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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Paton v State of New South Wales (Sydney Local Health District) [2025] NSWPIC 44
APPLICANT:	Amber Paton
RESPONDENT:	State of New South Wales (Sydney Local Health District)
MEMBER:	Jacqueline Snell
DATE OF DECISION:	12 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 37 resulting from primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) sustained in the course of her employment with the respondent; the applicant’s claim is declined with injury and capacity placed in issue; Held – the applicant sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) in the course of her employment with her employment being the main contributing factor to injury; the applicant has suffered an incapacity for work resulting from the injury and has entitlement to weekly compensation payable under section 37.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological condition) in the course of her employment with the respondent, with deemed date of injury of 26 July 2022, with her employment being the main contributing factor to injury. 2. The applicant has had no current capacity for work resulting from the injury from 4 December 2023 to date and continuing. 3. As at 4 December 2023, the applicant’s pre-injury average weekly earnings were $1,170 (subject to indexation). The applicant has an entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987 from 4 December 2023 ongoing in accordance with the Workers Compensation Act 1987 at $936 (subject to indexation). A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

At the time Amber Paton (Ms Paton) allegedly sustained injury the subject of these proceedings, she was working with the State of New South Wales (Sydney Local Health District) at Royal Prince Alfred Hospital (RPA). Ms Paton was employed as an office clerk.
Ms Paton commenced working at RPA on or about 25 October 2021. Ms Paton’s last day of work with RPA was on 25 July 2022.
The circumstances of injury allegedly sustained by Ms Paton, with deemed date of injury of 26 July 2022, are particularised:
“The applicant suffered an aggravation of her pre-existing psychological/psychiatric condition during the course of her employment with the Royal Price Alfred Hospital. The applicant was employed as a full time medical administrative assistant. Since in or around December 2021 the applicant was subjected to protracted bullying, harassment, isolation, ostracization, a lack of support and unrealistic expectations at the hands of her manager, Suman, and other colleagues. As a result the applicant has been suffering from significant and ongoing psychological/psychiatric symptomology to date and has been rendered unfit to work. Please refer to the applicant’s statement for further detail surrounding her injury.”
Ms Paton claims weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 4 December 2023 to date and continuing. Ms Paton’s claim is declined, and she has been issued with notice of the declinature in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.

ISSUES FOR DETERMINATION

RPA accepted Ms Paton’s pre-injury average weekly earnings (PIAWE) as at 4 December 2023 are $1,170 (subject to indexation).
RPA did not dispute Ms Paton has had no current work capacity from 4 December 2023 to date and continuing.
The parties agreed the following issues remain in dispute:
(a) whether Ms Paton sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) in the course of her employment with RPA with her employment being the main contributing factor to injury, and if so,

(b) whether Ms Paton has suffered/suffers an incapacity for work resulting from the injury from 4 December 2023 and has entitlement to weekly compensation payable under s 37 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 5 September 2024. These proceedings came before Principal Member Capel for further conference on 8 October 2024.
With Ms Paton’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 5 November 2024. On this occasion Mr Tanner of counsel appeared for Ms Paton and Mr Perry of counsel appeared for RPA. Counsel’s instructing solicitors were present. A representative of the insurer was present. Ms Paton was present and was supported by her mother, Di Paton.
Following my discussions with counsel I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
With the arbitration hearing of Ms Paton’s claim failing to conclude on 5 November 2024, I issued directions for the parties to lodge and serve written submissions. This has now occurred.

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 and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 29 August 2024 and attached documents lodged on behalf of Ms Paton;
(d)    Application to Admit Late Documents dated 30 August 2024 and attached documents lodged on behalf of RPA;
(e)    Application to Admit Late Documents dated 14 October 2024 lodged on behalf of RPA,
(f)    Application to Admit Late Documents dated 22 October 2024 lodged on behalf of RPA, and
(g)    Application to Admit Late Documents dated 22 November 2024 lodged on behalf of RPA.
Consequent on my observation that at the time Dr Berry who provided opinion in his capacity as independent medical examiner (discussed below) had available to him information that may not be in evidence before the Commission, RPA made application during the arbitration hearing of Ms Paton’s claim to admit into evidence the statements of Margaret McGill dated 18 August 2022, Mallika Jeyakumar dated 17 August 2022 and Suman Mishra dated 17 August 2022.
Ms Paton objected to the admission into evidence of the statements referred.
Procedural Direction PIC provides guidance regarding the admission of late documents and provides that in determining an application to admit late documents I am to take a number of matters into consideration, including:
(a)    the interests of justice,
(b)    the requirements of the workers compensation legislation and the Commission rules,
(c)    the submissions of the parties, including adequacy of RPA’s reasons for the delay in providing the late evidence sought to be admitted, and
(d)    any prejudice that would result from granting or refusing leave to admit the late evidence.
In considering whether or not late documents are to be admitted, the starting point is s 45 of the Personal Injury Act 2021 (PIC Act) and r 66 and r 67 of the Personal Injury Rules 2021 (PIC Rules) and the requirement that parties respectively lodge with the Application to Resolve a Dispute and Reply all documents on which they rely, with limitation of the filing and service of late documents. The Commission operates in a front-loaded system and the onus of establishing it is in the interests of justice to admit the statements is on RPA (Nelson Bay Pest Services v Morrison).[1]
[1] [2007]NSWWCCPD 135 (Nelson Bay Pest Services).
In circumstances where (a) the statements were only provided to Ms Paton following my observation the statements were not in evidence, (b) there was no explanation given as to the delay in seeking to have the statements admitted into evidence despite having been relied on by RPA in disputing Ms Paton’s claim, and (c) Ms Paton had no opportunity to now respond to the statements, I did not allow the admission into evidence of the statements as I did not consider it was in the interests of justice to do so.
Following the listing on 5 November 2024, RPA sought to rely on a supplementary report of Dr Berry dated 12 November 2024. RPA noted that when these proceedings came before Principal Member Capel for conference on 8 October 2024, during which Principal Member Capel granted the parties access to Ms Barker’s clinical records relevant to Ms Paton, RPA “raised its intention to refer all additional documentation to Dr Berry so he could review his conclusions in light of that further material”, which RPA noted included a number of other documents already produced under Directions for Production “by other entities and treatment providers”. The foreshadowed supplementary report was requested under cover of letter of instructions dated 14 October 2024, following which Dr Berry’s rooms advised Dr Berry was on leave until 5 November 2024. With Ms Paton’s claim listed for conciliation/arbitration hearing on 5 November 2024, RPA submitted “no further thought was given to Dr Berry’s outstanding report, as the respondent had formed the view that oral submissions would have to proceed without the benefit of the report”. However, with Ms Paton’s claim unresolved despite lengthy conciliation on 5 November 2025, a timetable was set for the lodgment and service of written submissions. Dr Berry’s requested supplementary report dated 12 November 2024 was received by RPA on 12 November 2024 and served on Ms Paton on 14 November 2024.
It is not clear from submission whether Ms Paton objects to admission into evidence of Dr Berry’s supplementary report. It is noted the report is canvassed in Ms Paton’s submissions.
Having regard to Procedural Direction PIC, the relevant provisions of the PIC Act, the relevant provisions of the PIC Rules, and Nelson Bay Pest Services, I accept RPA’s explanation for the delay in providing the late evidence sought to be admitted and in circumstances where Dr Berry’s report dated 12 November 2024 is canvassed by Ms Paton in submissions, I allow the admission into evidence of Dr Berry’s report dated 12 November 2024 as I did consider it is in the interests of justice to do so.

Oral evidence

RPA sought leave to cross examine Ms Paton. RPA’s application was opposed with Ms Paton providing the Commission with copy short report dated 4 November 2024 from Ms Paton’s long time general practitioner, Dr Yacoub, in which Dr Yacoub wrote:
“Ms Amber Paton has been struggling with mental health for long time, recently stable, but unlikely suitable for cross-examination for court hearing tomorrow morning because of her complex mental health & resistant to medication.”
While it was foreshadowed at the preliminary conference on 5 September 2024 that RPA may make application to cross examine Ms Paton at any arbitration hearing of her claim and RPA provided Ms Paton with an outline of the basis for the proposed cross examination in accordance my Direction, there is no legal right to cross examination in the Commission and the decision to allow or not the cross examination of Ms Paton is at my discretion.[2]
[2] Aluminium Louvres & Ceilings Pty Limited v Xue Quin Zheng [2006] NSWCA 34.
Following careful consideration of counsel’s submissions and being very mindful of Dr Yacoub’s caution regarding the current fragility of Ms Paton’s mental health, I formed the view cross examination of Ms Paton was not necessary for me to properly determine her claim. Accordingly, RPA’s application to cross examine Ms Paton was refused.

FINDINGS AND REASONS

Brief review of evidence

Statement of Ms Paton

Ms Paton relied on a statement dated 29 February 2024.
Ms Paton provided a history relevant to her extensive pre-existing psychological condition, which included experiencing childhood sexual abuse, post-natal depression, miscarriage, and domestic violence. Ms Paton explained she had sought treatment for her pre-existing psychological condition, which included a period of inpatient admission to Northshore Private Hospital, regular consultation with her general practitioner, psychological treatment with Rona Barker, and psychiatric consultation with Dr Manambrakkat. This noted, Ms Paton said:
“However, despite the difficulties with my mental health in the past, it had never impacted my work capacity until I commenced employment with Royal Prince Alfred Hospital and was subjected to bullying and harassment. Since on or around 26 July 2022, I have been rendered totally unfit for work due to the events that took place at Royal Prince Alfred Hospital.”
Ms Paton outlined her employment history. Ms Paton explained that following the birth of her daughter she did not work for approximately three or four years. Ms Paton explained when her daughter commenced preschool, she commenced university studies, worked on a part time basis as a retail shop assistant, and continued to care for both her daughter and son. Ms Paton explained she ultimately ceased her university studies after being subjected to abuse by her husband and commenced working on a full time basis with Hornsby Medical Practice, working initially as a medical receptionist and ultimately as a practice manager. Ms Paton explained that when she ceased working with Hornsby Medical Practice, which involved rotation between two sites, she commenced working on a full time basis with Hornsby Orthodontics. Ms Paton explained she ceased working with Hornsby Orthodontics to become a full time carer for her daughter during her daughter’s slow recovery from sexual assault. Ms Paton said that once her daughter’s mental health had improved, she commenced seeking re-employment.
Ms Paton confirmed she commenced employment with RPA in or around 25 October 2021, working on a full time basis as a medical administrative assistant. Ms Paton particularised a number of events between December 2021 and July 2022 involving her manager, Siman Mishra, which she said amounted to bullying and harassment. In submission RPA did not take issue with the fact that interactions occurred during the course of Ms Paton’s employment with RPA which were capable of leading to perception by Ms Paton she was bullied and harassed.
Ms Paton said that while at work on 25 July 2022 she “could not take it anymore”. Ms Paton contacted Dr Yacoub who advised her to attend the Accident and Emergency Department closest her. Ms Paton’s daughter collected Ms Paton from work and took her home. Ms Paton said she explained to her children she was experiencing suicidal ideation and said she would go to the hospital the following day.
Ms Paton said she was admitted to Hornsby Hospital on 26 July 2022 and subsequently transferred to Northern Beaches Hospital where she remained for approximately three to four weeks. Ms Paton said that despite intensive treatment following her discharge from hospital, her suicidal ideation “became extreme” and she was admitted to Gordon Private Hospital where she remained between 23 November 2022 and 24 December 2022.
Ms Paton confirmed she has not returned to work since 25 July 2022. She said her life has completely changed since 25 July 2022. Ms Paton explained she has had no current capacity for work since 26 July 2022.

Hornsby Orthodontics

31. On 13 September 2019 Ms Paton signed an employment contract with Hornsby Orthodontics relevant to her full-time role as practice manager/receptionist.

32. On 6 October 2020 Ms Paton was requested by Dr Brennan, director of Hornsby Orthodontics to attend a meeting on 9 October 2020 to discuss a number of concerns regarding Ms Paton’s performance, which had reportedly previously been raised with Ms Paton. On 13 October 2020 Ms Paton was provided with a written warning relevant to Ms Paton’s failure to meet the required standard of her role, with her workplace performance to be reviewed on 3 November 2020. On 30 October 2020 Ms Paton was again requested by Dr Brennan to attend a meeting on 3 November 2020 to review her work performance, as previously foreshadowed.

Statement of Alessandra Cotton

Ms Cotton provided a statement dated 8 July 2024. Ms Cotton is Ms Paton’s daughter. Ms Cotton explained she had always been aware of Ms Paton’s pre-existing psychological condition. Ms Cotton explained she was also aware of the psychological injury Ms Paton allegedly sustained in the course of her employment with RPA.
Ms Cotton said she was initially not aware of any issues experienced by Ms Paton at work. However, after Ms Paton returned to work after the Christmas/New Year break at the end of 2021 and the beginning of 2022, Ms Cotton said Ms Paton appeared “very deflated” when she came home from work and told her “work is feeling a bit toxic”. Ms Cotton said Ms Paton told her about bad interactions she experienced with Ms Mishra. Ms Cotton said Ms Paton consistently told her she was feeling unsafe at work.
Ms Cotton recalled Ms Paton telephoned her on 25 July 2022 and told her she had spoken to Dr Yacoub and wanted to go home. Ms Cotton said she collected Ms Paton from work and took her home. Ms Cotton said that when her brother came home, Ms Paton shared with them she was experiencing suicidal thoughts and wanted to be admitted to hospital. At the insistence of Ms Paton, Ms Paton did not go to Hornsby Hospital until the following day.
Ms Cotton said:
“I strongly believe that my mother’s mental health had significantly deteriorated after suffering from the bullying and harassment that she experienced whilst working at Royal Prince Alfred hospital. I am fully aware of my mother’s pre-existing psychological injuries; however, I strongly believe that my mother has never been impacted to this extent after suffering from her work injury at Royal Prince Alfred Hospital.
…
In my firsthand experience and the personal knowledge that I have about my mother, I have no doubt that my mother’s current work incapacity and the severe psychological injuries that she has suffered were as a direct result of her employment with Royal Prince Alfred Hospital.”

Statement of Di Paton

Di Paton provided a statement dated 11 July 2024. Di Paton is Ms Paton’s mother. Di Paton described her relationship with daughter as “good.” Di Paton said she would speak on the telephone to her daughter “a few times a week.” Di Paton said, “if there was anything wrong with Amber, she would always talk to me about it.”
Di Paton said relevant to Ms Paton’s employment history prior to her commencing work with RPA:
“… I confirm that Amber had never suffered from any previous or prior work incapacity. There was a time when Alys was having her own struggles with mental health. As a result, Amber would often take shorter workdays or time in lieu to assist Alys during this time. However I confirm that Amber never stopped work completely and she was still always fully employed.”
Di Paton said of Ms Paton’s employment with RPA, “she really enjoyed her job” and “she would often ring me to talk about how well everything was going.” This said, Di Paton recalled “in or around December 2021, Amber began to mention that there were a few rifts at work however, she never went into specific detail with me.”
Di Paton explained in detail events occurring over Christmas 2021, being the period during which her daughter tested positive for Covid 19. Di Paton recalled “knowing that Suman then accused Amber of infecting the whole office with Covid 19”. Di Paton said, “Amber had called me and told me that she was being blamed within the workplace for getting Suman’s son sick with Covid 19”. Di Paton said, “after this phone call, it seems as though things at Amber’s workplace were getting really bad” and while Ms Paton had “initially wanted to stay resilient” “eventually there was a tipping point, and I believe that Amber had simply put up with too much at work.”

Di Paton said of Ms Paton:
“I am fully aware that Amber has suffered from pre-existing psychological injuries in the past, particularly due to some traumatic experiences that she had faced with her ex-partner and previous childhood sexual abuse. However, I have never seen Amber in such a fragile state.
…
I have no doubt that Amber’s current working incapacity and the psychological injuries that she is suffering from to date was a direct cause of her employment at Royal Prince Alfred Hospital and the ongoing, bullying, harassment, mistreatment, and overall negative work culture that she was subject to while she was employed at the Royal Prince Alred Hospital.
As I previously stated, Amber has never exhibited any work incapacity, and she has always continued to work through confronting situations after her family breakup/separation. However it is clear to me that the injury that she sustained whilst working at Royal Prince Alfred Hospital has affected her more than anything she has experienced in the past.”

Notification of injury/illness

The notification of injury/illness form relevant to Ms Paton’s claim noted “WC med cert states: exacerbation of depression” and particularised the circumstances of injury as “per wc med cert: Bullying at work, feels excluded/stress not able to cope at work cause meltdown.”

Correspondence between Ms Paton and RPA

In an email dated 9 February 2022 (which is written against a backdrop of Ms Paton’s separation from her partner) Ms Paton wrote to Ms McGill:
“As part of our day (along with police and psychologists), it was suggested that we have an appointment with our GP as we are all quite distressed,
Our GP suggested I take Thursday and Friday as stress leave and has written a medical certificate. The psychologist suggested the same to help ease the kid’s worries in the short term. Would this be ok with you? I can take a picture of the certificate and email it to you”
Ms Gill responded the same evening:
‘I understand. It’s tough for you and kids. Look forward to having you back on Monday’”.
In an email dated 7 July 2022 Ms McGill relevantly wrote to Ms Paton:
“Thanks for meeting with us today. It was a good discussion and thank you for your input. In particular we discussed:
Your leave and hope that most of your illnesses are now over and you can have a healthy rest of year with very little sick leave.
That you have had at least 6 EAP and the guidelines suggest that from now on you arrange these outside your daily shift.
That you meet with Suman and Mallika when Mallika is back from holidays to go through the daily admin duties that must be completed. Your specific duties will be documented together with Suman to provide clear guidance to ensure that they are completed by the end of each day. To monitor this and get feedback from both you and Suman on workload and distribution and to see if Mallika has any advice for work practices, Mallika will meet with you and Suman on a weekly basis.
That I follow up with Stuart about wrapping up the team discussions that he has led and providing a way forward to healthy team collaboration”.
Ms Paton responded on 11 July 2022:
“Thanks Marg. Glad your notes are similar to mine. I will check in with EAP.”
In an email dated 1 August 2022 with the subject line “Amber’s response to my morning text” from Ms Jeyakumar to Ms McGill and others, Ms Jeyakumar noted:
“Good afternoon, sorry I haven’t been in touch. Phone access has been an issue. I am in the Mental Health Unit of Northern Beaches Hospital. They are trying to sort out the best combination of drug therapy. There is talk that maybe I will need ect as well. I have no idea how long I will be here. I tried to ask today and was told not to worry about it. Thak you for your care, Amber”.

Treating medical evidence
Dural Medical Centre

Ms Paton has come under the long term general medical care of the doctors practising out of Dural Medical Centre, more particularly Dr Bhat and Dr Yacoub. Ms Paton has a long history of psychological fragility principally associated with familial matters, with Ms Paton prescribed medication and referral for psychological counselling.
As recently as 13 March 2019 Ms Paton presented with “anxiety/depression” with referral for psychological review with Rhona Barker. In his letter of referral Dr Bhat relevantly wrote:
“As you will hear from her she was sexually abused as a child by an Uncle despite telling her parents about this and this has certainly affected her self-esteem into her adult life where she has faced several other stressors.
Latterly she has noticed increasing levels of Anger and following an argument with her mother recently, has decided that she now needs to tackle things in a more formal way”
In the GP Mental Health Plan dated the same day Dr Bhat relevantly noted:
“Recent problems of anger management especially directed towards her parents, stemming from previous sexual abuse by her uncle which parents did nothing about despite being told about it. Feels that ongoing poor self-esteem and self-worth has been the direct consequence of this this. Recognises that her family are suffering and that is long overdue properly tackling this to help her going forward. Would like to trial different psychologist from that seen in the past mainly due to marital stresses and that with her own children.”
In the GP Mental Health Plan dated 29 July 2019 Dr Bhat relevantly noted:
“Completed first six sessions with Rhona Baker certainly has been quite confronting. However, glad to have ‘finally addressed’ these aspects of her past though realises that more work to do.
Has certainly helped her know that she is starting to address this matter….”
On review on 8 January 2020 Dr Yacoub described Ms Paton’s antidepressant as “not helping” and on 20 January 2020 he referred Ms Paton for psychiatric review, which she chose not take advantage of at that point in time.
In the GP Mental Health Plan dated 21 May 2020 Dr Yacoub relevantly noted:
“Amber has experienced quite significant abuse as a child and only now has she sought professional help but through the process additional memories have surfaced and she is often dissociating. Amber is concerned about having to tell another person childhood story quite understandably.”
Ms Paton continued to consult with Dr Yacoub throughout 2020 with complaint of mental fragility. Reference is made to Ms Paton’s bother suddenly dying in Japan, her daughter having suffered a sexual assault, and her son having been admitted to hospital with Methicillin-resistant Staphylococcus aureus.
On 19 October 2020 Dr Yacoub noted Ms Paton was struggling at work and on 2 December 2020 Dr Yacoub noted “lost her work, not able to work with all health, mental health issues, her daughter still not well, with very low mood”.
On 2 December 2020 Dr Yacoub issued Ms Paton with a Centrelink Medical Certificate in which he certified Ms Paton totally unfit for work between 2 December 2020 and 2 March 2021, with diagnosis which included depression.
On review on 13 January 2021, Dr Yacoub said of Ms Paton “now trying to get back to work” and on review on 1 March 2021 Dr Yacoub said of Ms Paton “trying to start looking for job”.
On review on 2 March 2021 Dr Yacoub issued Ms Paton with a further Centrelink Medical Certificate in which he again certified her totally unfit for work between 2 March 2021 and 2 June 2021, with diagnosis which included depression and post-traumatic stress disorder.
On review on 18 March 2021 Dr Yacoub referred Ms Paton for psychiatric review with reference to “recent family separation domestic violence”, and on 29 April 2021, Dr Yacoub recorded “seeing psychiatrist soon”. On review on 29 May 2021 Dr Yacoub noted Ms Paton “has been seeing psychologist on ongoing basis and is due for first psychiatric review with Dr Manambrakkat this Wednesday.”
On 29 May 2021 Dr Yacoub issued Ms Paton with a Centrelink Medical Certificate in which he certified her totally unfit for work between 3 June 2021 and 2 September 2021, with diagnosis which included depression and post-traumatic stress disorder.
On review on 21 October 2021 Dr Yacoub wrote:
“seeing psychiatrist, stable
Start new job in the city: feeling much better now”
On review of 15 December 2021 Dr Liu wrote in part:
“working at RPA Endo”
On review on 9 February 2022 Dr Yacoub relevantly wrote:
“had covid infection in Xmas.
Start working in RPA in October, admin work
settled, until got COVID infection.
her manager got it in the same time.
? bullied since then/manager in her role for 20 mins.
Amber now feels excluded from others? Feels stress, does not feel comfortable to go back to work
Management
Discussed some strategy, to inform HR, might need to relocate”
On review on 15 March 2022 Dr Joseph relevantly noted:
“workplace stress
hx reviewed.
Issues with manager, workplace bullying
Feels isolated at work
Has appt with EAP today
Went back to work yesterday – was planning to have HR meeting
Pt upset
Trying to look for new job
Does not want to consider w/comp at present”
On review on 17 March 2022 Dr Yacoub noted Ms Paton had taken two days off work and planned to talk to a psychologist at work. He relevantly noted:
“? Consider relocation
Might think applying to another place.”
On review on 28 March 2022 Dr Yacoub noted Ms Paton was “back to work, has not changed it yet” and on 25 July 2022 Dr Yacoub recorded:
“not feeling well, depression getting worse,
has not seen psychologist for a while,
work not good, has not changed, continue same place
home not better, Alex having her HSC, going through tough time
son, back home, decided not to study & work, but pick up two shifts in the week
adding to her stress
had suicidal ideas, no plan,
discussed psychiatrist, no follow up,
at this stage need to be seen asap, referral to hospital to MH team.”
On 4 August 2022 Dr Yacoub recorded:
“in hospital
Depression aggravated by stress at work and ongoing bullying
Start from Jan-Feb this year
After Amber had COVID, was accused of giving it to her manager
Suicidal idea, self-harm
Regularly seeing psychologist, did not help
Admission to hospital”
On review on 24 August 2022 Dr Yacoub noted Ms Paton had been discharged from hospital with a referral to the Hornsby Hospital mental health team and a change in her medication. Dr Yacoub noted Ms Paton “had suicidal ideas, few attempts.” On review on 21 September 2022 Dr Yacoub noted Ms Paton was under the care of a new psychologist and on review of 12 October 2022 he noted she was to undergo psychiatric review at the “end of the month”. On review on 16 November 2022 Dr Yacoub noted Ms Paton had undergone psychiatric review and while there had been a change in her medication, she remained symptomatic with suggestion of a hospital admission “to adjust medication”. On review on 17 November 2022 Dr Yacoub provided a referral to Gordon Private Hospital and on 9 January 2023 Dr Yacoub noted:
“admitted to Gordon Pvt hospital
Change in medication
Seen by psychologist/psychiatric review
Due for blood test
Has been sleeping well at night, mood still low, not great”
Ms Paton continued to consult with Dr Yacoub with little improvement in her symptoms, save for a brief period when she stayed with her sister in Queensland towards the end of 2023. When last reviewed by Dr Yacoub on 24 January 2024 Dr Yacoub wrote:
“depression, back home, not feeling well
Will consider admission to hospital
Suicide idea but no attempt or plan
Hearing voices”
On 13 June 2024 Dr Bhat issued Ms Paton with a Centrelink Medical Certificate in which he certified her totally incapacitated for work between 13 June 2024 and 13 September 2024 with diagnosis which included schizoaffective disorder and post-traumatic stress disorder. Dr Bhat provided the date of onset of the schizoaffective disorder as “Feb 2024”.

Hornsby Ku-ring-gai Hospital

Emergency department clinical records of the hospital confirmed Ms Paton was admitted overnight on 26-27 July 2022, with suicidal ideation, and subsequent voluntary admission to Northern Beaches Hospital.
The following presenting history is recorded:
“2/52 worsening low mood
Increasing thoughts of SI
Finding ADLs very difficult – struggle to get up and shower
Was sat on the train 2/7 ago and felt she had nothing to live for
Has thoughts of wanting to step in front of a bus/train
Has been sitting at home with medications in her hands thinking of taking an overdose
Was chopping food for dinner and had intrusive thoughts to cut herself/cut finger off
Reports children as protective factor
Had to walk out of work 2/7 ago due to feeling helpless
Attended GP and GP concerned and advised to present to ED
Had Flu A and pneumonia in June and has felt run down since then which doesn’t help
Reports moving 2 years ago away from DV situation with her two kids and trying to make a new life for her family.”
The following psychiatric history is recorded:
“patient reported background of post-natal depression after birth of second child 17 years ago
Required admission at north side clinic for 11 weeks and needed ECT
Reported trialled on various antidepressants back then
Previous overdose on Panadol 17 years ago
Hx of DSH by headbanging and hitting herself. States last head bang prior to presenting to ED
Seen psychologist after 2 years ago after she left DV marriage
States also engaged with GP regularly. GP put her back on antidepressants 2 years ago and currently on Effexor 225gm and sodium valproate 200mg daily (states this was added on by psychiatrist she saw in October due to restlessness).”
The psychiatry registrar, Dr Negm, summarised “45F self-presented due to worsening SI, depressed mood last 3 weeks, vague plans to OD or jump in front of train”. Dr Negm reported Ms Paton “denied new stressors.” Dr Negm noted Ms Paton’s past psychological history included post-partum depression. Dr Negm noted his impression:
“PTSD (flashbacks, nightmares) – Hx of trauma (childhood sexual abuse, physical aggression in DV) Depressive Sx (depressed mood, anhedonia, low energy, poor motivation, poor sleep”.
Dr Negm noted “works as admin RPA (feels supported).”

Northern Beaches Hospital

The clinical records of Northern Beaches Hospital confirmed Ms Paton was transferred to Northern Beaches Hospital from Hornsby Hospital during the morning of 27 July 2022 with discharge on 16 August 2022. Dr Lawler relevantly recorded:
“Background:
Postnatal depression 17 years ago – required admission and ECT. Was on venlafaxine for a number of years following this before ceasing.
Was in a DV relationship for 20 years. Amber and her 2 children (now aged 19 and 17) escaped at night 2 years ago.
Around this same time 2 years ago, Amber’s GP re-started venlafaxine.
Saw psychiatrist last year who increased venlafaxine to 225mg and commenced valproate 200mg (Amber is unsure why valproate was stared – HIE notes suggest for restless lets?). Psychiatrist also reportedly recommended mirtazapine nocte but Amber never started this.
Mood screen:
Dysphoric mood most of the day for the past 3-4 weeks
Not finding enjoyment in anything
Some difficulty sleeping – can be both trouble falling asleep and waking up early
Anergia in past month
Thoughts of suicide have increased over past month. 4 weeks ago, Amber felt like she was ‘losing the battle’ against her mental health.
Over past week ‘suicide has made a lot of sense’. Has been thinking of ways to die.
Strong thoughts of jumping in front of bus/train – as such, got her daughter to drive her to work.
Also thoughts of OD on hers and her daughter’s medications (daughter is on multiple antidepressants following rape a few years ago)
Yesterday, called her GP while at work to tell her she was ending it all and wouldn’t arrive home safely.
GP recommended she present to ED.
Amber reports ongoing suicidal ideation now. She is able to guarantee her safety on the ward but would not feel safe if discharged.
No evidence of current or previous manic episodes.
Describes flashbacks to childhood sexual assault and domestic violence
Describes frequent nightmares
…
Social
Lives with 19yo son and 17yo daughter in Hornsby.
Works at RPA. Has to get 3 trains/buses to work each day.
…
Impression
Major depressive episode in the context of multiple longstanding psychosocial stressors on the background of trauma.
Exacerbation of ?PTSD symptom – flashbacks, nightmares, ?trauma-related hallucinations/pseudo hallucinations.”
Other than Ms Paton reporting she “works for RPA” and comment on discharge Ms Paton “works a computer-based job in a hospital; including commute, away from home 0545 -1930H”, Ms Paton apparently made no other comment about her employment with RPA.
However, on 1 August 2022, Nurse Elisha Rawat reported on a telephone call received from “Karen”, a care worker from Home Instead:
“She wants to organize workers compensation for Amber. She was bullied at work and the bullying was continued despite HR was involved. It would be better for A to have a break from work and be on workers compensation. Social work referral done.”
On 1 August 2022, Nurse Mustafizur Rahman also reported on a telephone call received from Karen, who was described as a care worker:
“Requesting to talk to Dr Michael for medical certificate for worker compensation claim as pt complained she had this mental issue because of bullying from her employer. Informed Dr Michael about that.”
On 2 August 2022 Dr Lawler reported:
“Spoke to mother last night. Mother and care worker Karen are concerned that work events have led to Amber’s acute mental state. Both are requesting workers compensation form (but Amber does not appear too fussed). Explained to Amber that we do not do workers compensation, but we can provide a medical certificate giving dates of admission”.
On 3 August 2022 Dr Lawler reported:
“Discussion with Amber and her parents. Explained that we do not do workers compensation applications here in the hospital, recommended contacting Amber’s GP for this. Happy to provide medical certificate giving dates of admission. Provided them with a medical certificate. Gave update on Amber’s current state and the purpose of this admission (containment for the acute phase, medication optimization, monitoring mental state). Ongoing psychology in the community will be a big part of management once Amber is ready for discharge.”
On discharge on 16 August 2022 Dr Wilson relevantly reported on Ms Paton’s progress while an inpatient:
“Following admission to the ward Amber was managed with an alcohol withdrawal scale and commenced regular Thiamine though she scored minimally. Her regular Venlafaxine 225mg was continued. The regular Sodium valproate 200mg was switched to Lithium 450mg to assist with symptoms of low mood, Aripiprazole 10mg was started to treat auditory hallucinations and Quetiapine 50mg SR nocte and 25mg IR PRN was started to aid sleep and periods of agitation. Pleasingly Amber responded positively to medication changes and prior to discharge reported improved sleep and mood, reduction in intensity of auditory hallucinations and a desire to return to her old life to continue her recovery. On a few occasions whilst on the ward Amber self-harmed with head-banging, these were normally in the context of needs not being met, intrusive behaviours of co-patients or poor emotional distress tolerance.”

Psychology Today

Through Raynor Lander’s profile with Psychology Today, Ms Paton made an enquiry about Ms Lander’s availability to treat her. On 24 August 2022, Ms Paton wrote:
“I would like some therapy. My diagnosis is severe depression and PTSD. I have lived through childhood sexual abuse by a family member and a 20-year marriage that was based on dv. I am extremely interested in EMDR and hypnotherapy. Most recently my depression was exacerbated by workplace bullying and I became an inpatient for 3 weeks, so workers compensation may be part of my story although I am part of teachers’ health fund also. Would you have availability?”
Ms Lander’s clinical records demonstrate Ms Paton first consulted with her on 10 September 2022 and while I accept Ms Lander’s notes are difficult to read at times, it is evident that during Ms Paton’s first consultation with Ms Lander Ms Paton described being subjected to bullying and harassment while working in administration at RPA.

In Ms Lander’s Allied Health Recovery Request dated 25 June 2023, Ms Lander provided diagnosis in terms of “Major Depressive Disorder as per DSM-V. Deterioration has occurred. Systems of Post Traumatic Stress Disorder” and recorded one of Ms Paton’s goals as “addressing the symptoms which are attributable to the problems in the workplace.” At that time Ms Lander described Ms Paton’s current “signs and symptoms”:
“Feelings of hopelessness and helplessness.
Irritability at home; difficulties with concentration and memory very poor, she does not often leave the house unless she has to. She does not wish to socialize and does not enjoy it when she does. Her sleep is disturbed and she has been experiencing nightmares related to the workplace. Her mood is low and she experiences constant fatigue. She constantly worries about the future and is very distressed that she has lost her job as she enjoyed it and wished to make a success out of it. She becomes tearful when discussing her workplace. She ruminates over what has happened to her and how she can alleviate her symptoms.
Testing on the DASS support the above diagnosis where she had high scores on all three measures: depression anxiety and stress.”
In Ms Lander’s typewritten notes relevant to consultation on 27 June 2023, Ms Lander noted in part:
“Amber very fragile today. She has been quite suicidal – only stopped because of her daughter who lives at home. She is thinking of the workplace and going back to the abuse of her marriage which she left. It seems that some behaviors in the workplace reminded her of her husband shouting at her and not being able to do the right thing no matter how much she tried…. At the time of starting the job she was taking a new start and planned a holiday with the kids. She was in a positive frame of mind. She was really happy about the job. At the time of leaving work, she felt devastated and hardly able to get out of bed. Since then, of course 2 hospitalizations.”
In a report dated 2 August 2024 addressed to Ms Paton’s solicitors, Ms Lander confirmed she had seen Ms Paton for counselling on approximately ten occasions under the workers compensation scheme and subsequently under the Medicare scheme. Ms Lander said she had seen Ms Paton on approximately 14 occasions during 2023. Ms Lander said Ms Paton had attended a face-to-face interview with her on 6 June 2024 so as to assist Ms Lander prepare her report.
Ms Lander reported a detailed history of Ms Paton’s psychological difficulties relevant to her post-natal depression, her miscarriage, the sexual assault suffered by her daughter, her son’s illness and the domestic violence she suffered during her marriage. Ms Lander reported Ms Paton stressed to her that despite her evident psychological fragility “she had always remained in the workforce either on a part time or full-time basis.”
Ms Lander reported a detailed history as to the circumstances of Ms Paton’s alleged injury occurring in the course of her employment with RPA. Ms Lander relevantly reported Ms Paton “began to experience bullying in the workplace” in December 2021. Ms Lander reported a consistent history of Ms Mishra believing Ms Paton infected her with Covid 19, with Ms Paton consequently experiencing isolating behaviors by Ms Mishra and some other colleagues. Ms Lander reported Ms Paton became distressed with the continuing behaviors of Ms Mishra and ultimately ceased working on 25 July 2022:
“On 5/7/2022 [sic] Ms Paton commenced work and she usually sat next to Suman. On that morning, Suman ignored her, while speaking to all her colleagues. At that point she felt isolated and felt she could not take any more bullying and harassment. She then consulted her GP and stated: ‘I cannot take it anymore; I am scared distressed and having suicidal thoughts’ and Dr Yacoub advised her to attend the nearest Emergency Department. On the 26/7/2022, she admitted herself at Hornby Hospital and then transferred to Northern Beaches Hospital, where she remained for 3 weeks.
Following her discharge, she was under an extensive medication regime. Despite this, however, her suicidal ideation became extreme and she admitted herself to Gordon Private hospital where she remained from 23/11/22 until 24/12/2022…”
Ms Lander considered Ms Paton suffered Major Depressive Disorder and considered Ms Paton’s prognosis was “very uncertain”. In response to specific questioning Ms Lander said:
“It is my view that your client suffered from an underlying condition which was activated, aggravated or deteriorated as a result of your client’s employment with Royal Prince Alfred Hospital.
The reasoning is that following her childhood trauma, she completed her education, travelled for a protracted period of time in Europe and Asia alone, meeting fellow travelers and gaining employment as the need arose. She entered a relationship with a man who was reportedly abusive and aimed to control her life. She suffered from post-natal depression but recovered. Despite any setbacks, she cared for two children, re-engaged in study and worked part time. When able, she reverted to full time work and was in stable employment at a medical center for seven years and with an orthodontist for two years, only resigning when her daughter was assaulted. During the same period, she ended her relationship. During the withdrawal from her relationship, she engaged in psychological therapy but continued to work. After her daughter recovered from her difficulties, Ms Paton sought and gained full time employment. It was only when she was bullied in this job, did she develop severe psychological symptoms, which now render her unable to work. After bullying in the workplace, she became suicidal and admitted herself to a psychiatric hospital. She has been unfit since that time.”
At the time of reporting Ms Lander considered Ms Paton was not fit for “work of any type” and had not been well enough to engage in job seeking. Ms Lander said Ms Paton’s incapacity for work “was a result of her employment with RPA” with explanation:
“The reasoning for this response is that despite any previous trauma, she maintained a stable work history, even when she had two young children, was studying at university and living in a less than perfect marriage. She instigated and dealt with ending her abusive relationship and remained at work. She coped with the assault of her daughter in a carpark and the severe illness of her son. She ceased employment for six months to care for her daughter, but as soon as her daughter had sufficiently recovered, she sought and gained employment.”

Dr Manambrakkat

Ms Paton came under the specialist psychiatric care of Dr Manambrakkat. In an email dated 12 March 2021 from Sarah Lee, social worker with Primary & Community Care Services, Ms Lee relevantly wrote:
“Amber is a 44 year old female who has two children. Amber and her children have been victims of domestic violence from Amber’s ex-partner. Amber had been referred to our short-term social work service since last year November. She is currently seeing a registered psychologist for counselling and her GP. We have all observed severe symptoms of Post Traumatic Stress Disorder whilst working with Amber. Amber does not have any formal mental health diagnosis, and her mental health is deteriorating severely. Her mental health impacts her day to day living and functional capacity. Amber is severely isolated from her previous relationship and her ex-partner. Amber is unemployed due to her mental health, and she also has a hearing impairment that adheres to her current mental health conditions. Amber recently had let me know she was overwhelmed when she was out of her house and dissociated and had a fall.”
Dr Yacoub provided referral dated 18 March 2021 which read:
“Thank you for seeing Amber Paton, aged 44 yrs, for an opinion and management regarding Depression/PTSD, recent family separation domestic violence on Effexor 224 Venza at night. I appreciate if you consider bulk billing her, Amber is seeing psychologist on a regular basis. She is seeing social worker, Sarah Lee, able to provide you with more social details if necessary”
Dr Manambrakkat’s handwritten notes from Ms Paton’s consultations with him on 5 May 2021, 31 May 2021, 5 July 2021, 9 August 021, 15 September 2021, 29 September 2021 and 18 October 2021 are in evidence. Ms Paton apparently cancelled her consultation with Dr Manambrakkat scheduled for 15 November 2021.
During his first consultation with Ms Paton on 5 May 2021, Dr Manambrakkat recorded a number of personal stressors that had affected Ms Paton, including childhood sexual abuse, post-natal depression, the sudden death of her brother, the separation from her abusive partner, her son’s illness during his High School Certificate (HSC) year and the sexual assault of her daughter. Dr Manambrakkat also recorded Ms Paton “gave up work in Nov 20 as she wasn’t effective. In that job 6 yrs. No issues at work.” Dr Manambrakkat took a history “current depression since Nov 2020.” Dr Manambrakkat provided diagnosis of Major Depression with psychotic features and post-traumatic stress disorder.
During consultation on 18 October 2021 Dr Manambrakkat said Ms Paton reported her mood was better and she “feels she has turned a corner.” Dr Manambrakkat reported Ms Paton was “considering getting a part time job.”
Dr Yacoub provided rereferral to Dr Manambrakkat dated 21 September 2022:
“…thank you for seeing Amber Paton, aged 46 years, for an opinion and management, regarding PTSD, worsening depression, admitted to Norther Beaches hospital, followed up with Hornsby Mental health team, change medication, aggravated workplace bulling.”
Dr Manambrakkat’s handwritten notes from Ms Patton’s with him consultation on 2 November 2022 are in evidence. Dr Manambrakkat noted:
“She had an admission to the Northern Beaches hospital on 27 July 2022. She presented to Hornsby Hospital suicidal, and she was sent to Northern Beaches Hospital. She was there for 3 weeks. She last consulted with me 18/10/21 over phone. She was on the same meds till she got admitted to the Northern Beaches. She had started work in Oct 21 in admin RPA Hospital Endocrine Dept. She suffered workplace bullying. She is on workers compensation. She got Covid and they felt she gave Covid to everybody. They would ignore her and whisper then … worsened. She stopped work July 27^th, 2022. Her medications have been changed … she was followed up by acute care team at Hornsby for a couple of weeks … She has a private psychologist after she left hospital”
Dr Manambrakkat elsewhere noted:
“She had Covid in Dec, 2 months after she started. It went around. Colleagues wouldn’t speak to her. They would go to lunch without calling her”
Dr Manambrakkat’s medical management during this period included an increase in Ms Paton’s medication.

Gordon Private Hospital

On 17 November 2022, Dr Yacoub referred Ms Paton to Gordon Private Hospital. Dr Yacoub’s letter read in part:
“Thank you for seeing Amber Paton, age 46 years, for an opinion and management regarding low mood/depression getting worse, suicidal thoughts. Discharged from Acute care team in Hornsby in August follow up with Dr Manambrakkat, increased her medication recommended re admission to psychiatric facility/risk of suicide”
Ms Paton came under the psychiatric care of Dr Sazhin while she was an inpatient at the hospital between 25 November 2022 and 23 December 2022.
The hospital clinical notes demonstrated Ms Paton reported she had been working as an administration officer with RPA and had an extensive history of familial stressors. It is not apparent Ms Paton made complaint about the difficulties she experienced while working with RPA. The hospital’s discharge summary described Ms Paton as being “markedly ill” at time of admission and “much improved” at the time of discharge.
In his report dated 13 May 2024, Dr Sazhin reported he had provided psychiatric care for Ms Paton on two separate occasions. Dr Sazhin noted Ms Paton had been an inpatient at Northern Beaches Hospital in July 2022 and her ongoing depression resulted in admission to Gordon Private Hospital in November 2022. Dr Sazhin noted Ms Paton subsequently presented for readmission in February 2024 with psychotic illness which was treatment resistant. Dr Sazhin provided diagnosis of schizoaffective disorder in addition to complex PTSD, recurrent depression and anxiety disorder. Dr Sazhin recommended Ms Paton make application for a disability support pension.

Independent medical evidence

Dr Timothy Berry

Ms Paton was psychiatrically assessed by Dr Berry on 14 July 2023. Dr Berry is a psychiatrist. Dr Berry provided a number of reports. His initial report is dated 25 July 2023. His further reports are dated 4 September 2023, 28 September 2023, 31 July 2024, 22 August 2024, and 12 November 2024.
At initial assessment Dr Berry noted Ms Paton’s past psychiatric history:
“1. Post natal depression. Around 18 years ago. She was hospitalised for 11 weeks and underwent various treatments including electroconvulsive therapy. She continued medications for around 18 months after the admission.
2. Psychological therapy (with Rhona Barker) which started around three years ago when Ms Paton was looking to leave her abusive partner. She indicated her partner’s behaviour was controlling (particularly related to financial matters) and psychological rather than physical. There were, however, occasions of physical aggression. She has also discuss her previous trauma with her psychologist.
She denied any previous suicide attempts and indicated her children are a protective factor. She denied any other hospital admissions (save for the one related to postnatal depression above and her admissions in July/August and November/December 2022).
In the files provided, I note that she was reviewed by a psychiatrist in May 2022, and she was diagnosed with PTSD and Major Depressive Disorder with Psychotic Features.
I note from her GP records that Ms Paton had multiple sessions where the primary issue was depression and anxiety symptoms. She was treated for many years with Escitalopram 20mg daily.”
Dr Berry summarised Ms Paton’s complaint of “work events” relevant to her alleged injury in the nature of aggravation of her pre-existing psychological condition:
“She contracted covid during Christmas 2021 and emailed her work colleagues to let them know. One of her colleagues (Suman) also went on to develop covid. When Ms Patron returned to work Suman initially ignored her. She later went on to say, ‘Amber I am very disappointed in you.’ Ms Paton believes she was blamed for bringing covid onto their unit. From this point on she was treated differently, particularly by nursing staff. She would be ignored and excluded from conversations which were going around her in the room. She felt she was given unreasonable tasks and was being ‘set up for failure.’ For example, she would be told to do something within an unrealistic timeframe. Another nurse, Ruby, told Ms Paton this was a ‘cycle’ and that similar things had happened to others previously and that a large number of staff had left the unit. Ruby also told Ms Paton that staff spoke about her in a negative way, particularly when Ms Paton took absences from work for ‘mental health days,’ or other reasons.
She developed a number of medical conditions – flu, chest infections which turned into pneumonia.
I asked if there was a trigger or main precipitant to her absence. She indicated there was not and that things just ‘snowballed,’ and she got to a stage where she became preoccupied with suicidal thoughts, so she went to hospital. Her recollections about work events were often vague.
I asked Ms Paton about other stressors in her life around this time. She indicated her friends and family felt she had been doing well. She left an abusive partner in July 2020 and that was stressful but ‘not bad stress’. She reports her partner had been controlling and she was excited to be free from it and learning new skills like opening a bank account.
The papers refer to Ms Paton’s daughter being the subject of an assault which may have contributed to Ms Paton’s current psychological symptoms. She indicated these events took place some four years ago and her daughter received mental health support for around 18 months, and this was not an ongoing source of stress.
I asked Ms Paton if she recalled meeting with Margaret McGill to discuss issues with work and her attendance. She indicated she had a ‘vague recollection’ of being told by a manger she had taken too much leave.”
Following mental state examination, Dr Berry provided diagnosis of complex post-traumatic stress disorder and Major Depressive Disorder. Although Dr Berry accepted complex post-traumatic stress disorder was a diagnosis which did not exist under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), he said that in his clinical experience complex post-traumatic stress disorder was the diagnosis “which best fits Ms Paton’s history and current symptoms”. While Dr Berry considered Ms Paton’s diagnosis of complex post-traumatic stress disorder “likely originates from her childhood trauma and subsequent abusive relationship” he accepted complex post-traumatic stress disorder would result in Ms Paton “being more sensitive to interpersonal conflict” and would increase her “risk of developing other mental health symptoms including major depressive disorder.”
Dr Berry accepted Ms Paton’s diagnosis of Major Depressive Disorder was an aggravation of the pre-existing condition for which Ms Paton was already receiving treatment and said, “work was a contributing factor to the worsening of her symptoms.” Dr Berry explained:
“She has significant pre-existing vulnerabilities which make her most susceptible to developing further psychiatric issues and having difficulties managing interpersonal relationships. It is against this background that work and the difficulties she had with other staff and the issues raised about her attendance must be viewed. They appear to directly precipitate the onset of psychological symptoms but only did so because of Ms Paton’s pre-existing vulnerabilities.”
Dr Berry considered Ms Paton had no current capacity for work and described prognosis as poor. Dr Berry described Ms Paton as significantly impaired and said, “I suspect that any improvement in her functioning will be very slow, and I do not envisage her returning to the workforce in the next year.”
Following initial assessment, Dr Berry provided supplementary reports, dated 4 September 2023, 28 September 2023, 31 July 2024, 22 August 2024, and 12 November 2024, in response to specific questioning and review of further information. I think it fair to say that a review of these supplementary reports demonstrates Dr Berry is of the opinion:
(a)    despite the notes of her general practitioner referring to Ms Paton’s mental health being “stable” immediately before she commenced employment with RPA, she had not in fact enjoyed a consistent period of mental health stability, which is evidenced by (i) Centrelink certification Ms Paton was unable to work due to depression, (ii) mental health review documents completed by Ms Paton’s treating general practitioner in 2019 and 2021 against a backdrop of Ms Paton experiencing abuse, family issues and suffering poor self-esteem, and (iii) Ms Paton attending regular psychological therapy sessions between 2019 and 2021. While Dr Berry also referred to Ms Paton making National Disability Insurance Scheme (NDIS) application prior to her employment with RPA, such application appears to have been made in the context of Ms Paton seeking home and care assistance while caring for her daughter who was recovering from sexual assault.
(b)    Identified key stressors impacting Ms Paton’s mental health include:
(i)previous sexual trauma in childhood;
(ii)a previous lengthy abusive relationship;
(iii)the unexpected death of her brother;
(iv)her daughter’s sexual assault with slow recovery, and
(v)her son’s illness which resulted in an intensive care unit (ICU) admission.
(c)    The identified stressors are a more significant factor affecting Ms Paton’s psychological injury than her employment with RPA, and while it is not possible to identify one particular stressor as the main contributing factor, “her history to exposure to trauma over many years, particularly in childhood, is likely the key to her presentation.”

Dr Abdal Khan

Ms Paton was psychiatrically assessed on 7 March 2024 by Dr Khan in his capacity as independent medical examiner. Dr Khan provided reports dated 7 March 2024 and 3 July 2024.
Dr Khan recorded a history of injury:
“Ms Paton said that she worked in an outpatient endocrine department with her manager and five nurses. She reported that in December 2021, she contracted COVID. Ms Paton said that her manager also contracted COVID. She was reportedly blamed by her manager for bringing COVID into the department. Ms Paton described how her manager started to ignore her at work thereafter. She said that her work duties increased dramatically, and she was given an unrealistic workload. Ms Paton felt increasingly unsupported by her manager. She said she started to notice that her manager and her other colleagues began to show ‘teenage girl behaviour’ as they began to gossip about her when she was still present at the workplace. By early 2022, Ms Paton was struggling with her workplace stressors, and she started to follow-up with her general practitioner about her concerns. She tried to continue working but the circumstances of her workplace gradually deteriorated. Ms Paton said that on 25 July 2022, she contacted her general practitioner about how she felt suicidal. At that point she was referred to the local community mental health team. She has not been able to return to work since then.”
Dr Khan noted a history of Ms Paton having been a victim of sexual abuse perpetrated by her uncle over a period of about one and a half years when she aged around 12. Dr Khan further noted Ms Paton’s daughter had been sexually assaulted with Ms Paton ceasing work between June 2020 and October 2021 so as to enable her to care for her. Dr Khan recorded Ms Paton’s past psychological history:
“Ms Paton first experienced mental health difficulties in 2005. She developed post-natal depression in the context of the birth of her daughter. Ms Paton required admission to a private psychiatric hospital for approximately 11 weeks. During this admission, she disclosed her history of childhood sexual trauma, which was addressed as part of her inpatient treatment plan. Ms Paton required electroconvulsive therapy, and she was commenced on anti-depressant medication, which she continued for a period of approximately two years under the management of her general practitioner. She eventually weaned off her anti-depressant medication but around 2009, she needed to recommence her medication upon the recommendation of a general practitioner as she had a miscarriage at the time. Ms Paton’s mental state eventually stabilised, and she weaned off her anti-depressant medication. She needed to engage in psychological treatment around 2018 in the context of being subjected to domestic violence for a period of approximately 20 years by her previous de-facto partner. Ms Paton continued this psychological treatment for a period of approximately one to one and a half years and she was recommenced on anti-depressant medication under the management of her general practitioner. She also briefly engaged in psychiatric treatment upon the recommendation of her psychologist who intended for her to apply for NDIS funding for home assistance. It is important to note that for the most part, Ms Paton’s pre-existing mental health difficulties had not significantly impeded on her capacity to work. Furthermore, it is important to note that Ms Paton was able to complete the education component of a Bachelor of Podiatry degree during the period when she was subjected to domestic violence from her de-facto partner.”
Dr Khan provided diagnoses of major depressive disorder with anxious distress. Dr Khan considered Ms Paton’s prognosis as guarded.
Dr Khan provided opinion Ms Paton suffered an aggravation of her pre-existing psychological injury in the course of her employment with RPA, with her employment being the main contributing factor to the aggravation of her pre-existing psychological injury of major depressive disorder with anxious distress.
Dr Khan provided opinion Ms Paton had no current capacity for work, which he said resulted from the injury she sustained in the course of her employment with RPA. Dr Khan explained:
“… I am of the view that Ms Paton suffered from pre-existing psychiatric/psychological conditions specifically major depressive disorder with anxious distress and post-traumatic stress disorder. It is my opinion that her employment has materially aggravated her pre-existing psychiatric/psychological condition of major depressive disorder and rendered her unfit for work. She did not present with any enduring symptoms of trauma related to her early life traumatic experiences to indicate that her pre-existing psychiatric/psychological condition of post-traumatic stress disorder has been materially aggravated by her employment.”
When considering opinion provided by Dr Berry in his reports dated 25 July 2023, 4 September 2023 and 28 September 2023, Dr Khan concluded:
“Despite her longitudinal history of trauma and mental health difficulties, she had been able to pursue tertiary education and obtain and sustained long-term employment, including as a practice manager at an orthodontics practice. If her pre-existing conditions were as debilitating as suggested by Dr Berry, it is unlikely that she would have been able to function before the subject injury in this capacity. Furthermore Ms Paton’s engagement in mental health treatment in the past for per pre-existing conditions was not continuous but was rather limited to periods of one to one and a half years of treatment on a few occasions in her adult life. If her pre-existing conditions were as debilitating as suggested by Dr Berry, she would be expected to have needed to continue psychological treatment and psychiatric treatment without any significant breaks in her treatment …
Leading up to her workplace psychiatric/psychological injury, Ms Paton’s pre-existing psychiatric/psychological conditions had been stable for an extended period of time. This is consistent with the medical records from her treating general practitioner, Dr Ben Yacoub, where there were no progress notes about mental difficulties between 21 October 2021 and 9 February 2022.”
In his supplementary report, following review of Dr Manambrakkat’s correspondence dated 10 May 2021 and 18 October 2021, Dr Khan wrote:
“It is evident that at the time of her initial assessment with Dr Manambrakkat on 5 May 2021 whose opinion was documented in a report dated 10 May 2021, Ms Paton’s condition was unstable due to a number of personal stressors and previous trauma, and she was diagnosed with major depression with psychotic features and post-traumatic stress disorder. It was evident that by the time she had engaged in further mental health treatment by 18 October 2021 her symptoms had improved in their frequency and intensity, her functioning had improved, and she was actively seeking employment. This progress indicates that in the months leading up to her employment with Royal Prince Alfred Hospital, Ms Paton’s mental state and functioning had been stabilising. Based on my previous assessment of Ms Paton on 7 March 2024 and based on the additional information available, I do maintain that her mental state was stable and that she was not experiencing any enduring symptoms of trauma, depression and anxiety just prior to her employment with Royal Prince Alfred Hospital. That said, I do not maintain that she was not engaging in any mental health treatment prior to her employment with Royal Prince Alfred Hospital as she had clearly engaged in ongoing psychological treatment and psychiatric treatment to stabilise her pre-existing conditions prior to her commencing employment.”
In his supplementary report, following review of the medical records relevant to Ms Paton’s admissions to Hornby Hospital and Northern Beaches Hospital in 2022, Dr Khan now accepted Ms Paton’s pre-existing condition of post-traumatic stress disorder had been aggravated in the course of her employment with RPA with explanation:
“At the time of my assessment of Ms Patron on 7 March 2024, I did not consider her pre-existing condition of post-traumatic stress disorder to have been aggravated as she did not present with any enduring symptoms of post-traumatic stress disorder and this aggravation had resolved; however, the aggravation of her pre-existing condition of major depressive disorder with anxious distress was ongoing.
To be clearer about this matter, I do consider that Ms Paton’s employment with Royal Prince Alfred Hospital materially aggravated her pre-existing conditions of post-traumatic stress disorder and major depressive disorder with anxious distress and at the time of my assessment of her on 7 May 2024, the aggravation of post-traumatic stress disorder had resolved and the aggravation of major depressive disorder with anxious distress was ongoing.”
In his supplementary report, Dr Kahn re-visited Ms Paton’s current work capacity. He explained:
“… I do maintain the opinion that Ms Paton’s pre-existing mental health difficulties and other non-work related stressors have not significantly impeded on her capacity to work.
… I do maintain that Ms Paton’s current work incapacity and psychiatric/psychological injury is the result of her employment with Royal Prince Alfred Hospital. It is my opinion that at the time of commencing her employment with Royal Prince Alfred Hospital, she had dealt with a number of personal stressors through comprehensive mental health treatment and her resilience was evidenced by her desire to return to work. Only when she was subjected to maltreatment in her employment with Royal Prince Alfred Hospital did her pre-existing conditions become aggravated and lead her to become totally incapacitated to work.”

Submissions

Mr Kreig and Mr Perry provided written submissions. Mr Tanner provided written submissions. While I have carefully considered these submissions, I provide no comment in my determination regarding submissions provided by Mr Tanner and Mr Perry relevant to the manner in which Mr Kreig prepared defence to Ms Paton’s claim before the Commission.
Copies of the submissions are available to the parties and not reproduced here.

Determination

Ms Paton’s claim is not without complexity and I am required to determine the following issues in dispute.

Has Ms Paton sustained primary psychological injury in the nature of an aggravation of a pre-existing injury in the course of her employment with RPA with her employment being the main contributing factor to injury in the nature of an aggravation of a pre-existing injury, with deemed date of injury of 26 July 2022?

RPA disputes Ms Paton has sustained psychological injury in the nature of an aggravation of a pre-existing injury in the course of her employment with RPA, with deemed date of injury of 26 July 2022, and with her employment being the main contributing factor to the injury.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury where the worker’s employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.
Where an alleged injury consists of an aggravation, acceleration, exacerbation or deterioration of an injury in the nature of a disease injury, as in Ms Paton’s case, I find Federal Broom Co Pty Ltd v Semlitch particularly instructive in that:
Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is 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,”
and Windeyer J said:
“The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and withdrawal from reality that the sufferer has, the degree of divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.”
Semlitch has been in applied in a number of subsequent matters (see Cant v Catholic Schools Office[3] and Kelly v Western Institute NSW TAFE Commission)[4].
[3] [2000] NSWCC 37.
[4] [2010] NSWWCCPD 71.
The law in relation to “main contributing factor” was considered in AV v AW.[5] In discussing the previous authorities constructing the term “main contributing factor,” including Flanagan v NSW Police Force,[6] State Transit Authority of New South Wales v El-Achi,[7] Mannie v Bauer Media Pty Ltd[8] and Lilyvale Hotel Pty Limited v Bradley [2016] SWWCCPD 62, Snell DP provided useful summary:
“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.
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) is necessary that the employment be the main contributing factor to the aggravation, not the underlying disease process as a whole.”
[5] [2020] NSWWCCPD 9.
[6] [2017] NSWWCCPD 33.
[7] [2015] NSWWCCPD 71.
[8] [2016] NSWWCCPD 47.
Relevant to the issue of causation of Ms Paton’s alleged injury in the nature of an aggravation of her pre-existing psychological injury, in Kooragang v Cement Pty Ltd v Bates[9] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[9] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Relevant too to the issue of causation of Ms Paton’s alleged injury in the nature of an aggravation of her pre-existing psychological injury, in Attorney General’s Department v K[10] there is a useful summary of the principles to be applied:
[10] [2010] NSWWCCPD 76.
“(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’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(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 (Spigelman CJ in Chemler);
(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 (Basten JA in Chemler at [69]);
(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 (Leigh Sheridan v Q-Comp [2009] QIC 12);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], 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.”
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment,’ and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ …”
RPA has placed injury in issue, and Ms Paton has the onus of proving she sustained primary psychological injury in the nature of an aggravation of her pre-existing injury in the course of his employment with RPA with her employment with RPA being the main contributing factor to injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[11] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[11] [2008] NSWCA 246 (Nguyen).
Ms Paton provided a history of her extensive pre-existing psychological injury, for which she sought treatment, which included a period of inpatient admission, general medical care and both psychological and psychiatric care.
Ms Paton confirmed she commenced her employment with RPA on or about 25 October 2021 and detailed the events during the period of her employment with RPA, which she said caused her mental health to deteriorate to the appoint where she felt on 25 July 2022 that she “could not take it anymore”, experienced suicidal ideation for which she sought medical treatment and ceased working with RPA. It is evident Ms Paton’s concerns essentially lay with behaviours exhibited by her manager and colleagues, which she said amounted to bullying and harassment, and in submission RPA did not take issue with the fact that interactions occurring during the course of her employment with RPA were capable of leading to perception by Ms Paton that she was bullied and harassed.
Ms Paton explained after she ceased working with RPA on 25 July 2022, she received intensive general medical care and specialist psychological and psychiatric care. With suicidal ideation, she has also received intpatient hospital care on a number of occasions. Ms Paton confirmed she had not returned to work since 25 July 2022 and said she has been totally unfit to return to any type of work since that time.

Ms Cotton, Ms Paton’s daughter, noted a change in Ms Paton’s behaviour when Ms Paton returned to work after the Christmas/New Year break at the end of 2021 and the beginning of 2022, with Ms Paton telling her “work is feeling a bit toxic” and telling her she was feeling unsafe at work. Ms Cotton said she was acutely aware of Ms Paton’s pre-existing psychological injury and was strident in opinion there was a significant deterioration in Ms Paton’s mental health due to the behaviours to which she was subjected while working with RPA. Ms Cotton relevantly said “I strongly believe that my mother has never been impacted to this extent…”.
Di Paton, Ms Paton’s mother, was aware Ms Paton was experiencing difficulties at work towards the end of 2021 and was aware of the behaviours Ms Paton was subjected to while working with RPA. While Di Paton described Ms Paton as initially wanting to “stay resilient”, she felt “eventually there was a tipping point and I believe that Amber had simply put up with too much at work.” Like Ms Cotton, Di Paton was acutely aware of Ms Paton’s pre-existing psychological injury and was strident in opinion there was a significant deterioration in Ms Paton’s mental health due to the behaviours to which she was subjected while working with RPA. Di Paton relevantly said, “I have never seen Amber in such a fragile state … it is clear to me that the injury that she sustained whilst working at Royal Prince Alfred Hospital has affected her more than anything she has experienced in the past.”
Documents produced by Hornsby Orthodontics demonstrate Ms Paton commenced working with Hornsby Orthodontics in September 2019 and evidence that by October 2020, Hornsby Orthodontics was concerned about Ms Paton’s work performance. Hornsby Orthodontics issued Ms Paton with a written warning relevant to her failure to meet the required standards of her role on 13 October 2020, with review on 3 November 2020. While Ms Paton explained she ceased working with Hornsby Orthodontics to become a full time carer for her daughter during her slow recovery from sexual assault, it is evident from Dr Yacoub’s clinical records that during the period of her employment with Hornsby Orthodontics Ms Paton was suffering mental health fragility against a backdrop of childhood sexual abuse, her brother’s sudden death overseas, her daughter’s sexual assault and her son’s hospital admission. Dr Yacoub noted on 19 October 2020 that Ms Paton was “struggling at work” and noted on 2 December 2020 Ms Paton “lost her work, not able to work with all health, mental health issues, her daughter still not well, with very low mood”. While anomaly may have arisen as to reason behind Ms Paton ceasing work with Hornsby Orthodontics in that Ms Paton said she ceased work with Hornsby Orthodontics to become a full time carer for her daughter during her recovery from sexual abuse, I do not believe this to be at odds with Dural Medical Centre’s clinical notes, which record Ms Paton struggling at work in October 2020 against a backdrop of numerous familial stressors affecting her mental fragility and ultimately ceasing work towards the end of 2020. I do not consider any anomaly arising relevant to reason behind Ms Paton ceasing work with Hornsby Orthodontics is of significance in circumstances where Ms Paton’s ceasing work with Hornsby Orthodontics in late 2020 coincided with the significant familial stressors Ms Paton was under during 2020, including Ms Cotton’s slow recovery from her sexual assault earlier the same year and Ms Paton’s intention to engage in full time care of her daughter. While it may be Ms Paton’s mental fragility during 2020 played a part in her inability to perform her role with Hornsby Orthodontics to the standard expected of her by Hornsby Orthodontics, I am of the view Ms Paton has provided a consistent history to her treating general practitioners, her treating psychologist, her treating psychiatrist and the independent medical examiners of a significant deterioration in her mental health due to behaviours she was subjected to in the course of her employment with RPA, being a deterioration observed by both Ms Cotton and Di Paton. Although none of the hospitals’ clinical records record complaint by Ms Paton about the behaviours she was subjected to while working with RPA, this is perhaps not surprising in circumstances where it is evident one of the hospitals specifically advised Ms Paton that they “do not do workers compensation matters”.
While Dr Yacoub noted an improvement in Ms Paton’s mental health with her commencing her employment with RPA, as early as 9 February 2022 Dr Yacoub recorded the reported concerning behaviours Ms Paton was subjected to in the course of her employment with RPA. With Ms Paton continuing to complain to him about her workplace difficulties during subsequent consultations, and with Ms Paton’s mental health deteriorating and reported suicidal ideation on 25 July 2022, Dr Yacoub referred Ms Paton for urgent hospital mental health review noting familial stressors as well as work stressors. Of note I think that on 15 March 2022 Dr Joseph had noted “does not consider w/comp at present”.
The clinical records of Hornsby Ku-ring-gai Hospital confirm Ms Paton’s presentation on 26 July 2022 with suicidal ideation, and while I accept there is no complaint on presentation of the difficulties Ms Paton was experiencing at work and Dr Negm has taken a history of Ms Paton’s extensive pre-existing psychological injury and noted “denied new stressors” and “works as admin RPA (feels supported)” this is clearly at odds with the clinical records of Dural Medical Centre and the evidence of Ms Paton, Ms Cotton and Dr Paton, which I have canvassed.
The clinical records of Northern Beaches Hospital confirm Ms Paton’s presentation on 27 July 2022 with suicidal ideation, and while I again accept there is no complaint on presentation of the difficulties Ms Paton was experiencing at work and Dr Lawlor has taken a history of Ms Paton’s extensive pre-existing psychological injury, this is perhaps not surprising in circumstances where Dr Lawlor confirmed with Ms Paton on enquiry, “we do not do workers compensation”.
Just one week after her discharge from Northern Beaches Hospital on 16 August 2022, with a reported desire of Ms Paton “to return to her old life to continue recovery” Ms Paton sought psychological treatment with Ms Lander with a reported exacerbation of her pre-existing psychological injury “by workplace bullying”. Ms Paton came under the psychological care of Ms Lander, who reported on 2 August 2024 that Ms Paton had met with her on approximately 14 occasions. In response to specific questioning, Ms Lander accepted against a backdrop of psychological injury associated with significant familial stressors that Ms Paton’s pre-existing psychological injury was aggravated as a result of the behaviours to which she was subjected to while working with RPA. Ms Lander said:
“…it was only when she was bullied in this job, did she develop severe psychological symptoms, which now render her unable to work. After bullying in the workplace, she became suicidal and admitted herself to a psychiatric hospital. She has been unfit since that time.”
On 21 September 2022 Dr Yacoub rereferred Ms Paton for psychiatric review by Dr Manambrakkat who noted on 2 November 2022 that Ms Paton had last consulted with him on 18 October 2021 just prior to her commencing work with RPA. On this occasion Dr Manambrakkat recorded Ms Paton had suffered “workplace bullying” and ceased working in July 2022 as a consequence. Dr Manambrakkat noted Ms Paton was under psychological care, with change in her medication. While under his psychiatric care, Dr Manambrakkat prescribed an increase in Ms Paton’s medication and reportedly recommended readmission to hospital against a backdrop of suicidal ideation.
On 17 November 2022 Dr Yacoub referred Ms Paton to Gordon Private Hospital, with Ms Paton coming under the psychiatric care of Dr Sazhin. Dr Sazhin reported Ms Paton came under his care consequent on her admission to the hospital in November 2022 and also consequent on her re-admission in February 2024. While I accept the hospital’s clinical records detail Ms Paton’s extensive history of familial stressors and make no mention of complaint by Ms Paton of the behaviours she was subjected to while working at RPA, it must be borne in mind Ms Paton had previously been advised by Northern Beaches Hospital “we do not do workers compensation” and I have no reason to believe Gordon Private Hospital was any different in its approach to workers compensation matters.
Dr Berry psychiatrically assessed Ms Paton in his capacity as independent medical examiner on 14 July 2023 and provided a number of reports. Dr Berry had the benefit of extensive medical information relevant to both Ms Paton’s pre-existing psychological injury and her current psychological injury. Following his assessment of Ms Paton, Dr Berry accepted Ms Paton’s employment with RPA “was a contributing factor to the worsening of her symptoms”. However, with Dr Berry mindful of the fact that immediately prior to Ms Paton commencing her employment with RPA, Ms Paton was under general and specialist care for her pre-existing psychological injury, Dr Berry felt that while Ms Paton’s employment with RPA was a significant factor to the aggravation of her symptoms, the main contributing factor was the familial stressors, which he identified as previous sexual trauma in childhood, a previous lengthy abusive relationship, the unexpected death of her brother, her daughter’s assault and difficult recovery, and her son’s illness that resulted in intensive care unit admission.
Dr Khan psychiatrically assessed Ms Paton in his capacity as independent medical examiner on 7 March 2024 and like Dr Berry, Dr Khan provided a number of reports and had the benefit of extensive medical information relevant to both Ms Paton’s pre-existing psychological injury and her current psychological injury. Following his assessment of Ms Paton, Dr Kahn accepted Ms Paton’s employment with RPA was the main contributing factor to the aggravation of her pre-existing psychological injury, with reasoning that leading up to a significant deterioration in Ms Paton’s mental health due to the behaviours to which she was subjected while working with RPA, Ms Paton had sought no medical assistance for her mental health between 21 October 2021 when she presented to Dr Yacoub as “much better now” (which is consistent with Dr Manambrakkat noting three days earlier “feels she has turned a corner” and Ms Paton cancelling her scheduled consultation with Dr Manambrakkat on 15 November 2021) and 9 February 2022 when Ms Paton presented to Dr Yacoub on 9 February 2022 with complaint of stress associated with the behaviours to which she was subjected while working at RPA.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Ms Paton as a credible witness and I accept Ms Paton sustained psychological injury, in the nature of an aggravation of her pre-existing psychological injury, with her employment being the main contributing factor to injury.
I accept Ms Paton’s pre-existing psychological injury was aggravated in the course of her employment with RPA in that her symptoms “intensified”, “increased” or became “more serious” due to the behaviours she was subjected to while working with RPA, and I am of the view that when considering the competing causal factors (both work related and non-work related) of the aggravation Ms Paton suffered, it was the behaviours to which Ms Paton was subjected while working with RPA that represent the main contributing factor to the aggravation of her pre-existing psychological injury. While there is no doubt there are a number of non-work factors that have impacted Ms Paton’s mental health over time, which are neatly identified by Dr Berry, these non-work factors are stressors that are longstanding and are stressors for which Ms Paton was treated before she commenced her employment with RPA in October 2021 and for which she was not treated again until after a reported deterioration in her mental health with complaint of being subjected to concerning behaviours by Ms Mishra and her work colleagues in February 2022.
In circumstances where there is no new non-work factor identified which is a competing causal factor of Ms Paton’s injury in the nature of an aggravation of her pre-existing psychological injury, for the reasons outlined I am satisfied on the balance of probabilities that Ms Paton sustained injury in the nature of an aggravation of her pre-existing psychological injury, with her employment being the main contributing factor to injury. As required by Nguyen, I feel an actual persuasion of the existence of that fact.

Did Ms Paton suffer and does Ms Paton continue to suffer an incapacity for work resulting from the injury from 4 December 2023 and have entitlement to weekly compensation payable under s 37 of the 1987 Act?

As I have determined Ms Paton sustained injury in the nature of an aggravation of her pre-existing psychological injury in the course of her employment with RPA, with her employment being the main contributing factor to injury, Ms Paton may have entitlement to weekly compensation payable under the 1987 Act.
While RPA does not dispute Ms Paton has no current work capacity from 4 December 2023, RPA disputes Ms Paton’s incapacity for work results from the injury.
In submission RPA has drawn my attention to the three categories outlined in State Government Insurance Commission v Oakley[12] and subsequently applied in Secretary, New South Wales Department of Education v Johnson[13], being a matter where an injured worker sustained psychological injury in the course of her employment with one employer and subsequently sustained a second psychological injury in the course of her employment with another employer. Following careful review of the three categories in Oakley, which were applied in Johnson, I do not accept the principles in Oakley have application to Ms Paton’s claim. The three categories in Oakley apply in circumstances where a work injury involves a subsequent injury, which is clearly not the circumstances of Ms Paton’s injury in the nature of an aggravation of her pre-existing psychological injury.
[12] (1990) 10 MVR 570 (Oakley).
[13] [2019] NSWCA 321 (Johnson).
Ms Paton confirmed that she commenced employment with RPA in or around 25 October 2021 and worked on a full time basis until she left work in on 25 July 2022 after disclosing suicidal ideation to Dr Yacoub, who had advised her to attend her closest Accident and Emergency Department. With explanation she has no current work capacity, Ms Paton said she had not returned to work since 25 July 2022. Ms Cotton confirmed she was aware of Ms Paton’s pre-existing psychological injury and was adamant her mother “has never been impacted to this extent after suffering from her work injury at Royal Prince Alfred Hospital”. Di Paton likewise confirmed she was aware of Ms Paton’s pre-existing psychological injury but said she had never seen Ms Paton “in such a fragile state … it is clear to me that the injury she sustained whilst working at Royal Prince Alfred Hospital has affected her more than anything she has experienced in the past.”
Dr Yacoub canvassed Ms Paton’s admission to Hornsby Hospital and Northern Beaches Hospital following “depression aggravated by stress at work and ongoing bullying” and reported little improvement in her symptoms save for a brief period when she stayed with her sister in Queensland towards the end of 2023. In early 2024 Dr Yacoub noted Ms Paton suffered suicidal ideation and noted “will consider admission to hospital”.
Ms Paton was re-admitted to Gordon Private Hospital in February 2024, and Dr Sazhin reported Ms Paton had presented on this occasion with psychotic illness which is treatment resistant. Dr Sazhin provided diagnosis of schizoaffective disorder in addition to complex post-traumatic stress disorder, recurrent depression and anxiety disorder. Dr Sazhin strongly recommended Ms Paton make application for a disability support pension.
Dr Bhat certified Ms Paton as totally incapacitated for work resulting from psychological injury, with diagnosis which included schizoaffective disorder and post-traumatic stress disorder, with the onset of schizoaffective disorder noted as “Feb 2024” (which is consistent with Dr Sazhin’s reporting) between 13 June 2024 and 13 September 2024.
In her report dated 2 August 2024 following her interview with Ms Paton on 6 June 2024, Ms Lander provided opinion Ms Paton had no current work capacity and had not been fit to engage in job seeking. Ms Lader provided opinion Ms Paton’s incapacity for work “was a result of her employment with RPA”:
“The reasoning for this response is that despite any previous trauma, she maintained a stable work history, even when she had two young children, was studying at university and living in a less than perfect marriage. She instigated and dealt with ending her abuse relationship and remained at work. She coped with the assault of her daughter in a carpark and the severe illness of her son. She ceased employment for six months to care for her daughter, but as soon as her daughter had sufficiently recovered, she sought and gained employment.”
Dr Berry provided opinion following his psychiatric assessment of Ms Paton on 14 July 2023. Dr Berry provided opinion Ms Paton had no current work capacity. Dr Berry considered prognosis as poor and said, “I suspect that any improvement in her functioning will be very slow, and I do not envisage her returning to the workforce in the next year.” As noted however, while Dr Berry also said of Ms Paton “her history of exposure to trauma over many years, particularly in childhood, is likely the key to her presentation,” I have not accepted Dr Berry’s opinion as to the cause of Ms Paton’s injury.
Dr Khan provided opinion following his assessment of Ms Paton on 7 March 2024. Dr Khan noted Ms Paton had not returned to work since she ceased working on 25 July 2022 and relevantly said:
“At the time of commencing her employment with RPA, she had dealt with a number of personal stressors through comprehensive mental health treatment and her resilience was evidenced by her desire to return to work. Only when she was subjected to maltreatment in her employment with RPA did her pre-existing conditions become aggravated and lead her to become totally incapacitated for work.”
There is clearly no intervening act in the circumstances of Ms Paton’s matter that cuts the “common sense” causal chain of the injury I have determined she sustained in the course of her employment with RPA as expounded in Kooragang. While it is evident Ms Paton suffered pre-existing psychological injury for which she was receiving treatment shortly before she commenced employment with RPA, it is evident the injury I have determined Ms Paton sustained in the course of her employment with RPA “caused or made a material contribution” to her incapacity for work as explained in Murphy v Allity Management Services Pty Ltd.[14]
[14] [2015] NSWWCCPD.
Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Ms Paton has had no current work capacity from 4 December 2023 and has entitlement to weekly compensation payable under the 1987 Act for the injury I have determined she sustained in the course of her employment with RPA.

Quantification of entitlement to weekly benefits

RPA accepts Ms Paton’s PIAWE as at 4 December 2023 is $1,170 (subject to indexation) and Ms Paton has an entitlement to weekly compensation payable under s 37 of the 1987 Act from 4 December 2023 ongoing in accordance with the 1987 Act at the rate of $936 (subject to indexation).

SUMMARY

Ms Paton sustained primary psychological injury in the nature of an aggravation of a pre-existing injury in the course of her employment with RPA, with her employment being the main contributing factor to injury, with deemed date of injury of 26 July 2022.

Ms Paton has had no current work capacity resulting from the injury from 4 December 2023.
RPA accepts Ms Paton’s PIAWE as at 4 December 2023 is $1,170 (subject to indexation) and Ms Paton has an entitlement to weekly compensation payable under s 37 of the 1987 Act from 4 December 2023 ongoing in accordance with the 1987 Act at the rate of $936 (subject to indexation).

[2025] NSWPIC 44

12 February 2025