Pearce v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pearce v Secretary, Department of Communities and Justice [2023] NSWPIC 4
APPLICANT:	Amanda Pearce
RESPONDENT:	Secretary, Department of Communities and Justice
Member:	Anthony Scarcella
DATE OF DECISION:	10 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; accepted primary psychological injury under section 4(a) of the Workers Compensation Act 1987 (1987 Act) as a result of an event on 23 July 2020; disputed further psychological injury under section 4(b)(ii) of the 1987 Act arising out of or in the course of employment in the period following 23 July 2020; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Federal Broom Co Pty Ltd v Semlitch, State Transit Authority v El-Achi, AB v AW and Jones v Dunkel considered and applied; Held – the applicant suffered a primary psychological injury arising out of or in the course of her employment with the respondent on 23 July 2020 within the meaning of sections 4(a) and 9A of the 1987 Act; the applicant did not suffer an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition within the meaning of section 4(b)(ii) of the 1987 Act arising out of or in the course of her employment with the respondent in the period following 23 July 2020; the medical assessment arranged by the Personal Injury Commission with a Medical Assessor is confirmed for the assessment of whole person impairment with a date of injury of 23 July 2020.
determinations made:	1. The applicant suffered a primary psychological injury arising out of or in the course of her employment with the respondent on 23 July 2020 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant did not suffer an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 arising out of or in the course of her employment with the respondent in the period following 23 July 2020.
ORDERS made:	3. The medical assessment arranged by the Commission with Medical Assessor Gerald Chew on 9 February 2023 at 2.00pm is confirmed. 4. The referral for assessment of permanent impairment to Medical Assessor Chew dated 10 October 2022 under the Workplace Injury Management and Workers Compensation Act 1998 is to be amended and re-issued as follows: Date of injury: 23 July 2020. Body system: psychiatric/psychological disorder. Method of assessment: whole person impairment. 5. The following documents are to be provided to Medical Assessor Chew: (a) Application to Resolve a Dispute dated 15 September 2022 and attached documents; (b) Reply to Application to Resolve a Dispute dated 7 October 2022 and attached documents, and (c) this Certificate of Determination and Statement of Reasons. 6. The Commission is to reconfirm the medical assessment details with the parties as soon as practically possible.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Amanda Pearce, is a 53-year-old woman who was employed by the respondent, Secretary, Department of Communities and Justice (DCJ), as a full-time case manager.
Ms Pearce alleges that she suffered a primary psychological injury during the course of her employment following a disclosure made to her by a client on 23 July 2020 and events that transpired thereafter, including the lack of support and the termination of her employment on 4 September 2020.
On 25 November 2020, Ms Pearce lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Application to Resolve a Dispute at pages 1-7.
On 13 December 2021, Ms Pearce, through her lawyers, claimed permanent impairment compensation under s 66 of the 1987 Act in respect of a psychiatric/psychological disorder relying on a report by Dr Blagoje Kuljic, consultant psychiatrist, dated 22 October 2021.[2]
[2] Application to Resolve a Dispute at page 62.
On 4 May 2022, QBE Workers Compensation (NSW) Limited (QBE), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying an entitlement to lump sum compensation under s 66 of the 1987 Act in respect of an injury on 23 July 2020.[3]
[3] Application to Resolve a Dispute at pages 63-66.
Ms Pearce, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 15 September 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming lump sum compensation under s 66 of the 1987 Act as a result of a personal injury sustained on 23 July 2020 and a disease process with a deemed date of injury on 13 December 2021 in the course of her employment with DCJ.

ISSUES FOR DETERMINATION

The parties agreed that the issue that remained in dispute was whether Ms Pearce sustained a further primary psychological injury under s 4(b) of the 1987 Act in the course of her employment with DCJ after the accepted primary psychological injury on 23 July 2020.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notice referred to above and at the Commission’s preliminary conference on 23 November 2022.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing via MS Teams on 9 December 2022. Mr Ryan Brown of counsel appeared for Ms Pearce, instructed by Ms Samantha De Freitas, solicitor and Mr Tim Ainsworth, solicitor appeared for DCJ.
During the conciliation phase the parties agreed as follows:
(a) if there is a finding that Ms Pearce sustained an injury under s 4(b) of the 1987 Act, then the deemed date of injury is the date the claim for permanent impairment compensation under s 66 of the 1987 Act was made, namely, 13 December 2021, and
(b) following the determination of the issue in dispute, the medical assessment arranged by the Commission with Medical Assessor Gerald Chew on 9 February 2023 at 2.00pm be confirmed together with appropriate orders in respect of the referral.
During the conciliation phase an interlocutory dispute arose, was discussed and could not be resolved. The dispute was identified as being whether, under s 289A of the 1998 Act, the Commission had the jurisdiction to determine an unnotified dispute, namely, a further primary psychological injury in the nature of a disease under the disease provisions, on the basis that a claim for such an injury had not been duly made.
The interlocutory issue was determined by me during the arbitration phase after hearing the oral submissions of the parties. I determined that the Commission had the jurisdiction to determine the dispute as pleaded in the ARD and dismissed DCJ’s application.
The oral submissions and my reasons for the determination in relation to the interlocutory issue were sound recorded and the sound recording is available to the parties.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 15 September 2022 and attached documents, and
(b) Reply to ARD (Reply) dated 7 October 2022 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Amanda Pearce’s evidence

In evidence there is a statement by Ms Pearce dated 1 September 2022 and its annexures. I will now refer to the relevant parts of that statement and its annexures.
Ms Pearce stated that, at the age of 19, she was abducted outside Newcastle railway station by males who detained her against her will for two days. Over the two days, she was abused and sexually assaulted and then left in a stormwater drain in a nearby suburb. As a result, she was diagnosed with post-traumatic stress disorder and received treatment from Dr Larry Brash, psychiatrist, over a period of about three months. She was not prescribed any medication.
Ms Pearce stated that, following the birth of her daughter in 1991, she suffered from post-natal depression and was managed by Dr Krishna Prasad, general practitioner. She was not prescribed any medication.
Ms Pearce stated that, at the age of 47, she saw one of the perpetrators involved in her abduction and sexual assault in a local shopping centre. The sighting triggered thoughts of what she had undergone in the abduction and sexual assault. She was treated by Dr Beukes, general practitioner, who prescribed her lithium and an antidepressant. She consulted Dr Russell Davies, psychiatrist, but chose to consult Dr Pek Ang in 2014. She currently consults Dr Ang.
Ms Pearce provided a detailed educational and employment history. On or about 26 May 2020, Ms Pearce confirmed her acceptance of the offer of temporary employment within the Department of Communities and Justice, Corrective Services NSW at 35 hours per week commencing 15 June 2020 and ending on 14 June 2022 as a case manager at Gosford Community Corrections.[4] Ms Pearce reported directly to Ms Glenda Milne, unit leader.
[4] ARD at page 20.
Ms Pearce stated that, on the afternoon of Thursday, 23 July 2020, she interviewed a young female offender, who was an ice addict. The offender was being processed into the Gosford Community Corrections facility. The offender was accompanied by a toddler. Whilst Ms Pearce was processing the offender, the latter informed her that her partner was her cousin and that, since the age of 11 years, she had been raped by her partner, her partner’s father, uncles and family members. The offender disclosed that she had tried to hang herself at the age of 14 but her partner found her, pulled her down and telephoned paramedics. Whilst on the telephone to paramedics and waiting for them to arrive, he started to rape her. She had begged him to kill her.
Ms Pearce stated that the disclosure made by the young female offender resonated and triggered her as she had asked her perpetrators to kill her after they had assaulted her because she did not want to deal with going back to her family pretending to live a normal life, given that her mother was very religious.
Ms Pearce stated that, when the young female offender stop talking, she was aware that she was crying because the mask she was wearing was wet. She knew that she had to get away from the offender because it was not healthy for either of them if she kept working with her.
Ms Pearce stated that she approached Ms Milne and advised her of the disclosure made by the young female offender and that she had been triggered by it. She described the interview with the offender as full-on and requested some time out. Ms Milne responded:
“Go have a cup of tea. Blow it off. Go take some time out.”[5]
[5] ARD at page 11 at [34].
Ms Pearce stated that she proceeded to the kitchen and made herself a cup of tea. Ms Milne checked-in with her in the kitchen and asked her how she was feeling. Ms Pearce responded that she was not feeling great. Ms Milne responded:
“These things happen to us. You will always have one or two. You will have this come up in your career. You need to find ways to deal with it.”[6]
[6] ARD at page 12 at [36].
Ms Pearce stated that Ms Milne did not recommend any psychological services or provide her with any recommendations as to how she could deal with such issues when they arose. Ms Pearce returned to her desk to prepare her case notes, which required her to go over the conversation she had with the offender again. She described her feelings in the following terms:
“I was living, smelling, and feeling my own past experience when I was abducted and abused.”[7]
[7] ARD at page 12 at [38].
Ms Pearce stated that she found it difficult to pay attention and function at work when she got back to her desk. She finished her shift on 23 July 2020 at about 5.00pm. On her way home, she telephoned her daughter, sobbing and crying as she described her interaction with the young female offender. That whole day was a blur for Ms Pearce.
Ms Pearce clarified that, after the benefit of reviewing her notes and calendar, she was certain that the interview with the young female offender took place on 23 July 2020 and not 22 July 2020 as she had initially advised her lawyers and Dr Kuljic.
Ms Pearce stated that, on Friday, 24 July 2020, she was working from home and struggled to concentrate on her work because she kept replaying her own abduction and assault and the interview with the young female offender.
Ms Pearce stated that, on the following weekend, she felt like a shell of a person. She felt unwell all weekend and was withdrawn. She experienced flashbacks of her abduction and assault and recalled smells and sounds related to it.
Ms Pearce stated that, on the following Monday, she went into the office and advised Ms Milne that she had experienced a really bad weekend and that she could not continue to be involved with the young female offender. She felt that they were not healthy for one another. Ms Milne appeared displeased and advised that she would need to speak with the team leader to advise him what had occurred. Following that conversation, Ms Pearce returned to her desk. Later, Ms Milne approached Ms Pearce at her desk and provided her with a card that had the details of a psychologist on it. By lunchtime on the same day, Ms Milne advised that the young female offender would be transferred to another member in the team, Belinda.
Ms Pearce stated that, on about 31 July 2020, she participated in an MS Teams meeting during which Ms Erica Mulvany, the Gosford Community corrections manager, announced that Ms Pearce’s employment contract had been extended and that she would be filling Louise’s role until 31 October 2020.
Ms Pearce stated that, on the afternoon of 7 August 2020, she was working from home when she received a telephone call from Ms Mulvany, who amongst other things, said:
“… So, do you remember how I said that your contract can be ended at any time? Well, your final days on 4 September 2020.”[8]
Ms Pearce stated that she felt lost and asked what the reason was and that Ms Mulvany responded:
“Well now that you have brought it up, Glenda mentioned you have had some complex offenders that you struggled with and based on this, I have made a decision to let you go.”[9]
[8] ARD at page 13 at [51].
[9] ARD at page 13 at [51].
Ms Pearce stated that, following her telephone conversation with Ms Mulvany on 7 August 2020, she telephoned Ms Milne, who advised that Louise was returning from leave earlier than expected and required her substantive role back. Ms Milne strongly denied that Ms Pearce’s dismissal was related to performance issues.
Ms Pearce stated that, on 10 August 2020, she completed an exit survey wherein she complained about the culture she had experienced since commencing at the facility on 15 June 2020 and about being dismissed after sustaining an injury, rather than being supported.
Ms Pearce stated that, between 11 August 2020 and 13 August 2020, there were email exchanges between herself and Mr Michael Marshall, Director Sydney South West District, Community Corrections, to arrange for her to discuss Ms Mulvany’s conduct with him.[10] The conversation took place on the afternoon of 13 August 2020. There was a lengthy conversation about her experience with Ms Mulvany. Ms Pearce disclosed to Mr Marshall that she was mentally unwell and that it was now taking a toll on her physically. She explained that her sleep was punctuated by nightmares as a result of the interview with the young female offender, who had triggered her memory. She advised Mr Marshall of her frustration and feelings of being alone and unsupported in respect of the injury and of having been dismissed unfairly.
[10] ARD at pages 29-42.
Ms Pearce stated that, on 17 August 2020, she became aware that most of her clients had been assigned to Ms Janet Moore, a receptionist, without any warning or advice. She later discovered that Ms Moore had applied for the Wyong role which Ms Pearce had been promised after her three month stint in the Gosford facility. She approached Ms Milne, who genuinely appeared to be unaware of the client reassignments. She informed Ms Milne that, despite being due to leave the office on 4 September 2020, it was a requirement that she be assigned substantive meaningful tasks to maintain mental health and self-esteem. Ms Milne advised that she would refer the complaint directly to the allocations manager and Ms Mulvany.
There were email exchanges between Ms Pearce and Mr Marshall between 17 August 2020 and 31 August 2020.[11] The email subject matter was referred to as “Gosford Office Culture” and covered the matters referred to in Ms Pearce’s statement dated 1 September 2022.
[11] ARD at pages 21-28.
Ms Pearce stated that her employment was terminated on 4 September 2020. On 11 September 2020, she was emailed a Cessation of Service Advice dated 9 September 2020 signed off by Ms Mulvany and requiring Ms Pearce’s signature.[12] The document noted that the reason for leaving the employer was that her temporary employment had been finalised. Ms Pearce’s conduct and performance was stated to be unsatisfactory as her competency and suitability for the role of case manager community corrections had not been satisfied.
[12] ARD at pages 43-46.
Ms Pearce stated that DCJ would not pay out her final pay until she signed the separation documents. She refused to sign the separation documents because the reason for termination was stated to be performance issues.
Ms Pearce stated that she lodged a claim for unfair dismissal with the Industrial Commission. The claim was settled and Ms Pearce was issued with a statement of service where the reason for her termination was stated to be the completion of a temporary contract.[13]
[13] ARD at page 60.
Ms Pearce stated that she first consulted Dr Anna Kelly, general practitioner, in respect of this claim on 10 August 2020. Dr Kelly provided her with a medical certificate to absent herself from work that day. On her next consultation with Dr Kelly, she was referred to Ms Anne Foat, psychologist. She consulted Ms Foat on a handful of occasions but did not find the sessions beneficial and was unable to develop a rapport with her. She then received a referral to Dr Ang.
Ms Pearce stated that she consults Dr Kelly fortnightly or monthly; consults Dr Ang three monthly and consults her psychologist, Mr Frank Van de Mortel weekly. She takes Topamax 250mg tablets daily.
Ms Pearce stated that she lodged a workers compensation claim. In evidence, there is a claim form dated 25 November 2020 signed by Ms Pearce[14] (the claim form). The claim form contained a description of the incident and resultant injury consistent with the evidence, except that it provided a range of approximate dates of the event being between 22 and 29 July 2020.
[14] ARD at pages 1-7.
Ms Pearce stated that following the lodgement of the claim form, her claim was accepted and she has been in receipt of weekly payments of compensation. She continues to be certified as having no capacity for work.
Ms Pearce provided an extensive list of her continuing disabilities.[15]
[15] ARD at pages 18-19 at [82].

The treating medical evidence

In Ms Pearce’s Hamilton Doctors clinical records on 10 August 2020, Dr Kelly recorded the reason for the consultation as being for counselling. Dr Kelly was provided with a history of Ms Pearce having suffered a migraine all weekend, a sensation of tingling in the hands and that the right thumb was “playing up with arthritis”.[16] Dr Kelly recorded that Ms Pearce had been performing a community corrections role for the past three months and had been triggered by an incident with a client, who had been the victim of rape and abuse and tried to commit suicide. The incident reminded Ms Pearce of when she was abducted, repeatedly raped, humiliated and then dumped in a drain when she was aged in her teens. Dr Kelly recommended management by way of supportive counselling and discussed the pros and cons of changing the direction of her work.
[16] ARD at page 174.

On 11 August 2020, Dr Kelly referred Ms Pearce to Ms Foat.[17] In a referral letter to Ms Foat, Dr Kelly recorded the presenting issue as bipolar affective disorder and the current mental health issue as post-traumatic stress disorder in respect of past trauma. Dr Kelly reported the following patient history to Ms Foat:
“Mandy has had a lot of challenges throughout her life including being abducted and sexually assaulted aged late teens and being the victim of domestic violence. A single mum with 4 adult children, she is hard-working but has some difficulties with employment in recent times.
She is currently employed in Corrections, and is required to facilitate the release of various inmates back into the community. This has been difficult as many of them are people she feels will be a risk to society esp [sic – especially] as many are perpetrators of DV [domestic violence]. Her own trauma was triggered by one person recently who had also been abused in the past and was wishing she was dead.
Mandy requested the person be moved to another worker and explained that she had been triggered. Not long after this she was given 4 weeks notice that her position will be terminated.
Mandy has also been diagnosed with Bipolar Affective Disorder (She sees Dr Pek Ang for this). She was taken to hospital against her will at one stage, and was held down by people. This was very traumatic, particularly as it triggered her memories from her assault as a teenager.
Good support from children.”[18]
[17] ARD at pages 80-84.
[18] ARD at page 83.
On 12 August 2020, Ms Pearce consulted Dr Kelly, who completed a general practitioner mental health plan.[19] Dr Kelly noted that Ms Pearce was positive about the future.
[19] ARD at page 174.
On 26 August 2020, Ms Pearce consulted Dr Kelly, who recorded the reason for the consultation as being for bipolar disorder.[20] Dr Kelly noted that Ms Pearce was not sleeping well and was feeling depressed. Dr Kelly also noted that there had been an attempted break-in at her home and an attempt to steal her four-wheel-drive. Ms Pearce’s anxiety had been “through the roof” since then. Dr Kelly also noted that Ms Pearce was due to finish work in a difficult workplace in the next two weeks. Dr Kelly provided Ms Pearce with some patient education in the form of an activity planning leaflet.
[20] ARD at page 175.
On 9 September 2020, Ms Pearce consulted Dr Kelly, who recorded the reason for the consultation as being for bipolar disorder and a breast check.[21] Dr Kelly noted that Ms Pearce was relieved to have finished her last job but that the employer was refusing to pay her the last week of pay. The latter issue was currently being dealt with.
[21] ARD at pages 175-176.
On 29 October 2020, Ms Pearce consulted Dr Kelly, who recorded the reason for the consultation as being for bipolar disorder and anxiety with panic.[22] Dr Kelly noted that Ms Pearce was struggling and experiencing problems finding work. Counselling with Ms Foat had reignited a lot of Ms Pearce’s post-traumatic disorder symptoms and she did not want to consult her further. There were demands with work-seeking and the work provider was being difficult. She was suffering from panic attacks, difficulty breathing, fleeing situations and places. Dr Kelly provided supportive counselling and taught Ms Pearce a slow breathing technique. Dr Kelly advised Ms Pearce to consider a break with an admission to a facility in Warners Bay.
[22] ARD at page 177.
On 5 November 2020, Dr Kelly referred Ms Pearce to Dr Ang.[23] Dr Kelly provided Dr Ang with a history that Ms Pearce had been struggling recently, particularly in her situation at work. She noted that Ms Pearce’s recent employment at Shortland Corrections Centre was very stressful with the onset of COVID, the unrest of prisoners, lockdowns, fires and riots related to the cessation of family visits. She was exposed to severe abuse and threats from inmates’ relatives. She left that job and took a position as a case manager for Gosford Community Corrections. The work involved a lot of contact with various offenders and assisting them in a transition from gaol back into the community. She felt a lot of pressure to release people she thought should not have been released into the community. She was also directly triggered by one offender, reminding her of her past trauma. She was poorly supported with this at work and then had her employment terminated. Dr Kelly reported that Ms Pearce was currently struggling with poor sleep, poor appetite, low mood and poor motivation. Dr Kelly also referred Ms Pearce to Mr Van de Mortel.
[23] ARD at pages 109-110.
On 6 November 2020, Dr Ang reported to Centrelink that Ms Pearce was a long-term patient of his with bipolar disorder and post-traumatic stress disorder. She was unable to work as a result of work stress and depression.[24]
[24] ARD at page 93.
On 18 November 2020, Ms Pearce consulted Dr Ben Seckhold, general practitioner of Hamilton Doctors, who recorded the reason for the consultation as being for workers compensation.[25] Dr Seckhold noted that Ms Pearce had taken her former employer to the Industrial Relations Commission. Dr Seckhold also noted that Ms Pearce requested a workers compensation certificate of capacity. Dr Seckhold issued Ms Pearce with a certificate of capacity noting that she was unable to work because an inmate had triggered her post-traumatic stress disorder.
[25] ARD at pages 178-179.
On 1 February 2021, Dr Kelly referred Ms Pearce to Dr Ang.[26] Dr Kelly provided Dr Ang with a history that Ms Pearce had recently had a very significant past traumatic event triggered by a client at work. She requested to have the client transferred to another case manager. She was poorly supported in the process and had her contract terminated. Dr Kelly reported that following the events described, all of her memories and post-traumatic stress disorder symptoms had been reignited and that she continued to struggle to get on top of her symptoms.
[26] ARD at pages 87-88.
On 2 February 2021, Mr Van de Mortel reported to Dr Kelly that he had conducted an initial assessment of Ms Pearce that day.[27] Mr Van de Mortel determined that Ms Pearce was currently experiencing mainly anxious symptoms tending towards panic like episodes. Ms Pearce reported low mood, increased frustration, social isolation, anhedonia, sleep and appetite disturbance, difficulty concentrating, increased tiredness and loss of confidence. Mr Van de Mortel opined that Ms Pearce had clinically significant post-traumatic symptoms. She reported hypervigilance, inability to trust, a sense of dread, physical and emotional numbing, intrusive thoughts and disturbing dreams that had a detrimental impact on her ability to function in daily life. Mr Van de Mortel noted that Ms Pearce had difficulties coping with a difficult caseload at work and opined that her subsequent dismissal was the main factor contributing to her current difficulty. Mr Van de Mortel opined that Ms Pearce met the criteria for an adjustment disorder. He noted that Ms Pearce reported being heavily triggered by a client at work relating to her own past trauma and that, when she sought support from her supervisors, she was retrenched from her employment. She took the matter to the Industrial Relations Court and was vindicated. He opined that Ms Pearce’s role as a case manager for the Department of Corrective Services had been a significant contributing factor to her current presentation. He recommended cognitive behaviour therapy and neuropsychotherapy.
[27] ARD at pages 119-120.
On 23 February 2021, Dr Ang reported to Dr Kelly that he had previously treated Ms Pearce for bipolar disorder and that she now presented with new symptoms.[28] Dr Ang took the following detailed history from Ms Pearce:
“Last year, Amanda was working at a Maximum-security wing of the Gaol. She coped well in spite of the challenging conditions, then took on a role as a Community Corrections Case Manager. Amanda worked at Gosford, 1-2 days in the office and the rest from home. This was problematic with little practical support, leadership, training or IT support. Amanda became aware that the workplace had an unhealthy culture with bullying. The Manager was being investigated for bullying, collusion and harassment. Amanda was assigned a client of Domestic Violence. Amanda made reports of the domestic violence to her Unit Leader, who advised Amanda that her Manager was not going to like her level of reporting. Amanda acted on her conscience and continued to include information about risk of trauma and violence.
Amanda was assigned an Indigenous client who disclosed a history of childhood Sexual abuse, Self-Harm and Rape. She uttered the words 'I begged to die' indicating how desperate she was in the midst of the assault. At that moment Amanda dissociated and became anxious. It triggered in her a memory she had not previously discussed and had supressed for a long time. Amanda had been subject to Rape and in the midst of the act had thought of wanting to die. She alerted her Unit Leader that she needed the client to be assigned to someone else. Amanda had the weekend off to compose herself. All weekend Amanda could not sleep, and on return was still highly triggered.
Amanda explained that she was subsequently Terminated. Amanda challenged this.
Since then, Amanda has experienced Nightmares of being buried to her neck or that she was nailed to a cross waiting for someone to rescue her. She has been Hyper-aroused, Hypervigilant and easily startled. She will lash out aggressively without much control. She also becomes very anxious, hyperventilates and is easily triggered.”[29]
[28] ARD at pages 95-96.
[29] ARD at page 95.
Dr Ang noted that Ms Pearce had been consulting Mr Van de Mortel and noted her current medications. He also noted her psychiatric history that included a diagnosis of bipolar disorder.
On mental state examination, Dr Ang observed that Ms Pearce was cooperative, coherent and lucid. Speech was fluent and she was articulate. However, when she discussed the traumatic events that were triggered, she became emotional, teary and choked up. Ms Pearce’s affect was appropriate but hyperaroused and her mood was anxious and, at times, angry. There were no thought disorders, delusions or ideas of harm. The content revolved around the issues at work.
Dr Ang opined that, diagnostically, Ms Pearce presented with post-traumatic stress disorder and that her bipolar disorder was in remission.
In respect of treatment, Dr Ang opined that it was clear that Ms Pearce required psychological therapy and he supported the ongoing treatment provided by Mr Van de Mortel. He noted that he would be asking QBE for approval for ongoing treatments for psychiatric care.

The forensic medical evidence

Dr Blagoje Kuljic: 22 October 2021

On 12 October 2021, Ms Pearce consulted Dr Kuljic, consultant psychiatrist, at the request of her lawyers via video link. In evidence, there is a report by Dr Kuljic dated 22 October 2021.[30] I will now refer to the relevant parts of that report.
[30] ARD at pages 67-79.
Dr Kuljic took a detailed psychosocial history from Ms Pearce that relevantly included being abducted, repeatedly raped and dumped after 24 hours at the age of 19 years. Ms Pearce denied being stressed or feeling unsafe whilst working at Shortland Corrections in Cessnock, where her duties were booking visitors and bringing them through the visiting section.
Dr Kuljic referred to the disclosure incident in Ms Pearce’s workplace on 23 July 2020 as the date of accident on 22 July 2020. Ms Pearce corrected the date of the disclosure incident as being 23 July 2020 in her evidentiary statement.
Dr Kuljic took a detailed pre-accident psychiatric history from Ms Pearce that relevantly included mental health issues in early childhood at school; attempted suicide in the bath tub after being raped at the age of 19 years; postnatal depression after giving birth to her daughter and having passive death wishes; a diagnosis of bipolar disorder and trauma after seeing somebody who triggered thoughts of the sexual assault upon her; an assessment by Dr Russell Davies, psychiatrist; consultations with Dr Ang since 2014; and care from a local mental health team for a brief period at a time of marital crisis and separation from her third husband.
Dr Kuljic reported that Ms Pearce disagreed with the diagnosis of bipolar affective disorder. In respect of her trauma, she informed him that those issues were in a box with a lid on it. However, she was still avoiding reminders of the rape, such as people and places that were a reminder or violent movies. She did not believe that the trauma impacted her life and proudly described her professional career as successful.
Ms Pearce reported to Dr Kuljic that she medicated with Topamax for her post-traumatic stress disorder and used thyroid medication.
Dr Kuljic took the following history of the disclosure incident on 23 July 2020:
“At the time of the accident, Ms Pearce had worked for correctional services for about two years. She pointed out teamwork and managerial issues she was not happy with, but she said she would still stay in that position regardless. ‘The place and people there are not kind to each other. Still, that would not affect me, and I would continue working if I did not get affected by the story.’
On the 22^nd of July 2020, she worked/interviewed ‘a troubled young aboriginal lady with addiction history. She opened up to me and told me [sic – about] being raped and bashed by her boyfriend and family. She was on ice binges with him and also forcefully injected with amphetamines. She tried to kill herself. She hung herself but was found, revived, and called an ambulance. She said she begged to let her die.’
At that point, Ms Pearce started crying and told me that story triggered memories of her rape. ‘At that moment, I was her, and I was there. I also asked my rapist to kill me, and I told them I did not want to go back home, I did not want to go back to my mother and to continue my life.’”[31]
[31] ARD at page 72.
Ms Pearce reported to Dr Kuljic that the history taking process with the client triggered an immediate relapse of her post-traumatic stress disorder symptoms.
Ms Pearce reported her current psychiatric symptoms to Dr Kuljic. Those symptoms included intrusive and upsetting memories of the interview with the client, triggering immediate olfactory flashbacks. The memories and flashbacks trigger a strong emotional reaction. She experiences nightmares of her interview with the client; nightmares of being unable to escape from a life-threatening situation, such as being in a drain with a rising water level or being buried in the ground or being pinned on a cross. She reported avoidance of trauma related stimuli, including the beach, the train station and the Newcastle area where she was raped. She reported the avoidance of watching violent movies and candles with an ocean breeze scent. Ms Pearce reported negative thoughts and feelings; increased arousal and reactivity, including irritability, aggression and insomnia. She feels unsafe and reported dissociative symptoms.
On mental state examination, Dr Kuljic observed, amongst other things, that there was no evidence of substance intoxication or withdrawal; she appeared alert and conscious; she was cooperative but experienced difficulties coping with the memories and her feelings throughout the assessment; her affect appeared dysphoric, congruent with the thought content; she did not demonstrate formal thought disorder; she did not express delusional ideas; she denied perceptual disturbances; there were no objective signs of hallucinating behaviour; she denied urges to self-harm; her attention was impaired; she appeared mind absent and distracted; her insight was partial; and there was impairment in judgment.
Dr Kuljic’s diagnosis was one of post-traumatic stress disorder and bipolar affective disorder, in remission.
Dr Kuljic opined that it appeared that Ms Pearce suffers current post-traumatic stress disorder symptoms in the context of work-related exposure to reminders of her original trauma. Dr Kuljic noted that Ms Pearce’s relapse of post-traumatic stress disorder symptoms had been present for more than a year and that she had been under psychiatric and psychological psychotherapy. In those circumstances, he considered that her condition had stabilised and that he did not expect significant improvement in respect of the symptoms or level of functional impairment using any further reasonable treatment.
Dr Kuljic opined that Ms Pearce would require ongoing treatment to prevent worsening symptoms and developing potential comorbidities. He opined that the prognosis was guarded.
Dr Kuljic assessed Ms Pearce’s whole person impairment in respect of the injury on 23 July 2020 at 19% and deducted 2% for her pre-existing psychiatric impairment, giving a final total of 17% whole person impairment in respect of the work-related primary psychological injury.

Dr Ben Teoh: 2 May 2022

On 24 March 2022, Ms Pearce consulted Dr Teoh, psychiatrist, at the request of QBE via telehealth. In evidence, there are two reports by Dr Teoh dated 2 May 2022.[32] I will now refer to the relevant parts of those reports.
[32] Reply at pages 1-8.
Dr Teoh took a history from Ms Pearce that she had worked as a case manager with Community Correctional Services. On 22 July 2020 [in fact, 23 July 2020], she had struggled to deal with a client who disclosed her distressing history. She requested someone else to manage the client. She had to work from home. She had difficulty sleeping. She believed that the client was not healthy for her and that she was not healthy for the client and wanted to move forward. She was worried about her employment. She felt uncomfortable working with clients. She tried to work remotely from home due to COVID. The manager told her to have a cup of tea and blow it off.
Ms Pearce reported to Dr Teoh that she had periods of dissociation following a history of trauma. She had been constantly told not to dissociate since she underwent a psychological trauma in her early 20s. She felt that things were unreal and she was confused and disorientated. She reported acute anxiety attacks and avoidant behaviour. She has lost interest in her usual activities and has been socially isolated.
Ms Pearce reported to Dr Teoh that she struggled with her employment and was eventually given duties where she sat at the desk not doing anything. She had difficulty trusting management. She reported that the work environment was disgraceful and that there should be an enquiry. She went to the Industrial Commission for a case of unfair dismissal.
Ms Pearce reported to Dr Teoh that she had been consulting a psychologist on a weekly basis and was getting better. She consulted a psychiatrist (Dr Ang) every three months and has been prescribed Topamax 100mg tablets twice per day.
Ms Pearce reported to Dr Teoh that she had undergone severe psychological trauma at 19 years of age when she was sexually assaulted. She has intrusive memories. There is a history of domestic violence. She has been socially isolated and avoids crowds.
On mental state examination, Dr Teoh observed that Ms Pearce was reactive during the interview; her speech was coherent; she was not thought disordered; and she was cooperative and spontaneous. Ms Pearce reported significant anxiety symptoms and avoidant behaviour. She reported being socially withdrawn and lacking in motivation. She experiences periods of dissociation. She reported poor concentration and insomnia. There was no evidence of psychotic symptoms or suicidal ideation. Cognitive functions were intact and there was no evidence of short or long-term memory impairment.
Dr Teoh opined that Ms Pearce’s presentation was consistent with a diagnosis of chronic post-traumatic stress disorder. He opined that she had suffered an aggravation to a pre-existing psychiatric illness on a background of mood disorder and post-traumatic stress disorder.

Dr Teoh opined that work had been a substantial contributing factor to the aggravation of a pre-existing psychiatric condition. She had periods of dissociation at work prior to the injury.
Dr Teoh agreed with Dr Kuljic’s diagnosis of post-traumatic stress disorder but did not think that Ms Pearce had bipolar mood disorder at the time of the consultation because it was in remission.
Dr Teoh assessed Ms Pearce’s whole person impairment at 15% in respect of an injury on 23 July 2020. He then deducted 2% for the pre-existing impairment resulting in a final whole person impairment of 13%. Dr Teoh opined that Ms Pearce had attained maximum medical improvement.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

DCJ’s submissions

I will now refer to DCJ’s principal submissions.
The onus of proof in respect of the contention that there was a primary psychological injury in the nature of a disease lies with Ms Pearce.
Ms Pearce suffered a personal injury and not an injury in the nature of a disease.
Ms Pearce stated that, on 23 July 2020, she was given an account of personal events undergone by a young female offender being processed at a DCJ facility that resonated with her and had triggered her. By the time the young female had stopped talking, Ms Pearce was crying. She reported to Ms Milne that the disclosure made by the young woman had made her feel triggered and that she needed some time out. When she returned to her desk to prepare her case notes, she was living, smelling and feeling her own past experience when she was abducted and abused. The whole day had become a blur. On the following weekend, she experienced flashbacks of her own incident.
On 13 August 2020, Ms Pearce reported to Mr Marshall that her sleep was punctuated by nightmares due to her meeting with the young woman who had triggered her memory of her own experiences. She also advised Mr Marshall that she felt unsupported by DCJ.
Ms Pearce was referred to Dr Kuljic on the basis of a date of accident on 22 July 2020 (later corrected by Ms Pearce to 23 July 2020). When Ms Pearce provided Dr Kuljic with the details of her interview with the young offender, she began to cry and reported that the story triggered memories of her rape and triggered an immediate relapse of her post-traumatic stress disorder symptoms. Dr Kuljic opined that Ms Pearce suffered recurrent post-traumatic stress disorder symptoms in the context of work-related exposure to reminders of her original trauma.
On 11 August 2020, Dr Kelly noted that Ms Pearce’s own trauma had been recently triggered by one person who had been abused in the past and had wished that she was dead.
In the claim form dated 25 November 2020, Ms Pearce referred to a specific triggering event, namely, after a young woman disclosed an extremely traumatic event in her life, she dissociated and the disclosure triggered an incident Ms Pearce was involved in at the age of 19 years.
On 1 February 2021, Dr Kelly reported to Dr Ang that, at work, Ms Pearce had recently had a very significant past traumatic event triggered by a client.
On 2 February 2021, Mr Van de Mortel reported to Dr Kelly that Ms Pearce reported being heavily triggered to her own past trauma by a client at work.
On 23 February 2021, Dr Ang reported to Dr Kelly that Ms Pearce’s memory of her own traumatic experience had been triggered by the interview with the young offender. Dr Ang noted that Ms Pearce had the weekend off work, could not sleep and on her return to work was still highly triggered.
In an entry in Ms Pearce’s Hamilton Doctors clinical records on 10 August 2020, Dr Kelly referred to Ms Pearce being triggered by an incident with a client who had been a victim of rape and abuse and who had tried to commit suicide. It reminded her of when she was aged in her teens, abducted, repeatedly raped, humiliated and then dumped in a drain.
If it is the case that there has been an underlying predisposition and there is a subsequent event that causes the predisposition or condition to be in some way inflamed or aggravated, the aggravation is not prevented from being categorised as a personal injury: Hoani v ChubbSecurity Australia Pty Ltd[33] (Hoani). An injury that results in the aggravation of a disease can also be considered a personal injury: Gibson v The Royal Lifesaving Society of Australia[34] (Gibson).
[33] Hoani v ChubbSecurity Australia Pty Ltd [2001] NSWCCR 242.
[34] Gibson v The Royal Lifesaving Society of Australia [2009] NSWWCCPD 13.
Lyons v Master Builders Association of NSW Pty Ltd[35] (Lyons) is authority for the proposition that one can have a frank injury that can set in train a progressive degenerative disease. That is not the case here because anything that was complained of by Ms Pearce after the 23 July 2020 was associated with symptoms that were clearly an already existing personal injury.
[35] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496.
In Zickar v MGH Plastic Industries Pty Ltd[36] (Zickar) it was held that the rupture of an aneurysm, that had developed as a result of a long degenerative process, was itself a personal injury due to the immediacy of the effect of that condition.
[36] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
In this case there is a personal injury because what occurred did not occur over time, but rather something that was immediate. The word that was referred to throughout the evidence was, “triggered”. The word is understood in the context of pulling a trigger; that is, something that is immediate and has an immediate effect.
NSW Police Force v Gurnhill[37] (Gurnhill) and Inman v NSW Police Force[38] (Inman) are authority for the proposition that a psychological injury can be a personal injury, particularly when one is looking at a diagnosis of a re-triggering of a post-traumatic stress disorder, as in Ms Pearce’s case. Whether there were symptoms thereafter in the context of her short further period of employment is irrelevant. The further symptoms are not an indication that there is a disease process underway. Gurnhill and Inman indicated that, if the evidence was that there was a specific trauma and symptoms developed gradually over time, it can be considered a disease. However, that was not the case in Ms Pearce’s circumstances. Hers was not a case of the gradual development of symptoms. There was a triggering that had an immediate effect.
[37] NSW Police Force v Gurnhill [2014] NSWCCPD 12.
[38] Inman v NSW Police Force [2013] NSWWCCPD 11.
Dr Teoh’s reports were very brief and clearly focussed on the issue of dealing with the assessment of whole person impairment with a date of injury on 22 July 2020 (since corrected to 23 July 2020). Dr Teoh had no reason to look at the question of injury and disease and did not do so. Dr Teoh referred to work having been a substantial contributing factor, being the test for a personal injury and its relationship to employment. Dr Teoh agreed with Dr Kuljic’s diagnosis of post-traumatic stress disorder but did not believe that Ms Pearce suffered from bipolar mood disorder.

Ms Pearce’s submissions

I will now refer to Ms Pearce’s principal submissions.
There was an injury simpliciter on 23 July 2020 and subsequently, a disease process that was set in train, which is compensable because of the way Ms Pearce was treated at work.
Ms Pearce commenced her employment with DCJ on 22 October 2019 at Cessnock as an administrative assistant support. On 15 June 2020, she transferred to Gosford Community Corrections as a full-time case manager.
Prior to Ms Pearce’s transfer to Gosford Community Corrections, the entry dated 25 March 2020 in Ms Pearce’s Hamilton Doctor clinical records referred to her as mentally doing well.
The entry dated 24 April 2020 in Ms Pearce’s Hamilton Doctor clinical records recorded that work was hectic; she had a couple of seven day straight shifts at work; she was working lots of unpaid overtime; she was not sleeping as well; she was very stressed; gaol was difficult due to shut-ins, fires and very difficult telephone calls; they were trying to employ more people; and as a contractor, she had no sick leave.
The above two entries in the Hamilton Doctor clinical records demonstrated a change in Ms Pearce’s mental state prior to the event on 23 July 2020.
The entry dated 10 August 2020 in Ms Pearce’s Hamilton Doctor clinical records referred to the event on 23 July 2020.
On Ms Pearce’s own account, the event on 23 July 2020 was stressful and it caused her to have an intense reaction. However, surrounding and subsequent to that event, there were a number of other things going on in her working life that caused an aggravation of her post-traumatic stress disorder. This was evident in Dr Kelly’s referral letter to Dr Ang dated 5 November 2020, which set out the totality of the factual matrix giving rise to Ms Pearce’s symptoms. There were a significant number of issues over and above the event of 23 July 2020 that weighed into the factual matrix that contributed to Ms Pearce’s symptoms.
In a report to Centrelink dated 6 November 2020, Dr Ang opined that Ms Pearce had become depressed and unable to work due to work stress. The opinion was not just a reference to the event of 23 July 2020 but was a reference to work stress causing incapacity for work, which was one of the symptoms of her injury.
There were multiple issues that occurred after the event on 23 July 2020. One of them was the manner in which Ms Pearce’s employment was terminated. Dr Ang referred to the latter issue in his report to Dr Kelly dated 23 February 2021. Dr Ang reported that, since then, Ms Pearce had experienced nightmares of being buried up to her neck or that she had been nailed to a cross waiting for someone to rescue her; had lashed out aggressively; had become very anxious; experienced bouts of hyperventilation; and was easily triggered.
On 2 February 2021, Mr Van de Mortel reported that Ms Pearce indicated that difficulties coping with difficult caseload work and her subsequent dismissal were the main factors contributing to her current difficulty.
The consensus of the three treatment providers was that the aggravation of Ms Pearce’s condition, whilst all being related to work, were multifactorial. Quite clearly, there was a frank aggravation of her condition on 23 July 2020. However, after that, there were a number of factual matters that occurred and referred to in Ms Pearce’s statement that clearly also caused an aggravation of her condition and that is why the referral to a Medical Assessor should be in reference to two dates of injury, namely, 23 July 2020 and the deemed date of the disease claim, being 13 December 2021.
On about 31 July 2020, Ms Pearce was advised by Ms Mulvany that her employment contract had been extended. On 7 August 2020, one week after Ms Pearce’s contract had been extended, she had a telephone conversation with Ms Mulvany advising that her contract had now been terminated.
On 10 August 2020, Ms Pearce made complaints about being bullied by Ms Mulvany. On 13 August 2020, Ms Pearce disclosed to her supervisor, Mr Marshall, that she was mentally unwell. On 17 August 2020, Ms Pearce became aware that clients had been transferred from her care without notice. On 4 September 2020, she was terminated from her employment. The effect of Ms Pearce’s statement dated 1 September 2022 is that all of the events referred to were aggravating her condition.
Further evidence is to be found in Ms Pearce’s email to Mr Marshall dated 28 August 2020, where she referred to becoming increasingly anxious and unwell over the last few weeks leading up to her exit interview on the following Friday. She expressed that she felt strongly regarding mental health and that Ms Mulvany must be held accountable before more Corrections’ staff, who do not speak out, are injured. Ms Pearce also recounted the lead-up to her termination and stated that Ms Mulvany needed to be accountable for the emotional distress caused by advising her that the end of her contract was due to performance issues. This was clear contemporaneous evidence that, the termination of Ms Pearce’s employment and the subsequent effects of that particular event, caused an aggravation of her condition.
Dr Kuljic’s report is of very little use to the Commission because he only took a history of the event on 23 July 2020 and was retained simply for the purpose of assessing impairment. He did not consider the effect the additional matters referred to, had on Ms Pearce. Therefore, the report is of no value to the Commission in this particular dispute. The Commission is better off relying on Ms Pearce’s evidence and that of her treatment providers.
The history in Dr Teoh’s report is equally relatively brief and the Commission is better served by the histories recounted by the treatment providers. However, Dr Teoh did refer to a lack of support from Ms Pearce’s employer following the event on 23 July 2020 and that she struggled with employment sitting at her desk and not doing anything. He noted that Ms Pearce had difficulty trusting management. That reference, albeit brief, related to the extension of Ms Pearce’s employment contract and its subsequent termination seven days later.
Dr Teoh also made reference to the unfair dismissal case brought by Ms Pearce. It is quite clear Dr Teoh had a better history in relation to the holistic set of circumstances than Dr Kuljic. The latter is relevant because Dr Teoh referred to work holistically as being a substantial contributing factor and that work had aggravated her pre-existing psychiatric condition. Dr Teoh referred to work generally and not only the event on 23 July 2020, which supported a contention that when he was formulating his opinion he had regard to the issues that flowed following 23 July 2020 arising from the extension and termination of Ms Pearce’s contract, the failure to make payments on time and the removal of clients from her care.
Whilst Dr Teoh did not use the words of the correct test, he did formulate a view that Ms Pearce’s work holistically had caused an aggravation of her condition. There were no other relevant matters which would cause the Commission concern about finding that the main contributing factor test has been made out on the disease injury claim.
The Commission should find that Ms Pearce sustained a frank injury as a result of the disclosure incident on 23 July 2020 that aggravated an otherwise asymptomatic post-traumatic stress disorder. Such injury is not in dispute. In addition, the Commission should find that, as a result of the events and interactions that occurred following the 23 July 2020 disclosure incident, Ms Pearce suffered an aggravation of a pre-existing psychological condition within the meaning of s 4(b)(ii) of the 1987 Act deemed to have occurred on 13 December 2021. On making such findings, the Commission would be satisfied that the referral to the Medical Assessor should include the two dates of injury, namely, 23 July 2020 and 13 December 2021.

DCJ’s submissions in reply

If the Commission were inclined to find in favour of Ms Pearce in respect of the disease injury claim, there would need to be a reference in the referral to the Medical Assessor to the application of s 322 of the 1998 Act, that is, apportionment between two injuries.
There is no evidence to support a new and different primary liability injury before the Commission. There is a claim for lump sum compensation and one needs to look at the nature of the claim and the evidence of the expert on whom Ms Pearce relies, Dr Kuljic. On the evidence of Dr Kuljic, the claim is solely in respect of a personal injury.
The Commission should not confuse symptoms that occurred after the accepted injury on 23 July 2020 with a separate injury that had not been previously claimed. Nightmares are a symptom of post-traumatic stress disorder, which is the claim that has been made. Ms Pearce referred to being dismissed from her employment after having sustained an injury. She knows that she had sustained the injury on 23 July 2020 and that is why there was no reference to any further changes in her symptoms in her statement.
The Commission has been taken to the material in the clinical records that reference things that occurred after the injury on 23 July 2020 and Ms Pearce’s symptoms thereafter. These were symptoms of a personal injury that had been sustained on 23 July 2020.
Ms Pearce bears the onus of proof in this case. There is no independent expert evidence that there has been a contraction of a disease or aggravation of a disease or that any impairment for which Ms Pearce suffers is as a result of any such disease condition.
Ms Pearce did not take the Commission to the evidence of Dr Kuljic. A Jones v Dunkel[39] point arises in that regard. It is for Ms Pearce to prove that there is a disease injury by saying that things happened after an injury which had been conceded is not pertinent unless there is expert evidence in relation to this claim for permanent impairment. She has failed to discharge her evidentiary onus in this regard.
[39] Jones v Dunkel (1959) 101 CLR 298.
If the Commission finds that there was no disease injury within the meaning of s 4(b) of the 1987 Act, then the referral for assessment of permanent impairment to Medical Assessor Chew will require amendment by deleting the date of injury therein (13 December 2021) and substituting 23 July 2020 as the date of injury.

Ms Pearce’s further submissions

Ms Pearce’s position is that there have been two causes of the aggravation of her post-traumatic stress disorder and it is the fact that there is one pathology that has been aggravated by two different causes. In those circumstances, the impairments can be aggregated and there should be no reference to s 322 of the 1998 Act in the referral to the Medical Assessor.

FINDINGS AND REASONS

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines injury as a personal injury arising out of or in the course of employment.
Zickar highlighted that a worker can rely on injury simpliciter despite the existence of a disease. In Zickar, the injured worker suffered brain damage due to the rupture of a congenital aneurysm whilst at work. The congenital condition could be characterised as a disease, however, that would not have satisfied the requirements of cl (b) of the definition in s 4 of the 1987 Act. The worker succeeded in the High Court of Australia on the basis that the rupture itself could be described as an injury simpliciter. The High Court held that the presence of a disease did not preclude reliance upon that event as a personal injury. The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or an external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury: North Coast Area Health Service v Felstead.[40]
[40] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77].
A distinction can be drawn between a frank incident that acts as an aggravation of a disease process (for example, a specific incident that aggravates a degenerative spinal condition) and “the insidious effects of a general environment, without particular identifiable incident, which produces the incapacity by way of cause or aggravation of a disease”. The former can properly be regarded as injury simpliciter, that is, a s 4(a) personal injury, without “resort to the ‘disease’ provisions”: Di Giovanni v Smorgon ARC Pty Ltd[41], (Di Giovanni) and the cases cited therein at 590 and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor[42] (Mecha).
[41] Di Giovanni v Smorgon ARC Pty Ltd [1992] NSWCC 26; (1992) 8 NSWCCR 582.
[42] Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor (1998) 45 NSWLR 606.

Section 4(b)(i) of the 1987 Act states that injury includes a disease injury, which means a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease.
Section 4(b)(ii) of the 1987 Act states that injury includes a disease injury, which means the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
The onus of establishing injury falls on Ms Pearce and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[43] (Ireland) and Nguyen v Cosmopolitan Homes[44] (Nguyen).
[43] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[44] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[45] (Kooragang). As I understand it, when referring to applying “common sense”,
[45] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[46] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
Kirby P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[46] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
As to the meaning of disease, in Federal Broom Co Pty Ltd v Semlitch[47] (Semlitch), Kitto J said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason I can see for reading it in the present context as not extending to mental illness.”[48]
This decision was applied by the Court of Appeal in Cook v Midpart Pty Ltd t/as McDonalds Foster.[49]
[47] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
[48] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [632].
[49] Cook v Midpart Pty Ltd t/as McDonalds Foster [2008] NSWCA 151.
In Commissioner for Railways v Bain,[50] Windeyer J stated:
“The word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient …”[51]
[50] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246.
[51] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246 at [272].
In Semlitch, 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”.[52]
[52] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
In Semlitch, Windeyer J said:
“The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[53]
[53] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [639].
In Semlitch, Windeyer J also posed the following questions:
“Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[54]
Discussing whether there was “aggravation, acceleration, exacerbation or deterioration” Windeyer J said:
“… the answer depends upon whether for the sufferer the consequences of his affliction have become more serious”.[55]
[54] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [638].
[55] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [637].
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office[56] (Cant) said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”[57]
[56] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88.
[57] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].
The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[58] (Raymond) applying Semlitch and Cant.
[58] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79.
Roche DP in Kelly v Western Institute NSW TAFE Commission[59] (Kelly), citing Semlitch, said:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms.”[60]
[59] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.
[60] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66].
Section 4(b) of the 1987 Act requires that the employment must be the main contributing factor to the injury, that is, the disease condition under s 4(b)(i) and the aggravation, acceleration, exacerbation or deterioration of the disease condition under s 4(b)(ii). The word “main” in the phrase “main contributing factor” means “chief” or “principal”.[61]
[61] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].
Roche DP in State Transit Authority v El-Achi[62] (El-Achi) said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[63]
[62] State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi).
[63] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].
In AB v AW[64], a case involving s 4(b)(ii) of the 1987 Act, Snell DP agreed with the above quoted passage in El-Achi and observed that the following could be taken from the relevant cases:
“(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[65]
[64] AB v AW [2020] NSWWCCPD 9.
[65] AB v AW [2020] NSWWCCPD 9 at [78].
Whether the employment was capable of causing injury is not to the point. The worker carries the onus of establishing that the employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration: Mannie v Bauer Media Pty Ltd[66] (Mannie). Each case must be determined on its own facts.
[66] Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47.

Consideration and findings

There is no dispute that Ms Pearce suffered a primary psychological injury arising out of or in the course of her employment with DCJ on 23 July 2020 within the meaning of s 4(a) of the 1987 Act. The disclosure incident on 23 July 2020 acted as an aggravation of a disease process, that is, Ms Pearce’s asymptomatic (in remission) post-traumatic stress disorder. In such circumstances and in accordance with the legal principles already referred to, the primary psychological injury suffered by Ms Pearce on 23 July 2020 can be properly regarded as an injury simpliciter under s 4(a) of the 1987 Act without resort to the disease provisions under s 4(b)(ii) of the 1987 Act.
Ms Pearce alleged that she suffered a further primary psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident in the form of an aggravation of a pre-existing psychological condition within the meaning of s 4(b)(ii) of the 1987 Act, deemed to have occurred on 13 December 2021.
Ms Pearce alleged that the events and interactions after 23 July 2020 included that she was poorly supported by DCJ after the disclosure incident; that she was being bullied by Ms Mulvany; the failure to make payments on time; the removal of clients from her care; the extension of Ms Pearce’s employment contract by Ms Mulvany and its subsequent termination by Ms Mulvany seven days later; and Ms Mulvany’s advice that the termination was due to performance issues.
Before a finding can be made that a worker has suffered an aggravation injury under s 4(b)(ii) of the 1987 Act, it is first necessary to establish, among other things, that he or she suffers from a disease: Semlitch.
I accept Ms Pearce as a witness of truth, who did her best to provide a history of her psychological condition, her treatment and her complaints of symptoms to her various treating doctors and the forensic medical specialists. The histories she provided of injury, treatment and complaints of symptoms were, in the main, consistent.
I now propose to deal with the alleged events and interactions after 23 July 2020.
Ms Pearce’s evidence of being bullied by Ms Mulvany lacked detail. Ms Pearce referred to her awareness of multiple complaints having been sent to DCJ’s Human Resources Department in relation to Ms Mulvany and “her apparent bullying and favouritism in the office.”[67] Ms Pearce referred to complaints regarding the manner in which Ms Mulvany discarded the policy and procedure for hiring staff which was less than ethical prior to the commencement of her employment on 15 June 2020.
[67] ARD at page 14 at [54].
Ms Pearce did not complain to Dr Kuljic of being bullied by Ms Mulvany. She did not complain to Dr Teoh of being bullied by Ms Mulvany but did report that the work environment was disgraceful and that she had brought a case for unfair dismissal in the Industrial Commission.
Ms Pearce did not complain to Dr Kelly or Mr Van de Mortel about being bullied by Ms Mulvany.
Ms Pearce informed Dr Ang that Ms Mulvany was being investigated for bullying, collusion and harassment but did not indicate to him that such bullying or harassment was directed at her.
Accordingly, I am not satisfied on the evidence before me that Ms Pearce was bullied by Ms Mulvany.
I accept that DCJ failed to make its final payment to Ms Pearce on time and that this was so because Ms Pearce refused to sign the relevant separation documents due to the disputed reason for the termination of her employment.
The unchallenged evidence is that DCJ removed clients from Ms Pearce’s care.
The unchallenged evidence is that Ms Mulvany extended Ms Pearce’s employment contract on or about 31 July 2020 and she then terminated Ms Pearce’s employment contract on 7 August 2020.
The unchallenged evidence is that Ms Mulvany informed Ms Pearce that her employment contract was terminated due to performance issues.
Ms Pearce’s lawyers engaged Dr Kuljic as her independent medical examiner and attached his report dated 22 October 2021 to the ARD in support of her claim. However, at the arbitration hearing, Ms Pearce’s counsel submitted that Dr Kuljic’s report would be of very little assistance to the Commission.
I reject DCJ’s submission that a Jones v Dunkel[68] inference ought to be drawn because Ms Pearce did not take the Commission to the evidence of Dr Kuljic.
[68] Jones v Dunkel [1959] HCA 8; 101 CLR 298.
The rule in Jones v Dunkel has a number of elements and they are:
(a)    the unexplained failure by a party to give evidence, call witnesses or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case; but the tribunal or court is not compelled to draw the inference;
(b)    the rule in Jones v Dunkel merely permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the trier of fact to more readily draw any inference available to be drawn from the other evidence;
(c)    the rule does not permit an inference that the untendered evidence would in fact have been adverse to the party not tendering it and the rule cannot be used to create new evidence;
(d)    the rule only applies where a party is required to explain or contradict something; no inference can be drawn unless evidence is given to the facts requiring an answer;
(e)    the rule does not apply where the evidence is privileged;
(f)    the rule does not operate to require a party to give merely cumulative evidence;
(g)    the rule only applies where it would be natural for one party to call a witness and that party might reasonably be expected to have called the witness and does not apply where the witness could have been called by either party, and
(h)    the inference can only be drawn when the tribunal of fact is entitled to conclude that the witness would probably have a close knowledge of the facts; but it is insufficient to conclude that the witness might have knowledge.
Dr Kuljic’s report dated 22 October 2021 was in evidence and was briefly referred to by counsel for Ms Pearce, albeit that he submitted that it would be of very little assistance to the Commission. Based on the elements of the rule in Jones v Dunkel referred to above, I find that DCJ’s submission in this regard was misconceived.
The letter of instructions from Ms Pearce’s lawyers to Dr Kuljic was not in evidence. Dr Kuljic did not engage with the issue in dispute in this matter. He had no reason to do so on the history and documentation provided to him. Dr Kuljic opined that it appeared that Ms Pearce suffers current post-traumatic stress disorder symptoms in the context of work-related exposure to reminders of her original trauma. Dr Kuljic noted that it was a relapse of post-traumatic stress disorder symptoms.
Ms Pearce pointed out to Dr Kuljic that there were teamwork and managerial issues she was not happy with but stated that she would have remained in her position regardless. She told Dr Kuljic that the place and people were not kind to each other but that did not affect her and she would have continued working had she not been affected by her client’s disclosure to her. She reported to Dr Kuljic that the history taking process with her client triggered an immediate relapse of her post-traumatic stress disorder symptoms.
Dr Kuljic’s evidence did not support Ms Pearce’s proposition that she suffered a further primary psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident in the form of an aggravation of a pre-existing psychological condition within the meaning of s 4(b)(ii) of the 1987 Act.
The letter of instructions from QBE to Dr Teoh was not in evidence. Dr Teoh’s reports dated 2 May 2022 were brief. The unchallenged evidence of Ms Pearce is that Dr Teoh was 20 minutes late for the consultation and that the consultation went for about 10 minutes. I found Dr Teoh’s presentation of Ms Pearce’s history disjointed. Dr Teoh noted that Ms Pearce struggled with her employment after the disclosure incident; she sat at her desk not doing anything; she had difficulty trusting management; and that the work environment was disgraceful.
I reject Ms Pearce’s submission that Dr Teoh’s reference to Ms Pearce having difficulty trusting management was related to the extension of her employment contract, subsequent termination seven days later and the unfair dismissal case. I am not satisfied that such an inference can be drawn from Dr Teoh’s reports when analysed in their entirety.
I also reject Ms Pearce’s submission that Dr Teoh’s reference to Ms Pearce’s struggle with her employment, sitting at her desk and not doing anything was a reference to a lack of support from her employer following the event on 23 July 2020. I am not satisfied that such an inference can be drawn from Dr Teoh’s reports when analysed in their entirety.
Dr Teoh did not engage with the issue in dispute in this matter. He had no reason to do so on the history and documentation provided to him. Dr Teoh opined that Ms Pearce’s presentation was consistent with a diagnosis of chronic post-traumatic stress disorder. He opined that she had suffered an aggravation to a pre-existing psychiatric illness on a background of mood disorder and post-traumatic stress disorder. Dr Teoh opined that work had been a substantial contributing factor to the aggravation of a pre-existing psychiatric condition on the basis of an injury on 23 July 2020.
Dr Kelly’s evidence consisted of letters of referral to Ms Foat and Dr Ang and Ms Pearce’s Hamilton Doctors clinical records. Dr Kelly made no reference to any aggravation of Ms Pearce’s psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident. Whilst Dr Kelly referred to Ms Pearce being unsupported by her employer, having had her employment contract terminated and pressured to release offenders that she felt were not good to have in the community, she did not opine that those events or interactions resulted in a further psychological injury by way of an aggravation of the accepted 23 July 2020 injury.
On 18 November 2020, Dr Seckhold issued Ms Pearce with a certificate of capacity noting that she was unable to work because an inmate had triggered her post-traumatic stress disorder. Dr Seckhold made no reference to any aggravation of Ms Pearce’s psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident.
In the claim form dated 25 November 2020, almost three months after her contract of employment was terminated by DCJ, Ms Pearce identified the cause of her psychological injury as being triggered by the disclosure incident. She made no reference to any aggravation of her psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident.
On 23 February 2021, Dr Ang opined that, diagnostically, Ms Pearce presented with post-traumatic stress disorder and that her bipolar disorder was in remission. Whilst Dr Ang referred to Ms Pearce’s complaints of having little practical support, leadership, training, IT support and becoming aware that the workplace had an unhealthy culture with bullying, including that Ms Mulvany was being investigated for bullying, collusion and harassment, such complaints appeared to pre-date 23 July 2020. Dr Ang went on to describe the disclosure incident and noted that Ms Pearce reported that, at that moment, she dissociated and became anxious. It triggered a memory she had not previously discussed and had suppressed for a long time. Dr Ang referred to the termination of Ms Pearce’s employment and that she had challenged it.

I reject Ms Pearce’s submission that Dr Ang’s recording of the nature of the nightmares, her lashing out aggressively, her extreme anxiety, her bouts of hyperventilation and being easily triggered referred to in his report dated 23 February 2021 were related to the termination of Ms Pearce’s employment. Dr Ang made no reference to any aggravation of Ms Pearce’s psychological condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident.
Dr Kelly’s referral letter to Mr Van de Mortel was not in evidence. Mr Van de Mortel opined that Ms Pearce met the criteria for an adjustment disorder. He noted that Ms Pearce reported being heavily triggered by a client at work relating to her own past trauma and that, when she sought support from her supervisors, she was retrenched from her employment. She took the matter to the Industrial Relations Court and was vindicated. He opined that Ms Pearce’s role as a case manager for the Department of Corrective Services had been a significant contributing factor to her current presentation. Mr Van de Mortel appeared to accept Ms Pearce’s own assessment that difficulties coping with a difficult work caseload and her subsequent dismissal were the main contributing factor to her present condition. I find Mr Van de Mortel’s opinion unconvincing on the available evidence. He made no reference to Ms Pearce’s diagnosis of post-traumatic stress disorder following her sexual assault many years earlier and noted that “further exploration of trauma history may be useful”.[69]
[69] ARD at page 119.
I am not satisfied that the consensus of opinion of Ms Pearce’s treatment providers was that the aggravation of her condition, whilst all being related to work, were multifactorial for the reasons already stated.
The evidence did not support that there had been an aggravation of a disease condition as a result of the events and interactions that occurred in the course of her employment following the 23 July 2020 disclosure incident.
Accordingly, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Ms Pearce suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition within the meaning of s 4(b)(ii) of the 1987 Act arising out of or in the course of her employment with the respondent in the period following 23 July 2020.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 4

10 January 2023