Moon v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moon v Secretary, Department of Education [2024] NSWPIC 306
APPLICANT:	Kylie Moon
RESPONDENT:	Secretary, Department of Education
MEMBER:	Diana Benk
DATE OF DECISION:	13 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant failed to establish that employment was the main contributing factor to the aggravation, acceleration, etc of her psychological injury; discussed AV-AW; Hammond Care v Calka; Hancock v East Coast Timber Products; Paric v John Holland Constructions; unable to accept the applicant’s evidence as to the effect of the events in the course of employment had on her psyche; Held – award for respondent with respect of the allegation of injury on 22 July 2022 (deemed).
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Kylie Moon (the applicant) claims psychological injury arising from the nature and conditions of her employment with the Department of Education (the respondent). Following assessment the respondent/insurer disputed liability relying on s 4b(ii) of the Workers Compensation Act 1987 (the 1987 Act), maintaining whilst the applicant suffers psychological injury, employment was not the main contributing factor, thereby precluding workers compensation entitlements.
Proceedings were then commenced in the Personal Injury Commission (Commission) where a disease injury with a deemed date 22 July 2022 was pleaded arising from a lack of support from management/colleagues in her duties as a school learning support officer. The applicant claims weekly compensation from 31 October 2023 at the rate of $1,197.27.
The usual case management pathway within the Commission was exhausted. The parties requested I determine the dispute.
At conciliation/arbitration, the applicant was represented by Mr Tanner of counsel instructed by Ms Asuncion. The respondent was represented by Ms Stockley of counsel instructed by Ms Spratt. Mr Filipe was the insurer representative.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply, Applications to Admit Late Documents filed by the applicant on 24 April 2024 and 3 May 2024 and by the respondent on 17 April 2024 and the law found in the 1987 Act. No oral evidence was adduced.
At the arbitration hearing objection was taken to various documents and my rulings in relation to those objections are recorded in the transcript. Suffice it to say that for the purposes of these findings and reasons, no regard shall be had to any evidence which was determined inadmissible.

EVIDENCE

Lay evidence

Statement of the applicant

The applicant stated[1] she had been employed as a student learning support officer for children with special needs and disabilities commencing at Merrylands High School in January 2021.
[1] Folio 1 of the ARD.
The statement records she began to feel overworked and unsupported particularly after the departure of head teacher Danielle Schryver on 25 May 2022. The statement discloses she was invited to ask for support but when she did so, none was forthcoming. She recited that she was accused of being rude to staff for which she apologised for any misunderstanding but ultimately left work on 30 June 2022 and lodged her workers compensation claim on
22 July 2022.
As a result of the situation she reports she is socially withdrawn, has limited tolerance for dealing with people, suffers diminished concentration and has had much psychological intervention from Indrani Mukherjee, Jill Abeshouse and psychiatric intervention from,
Dr Richa Rastogi.
As regards psychological history it is recorded “I have had difficult times much the same as anybody else” along with;
i)     a diagnosis of post-traumatic stress disorder in 2017 following a motor vehicle accident which resolved;
ii)     psychological distress on learning that her ex-husband had been diagnosed with cancer, and
iii)    a further motor vehicle accident on 19 April 2022 whilst holidaying on Kangaroo Island which “wasn’t necessarily traumatic, though the stress that came from it due to the difficulties of having my caravan repaired and being assisted off Kangaroo Island was tough on me”.[2]
[2] Folio 2 of the ARD.

Statement of Danielle Schryver

In her statement dated 10 November 2023, Ms Schryver confirmed she had left Merrylands High School on 25 May 2022 but did return to collect her belongings on 2 November 2022.
She recounts events communicated to her by the applicant regarding under resourcing and acknowledges that “whatever may have happened in Kylie’s life she was able to attend work every day without any issue. She was able to do this until the pressures of her role and lack of support all became too much for her”.[3]
[3] Folio 10 of the ARD.

Correspondence by the applicant to the CTP insurer

Whilst not forming part of the statement, the clinical notes disclose the following communications which are relevant to the assessment of this matter.
On 14 June 2022,[4] the applicant wrote to the CTP insurer stating (unedited):

“I am not coping with the ongoing situation involving my camper trailer AND my car. It was a simple albeit traumatic accident/incident on 19 April 2022 & I have no idea, how this situation has escalated to this!!!
I don’t have the head space to be dealing with the MESS anymore Nina & I am not managing my communications, the expectations of me very well at all because of it & under the advice of my GP & my psychologist I have been advised not to communicate with insurers any more….
I am trying to juggle a FULL TIME job as well as chasing people that should be doing this work for me. I am getting into trouble at work for crying too much and for too many phone calls.”
[4] Folio 181 of the ARD.

On 15 June 2022,[5] the applicant again wrote to the CTP insurer stating (unedited):
“I received your voice mail this afternoon. I had an anxiety attack when I saw that it was you calling. I was actually on the phone explaining my situation to a lawyer at the time you called, and yes, there were more tears & emotions as I discussed & re lived the accident & the lack of support/understanding/empathy from Allianz since the initial call on 19^th April 2022…
My mental health, my wellbeing & my job are ALL suffering due to the fact Allianz has not done the right OR correct thing by me from the beginning!!.”
[5] Folio 184 of the ARD.
On 20 June 2022,[6] in a further letter to the CTP insurer, the applicant stated (unedited):
“Woody said that my case would be marked urgent due to my mental health situation as a result of the treatment by Allianz.
Can you please include my Doctor as listed above in all correspondence as well.
I give AFCA full permission to contact my GP and PSYCHOLOGIST for any information required.”
[6] Folio 187 of the ARD.

Qualified medical evidence

Dr Kumagaya, consultant psychiatrist was qualified by the applicant.
In his report dated 4 August 2023, Dr Kumagaya recorded the applicant informed him that as a result of staff shortages, additional workloads and an unsupportive work environment she had the onset of “depressive and anxious symptoms in and around May 2022” with features of low mood, decreased interest, sleep disturbance, concentration difficulties, reduced energy and generalised anxiety and restlessness. [7] In June 2022 a complaint was made against the applicant which resulted in further destabilisation of her mental health.
[7] Folio 34 of the ARD.
As regards past psychiatric history, it was recorded that she was diagnosed with a depressive syndrome about 12 years ago in the context of ‘psychosocial stressors’ managed by Sertraline 75mg ever since. It was also recorded that she had attended psychological therapy for such stressors ever since and was further diagnosed with post-traumatic stress disorder in 2017 following a motor vehicle accident.[8] Developmental trauma was denied. [9] Recent psychosocial stressors including the passing of her ex-husband in September 2022 were noted.[10] It was recorded that prior to the work related injuries, her mental health was stable.[11]
[8] Folio 36 of the ARD.
[9] Page 38 of the ARD.
[10] Folio 38 of the ARD.
[11] Folio 38 of the ARD.
In his report dated 20 September 2023,[12] it was concluded employment was the main contributing factor to the aggravation, exacerbation, and deterioration of her pre-existing depressive psychological condition. It was reported that the applicant experienced a series of workplace incidents and stressors, which included a significant workload that she found overwhelming, with staff shortages and an unsupportive work environment. It was reported that the mental health was stable and the work related challenges resulted in a destabilisation of the mental state. A diagnosis of major depressive disorder and anxious distress was made.
[12] Folio 48 of the ARD.
It was concluded that the applicant was totally incapacitated for work as at 1 July 2022 as a result of her workplace psychological injury.

Treating doctor’s reports – Dr Massoud[13]

[13] Commence at folio 69 of the ARD.

The treating doctors notes are extensive. The pre-existing history is documented and it was recorded that the applicant was diagnosed with “adjustment disorder with depressed mood” following a motor vehicle accident on 19 April 2022 whilst at Kangaroo Island. The records demonstrate that once Dr Massoud was notified the applicant’s CTP claim was denied on
25 July 2022, he issued a WorkCover Medical Certificate of Capacity for ‘workplace stressors’.
There is no dispute the applicant has had previous psychological stressors, however her statement maintains these “difficult times much the same as anybody else”. There are approximately 36 consultations recorded between 16 July 2019 to 25 February 2022.[14] Consultations relate to the grief following the passing of her father; tension with her son and daughter; issue of a mental health care plan following domestic difficulties with her children; reference to feeling lonely; concerns about her husband’s terminal diagnosis and ultimately a referral to Lifeline on 25 February 2022 with cognitive behavioural therapy suggested with ‘This Way Up’. There is a record of “stress with employment” on 21 April 2021[15] and “angry with issues at work” and this appears to be due to her inability to secure a carpark spot closer to her assigned classroom when her foot was in a Cam Boot following a non work related orthopaedic injury.
[14] Folio’s 81 to 120 of the ARD refers.
[15] Folio 106 and 107 of the ARD.
The applicant then presented to the practice following her motor vehicle accident on Kangaroo Island on 19 April 2022 with the first presentation being on 4 May 2022[16] and formal CTP consultations ceasing on 25 July 2022[17] when the CTP claim was officially declined. A referral to a psychologist was arranged.
[16] Folio 124 of the ARD.
[17] Folio 134 of the ARD.
As a result of the motor vehicle accident it was recorded that the applicant told her doctor on “I wish I wasn’t here; [18]It’d be easier – denies active suicidality… feelings of helplessness if I died no one would care”[19].
[18] Folio 124 of the ARD.
[19] Folio 125 of the ARD.
The referral to Raynor Lander (psychologist) by Dr Massoud dated 4 May 2022 confirms referral for the adjustment disorder (which based on the contents of the referral is a separate diagnosis and disconnected from physical injury) as below (unedited):[20]
“Dear Raynor,
Thank you for seeing Kylie Moon for assistance with adjustment disorder after a recent car accident on 19/4/22 on Kangaroo Island. She was driving at 100kmh when a kangaroo jumped out in front of her vehicle causing significant damage. She has ongoing rumination of the accident and the injured kangaroo. She has features of adjustment disorder; reliving the accident, irritability, insomnia, poor concentration and increased stress.
She is having difficulties with her insurance company, further contributing to her stress. Please assist in psychological support, with thanks.”
[20] Folio 276 of the ARD.
In a certificate for CTP purposes dated 25 May 2022,[21] Dr Massoud recorded the effects of the motor vehicle accident as follows (unedited):
“‘Kangaroo jumped out in front of moving vehicle at 100kmh. Car damage. Some anterior chest wall pain. Associated adjustment disorder - insomnia, irritability, poor concentration, fear of driving in rural areas where kanagaroos are prevalent. Lack of support/empathy from insurance company adding to patient's emotional distress.’ The certificate diagnosed sternal soft tissue pains with associated adjustment disorder.”
[21] Folio 273 of the ARD.
A further medical certificate was issued in the CTP claim on 14 July 2022[22] wherein
Dr Massoud certified the applicant as being unfit for the period 18 July 2022 to
[22] Folio 281 of the ARD.
1 August 2022 (my emphasis due to a diagnosis of “Sternal soft tissue pains with associated adjustment disorder”. Treatment by way of referral to psychologist Raynor Lander was recorded.
Peppered in between the CTP consultations are other general consultations. For example on 27 May 2022 Dr Obeid (another doctor at the practice) took a history of combining classes at school due to the absence of another teacher and a complaint made against her that she was “rude”. Counselling was offered.[23]
[23] Folio 127 of the ARD.
On 30 June 2022, the applicant consulted with Dr Massoud who recorded she was frustrated at work as her pay was docked when she had to leave early for a medical appointment despite having undertaken much unpaid work in the past. She discussed feeling unsupported as the head teacher was also off on stress leave. It was recorded “thinking of going on stress leave – school holidays after tomorrow – will have tomorrow off and see how she feels after the school holidays”. At the same consultation ongoing frustration and trauma relating to the CTP incident and that insurer’s conduct were discussed and a medical certificate was issued.[24]
[24] Folio 132 of the ARD.
The consultation on 14 July 2022[25] records that the “mental health condition was compounded by the actions of the CTP insurer”.
[25] Folio 132 of the ARD.
On 14 July 2022 it was further recorded the applicant was due to return to work the following Monday but still “was unable to concentrate, poor focus, remained emotional and not sleeping well”. Dr Massoud stated “does not feel she would be able to return to work – will also have ongoing phone calls with insurer re: multiple claims – car, campervan, personal injury – best for 2 weeks off and further review”. – Reason for visit CTP.[26]
[26] Folio 133 of the ARD.
On 21 July 2022, it was recorded that the applicant attended hospital yesterday “– R sided chest pains- occurred after psychologist apt, settled – occurred again after reading email from insurer – went to hospital – investigations NAD – discharged summary downloaded from MHR - …remains anxious about returning to work” [27]after reading email from insurer.
[27] Folio 133 of the ARD.
On 25 July 2022, Dr Massoud records the CTP claim was declined based on SA jurisdiction. He refers to “reviewed letter from solicitors and insurance company with Pt – understanding same”. It was recorded that the applicant was no longer perusing her CTP claim. A new WorkCover Claim was recorded for “increased stress at work – lack of support – anxious about going to work – ongoing panics – more chest pains – anxiety induced”.[28]
[28] Folio 134 of the ARD.
A WorkCover Medical Certificate issued by Dr Massoud on 25 July 2022[29] certifies the applicant as being totally unfit for work between 25 July 2022 to 10 August 2022 as a result of “increased stress at work related to the lack of support”. A diagnosis of “adjustment disorder with anxiety distress and depressed mood was made”. A referral to a psychologist was contemplated.
[29] Folio 17 of the Reply.
The referral to psychologist, Indrani Mukherjee on 18 August 2022[30] states (unedited):
“Dear Indrani,
Thank you for seeing Kylie Moon for psychological support. She is currently on a workcover claim due to stress at work, due to lack of support at school. She is a SLSO and has been unsupported through her employment”.
[30] Folio 294 of the ARD.
On 25 September 2022, 26 September 2022, 10 October 2022, 10 November 2022 and
[31] Folios 142 and 143 of the ARD.
25 November 2022 consultations relating to grief of ex-husband’s passing are recorded. Counselling was provided and medication prescribed. [31]
On 10 November 2022, ongoing issues with the CTP claim were recorded and “emotional support provided”.
In a “to whom it may concern letter” dated 15 December 2022,[32] Dr Massoud reported (unedited):
“This is to certify Mrs Kylie Moon has had a significant deterioration in her mental health due to her dealings with Allianz, regarding her car accident.
I have been her primary GP for over 3 years now. As you are aware, Kylie was involved in a motor vehicle accident (car vs kangaroo) on the 19th of April, 2022 while on Kangaroo Island.
There has been a clear lack of empathy, support and communication displayed by Allianz in dealing with this matter. On several occasions, Kylie would be promised phone calls that would not occur. She would be dealing with various team members from Allianz, having to re-hash the story on each occasion. This constant re-living and re-telling of her motor vehicle accident further perpetuated her mental health decline. The Allianz case managers would in fact apologise to Kylie for their lack of communication, however promised phone calls continued to be non-existent.
As her treating GP, I was witness to how stressed and anxious Kylie became throughout her dealings with Allianz. The lack of empathy and resolution of her claim further added to her distress. At one stage, she had a significant panic attack with anxiety and attended hospital for investigations of chest pain and palpitations. Cardiac causes were ruled out for this episode and it was diagnosed as anxiety.
Kylie was attending for medical review on a weekly basis around the time of her accident and the following months. It was evident she continued to display anxiety behaviours and I referred her to a psychologist for management of this.
Kylie would often have to call and receive phone calls from Allianz during her work hours, despite previous instruction to call after school hours, as she worked in a disability unit as a SLSO. Her work was significantly affected by this and she was advised by a senior teacher to keep personal phone calls outside of work hours, as it was impacting her role as an SLSO.
I am supportive of Kylie's claim to the ombudsman for further resolution of this matter.”
[32] Folio 300 of the ARD.
On 12 January 2023, a further consultation recorded ongoing grief at ex-husband’s passing, ongoing family tension and feeling unsupported by family.[33]
[33] Folio 147 of the ARD.
On 25 May 2023,[34] Dr Massoud following his case conference with the applicant and her psychologist recorded (unedited):
[34] Folio 154 of the ARD.
“Pt returned from "holiday" where she went to clear her mind and reset
- keen to return to work as SLSO at current school
- anxious as does not think things have changed
- has allocated a person from Dept of Education to speak with in terms of graded return to work
- previous case manager has changed so has not heard about this meeting - rehab manager now involved
- yet to meet pt but have spoken on the phone Dr Indrani helping pt with CBT and negative thought processes Moving forward, goal is to have Kylie meet with nominated person at Dept
- pt to be supported by rehab manager
- psychologist to continue supporting pt through re-integration process Medicare Mental health consult:
Struggling with family dynamics
- sister (who transports pt's mother to medical appts) is having hysterectomy
- will not be able to take mother for 4-6 weeks - pt has fractured relationship with mother already
- also has fractured relationship with children
- eldest daughter wants "nothing to do" with pt - had a close bond with father and not mother
- struggling with numerous relationships
- "does not know what to do"
- suggested finding another psychologist outside of workcover to deal with family issues”

In a report dated 8 February 2024, Dr Massoud reported that the workplace caused the current psychological deterioration affecting ability to maintain employment and “while it cannot be denied that Ms Moon does have previous non work related stressors, these did not affect her ability to maintain fulltime employment”. [35]
[35] Folio 64 of the ARD.

Ms Indrani Mukherjee – clinical psychologist Medimind

As indicated above, following referral by Dr Massoud the applicant had 14 sessions with
Ms Mukherjee between 6 September 2022 and 25 May 2023.[36] The records are found in the AALD filed by the respondent dated 17 April 2024 and span over 187 folios. The mainstay of the sequential reports[37] refer to the applicant’s adjustment disorder which was said to arise out of work related issues and lack of support from executive members of the school.
Dr Mukherjee whilst offering treatment also recorded:
“personal/familial issues or past PTSD issues were not discussed in sessions with Kylie. She preferred to keep them separated from work related stress and injury.” [38]
[36] Folio 29 of the Reply.
[38] Folio 47 of the Reply.

Jill Abeshouse, psychologist Medimind

In AALD documents filed on 21 April 2021 on behalf of the applicant, it is recorded that following three consultations on 5 March 2024, 20 March 2024 and 10 April 2024, the applicant was diagnosed with major depressive disorder and treatment by the employer played a contributing factor. This report does not record any non-work related stressors.
Then in a “to whom it may concern letter” dated 16 January 2024[39] (presumably to the local court magistrate) it is recorded (unedited):
“12th January 2017 Kylie had a car accident and was found to have been diagnosed with posttraumatic stress disorder. She had another car accident on Kangaroo island.
Kylie has been a patient at Medimind since 6.9.22. During the time I have worked with Kylie, I believe she continued to demonstrate symptoms of Posttraumatic Stress Disorder. During the time I saw Kylie, she was grieving the death of her husband as well as her father and more recently her closest friend. She has also been exhausted from working as a support teacher at a High School.
During Covid there was a shortage of teachers and Kylie was extremely stretched in her work supporting children at the High School.
She has 3 adult children as well as a mother and siblings, however she receives little emotional support from any them. I am aware that Kylie has been charged with assault and an interim AVO is in place.
In conclusion, I am writing to request that this matter may be recorded as dismissed or no conviction recorded under section 10. She is very remorseful about the way she reacted to her sister. She has written an apology to the court. She has worked for the department of education for 10 years and is very hopeful of continuing to work for the department of education. If a conviction is recorded she may loose her job and not be allowed to work with children again.”
[39] Folio 22 of the AALD filed on 17 April 2024.
In a letter to Astor Legal relating to the criminal matter on 28 March 2024, Ms Abeshouse recorded:
“I am writing this letter in order to support Ms Moon in relation to an upcoming legal matter.
I have been seeing Ms Moon for therapy since 9th August, 2023. She is currently booked for the following session date: 10.4.24.
Ms Moon has been very remorseful when discussing the offences with me and is committed to further treatment to make certain a similar event does not occur again.
My knowledge of any past mental health concerns was that she was diagnosed with posttraumatic stress disorder after a car accident some years earlier.
Currently she is doing acceptance and commitment therapy to help her with her emotions.”

Dr Rastogi, consultant psychiatrist

In a ‘compassionate release of superannuation’ report dated 6 April 2024,[40] a diagnosis of major depressive disorder with exacerbation was made with a recommendation for inpatient treatment due to ongoing depressive symptoms, panic attacks and suicidal ideation. An opinion on causation was not offered.
[40] Folio 151.

Ms Navin Goonniah, registered psychologist[41]

[41] Folio 178 of the AALD filed on 17 April 2024.

At the request of Astor Legal dated 22 February 2024, and arising out of the applicant being arrested and charged on 12 January 2024 with common assault and domestic violence,
Ms Goonniah expressed support for a section 14 application under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.[42] The report refers to a letter from
[42] A Section 14 application is a mental health application that allows criminal charges to be dismissed without a conviction or finding of guilt. It’s typically conditional on the person complying with a mental health treatment or support plan, which can last up to 12 months. If successful, this application helps individuals avoid a criminal record, regardless of their guilt in the offense.
Dr Massoud dated 7 February 2024, but this letter is not in the evidence before the Commission.
Her report dated 2 April 2024 states [43](unedited):
“Diagnoses: Ms. Moon has been diagnosed with major depressive disorder, PTSD following a car accident, adjustment disorder with anxiety and depressed mood, and grief
Stressful Events: She has experienced the deaths of three close individuals in the past 4.5 years, including her father in 2019, her ex-husband in 2022, and a close friend of 44 years in December 2023. Additionally, she is involved in caring for her mother, who suffers from Parkinson's disease, rheumatoid arthritis, and bipolar disorder, which has added to her stress.
Mental Health Deterioration: Her mental health has worsened due to complex family dynamics and the passing of her ex-husband. Her PTSD was exacerbated by another car accident in 2022, and workplace stressors have further impacted her condition….
It is revealed that Ms. Moon is/was experiencing severe psychological distress and symptoms consistent with significant depressive and anxiety experiences. Her actions during the incident can be seen within the context of her mental health struggles, alongside a complex background of family dynamics, personal losses, and stressors…..
The psychological assessments administered to Ms. Moon indicate a severe level of distress and depressive symptoms that could impair judgment, affect impulse control, and heighten stress responses. Such conditions are likely to have influenced Ms. Moon's behaviour during the altercation with her sister, suggesting a direct nexus between her mental health issues and the offence.”
[43] Folio 16 to 186 of the AALD filed by the Applicant on 17 April 2024.
As regards psychological history, Ms Goonniah recorded that the applicant’s upbringing was “marred by psychological abuse”.

Respondent’s medical evidence

Dr Ian Smith – injury management consultant[44]

[44] Folio 205 of the ARD.

Dr Smith recorded that the applicant had been declared unfit with an adjustment disorder with anxiety, distress and depressed mood on 22 July 2022. He recorded that the generator of the claim was alleged to have been an increase in work stress due to increased workload and lack of support, mainly stemming from having to deal with temporary teachers and inadequate time to complete administrative work.
Dr Smith recorded that he discussed the matter with Dr Massoud on 19 September 2022 and was advised relevantly (unedited):
“Ms Moon has no current domestic stressors that he is aware of and, from his perspective, the generator of her current situation are the work issues”

Dr Sergio Grama, general and forensic psychiatrist

Dr Grama in his report dated 20 June 2023[45] reported that the applicant did not disclose any significant personal or developmental history although did have an estranged relationship with her children and lost her husband due to a severe illness in late 2022.[46] He summarises the domestic issues, CTP issues and workplace situation and concluded (unedited):
“Overall Ms Moon reported emotional symptoms and distress in response to a number of psychosocial stressors, estrangement from her children, feeling isolated, the car accident in April 2022, dealing with the insurance, the illness and the death of her ex-husband, and work-related stress as she felt not supported well enough in the absence of her head teacher She mentioned feeling anxious about returning to work as she does not feel supported in that respect. The documents, especially medical notes, describe Ms Moon having experienced significant emotional disturbance and distress in the context of a number of situations especially difficulties in her relationship with her children, the April 2022 car accident, significant frustration in dealing with her insurance and the CTP claim, the illness and the death of her ex-husband and feeling unsupported at work…
based on the existing evidence, I do not consider Ms Moon having suffered an injury in the meaning of the Section 4 of the Workers' Compensation Act 1987 (New South Wales). Ms Moon experienced an exacerbation and deterioration of the pre-existing trauma and stress-related condition caused mainly by non-work-related factor Employment-related stress caused by absence of head teacher was not the main contributing taking in consideration all the existing evidence.”
[45] Folio 37 of the Reply.
[46] Folio 41 of the Reply.
Dr Grama concluded the applicant was fit for work of up to 20 hours per week on 4-6 hours per day in pre-injury duties provided that she did not engage in tasks outside of her designated job.

SUBMISSIONS

The submissions of counsel have been recorded and were extensive. To make the complex simple, Mr Tanner on behalf of the applicant submitted that the applicant has on the balance of probability established injury with reference to s 4b(ii) of the Act and that she has been consistent throughout and she remains totally incapacitated as a result of workplace injury. There is no other reported cause for her incapacity. Mr Stockley for the respondent, in response indicated that the medical evidence confirms the applicant was engaged in a role that was demanding and may have been subjected to stressors within the workplace, but that these were not the ‘main contributing factor’ to her injury and incapacity. Even if I found against the respondent, it cannot be ignored that the medical opinion does support a return to pre-injury duties albeit in a restricted capacity.

APPLICATION OF THE LAW, FINDINGS AND REASONS

A psychological injury (disease) must satisfy the definition of injury within the meaning of s 4 of the Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, authorities demonstrate:
(a)    in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[47] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[48] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b)    the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[49]and
(c)    the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities. I must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (At [55])
[47] [2000] NSWCC 12; 19 NSWCCR 496.
[48] (2003) 25 NSWCCR 422, [429].
[49] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].

What is a psychological injury?

Section 11A (3A) of the 1987 Act defines:
“‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
Authorities establish the following:
(a) in order to prove that a psychological injury has occurred, an injured worker must prove that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[50] do not constitute psychological injury[51] (Stewart), and
(b) a finding of psychological injury requires expert evidence that such an injury is present[52] (Calka);
[50] New South Wales v Rattenbury [2015] NSW WCCPD46.
[51] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
[52] HammondCare v Calka [2016] NSWWCCPD 2 at [118]-[123].

What does main contributing factor mean?

Whilst not defined in the Act, DP Snell in AV v AW at [76-78] succinctly stated:
“76. Where the relevant aggravation involves both employment and non employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
• (a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
• (b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
• (c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The question resolves to whether the events claimed by the applicant are the main contributing factor to the aggravation (etc) to her mental state. In order to establish an injury within the meaning of s 4(b)(i) the applicant must establish that the disease has been aggravated, exacerbated, accelerated or has deteriorated in the course of employment and that the employment was the main contributing factor to the relevant worsening as encompassed by those words.
The employment need only be the main contributing factor to the relevant aggravation etc and need not contribute to the causation or the pathology of the underlying disease itself.[53]
[53] Rootsey v Tiger Nominees Pty Ltd [2002] 23 NSWCCR 725, Murray v Shillingsworth [2006] NSWCA 367 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
Moreover, for aggravation etc to be found it is not necessary for the employment to have caused actual worsening in the pathology of the disease itself (although this will often be the case); it will be sufficient if there has been an increase in symptoms and restrictions resulting from the disease.[54]
[54] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626.
Aggravation or exacerbation of a disease occurs where the experience of a disease by the patient is increased or intensified by an increase or intensifying of symptoms.[55] On the other hand, it has been held that the mere manifestation of, or an increase in, symptoms in the course of employment will not necessarily constitute an aggravation injury if such symptoms are the ordinary consequence of the underlying condition.[56]
[55] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.
[56] Commonwealth of Australia v Beattie [1981] 35 ALR 369 (Beattie) and Albury City Council v Gunton [2011] NSWWCCPD 68.
As indicated above, the applicant carries the onus of establishing on the balance of probabilities that her employment was the main contributing factor to the aggravation of her pre-existing psychological injury. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say that I must be satisfied to a sense of actual persuasion or affirmative satisfaction that her case has been made out (Nguyen). It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the applicant’s employment caused “injury” of the relevant time.

Discernment

I have found the applicant’s statements to be inconsistent and self-serving. The statement to the Commission (which forms the applicant’s evidence in the absence of cross examination in this jurisdiction) fails to properly record the distress suffered as a result of the motor vehicle accident and failed CTP claim. Her distress and psychological sequelae is clearly evident in the emails she sent to the CTP insurer found in paragraphs 14, 15 and 16 above and Dr Massoud’s letter dated 15 December 2022 (paragraph 39) above yet her statement is silent on these significant stressors except to say “it was tough on me”. This watering down of events and symptoms casts doubt on her credibility. However, assessment does not end there and I propose to follow the advice proffered by the majority in Fox v Percy [2003] HCA 3 at paragraph 31 that, rather than placing undue emphasis on resolving issues of credit, it is preferable for decision makers to “reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the logic of events”.
I have also found the medical evidence to be ‘messy’. Dr Massoud in particular seems to focus his opinion with reference to his audience. That is, when it came to the CTP claim, it was that claim that was said to be responsible for the psychological injury and incapacity. When that claim was declined, it was workplace issues that became the focus of the applicant’s psychological injury and incapacity. Despite being aware of the significant criminal charges and possible consequences on the applicant’s employment, Dr Massoud fails to refer to that issue in communications to the applicant’s solicitor in his letter dated 8 February 2024 wherein he maintains employment was responsible for the psychological deterioration, yet the day earlier he wrote a letter to Ms Gooninah, disclosing the applicant’s history so that she could prepare a report in criminal proceedings. (That letter is not in evidence but Dr Gooniah’s report does refer to it). It is also recorded in the notes of Dr Massoud that the applicant also consults another general practice in Erskine Park. The selective recount of the history is disingenuous and does not assist the applicant’s case.

I accept the weight of particular material in medical records must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom. It must be weighed against the other evidence in the case. There may be various reasons why treating doctor’s notes and hospital (and other medical) records may be inconsistent or make no mention of the mechanics of an injury. I accept that inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution and in this regard note also the Basten J’s observations in Mason v Demasi [2009] NSWCA 227 at [2]) and in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (3 December 2008). However, this is a case where the evidence and medical opinion appears to be tailored to the audience to facilitate a desired outcome, completely lacking transparency and thereby preventing a proper assessment of the complete clinical picture.
In regard to the opinion evidence provided in expert medical reports, I note in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) said (at [82]) there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings.
I accept that a medical expert’s report ought to set out the facts observed, the assumed facts including those garnered from other sources, such as the history provided by the applicant, and other tests. An expert’s report must be read together, and with the other evidence tendered. I accept that for an expert’s opinion to carry weight it should be based on a proper history and given in a “fair climate”, and so far as the expert’s opinion is based on assumed facts, (such as the history provided by the applicant) those facts must be identified and proved in some other way. It is a question of fact whether the facts upon which the opinion is based are “sufficiently like” the facts established “to render the opinion of the expert of any value” (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; [1985] HCA 58; 59 ALJR 844 at 846 (Paric))
In this case, I cannot find that the assessments and ultimate opinions provided by Dr Kumagaya, Indrani Mukherjee and Jill Abeshouse have been taken on the basis of a proper history. Dr Kumagaya was not informed of the stressors relating to the CTP claim and reports no developmental history, such being denied by the applicant (yet developmental history was part of the section 14 application in criminal proceedings). Ms Mukherjee was only given an insight into the alleged workplace stressors noting that other personal and non-work related matters were being dealt with by another practitioner. Ms Abeshouse likewise only focuses initially on the alleged workplace stressors and does not appear to have insight in relation to the significant past and concurrent histories impacting on the applicant’s psychological state, although does at a later point in time, refer to past psychological stressors. In summary, I am not satisfied the history upon which these practitioners have based their opinions are reliable or accurate, or properly engages with the applicant’s clinical history. I further find that the opinions provided are substantially incorrect and incomplete, and it follows to the extent that such opinions are relied upon to support a diagnosis of psychological injury causally related to the applicant’s employment have not been properly based or given in a “fair climate” (Hancock and Paric) and carry no weight.
This is a significant finding and not made lightly given its paramount importance in this case, as I am required to determine whether the employment was the main contributing factor to any exacerbation of a pre-existing condition. Without these medical specialists having a full understanding of the pre-existing condition nor taking into account the contemporaneous domestic difficulties, their opinion carries little weight and I so find.
Of concern especially is the fact that Dr Massoud has issued medical certificates for an overlapping period, which identify two causes for psychological injury and incapacity, paragraphs 28 and 35 refer. These are important in this case as initially Dr Massoud certified the applicant as being psychologically unfit as a result of the CTP injury between 18 July 2022 to 1 August 2022. However on becoming informed that the CTP claim was declined on 25 July 2022, he issued a WorkCover Medical Certificate ‘for a new claim’ certifying the applicant as being psychologically unfit for employment from 25 July 2022 until
10 August 2022 with a date of injury being 27 May 2022. I can only infer (given the inconsistency with complaints reported above) that had the CTP claim not been declined, that the CTP certification would have continued. Dr Massoud stated in his letter dated 8 February 2024 that the applicant was fit for her employment prior to the workplace issues, however this is inconsistent with the medical certificate he issued for the same diagnosis to the CTP insurer. Counsel for the applicant also suggested there was no psychological incapacity arising from any matter apart from workplace issues, which clearly is inconsistent with the evidence above. Again, the applicant must demonstrate that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. This has not been established as the applicant was already incapacitated by other third party events. Even if established, I cannot be comfortably satisfied that workplace events were the main contributing factor to any aggravation of the pre-existing condition (Nguyen).
Dr Massoud continued to report the applicant’s distress in relation to the CTP claim declinature and treatment by the insurer in a letter dated 15 December 2022 which purports to indicate that the applicant’s ongoing psychological distress is in fact the CTP claim, yet when completing medical certificates for the workers compensation insurer he maintains employment was responsible for incapacity. This muddies the waters and only further reinforces my findings the evidence does not demonstrate employment is not the main contributing factor to injury and incapacity as claimed.
Further, throughout the case management of this matter Dr Massoud continues to water down or indeed misrepresent the stressors of his patient. In his communication with
Dr Smith on 22 September 2022 during the injury management consultation process he advised there were no current domestic stressors, which is factually inaccurate given that the applicant was struggling emotionally with her husband’s terminal diagnosis; had continuing issues with the CTP insurer and domestic difficulties with her children. I so find.
I accept the opinion of Dr Grama who took a history of the past and concurrent stressors and considered that the employment was not the main contributing factor. He does not discount any stressors at work, (and nor did the respondent) during the submissions, however concluded that they were not the main contributing factor. I agree having regard to all of the evidence summarised above.
I have taken into account the evidence of the former head teacher, Ms Schryver in an attempt to corroborate the applicant’s statement. However, this statement is of little utility as she had left the school in May 2022 and only recounts matters/statements relayed to her by the applicant, which I have already indicated were self-serving.
I have slavishly summarised the medical evidence which clearly shows that there are multiple causes for the applicant’s psychological symptoms and her employment with the respondent is certainly one cause, but by no means has it been established by the medical evidence as the ‘main contributing factor’ to her injury and incapacity for the reasons given above.
Overall, due to the inconsistent reporting, sanitised and selective medical versions to various specialists, concurrent stressors and targeted and selective history of reporting by the general practitioner (clearly audience dependent), coupled with certified incapacity arising from the adjustment disorder for the same period (for both the CTP and workers compensation claims), the applicant has not demonstrated on the balance of probabilities that her employment was the main contributing factor to any identifiable or claimed pathological change.

SUMMARY

The applicant suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents.
I am not satisfied that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological condition.
Given these findings, there will be an Award for the respondent.

[2024] NSWPIC 306

13 June 2024