffin, no one cared and the people that should be supporting the applicant or reaching out had not.
The following day the applicant attended upon her general practitioner (GP) because of the stress that had been building up over the last few weeks. She received a medical certificate.
In the applicant’s second statement she outlines her employment with the various respondents. In respect of the first respondent, she says that she was subject to an assault on 22 February 2020 when she was assaulted by a client known as “HF”. At that time HF had grabbed and squeezed the applicant’s left arm scratching it as a result. The applicant attended Grafton Base Hospital for treatment.
The applicant was able to continue to work after returning to work on 4 March 2020. Whilst she was worried about her safety at work and receiving counselling, she was actually promoted to higher duties as a senior youth worker in October 2020. She does explain however that she often felt anxious and hypervigilant when at work after that assault.
The applicant says that she felt effectively burnt out by the workload and excessive hours with the first respondent in a very stressful environment and as a result became anxious and depressed.
The applicant consulted Dr Bell on 1 December 2022, and he provided her with Certificate of capacity certifying she had no capacity to work until 3 January 2023.
The applicant explains that in December 2022 she was under a significant financial pressure and felt like she needed to work to support her daughters even though she felt that she had improved but had not fully recovered. She asked Dr Bell In her consultation on 16 December 2022 to change her medical certificate so she could work somewhere else.
The applicant resigned from the first respondent with effect from 27 December 2022.
The applicant was able to obtain work with Life Without Barriers, the second respondent as a home manager on 29 December 2022. The applicant needed medical clearance to accept this position.
The applicant attended upon Dr Bell again on 3 January 2023. She felt that she had not recovered and was still anxious and depressed. She felt like she was under a lot of pressure from the rehab provider to get back to work and was also struggling financially. She asked Dr Bell for medical clearance so that she could take up the job with the second respondent.
The applicant says she struggled with working for the second respondent because she was dealing with similar challenging clients like she had dealt with at the first respondent.
The applicant continued with counselling with Dr Thomason in February 2023.
In about March 2023 an allegation was made against the applicant in relation to her conduct towards a client. She was handed correspondence from the second respondent informing her that an allegation had been made and directed her to undertake alternative duties immediately. The applicant was not provided with any details of the allegation nor was she given any chance to respond to that allegation.
The applicant says she felt targeted by staff working for the second respondent and her anxiety and depression became worse as a result of dealing with the same sorts of clients and the additional false allegation made by the first respondent’s ex-staff.
As the applicant was still in her probationary period with the second respondent, her employment was terminated on 6 April 2023.
Once again, the applicant found herself in a position where she felt anxious and depressed as she had no work or income coming through.
The applicant then found work with CASPA Services, the third respondent, as a casual therapeutic care worker. Whilst this was a step back from the previous managerial positions, the applicant thought that this might be an easier position to manage.
The applicant commenced training with the third respondent and was abruptly pulled out of her training without prior notice or warning. The applicant was then told that a red flag had been put against her name by the first respondent regarding the safety and welfare of a child. Once again, the applicant says she was not given any opportunity to know the details of the allegation or to provide a response.
The applicant has prepared a third statement dated 16 July 2024.[3] I observe that no substantial submissions on this evidence, however as it is part of the applicant’s evidence it is relevant to the disputes before me. The applicant in that statement refers to her employment with the fourth respondent, the statement appears to be prepared in response to statements from employees of the fourth respondent.
[3] Application to Admit Late Documents dated 4 October 2024.
The applicant refers to her co-workers and discussion about personal issues in the workplace. She says she felt triggered working with similar clients to the ones she had previously. The applicant said she felt uncomfortable and anxious about expressing anything about her personal issues and working around the other staff and listening to their gossip made her depression and anxiety worse.
The applicant admits in her third statement[4] that she was struggling with her anxiety and depression whilst employed with a fourth respondent and says it had gotten worse. The applicant says she eventually reached a point where she was not able to cope as her anxiety and depression had become so bad and debilitating. She felt triggered working with similar clients to the ones she had before.
[4] Application to Admit Late Documents dated 4 October 2024.

Medical evidence

There is a significant volume of medical evidence in this dispute. I will focus on the evidence that has been relied upon in submissions by the parties.

Dr Anand

Dr Anand, neuropsychiatrist, has prepared reports on behalf of the applicant in the proceedings. Dr Anand’s first report is dated 23 May 2014.[5] He notes the applicant’s history and goes through her employment with each of the respondents. He diagnoses the applicant as having a major depressive disorder with prominent anxiety. In relation to the liability of each respondent, it was Dr Anand’s opinion that on the balance of probabilities and terms of causality, he confirmed a causal nexus between her employment with the first respondent and the psychological injury sustained.
[5] Application page 77.
In respect of an exacerbation of the psychological condition, Dr Anand is asked whether employment with the various employers the main contributing factor to that acceleration was, aggravation of the disease. Dr Anand answers “that that is not applicable”, I take this to mean that there has been no exacerbation with subsequent employers following the first one. He then goes on to say that there was no pre-existing condition prior to the events at McKillop Family Services and the subsequent employments identified.
In Dr Anand’s supplementary report dated 24 May 2024[6] his opinion is somewhat different in that he says that the subsequent employment with each of the three employers has caused an aggravation of the psychological injury which is continuing as evidenced by the significant burden of psychopathology elicited and detailed in his original report. He provides little detail as to why he has changed his opinion nor comments on “main contributing factor”.
[6] Application to Admit Late Documents, page 35.

Dr Sidorov

Dr Sidorov has prepared two reports, the first dated 4 July 2023[7] and the second dated 22 August 2023.
[7] Reply page 34.
Dr Sidorov took a history from the applicant who stated that the index injury occurred in the context of her employment with the first respondent.
In the history taken by Dr Sidorov he understands that the applicant “broke down” emotionally when she realised there was no one there to support her.
The applicant said that she felt pushed to return to work by her return-to-work coordinator, so she applied for another house manager job. She stated that she did not last three months in that job as she felt she could not cope, and her employment was terminated in March 2023. She described ongoing stressors with adult males and the residents fighting and being severely behaviourally disturbed with the police having been called.

Dr Sidorov understands from the applicant that she felt that her previous diagnosis of adjustment disorder had not fully resolved, and she feared that simply moving to a new role may again result in under-performance.
Dr Sidorov opined that the applicant met the diagnostic criteria for major depressive disorder. This had developed after her adjustment disorder which was a result of the stressors associated with the index injury as well as the stress in her subsequent employment together with stressors in other areas of her life.
Dr Sidorov says that it is unclear whether the applicant has fully recovered from the effects of her psychological injury whilst employed with McKillop Family Services. Based upon the Certificate of capacity she was fit for her pre-injury duties but had subsequently been terminated after three months at her new employment for performance issues which may be suggestive that she did not fully recover from her previous injury and experienced a relapse of her symptoms after the further stress of her new employment.
In Dr Sidorov’s second report dated 22 August 2023 he has some further medical material including a report from Dr Thomason dated 15 December 2022 together with clinical records from the Grafton GP Super Clinic.
Dr Sidorov states that once again it is unclear whether the applicant has fully recovered from the effects of the psychological injury she sustained with the first respondent. Dr Sidorov says that based on the GP records, it appeared that she continued to experience some degree of symptomatology at the time of obtaining new employment and the stressors of new employment had likely caused a relapse of her depressive and anxiety symptoms.
In respect of the issues in dispute, Dr Sidorov opined that the adjustment disorder had subsequently developed into a major depressive disorder. This initially developed in the context of employment with McKillop Family Services and was further aggravated by the stressors associated with her employment with Life Without Barriers. That is, the applicant had suffered an aggravation in the context of her employment with Life Without Barriers. Dr Sidorov says that the Life Without Barriers employment was the main contributing factor to the aggravation of her condition.

Clinical records from Grafton GP

The clinical records from the GP at Grafton GP have been annexed to the Application.[8] There are relevant details in these notes which describe the applicant’s symptomatology as recorded by her GP.
[8] Application page 241.
On 22 November 2022 there is a diagnosis of an adjustment disorder with mixed anxiety and depressed mood.
Then on 1 December 2022[9] the applicant still has the adjustment disorder and is certified for no capacity to go back to work with McKillop Family Service. There was the comment that the applicant’s role was being made redundant, so there is nothing for her to go back to, she is still struggling with anxiety and may look towards a position with another employer when her mental health is better.
[9] Application page 301.
On 16 December 2022, the applicant returns to her GP[10] and once again the applicant is described as having an adjustment disorder with some improvement and can ‘see the light at the end of the tunnel’. She wanted her certificate to have capacity to work somewhere else, not at McKillop Family Service and the doctor states that he is not sure if he would like that, however agreed that there would be an increase in capacity after the formalities have been completed.
[10] Application page 302.
On 3 January 2023 the applicant returns to her GP again, at this stage has commenced work with the second respondent. The applicant is once again described as having an adjustment disorder with mixed anxiety and depressed mood. The applicant described that she was feeling that she was gaining control, has some bad days where she feels empty but on the whole feels much better.
On 27 January 2023 the applicant returns to her GP and once again the adjustment disorder diagnosis is confirmed. The applicant explained that she had her ups and downs and was feeling overwhelmed with poor sleep.
It should be observed that this is not the applicant’s treating GP.
The applicant returns to see Dr Bell, her normal GP on 26 April 2023.[11] Once again, the diagnosis is confirmed as adjustment disorder with mixed anxiety and depressed mood. At that stage the doctor records that the applicant was struggling due to difficulties she had with interpersonal conflict. Someone had lodged a complaint against her. Importantly, there was a comment that the applicant feels that she may still have psychological issues which were unresolved from the previous workplace injury. There was a discussion that both Dr Bell and the applicant had felt at the time of sign-off that she was fit for work but the applicant states in retrospect this wasn’t the case.
[11] Application page 303.
What is significant in the Certificates of capacity is that there is a change in the applicant’s capacity seen in the medical certificate dated 5 December 2022.[12] In that certificate the date of injury is stated 22 July and there is no capacity for work. In the next certificate[13] the certification is changed that the applicant is fit for pre-injury duties.
[12] Application page 358.
[13] Application page 361.
Dr Roberts[14] (GP) has written a letter of referral dated the 27th of July 2022[15] to Ms Thomason (psychologist). In that correspondence, Dr Roberts is referring the applicant for psychotherapy treatment as she was struggling with workplace stress and had developed an adjustment disorder at work. The report provides a history that the applicant had been struggling for some time with self-care at work. The applicated communicated this to management but with no support have been put in place. The applicant felt obligated to work approximately 140 hours of fortnight due to staff shortages with concurrent home life being disrupted with interruptions. The applicant felt that she was not being listened to by her managers when raising concerns about the client’s welfare. She was struggling with symptoms of high stress, fatigue, anxiety hyper vigilance, disturbed sleep, depressed mood and disconnection her family life. The applicant had reached a point where she felt overwhelmed by work and unable to work.
[14] From Grafton Super Clinic.
[15] Application page 99.
In further correspondence dated 16 August 2022,[16] Dr Roberts again writes to Ms Thomason and states that the applicant’s situation at work has now escalated. The applicant felt that she was being targeted and also reported an incident when one of the clients had been threatening that he was going to “slit your throat” and an AVO was put in place.
[16] Application page 101.
Dr Roberts described the applicant's mood as deteriorating, she was constantly tearful, low mood, feeling depressed, feeling anxious and agitated at work. The applicant also provided the history in relation to the altered supervision at notes which concerned the applicant.
By way of correspondence dated 16th May 2023,[17] Dr Bell wrote to Allianz Australia with an update on the applicant’s condition. Dr Bell describes the applicant as having a recurrence of anxiety and rumination regarding her previous treatment with the first respondent and subsequent effects this has had on her ability to work effectively. Dr Bell describes the applicant’s return to work and the assessment of her at that time. He says he had assessed, and the applicant had agreed at the time, that the applicant was fit to return to work in January 2023. As time in the new position went on, the applicant found that she was still experiencing some anxiety. There had been some issues with the performance which the Dr Bell believed could have resulted in her role not being continued. The applicant felt this was the cause of her mental health. Dr Bell says that the applicant is concerned that her previous diagnosis of adjustment disorder had not fully resolved, and she feared that simply moving to a new role may again result in underperformance.
[17] Application page 106.

Dr Thomason

The applicant was referred to Dr Thomason by her GP and consulted with her in 2017.[18] At that time the applicant was experiencing feelings of being overwhelmed by her responsibilities as a single parent managing three daughters. She was having difficulty maintaining daily household routines and setting boundaries in respect of her children's behaviour. Further there were difficulties in dealing with her estranged husbands’ expectations.
[18] Application page 107.
The applicant consulted Dr Thomason again in September 2022.[19] Dr Thomason sent a report back to her GP dated 6 September 2022. At the time of writing the report there had been three consultations with observations made as to the applicant's demeanour. The applicant was described as being anxious, tearful and frustrated by her fear of returning to work following an incident involving a resident at the house she managed for the first respondent. The applicant described having been screamed at, verbally abused, threatened and intimidated by a teenage resident to the point where she and a coworker had to lock themselves in a safe room. Afterwards the applicant felt criticised and unsupported by management.
[19] Application page 108.
In separate correspondence to Allianz on 15 December 2022,[20] Dr Thomason described the applicant as being ready to return to work for several months, but her employer had created obstacles to implementation of plans devised by her rehabilitation provider and Dr Thomason. It is reported that the applicant is being proactive in seeking employment for herself within the disability/youth worker field. The applicant is described as having attained normal mood and was no longer anxious or depressed and was optimistic about her future and keen to start working again.
[20] Application page 110.

SUBMISSIONS

The focus of the dispute is the nature of the injury, that is it an injury sustained with the first respondent that does not resolve or has employment with subsequent employers been the main contributing factor to the aggravation (etc) of the condition.
I think a good starting point is to examine how the applicant returns to work or started her employment with the second respondent. The applicant explains in her statement that she felt financial strain, being the mother of dependent children with reduced income to pay for the day-to-day expenses associated with the applicant’s position. The applicant explains in a statement that she felt she had not fully recovered but there was effectively an urge to return to work to provide for her family. Dr Bell has referred to the applicant’s desire to return to work and also her understanding following the return to work that she probably wasn't in the position to do so bearing in mind her psychological condition.
In making findings as to what was happening at this time in the claim, I take into account the comments made by Dr Thomason in her report dated 15 December 2022 that the applicant had a normal mood and was no longer anxious or depressed and was optimistic about her future and keen to start working again. It seems to me that this was at a time that the applicant was keen to return to work, though the GP notes indicate that as of 5 December 2022 there was a total incapacity for work.
I am sympathetic to the applicant’s position and take into account the financial pressure that she was under and the need to return to work. Whilst the report from Dr Thomason on 15 December 2022 does indicate an improvement in the applicant’s symptomatology, it does not fit snugly with the certification given by Dr Bell some 10 days earlier.
The treating notes from the GP support a finding as to the ongoing symptomatology the applicant was experiencing. She continues to have the diagnosis of Adjustment Disorder with mixed anxiety and depressed mood with little relief.
For instance, on 3 January 2022, she returns to Dr Bell and reports though she feels she is gaining control, she has some bad days when she feels empty. Similarly on 27 January 2022 she reports feeling overwhelmed with poor sleep.
Then crucially on 26 April 2023 the applicant states that in retrospect she was never fit to return to work. The significance of this statement is that the applicant sees the continuation of her psychological condition not abating but continuing from her employment with the first respondent.
I accept the applicant's evidence in relation to this issue and accept that she was keen to return to work to provide for her children in circumstances where her own wellbeing was not her priority. I also accept the applicant’s evidence so far as her own conclusion that she was not well enough to return to work when she did.
Having made those findings as to the applicant’s position when she commenced work with the second respondent, there is a significant factual issue with the opinion of Dr Sidorov. Dr Sidorov has prefaced his opinion on the applicant’s return to work being indicative of her having no problems and it is only in the context of work that there is worsening or aggravation of symptoms that he draws a causal link between any great aggravation then and thereafter. The opinion to my mind does appear to be expressed relying on the certificate of capacity that the applicant is fit to return to work when the other material in the applicant’s evidence do not fit snugly with that description. The applicant tells me, which is somewhat agreed with by Dr Bell, that the return to work was done on necessity rather than any medical recovery.
To that extent, I must agree with the submissions that Dr Sidorov’s opinion, whilst eloquently presented, has been prepared on the basis of a different history of symptoms and complaints which is understood in a different way to what I understand and find.
The third and fourth respondents adopted the submissions of the second respondent and raised a few additional issues. There was a query raised in relation to a separate frank injury sustained on 22 February 2020 which was an assault. However, there was little medical material in relation to this and no party sought to make any great moment of it. I therefore do not feel that it has any significant weight and do not intend to take it into account in my determination.
The first respondent’s submissions sought a finding that the applicant has a disease condition which commenced when she was in employment with the first respondent and continued and was exacerbated (etc) until she ceased employment with the fourth respondent, thereby attracting the operation of s 15 of the 1987 Act.
The first respondent relies on the medical evidence which discloses that there has never really been any resolution of the initial adjustment disorder which morphed into a major depressive disorder with subsequent respondents. I do agree that there has never been any resolution of the applicant's condition.
The opinion of Dr Anand, particularly the supplementary report, does cause me some concern. The opinion appears to have changed from the first report so that there has been an aggravation of the applicant's condition with subsequent employers. Dr Anand does not assist in providing any reasoning as to what has caused him to change his opinion, nor has he assisted me in relation to the question of main contributing factor to the aggravation.
I am left with little medical assistance on the questions in dispute. Be that as it may, I have read all the medical material including the treating material and lay evidence in this case. I'm left with overwhelming evidence as to the detrimental effect the applicant’s employment with the first respondent had on her. The events that she described are frightening and involved a young known aggressive individual having within his possession a knife in circumstances where police had previously been involved after another violence incident involving threats to the applicant's life.
This was all against a background where the applicant felt that she was not being supported in her role or receiving the assistance that she required to perform her role. Additionally, the applicant was working excessive overtime which is illustrated in her unchallenged evidence that she earned some $60,000 in overtime in one financial year
After considering all the evidence that has occurred in this case, the preponderance of the evidence is fairly clear, that is that the true genesis of what is the applicant’s condition is what occurred whilst employed by the first respondent. The applicant had a period of time off with the first respondent and was ultimately able to return to employment with that employer for a period of time. She never recovered from her injury, and it was simply ongoing as she attempted to return to work with subsequent employers.
The balance of evidence leads me to a finding that the ongoing symptomatology the applicant has experienced is a result of her injury she sustained with the first respondent.
I find it quite normal that the applicant, after having gone through the assault that she sustained with the first respondent, remained concerned about her safety and concerned that she was not being listened to particularly in light of the context of what had occurred back in 2020. The effects of her injury are naturally carried with her to subsequent employment, but this does not lead to a finding that subsequent employment was the main contributing factor to the aggravation (etc) of her condition.
Much has been raised about the lack of cessation of symptoms following her employment with the first respondent. To my mind, this is quite a normal description of the applicant’s condition given the assault that occurred with the first respondent which has never fully resolved. It may be that there are other matters that are raised in various entries in GPs notes, that to my mind does not deter me making a finding in relation to s 4B of the 1987 Act.
To my mind what the first respondent needed to establish is that her condition was made worse, more grievous as a result of the work she was undertaking with subsequent employers
In Semlitch[21] Keto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient has increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[21] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 (Semlitch).
Windeyer J, in that same case said:
“The question that each aggravation, acceleration, exacerbation or deterioration poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[22]
[22] Semlitch at [639].
To my mind there is no substantial evidence in relation to making a finding such as that, it was simply a continuation of her symptoms which arose with the first respondent.
In this case, I feel the actual persuasion about the existence of a fact, that is that the applicant sustained a significant injury whilst employed by the first respondent. Having considered the whole of the evidence I feel an actual persuasion that that ongoing symptomatology in relation to her employment with the first respondent did not cease and the applicant has experienced ongoing symptomatology arising from it.[23]
[23] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
As a result of my reasons and findings, the first respondent is liable to pay the applicant weekly compensation together with medical expenses as claimed. I am aware that the first respondent only needed to prove that there had been the relevant aggravation (also main contributing factor), and this would have led to a somewhat capricious result when applying the disease provisions.
I observe that the applicant has pleaded two dates on injury, namely 22 February 2020 when the applicant was assaulted resulting in an injury to her left arm and then 16 August 2022 as a result of excessive workload, lack of support and being threatened by a client of the first respondent.

For reasons apparent in this determination, I find that the relevant date of injury is 16 August 2022. The medical evidence and the applicants own evidence support such a finding. There is little evidence that supports a date of injury being 22 February 2022.
In respect of a s 11A defence, which was raised by the third respondent, I do not need to address that issue as I have found that there has not been a relevant aggravation of the applicant’s psychological injury but simply a continuation of the very severe injury she suffered in the course of her employment with the first respondent with ancillary ongoing problems.

[2024] NSWPIC 631

12 November 2024