Prescott v State of NSW (South Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Prescott v State of NSW (South Western Sydney Local Health District) [2022] NSWPIC 359
APPLICANT:	Linda Prescott
RESPONDENT:	State of NSW (South Western Sydney Local Health District)
MEMBER:	Rachel Homan
DATE OF DECISION:	6 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation, weekly benefits and medical expenses in respect of a psychological injury due to a series of stressful and traumatic events over the course of the applicant’s employment; separate claims for compensation made for frank injuries in relation to two workplace events; non-disclosure of significant personal stressors and psychological treatment; lack of specificity as to other traumatic workplace events; contradictions in the histories provided to various medical experts; consideration of weight to be given to expert evidence; whether employment the main contributing factor to the contraction of an injury as alleged; Held – Personal Injury Commission not satisfied that a series of workplace events was the main contributing factor to the contraction of a psychological injury as alleged; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Linda Prescott (the applicant) was employed as a nurse by the State of NSW (South Western Sydney Local Health District) (the respondent). The applicant claims that as a result of a series of stressors in the workplace during the period of her employment between 1 January 1993 and 8 March 2012, she sustained a primary psychological injury.
In proceedings before the Workers Compensation Commission in 2020, the applicant sought lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychological injury resulting from a particular interaction in the workplace on 8 March 2012. On 6 August 2020, Dr Brian Parsonage issued a Medical Assessment Certificate in which he determined that the injury on 8 March 2012 had resulted in 7% whole person impairment (WPI).
A claim for lump sum compensation for permanent impairment resulting from a psychological injury due to dangerous working conditions, including an assault on 29 August 2009 was made on behalf of the applicant by her solicitors on 4 May 2021. That claim specified a date of injury of 29 August 2009.
Liability for a psychological injury arising out of or in the course of employment either on 29 August 2009 and/or due to the nature and conditions of employment, was declined in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 24 September 2021.
A letter of claim for lump sum compensation for permanent impairment resulting from a psychological injury due to a series of workplace stressors between 1 January 1993 to 8 March 2012 was made on 11 January 2022.
Liability for that injury was disputed in a notice issued pursuant to s 78 of the 1998 Act on 1 February 2022.
A further dispute notice was issued on 13 May 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 23 February 2022. The applicant sought lump sum compensation pursuant to s 66 of the 1987 Act and weekly compensation on an ongoing basis from 20 August 2018 in respect of an injury with a “deemed date” of 8 March 2012 described as:
“The Applicant was employed by the Respondent from 1 January 1993 to 8 March 2012 as a nurse. In the course of her employment the Applicant suffered injuries arising from a number of stressful and traumatic events including: 2002, 2006, 2007, and 2008. In cumulation, these events caused the Applicant to suffer a psychiatric reaction.
On 29 August 2009 the Applicant was subjected to an assault at the hands of a patient at Liverpool Hospital and further on the 8 March 2012 the Applicant was ridiculed and abused by a fellow worker, known only to the Applicant as 'Stella'. Each of these events created additional stress and exacerbated her psychiatric condition.
In accordance with the principles enunciated in NSW Police Force v Gurnhill [2014] NSWWCCPD 12 and pursuant to section 4(b)(i) of the 1987 ACT, the Applicant’s injuries constitute a disease contracted in the course of her employment with the Respondent and which has resulted in her suffering a whole person impairment.”
The ARD was amended at the initial teleconference in these proceedings to include a claim for incurred medical and related expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 16 May 2022. The applicant was represented by Mr Howard Halligan of counsel, instructed by Mr Timothy Driscoll. The respondent was represented by Mr Simon McMahon of counsel, instructed by Ms Tarana Singh. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a psychological injury as a result of a series of stressors over the course of her employment with the respondent, deemed to have occurred on 8 March 2012, as alleged, in accordance with s 4(b)(i) of the 1987 Act;
(b)    the extent and quantification of any entitlement to weekly compensation in the period 20 August 2018 to date and continuing;
(c)    the entitlement to s 60 expenses; and
(d) the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.
The parties agreed that the liability dispute as to “injury” should be determined by the Commission first. Were the applicant to be successful in discharging her onus of establishing a compensable injury, the matter would be referred to a Medical Assessor to assess the degree of permanent impairment resulting from that injury for the purposes of s 66 of the 1987 Act. The remaining disputes would be dealt with at a further teleconference.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents; and
(c)    supplementary report from Dr Antonella Ventura attached to an Application to Admit Late Documents lodged by the respondent on 10 May 2022.
As the documentary evidence before the Commission was in excess of 2,000 pages,
I informed the parties at the commencement of the arbitration hearing that I would only be relying on the documentary evidence to which I was referred in submissions in making my determination. No objection was taken to this proposed course.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 16 April 2020.
The applicant stated that she left school when she was 17 and had her first child. The applicant was a stay-at-home mum before completing a nursing degree when she was about 40 years old.
Between 1 January 1993 and 8 March 2012, the applicant was employed by Liverpool Hospital as a nurse. Prior to commencing employment with Liverpool Hospital, the applicant was mentally fine and experienced no psychological symptoms.
During the course of her employment, the applicant went through a divorce, which although stressful at times was amicable. The applicant disclosed other medical conditions including undergoing a lumpectomy and hysterectomy due to cancer.
The applicant was a clinical nurse specialist and, for a period of time, was employed as a nursing unit manager. This was a stressful managerial role, requiring the applicant to oversee all aspects of operating a unit within the hospital. The applicant’s unit was very busy and she was always under the pump. For the first 10 years, the applicant loved her job and was very good at her job.
From about mid-2002, the applicant was getting very stressed at work. The applicant was working longer hours on the ward without a break, performing nursing and nursing unit manager duties without rest. The unit was short-staffed and the applicant had to help her team to get things done.
The applicant started to get headaches and feelings of anxiety during and after her shifts. The applicant recalled that there were many particularly stressful instances.
In 2002, the applicant recalled having an altercation with a fellow co-worker. As a result, the applicant got a headache and started to shake. The headaches and exhaustion got too much.
In 2006, these altercations and stressful work conditions started to affect the applicant’s work performance. The applicant was not sleeping and this made things worse.
From about January 2006, the applicant began to feel that the stress in her workplace was becoming unbearable and she started to take significant time off work. This also placed a strain on the applicant’s family relations. The applicant consulted her general practitioner,
Dr Petros Patroulias. The applicant was prescribed various medications. Those medications included as side-effects, sleepiness, slowness of speech and drowsy eyes. The applicant felt drowsy and lacked energy and motivation to perform her duties but continued to work.
In the following 18 months, the applicant used 24 days of sick leave to assist in relieving her symptoms. The applicant’s sick leave started to dry up and before long she was back to where she was in early 2006.
The continued pressure at work caused the applicant to return her to her general practitioner who prescribed Lexapro for depression and referred her to a psychologist and psychiatrist. The applicant was put off work for a while to see if time away from the workplace would assist in her recovery.
The applicant did the best she could, but her employer approached her with concerns about how she was coping with her work. They wrote to the applicant’s general practitioner and on 19 June 2008, the applicant attended a consultation with her general practitioner to discuss her employer’s concerns. The applicant told her general practitioner and employer that she was experiencing drowsiness but did not think it was impacting upon her work. The applicant talked about stressors in the workplace.
In mid-2008, it was agreed that it would be in the applicant’s best interests to step down from her position at Liverpool Hospital as she was not coping with that role. The applicant communicated this in a letter on 3 July 2008 describing the work-related stressors the applicant was experiencing. The applicant sought a work trial as a registered nurse.
The applicant received no response to her proposal to return to work and so resigned from her position as a nursing unit manager on 9 July 2008. The applicant subsequently commenced a new role at the hospital, which, at first, the applicant found manageable.
The stress and anxiety at the workplace continued and the same interpersonal conflicts with the applicant’s co-workers started again. Over the coming years, things slowly got worse and worse.
On 29 August 2009, a patient grabbed the applicant’s wrist and snapped her arm, causing considerable pain in discomfort. The patient threatened the applicant and was restrained. The applicant said that such incidents were not uncommon, but the force of the assault was considerable. The applicant said she was still haunted by flashbacks to that event.
The applicant found her anxiety levels increasing and a short while after the assault, attended a conference with her supervisor and employment manager. The applicant had papers thrown at her and was told that she was useless and should leave work. The applicant disclosed that she was not coping mentally and needed help. The applicant was dismissed as being weak. The applicant felt useless and degraded.
Eventually the applicant was able to see the hospital psychologist and she disclosed her stress at work over the years. In 2012, the applicant’s mental condition got worse and she was admitted to a facility for three months. During this period, the applicant was having horrible thoughts and flashbacks to work incidents. The applicant’s concentration and memory went downhill and her employment was terminated due to the significant absence from the workplace.
In the years that followed. The applicant was admitted to various treatment facilities and saw various professionals. The applicant was diagnosed as having post-traumatic stress disorder (PTSD) by her general practitioner and a doctor from hospital.
The applicant’s money ran out and she was reliant on public funding. The applicant was not currently seeing any mental health expert. The applicant described her current symptoms and said she was constantly being readmitted to hospital due to her mental condition.

Treating evidence

Clinical records from Ingleburn Medical & Dental Centre commencing in January 2002 record that the applicant was regularly being prescribed Stillnox.
On 9 July 2002 the notes referred to the applicant feeling a fellow worker was insidiously trying to make her snap at him. The applicant reported feeling stressed by his antics and experiencing insomnia.
On 26 November 2002. It was recorded:
“EMOTIONAL her husband walked out on her and the 3 children last Sunday, sudden and no warning and no known problem emotional decompensation
has sister in waiting room
im diazepam 50mg”
On 25 February 2003, there was a consultation in which was noted that the applicant’s best girlfriend had passed away suddenly in the shower the previous day. The applicant was very close to this friend. The applicant was prescribed diazepam (ducene).
Throughout the clinical records from 2003 onwards, there are a large number of consultations in relation to headaches and migraines. The applicant was being prescribed panadeine forte, morphine and stemetil
In a consultation on 6 July 2004, the applicant was prescribed valium:
“Had panic attack and v irritable and low threshold for being irritated
had similar episodes previously when going thru seperation and when friend passed away”
On 6 November 2006, there was a consultation in relation to migraine in which was also noted “has new responsibilities as administerial role”.
On 2 March 2007, there was a consultation in relation to stress and migraine for three days.
On 3 April 2007, the applicant reported lots of stress and was prescribed valium.
On 25 May 2007, the applicant reported feeling fragile and needing an extra day off.
On 27 November 2007, it was noted that the applicant was doing night shifts for the next two weeks and was requesting stillnox.
On 11 December 2007, it was noted:
“are stressors +++ from her X hubbie
he managed to influence her is setting up a company and as a result she is 40 grand in debt she is v anxious and teary and almost incomprehensible as she tries to tell her story”
On 26 February 2008, it was noted that the applicant had stressors that she did not wish to discuss. The applicant had a presentation the next day at work and wanted to attend but needed a good night’s sleep.
On 29 April 2008 it was noted:
“feels like has been depresssed for a few mths at least
wakes up at night crying
withdrawing from socialising”
On 6 June 2008, there was a discussion about “stresses”.
On 17 June 2008, it was noted that the applicant had been off work for four weeks on leave because of stress with work and personal issues. The applicant stated that she misused medications to blot out the stress. The applicant was prescribed Lexapro.
A report from the applicant’s general practitioner, Dr Petros Patroulias dated 19 June 2008 records that the applicant was on a mental health care plan and had a high-pressure job in the hospital system as a health administrator:
“The stresses of her work and some personal matters have unfortunately been causing more migraines and anxiousness. Consequently, there has been an escalating use of analgesics and valium to control the undesired pain. She also became depressed but is feeling more positive again following the antidepressant Lexapro. Her job is on the line and depends on her being able to attend counselling and master dealing with stress in healthier ways. Whilst growing up there were mother /daughter problems that may also have to be addressed related to self image and her mother's acceptance of her. Her ex husband has also caused problems including financial hardship.”
On the same date, a report to the respondent was prepared by Dr Patroulias for the employer. Dr Patroulias noted that the applicant was being treated for depression with antidepressants and was seeing a psychologist and psychiatrist to help deal with the stressors in her personal and work life. An issue of over medication had been addressed and was under control.
On 23 October 2008, it was noted that the applicant had a migraine and had been stressed with “Jessica’s engagement party and contact with her own X to happen next Sat”.
On 3 July 2009, it was noted that the applicant was anxious about having her teeth removed by the dentist.
On 13 August 2009, the applicant was noted to be emotional and teary. The applicant had a migraine which seemed to have been triggered by gum pain.
On 11 September 2009, it was recorded that the Victorian police had left a card at the applicant’s home. When she called, they stated they wanted to fly her to Melbourne. The applicant thought this related to her ex-husband and was stressed.
On 6 October 2009, there was reference to stressors and a nervous related rash being worse during stressful times associated with the applicant’s daughter’s wedding preparation.
On 23 February 2010, it was noted that the applicant’s godson had passed away from an asthma attack.
On 8 March 2010, it was noted that the applicant had to appear as a witness in a court case the following Thursday.
In a referral dated 9 July 2010, Dr Patroulias noted the work injury when a patient forcibly grabbed the applicant’s hand. The injury required surgery and the recovery was slow. The applicant reported feeling depressed because of the time away from work and the long and uncertain recovery.
On 10 August 2010, it was noted that the applicant was distraught about her low finances and would need to call on her superannuation reserves.
On 24 June 2011, a clinical record was made as follows:
“requests scripts because going to Bega her Aunt in Nursing home is her last living rel and is dying of Ca
she conceded that she was admitted with o/d and states just wanted to be left alone
stressed because of her x AFP(Aust Federal Police) involved and her son was manipulated by him( his dad) unknowingly to be a mule
she states she is ashamed for ending up in case with the old and wants to live and be there for the children
currently migraine”
On 7 July 2011 there was a consultation in relation to continuing right hand pain and migraines. The record also noted “discussed her older sister with alcohol problem and dysfunctional”.
On 9 August 2011 there was a consultation in relation to stresses with a 60 year-old sister who had a stroke.
On 5 December 2011, the clinical notes recorded a long talk in relation to:
“her ex is in prison
he somehow syphoned $400 K out of her home loan
he is in prison now for other matters
discused effects on her and children”
On 8 December 2011, it was noted that the applicant was reluctant to start seeing a psychologist. The applicant said she felt she could not talk about her problems and that talk could be counter-productive. It was noted that the applicant was concerned about her daughter’s marriage and “her attraction for dad’s problem”.

On 22 January 2012, a clinical note was made recording “stresses”:
“her ex is in prison causing problems for her daughter as well”.
On 5 April 2012, there was a consultation in relation to “multiple issues family/financial, work pressures”.
Several consultations in April 2012 referred to the applicant feeling distressed due to her loss of income not coping with her injury. On 13 April 2012, it was noted that the applicant found her boss to be “passive-aggressive”.
A letter of referral from Dr Patroulias, dated 15 May 2012, described:
“Depression related to the work injury of r wrist tendonitis from an assault at work from a patient. Linda works as nurse and has had surgery twice to correct scarring with unfortunately poor improvement. Her work hours are restricted she has lost her status at work and recently there was an exacerbation of the depression when she felt devalued by her manager during a meeting who brushed off her injury. The meeting was early April 2012.”
On 28 June 2012, it was noted that the applicant had to be admitted to private hospital with depression. The applicant was anxious, teary and rocking backwards and forwards.
A referral from Dr Patroulias, dated 4 April 2014, described symptoms resulting from the injury to the applicant’s right wrist in 2009. The applicant was experiencing pain and poor wrist function and had lost her job because she was permanently unable to do all of the job duties:
“The realisation that she would lose her job and this actually eventuating recently has been the cause of her Depression. She knows her chance of finding work in her field is very poor and even finding any work because of her age and injury is also very unlikely. She has financial hardship.”
A referral for hospital admission, dated 5 May 2014, stated:
“There are multiple problems critical is a work injury in 2009 causing a wrist tendon injury requiring surgery twice by Prof Gumley and unfortunately ongoing pain and resulting in loss of her work as a nurse at Liverpool Hospital. The job loss occurred early in April 2014 and her overall physical and mental health deteriorated since then.”
A mental health discharge summary from Campbelltown Hospital, dated 1 September 2014 provided a background as follows:
“Was an After Hours Nurse Manager at a local Hospital. In 2009 she was seriously assaulted by a patient and sustained an injury to her wrist which has left her with permanent disablity. She had chronic pain and was treated with Oxycontin for many years which lead to dependency. Earlier this year she was told she could not continue to work and after this became very depressed and anxious and was admitted to PECC for treatment.”
The summary noted that the applicant had been doing well until three weeks prior to the current admission. The applicant was struggling with the loss of her employment, her lack of role, the stress associated with negotiating medical retirement, superannuation issues and WorkCover. The psychiatric diagnosis that was the focus of care was major depression. A previous long-term psychiatric diagnosis of post-traumatic stress disorder was given.

Dr Patroulias

Dr Patroulias prepared a report for the applicant’s solicitors on 15 July 2019. Dr Patroulias referred to the physical injury on 29 August 2009.
Dr Patroulias said that, for approximately one year prior to that injury, the applicant was prescribed Lexapro for depression. Dr Patroulias had no records of any psychiatric admissions for depression prior to the injury on 29 August 2009. Following the wrist injury. There were multiple admissions for depression. During one admission, the applicant was diagnosed with PTSD by hospital psychiatrist. The depression that was well-controlled prior to the injury had escalated as a result of the injury because of work restrictions, loss of function and loss of confidence. This resulted in an exacerbation of the previously controlled depression.
Dr Patroulias confirmed that the applicant met the diagnostic criteria for PTSD.

Dr Westmore

The applicant relies on historical medicolegal reports from forensic psychiatrist,
Dr Bruce Westmore, dated 27 July 2016, 10 July 2018 and 19 November 2019.
In his first report, Dr Westmore noted that the applicant was not good historian and had trouble recalling dates.
Dr Westmore asked the applicant when her workplace difficulties commenced and she described the assault in 2009.
Asked about other difficulties at work, the applicant described a meeting with her manager and injury management consultant where papers had been thrown across the table at her.
The applicant disclosed suffering cancer on two occasions.
The applicant reported having dreams of being hurt. If the applicant heard people yelling in the street, she began to physically shake and had to run away.
Based on the history and clinical presentation, Dr Westmore provisionally diagnosed chronic major depressive disorder. The applicant also described some trauma related symptoms.
Dr Westmore suggested that more information was required in relation to the applicant’s hospital admissions.
In his report of 10 July 2018, Dr Westmore gave the opinion that his diagnosis remained unaltered. Dr Westmore considered that there was a direct and positive relationship between the applicant’s previous employment and her psychiatric problems.
In his report of 19 November 2019, Dr Westmore was asked to consider reports prepared by Dr Walker for the respondent. Dr Westmore commented:
“…the psychiatrist in this report does not appear to address Ms Prescott's ongoing and chronic depressive disorder or consider whether that condition, as diagnosed by both him and myself, was contributing to her ongoing incapacity to work.
Unfortunately, cases such as this case, tend to develop a life of their own in the sense that there is often an initial injury but there are multiple subsequent events which arise from the injury and which impact on the patient's mental state. In this case, those factors relate to her reduced capacity to work and her eventual termination from her employment, her loss of previously enjoyed recreational activities, her loss of role in the workplace and issues to do with a sense of worth and probably self esteem. The medico legal process, the need to speak to lawyers and medical experts is itself a stressful experience which inevitably, in my view, impacts adversely on a person's mental state.
The opinions in my previous two reports have not altered following my review of the reports by Dr Walker. I remain of the view that Ms Prescott's psychological condition has been ''wholly or mainly caused by the nature and conditions of (her employment)."

Dr Rastogi

In these proceedings, the applicant relies on a medicolegal report prepared by consultant psychiatrist, Dr Richa Rastogi, dated 4 February 2021.
Dr Rastogi took a history of the assault by a patient on 29 August 2009 causing a right wrist injury. The applicant was off work for 12 months and had two surgeries with minimal improvement and functional impairments. The applicant reported arousal, some hypervigilance and issues of trust due to the nature of the assault. The applicant was prescribed opioids for pain management and reported overuse of opioid medications for a period of two years.
In March 2012, the applicant was called for a meeting with her manager and rehabilitation coordinator. During the meeting, the manager was very abrupt, verbally abusive and threw a binder at the applicant commenting that she was useless now.
The applicant had multiple admissions to Liverpool and Campbelltown psychiatric units and had a serious overdose with medications in 2018.
Dr Rastogi recorded that there was no previous history of any psychological conditions prior to 2012.
Dr Rastogi diagnosed PTSD; exacerbation of persistent major depressive disorder with anxiety; and opioid abuse. Dr Rastogi commented:
“Ms Prescott was receiving treatment for depression prior to her physical injury in 2009 following an assault by a patient. She had stepped down from Num position in 2008 due to multitude of stressors. The physical injury was her first work related main contributing trigger leading to exacerbation of depression associated with functional impairments and inability to do pre-injury tasks and onset of PTSD from the nature of assault itself.
She resumed work in non-clinical duties and functioned well with no performance issues or interpersonal conflict. The documents indicate she was receiving antidepressant treatment and there was opioid abuse as reflected in medication history. In 2012 her manager was very abrupt, verbally abusive, berating her and threw the binder at her. Ms Prescott felt disrespected and was emotionally distressed by the comments and the way she was treated. This was a subsequent trigger to her exacerbation of depression needing time off and during that time she needed intensive mental health services engagement.”
With regard to the causal relationship with work, Dr Rastogi gave the opinion:
“There is a direct connection between a series of work related events with work related physical injury in conjunction with alleged bullying by her manager in 2012 and termination from work in 2014 that has directly attributed to her psychological conditions deterioration and exacerbation and profound impairments.”
After making a 1/10 deduction for pre-existing conditions, Dr Rastogi assessed 21% WPI.

Dr Walker

The respondent relies on historical medicolegal reports prepared by forensic psychiatrist,
Dr Kipling Walker, dated 6 July 2016, 29 October 2016, 22 May 2019, 12 September 2019 and 4 May 2020.
In his first report, Dr Walker reviewed a range of documents including treating medical records.
The applicant complained of depression and PTSD from the right wrist injury in 2009. The applicant reported she could not be in crowds and could not tolerate being touched. The applicant dreamt of the assault.
The applicant was at that stage, being treated by a psychiatrist and psychologist fortnightly at the Campbelltown Mental Health Clinic. The applicant was seeing Dr Patroulias fortnightly. The applicant was taking antidepressant, antipsychotic and sedative medication.
Dr Walker took a history of the wrist injury in 2009:
“She was injured while in charge of a four-bed neurology/stroke unit. The patient was very large, and was elderly and restrained. She undid his restraints to clean him but he grabbed her right forearm, twisted and turned it for five to eight minutes. She says, ‘no one came to help me…’
In her dreams, ‘I can see him hurting me and I wake up crying.’ She performed modified duties from 2009 to 2014.”
The applicant also referred to being the nurse unit manager of a respiratory unit which she “hated”. Dr Walker took a history of a meeting in 2012 when the applicant’s manager threw forms at her.
Dr Walker noted that the applicant reported being admitted psychiatrically to Campbelltown Hospital 10 or 11 times for depression. The applicant had been hospitalised for up to six weeks at a time.
The applicant reported that she had tried cocaine years ago and denied any other drug use.
On mental state examination, Dr Walker noted:
“She ruminated on the ‘assault,’ having ‘PTSD’ and ‘depression.’ She ruminated on Employers Mutual having to pay for her medication, otherwise she would end up in hospital again. She ruminated on having ‘lost everything’ despite having done ‘nothing wrong.’ She repeated that she was ‘never depressed before the assault.’ She was persistently highly anxious and was easily flustered. She gave an over-detailed account of perceived slights against her by her former employer and Employers Mutual.”
Dr Walker diagnosed major depressive disorder; anxiety disorder; personality disorder; and substance use disorder. Dr Walker noted that the applicant had previously been diagnosed with PTSD.
Dr Walker noted a number of inconsistencies in the applicant’s history, and suggested he would like to see treating evidence, including Dr Patroulias’s notes prior to 29 August 2009. Dr Walker commented that it appeared the applicant had developed depression and anxiety subsequent to the right wrist injury in 2009.
Asked whether employment was a substantial contributor in factor to the applicant’s current psychological condition, Dr Walker responded:
“Accepting that employment was a substantial contributing factor to Ms Prescott's right wrist injury in 2009, I believe that employment is also a substantial contributing factor to her major depressive disorder and anxiety disorder. She said she had two operations on her right wrist in 2010, and performed modified duties at work from 2009 to 2014. I understand that her employment was terminated in April 2014. Information from the Campbelltown Hospital indicates that she has struggled emotionally with the loss of her job.
I do not believe that Ms Prescott's employment substantially contributed to her apparent personality disorder or substance use disorder. I do not know how to reliably attribute her impairment to her depression, anxiety, apparent personality disorder or substance use disorder.”
Dr Walker recorded that the applicant denied experiencing depression before the right wrist injury in 2009. The injury contributed to the applicant’s depression and anxiety through pain, physical impairment, and having to perform modified duties until the applicant’s employment was terminated in 2014.
In his supplementary report of 29 October 2016, Dr Walker noted that he had been provided with various new documents including correspondence from the applicant, dated in July 2008 in relation to the applicant’s resignation from her part-time nurse unit manager’s position.
Correspondence dated 17 December 2007 recorded:
“Ms Prescott attended a meeting on 29.11.07 ‘to discuss concerns regarding the high number of your absences from work in the past two years. There was also the concern raised about your difficulty in staying awake whilst at work as a result of your ill health.’”
On 12 May 2008. It was noted:
“She was ‘often asleep at the patient flow meeting’. Similar concerns were raised with her several months earlier when it was agreed she would work parttime and not cover patient flow. It ‘appears that Linda has not remained parttime and in fact is relieving in patient flow’. On 14 May 2008, she reportedly ‘became very angry and denied any aspect of her patient care was suboptimal’. She denied sleeping in meetings and denied problems with patient care. She was ‘very angry with her staff for discussing aspects of her practice with others’. She was advised to go home and recover from the migraine.”
In a meeting on 26 May 2008, it was noted:
“Ms Ayrey had asked the author to see Ms Prescott who was a ‘mess’ at work. Ms Prescott was ‘in a distressed state and crying’ and disclosed taking more than the prescribed doses of ‘diazepam, Panadeine Forte’ and Prozac. She obtained these by ‘lying’ to her doctors and by ‘doctor shopping’. She had taken these medications since July 2007. Her marriage had ‘broken up’. She was ‘crying so much that she is incoherent’ agitated’ and said she took medication to cope with ‘marriage difficulties’.”
A work document dated 28 May 2008 recorded:
“Staff alleged that Ms Prescott was sleeping and drowsy at work, and that there was a ‘discrepancy with the amounts of tramadol ordered and required by the ward’. Ms Prescott did not agree that she was sleeping or drowsy, but said she had a migraine the week before. She denied over-ordering tramadol for the ward and said she took vitamins, minerals and thyroxine. At work on 22.5.08 she was reportedly ‘sluggish and bewildered’.”
A file note dated 3 July 2008 recorded:
“A telephone conversation with Ms Prescott on 3 July 2008. She intended to step down from her NUM position immediately and ‘advises that she has not been happy with the role for a while’. She advised that according to her psychologist, a work trial as a registered nurse ‘will go towards her recovery process’. She attended her general practitioner and counsellor weekly.”
In light of this new information, Dr Walker commented:
“The above information suggests that Ms Prescott had a substance use disorder during 2008. If she continues to abuse prescription or other drugs, this would be the main cause of her impaired work capacity. In May 2008, she reported lying to doctors to obtain prescriptions for diazepam and Panadeine Forte. I reported on 6 July 2016 that some of what she said was inconsistent with other sources of information. Some people with a personality disorder are inherently less honest than people without a personality disorder.”
Dr Walker interviewed the applicant again on 3 April 2019. On this occasion, he diagnosed major depressive disorder, anxiety disorder and substance (benzodiazepine and opioid) use disorder. Dr Walker commented:
“Ms Prescott denied symptoms or treatment for psychological problems before the August 2009 injury. This is inconsistent with Dr Patroulias's letter from 2008. Corroborative information that I summarised on 31/03/2017 indicated that Ms Prescott was unhappy and aggrieved with her job. I understand that the wrist injury from August 2009 led to the need for modified duties, and that she last worked around 2014. She has a documented history of substance misuse.”
Dr Walker concluded that the applicant’s psychological conditions were due to personal, non-work-related factors.
In his report dated 12 September 2019, Dr Walker noted that the applicant had claimed that between 1993 and 8 March 2012 she sustained a psychological injury due to stress at work, working long hours, interpersonal conflicts of co-workers and an incident on 29 August 2009 involving assault by a patient.
Dr Walker gave the opinion that employment was not the main contributing factor to the applicant’s psychological conditions and reiterated his views that he did not believe the applicant suffered a work-related psychological injury. Asked to explain his reasoning,
Dr Walker referred to matters identified in his previous reports.
In the report dated 4 May 2020, Dr Walker was asked to comment on the opinions given by Dr Westmore and responded:
“Dr Bruce Westmore is an experienced and highly regarded forensic psychiatrist.
Dr Westmore and I agree that Ms Prescott has major depressive disorder. We differ in our opinions of the cause of Ms Prescott’s significant psychiatric problems. Psychiatrists use information from the individual and other sources to make diagnoses and attribute causation. It seems that Dr Westmore and I received different corroborative information.”
Dr Walker maintained his opinion that the applicant did not have a work-related psychological injury.

Dr Ventura

The respondent relies on medicolegal reports prepared by consultant psychiatrist,
Dr Antonella Ventura, dated 30 July 2021, 8 September 2021 and 15 March 2022.
Dr Ventura recorded that the applicant told her that she developed mental health issues in around 2012 as a result of difficulties with her manager who gave her a hard time after she injured her hand in 2009. The applicant was emphatic that she was not psychologically affected by the assault of 2009.
The applicant denied abusing recreational drugs which Dr Ventura said was inconsistent with the documentation which recorded a history of cocaine abuse. On close questioning, the applicant conceded that she had been using opiates since her marital breakdown in 2006.
On mental state examination, Dr Ventura noted:
“Her thought content revealed theme of grief over her many losses which included loss of her role as a nurse and loss of her marriage. She continued to be aggrieved towards her nursing manager at Liverpool Hospital. There was no evidence of preoccupation with the 2009 incident. She denied intrusive re-experiencing phenomena of trauma.”
Dr Ventura concluded:
“In conclusion Ms Prescott has not suffered from a psychiatric injury as a result of 2009 assault. Additionally, given the multiple contradictory information in her reported history it is not safe to make a current psychiatric diagnosis.”

Asked whether the applicant was suffering from any underlying pre-existing psychological disease, Dr Ventura responded:
“I consider that Ms Prescott suffered from an underlying opiate use disorder and more likely than not from a mood disorder.”
In her supplementary report, Dr Ventura was asked whether the applicant had sustained a psychological injury due to the nature and conditions of her employment with the respondent. Dr Ventura responded:
“In my opinion, Ms Prescott has not sustained a psychological injury due to the nature and conditions of her employment with the insured up to 2012.
…
Ms Prescott's impairment is secondary to non-work-related factors, specifically a pre-existing substance use disorder and likely personality disorder. As Ms Prescott has not sustained a psychological injury due to the nature and conditions of her employment with the insurance, an assessment of MMI and therefore whole person impairment is not indicated.”
In her report dated 15 March 2022, Dr Ventura recorded a history as provided by the applicant but noted there were multiple discrepancies compared with the documents provided in the brief.
The applicant said she was assaulted at work when patient twisted her hand in 2012. The applicant had six months off work due to her physical symptoms not because of any psychological symptoms. The applicant was somewhat fearful of returning to work but not avoidant. The applicant said her psychological injury was because of her manager’s subsequent behaviour. The applicant felt she had coped well with the assault from a psychological perspective.
The applicant reported:
“She told me that Stella had her do a lot of her own work. She reports that her manager threw papers at her and called her useless. This resulted in her developing low self-esteem and feeling depressed. Despite this, she told me that she enjoyed work and wanted to continue. Ms Prescott told me that she developed sleep disturbance in approximately 2013. She told me that this was around the time when the manager started to abuse her. She denied that she experienced sleep disturbance before 2013 or before the time that the manager started to abuse her. She told me that after the workplace bullying, her personality changed. She became withdrawn.”
The applicant denied abusing prescribed medications or ever using drugs. The applicant denied any previous psychiatric disorder.
Dr Ventura gave the opinion:
“Ms Prescott is a 66-year-old woman who presents with a history consistent with a diagnosis of Persistent Depressive Disorder (dysthymia). The brief reveals a history of mood disorder dating back from her marital breakdown when she was 33 years old. For a number of years, she self-medicated by abusing opiates and developed an Opioid Use Disorder. The brief reveals that as a result of her Opioid Use Disorder, she has had a number of difficulties in the workplace prior to the reported injury.
It is more likely than not that Ms Prescott developed an exacerbation of a pre-existing Persistent Depressive Disorder as a result of the workplace difficulties in interacting with her manager at Liverpool Hospital. In my opinion, she no longer suffers from an aggravation of her Persistent Depressive Disorder.”
Dr Ventura gave the opinion that the multiple inconsistencies in the history were explained by the applicant’s memory difficulties. It was likely that the applicant’s physical ill-health was having a negative effect on her concentration, energy and ability to enjoy life.
Asked whether the applicant sustained an injury as a result of the nature and conditions of her employment between 1 January 1993 to 8 March 2012, Dr Ventura recorded:
“Ms Prescott denied that she experienced any workplace injuries in 1993. She was insistent that the only workplace injury sustained was in 2012 when she was reportedly bullied by her manager, Stella. The alleged bullying by her Nurse Unit Manager was a substantial contributing factor to the aggravation of the pre-existing Persistent Depressive Disorder.”
Dr Ventura gave the opinion that the applicant’s employment was not the main contributing factor to the genesis of the persistent depressive disorder. The persistent depressive disorder was a pre-existing condition which fluctuated with time depending on external stressors. There was a clear documented history of psychiatric disorder, which was not work-related.

Dr Parsonage

In a Medical Assessment Certificate issued on 6 August 2020, Approved Medical Specialist, Dr Brian Parsonage was asked to assess the degree of permanent impairment resulting from an injury on 8 March 2012. Dr Parsonage noted that the injurious event had been described as interpersonal conflict with the applicant’s supervisor on that date.
Dr Parsonage indicated that the applicant initially said she had no psychological problems before being verbally harassed by her manager in 2012. The history was that she was harassed and became very anxious and depressed and found it hard to cope. The applicant reported persistent depression since that time. The applicant had multiple admissions to the Campbelltown Hospital psychiatric unit. The applicant also had outpatient treatment through her general practitioner. The applicant had been treated with multiple antidepressants and other psychotropic medications.
Despite denying any psychiatric or psychological symptoms before being harassed by her manager in 2012, Dr Parsonage noted that from her own statement, the applicant had considerable problems prior to the incident in 2012.
Dr Parsonage noted that the applicant’s statement made no reference to substance use problems as described in reports from Dr Walker. The applicant denied misusing opioid medications.
The applicant agreed that she did escalate her use of analgesics and valium in around 2008. At that time, her job was said to be on the line. The applicant was asked about the assault on 29 August 2009 and gave contradictory accounts of how she was affected by the assault. The applicant said initially that she was not affected greatly, but later said the assault affected her very severely. The applicant said that whenever she went out after the assault. She was hypervigilant and startled easily.
Dr Parsonage referred to the applicant’s other medical history and the breakdown of her marriage.
Dr Parsonage commented:
“There is clear evidence from Ms Prescott's statement, numerous reports from her longterm treating GP and reports of medico-legal psychiatrists that Ms Prescott had significant psychological problems, at least from 2007 which caused her to step down from her role as Nursing Unit Manager in 2008 and further an ongoing impairment from the assault by a patient in 2009.”
In making an assessment as to the degree of permanent impairment resulting from the injury on 8 March 2012, Dr Parsonage concluded:
“After considering all the evidence and using my clinical judgment I considered that the great majority of her impairment relates to her ongoing pre-existing conditions which were exacerbated in 2014 due to her physical disabilities and that the exacerbation of her depressive disorder in 2012 contributed ¼ of her current impairment.”

Applicant’s submissions

The applicant relied on the decision in NSW Police Force v Gurnhill[1] in submitting that she experienced a series of traumatic events in the course of her employment giving rise to a disease injury. The applicant said the Commission need not look at each individual event. Rather, what occurred was an injury sustained due to a large number of events over the course of the applicant’s career.
[1] [2014] NSWWCCPD 12.
The applicant’s submissions referred to her statement evidence. The unit in which she was working was very busy. The applicant was always under the pump and by 2002 was getting very stressed. The unit was short-staffed and the applicant became involved in altercations with other staff members. This started to affect the applicant’s work and she wasn’t sleeping.
By 2006, the applicant’s symptoms were unbearable and she saw Dr Patroulias in relation to those symptoms.
The applicant described meetings with her employer regarding her performance and drowsiness, which the applicant attributed to her medication. The applicant reduced her work hours and commenced in a new role.
In August 2009 the applicant was injured in an assault. The applicant’s injury required surgical treatment.
In 2012, the applicant attended a stressful work meeting during which a binder was thrown at her. This incident was the subject of Dr Parsonage’s MAC.
The workplace events and the applicant’s symptoms and treatment were contemporaneously documented in Dr Patroulias’ certificates and reports dating between 2008 and 2010.
The applicant’s submitted that s 65A did not apply insofar as the applicant experienced symptoms as a result of the 2009 assault. Nor was s 65A raised as a matter in dispute in the respondent’s s 78 notices.
The applicant was admitted to Campbelltown Private Hospital after the 2012 incident.
Dr Fukui on 7 July 2012 recorded that following the assault, the applicant was subjected to unpleasant and unsupportive remarks made by her supervisor at work which added to her distress. In a meeting with a WorkCover coordinator, her supervisor commented that she could not see why the applicant could not work eight hours a day just like anyone else.
The applicant submitted that there was a comity of opinion between Dr Westmore and Dr Walker with regard to work-related events and their causal relationship to the applicant’s psychological condition.
The applicant relied on Dr Rastogi’s report and submitted that there was an abundance of material in support of the applicant’s case. The evidence overwhelmingly indicated a work-related psychological condition.
The applicant noted that Dr Ventura attributed the applicant’s condition solely to events or circumstances outside the workplace. The applicant submitted that the drug regime the applicant was prescribed was a response to matters arising in the workplace.
The applicant found herself in a situation of overwork. The applicant was subjected to criticism in the workplace leading to the incident in 2012. There was the earlier episode in relation to the 2009 assault. All of these problems lead to the applicant’s hospitalisation. The applicant submitted that the Commission would comfortably find a work-related psychological injury as alleged.

Respondent’s submissions

The respondent submitted that the crux of the applicant’s case was that she was exposed to a number of events over the course of employment. The applicant’s case had been advanced in a number of ways over time, including by reference to various frank incidents. The evidence demonstrated other stressful events outside of work.
The applicant’s statement made broad-brushed allegations that her role was very stressful and she was very busy. No particulars of the relevant events or circumstances were provided. The applicant’s statement was unclear with regard to the events she relied upon.
The assault on 29 August 2009 and what happened afterwards appeared to be the applicant’s focus. The respondent submitted that it was clear that there were two frank incidents, including the event which was the subject of Dr Parsonage’s MAC.
The applicant’s statement failed to deal with her difficulties with substance abuse. This appeared to be a significant issue over many years in the applicant’s clinical history. There was a complete absence of evidence from the applicant addressing her drug use or her marriage breakdown.
As a consequence, there were at least two significant external stressors not addressed in the applicant’s statement. That omission flowed into the various expert opinions on which the applicant sought to rely.
The respondent submitted that the clinical records did not support the applicant’s account and suggested that factors external to work were significant in the onset of her condition.
The respondent submitted that the applicant was a poor historian. There were obvious and glaring omissions in the histories recorded in the medicolegal evidence. The omissions and inconsistencies were so significant that there would be concern as to the reliability of the expert opinions provided.
On any review of the clinical notes, events outside of work rather than the nature and conditions of the of work were the main cause of the applicant’s symptoms. The respondent referred to the entries in the clinical notes including the references to stress in the context of:
(a)    a close girlfriend suddenly passing away;
(b)    the applicant’s marriage breakdown;
(c)    financial hardship relating to a company the applicant’s former husband had set up;
(d)    criminal investigations involving the applicant’s former husband;
(e)    the applicant’s sister having a stroke;
(f)    being a victim of credit card fraud; and
(g)    events involving the applicant’s children.
Following the 2009 wrist injury, the clinical notes disclosed no symptoms consistent with PTSD. The applicant’s complaints in relation to that issue related to her experience of pain and inability to work due to her physical restrictions. The psychological symptoms arising from the applicant’s 2009 wrist injury were secondary and not compensable under s 66 of the 1987 Act.
The respondent submitted that the applicant had received her full entitlement to weekly compensation in respect of the right wrist injury and had no entitlement to claim lump sum compensation pursuant to s 66 of the 1987 Act in respect of the secondary psychological condition.
The respondent noted that Dr Patroulias’ report of 19 June 2008 referred to both work and personal stressors. On analysis of Dr Patroulias’ later reports, the main work-related causes of the applicant’s psychological symptoms were her pain, poor wrist function and losing her nursing job because she was permanently unable to do all of her duties due to the work injury. Dr Patroulias was describing in these reports a secondary depressive condition. This was reflected in the hospital admission notes.
Although reference was made in several documents to a PTSD diagnosis there were questions around whether the history was consistent with that diagnosis.
The respondent noted that Dr Westmore was not initially given any history of overwork or stresses at work. Dr Westmore diagnosed chronic major depressive disorder related to the right wrist injury. The respondent said Dr Westmore appeared to be diagnosing a secondary psychological condition.
Dr Walker considered that some of the applicant’s psychological complaints were secondary to the physical injury in August 2009.
Dr Fukui also considered that the applicant’s psychological state resulted from physical difficulties following the right wrist injury but was not furnished with a medical history which was accurate.
The respondent submitted the materials provided to Dr Rastogi did not include the applicant’s statement or an account of her difficulties at work. Dr Rastogi said the physical injury was the first work-related “main contributing trigger” to an “exacerbation” of depression and “onset of PTSD”. The applicant was not, however, advancing a claim by way of aggravation of a pre-existing condition. The claim advanced by the applicant was not supported by Dr Rastogi.
The respondent submitted that there were major problems with history provided to
Dr Rastogi. She was not proffered the clinical history of symptoms related, for example, to the applicant’s marital breakdown and substance abuse disorder.
The respondent said it was difficult to see how Dr Rastogi could provide an opinion which could be relied on by the applicant. The history obtained by Dr Rastogi was incomplete or inaccurate. Referring to Makita (Australia) Pty Ltd v Sprowles[2], the respondent said there was not a fair climate for the acceptance of Dr Rastogi’s opination.
[2] [2001] NSWCA 305.
Although Dr Rastogi accepted that the applicant sustained PTSD symptoms after the August 2009 event, this was not supported by the general practitioner’s clinical notes.
Dr Ventura was provided with the applicant’s statement. The applicant gave a history that the onset of her health issues was due to difficulties with her manager. The applicant was emphatic that she was not affected by 2009 event.
The respondent submitted that the applicant’s history was modified and changed over time. Dr Ventura had an account of the substance use history. Given the multiple contradictions in the reported history, Dr Ventura initially considered it was not safe to make a psychiatric diagnosis.
In her supplementary report, the applicant again confirmed that her symptoms were not due to the assault or hand injury. The applicant felt she coped well with those events. Dr Ventura found there was a pre-existing condition with an exacerbation in 2012 following a meeting with the applicant’s manager.
Dr Ventura provided a clear opinion that the applicant did not have an injury due to the nature and conditions of her employment.
Dr Ventura was furnished with a clear history regarding other difficulties. The respondent submitted that it was abundantly clear that the applicant’s claim was not supported on the clinical material or even Dr Rastogi’s reports. There should be an award for the respondent.

Applicant’s submissions in reply

The applicant submitted that the respondent relied on a laborious list of personal stressors but there was not a drop of evidence from any psychiatrist that those events had a lingering effect on the applicant’s psyche. It was not clear that those events had any relevance. The respondent was relying on minute aspects of the applicant’s past to cloud the evidence.
Dr Rastogi was provided with Dr Parsonage’s MAC which included reference to the applicant’s statement. The relevant history was documented in Dr Parsonage’s MAC.
With regard to the allegations of a substance abuse disorder, the applicant was prescribed medication to manage the symptoms arising from her wrist injury on the advice of her doctors. This was part and parcel of the applicant’s claim.
The applicant noted that there was no evidence from witnesses for the respondent to suggest that the applicant’s work conditions were other than as described by the applicant.
The applicant said aggravation was part and parcel of her case. The applicant had a fragile personality which was aggravated by the stressful and traumatic work events described including particular dates and events such as the August 2009 incident.

FINDINGS AND REASONS

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. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[3] (K) Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in 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 at [54]);
(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 (President Hall in Sheridan);
(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 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.”
[3] [2010] NSWWCCPD 76.

The applicant in these proceedings relies on a series of events over the course of her employment with the respondent from 1 January 1993 to 8 March 2012 as causative of a psychological injury. In particular the applicant relies on the authority in NSW Police Force v Gurnhill[4] (Gurnhill) to say that she sustained an injury in the nature of the contraction of a disease of gradual process pursuant to s 4(b)(i) of the 1987 Act. In Gurnhill, Roche DP found at [77]:
“Once it was accepted, as the Arbitrator did accept, that PTSD is a disease, and, more importantly, that Mr Gurnhill’s work as a police officer regularly exposed him to multiple traumatic events, and that those events had a cumulative effect on him, the conclusion that Mr Gurnhill suffered a s 4(b)(i) disease injury which he contracted in the course of his employment with the Police Force was inevitable and was correct.”
[4] [2014] NSWWCCPD 12.
It is useful to note at the outset that the applicant has previously claimed compensation for a psychological injury arising from a meeting on 8 March 2022. That claim was the subject of the Medical Assessment Certificate issued by Dr Parsonage.
It has also been accepted that the applicant sustained a work injury on 29 August 2009 when a patient grabbed and injured her right wrist. The respondent has indicated that the applicant has received her full entitlement to weekly compensation in respect of that injury. The evidence before me strongly indicates that the applicant sustained a secondary psychological condition arising from or as a consequence of that physical injury.
Section 65A(1)of the 1987 Act, provides, however,that lump sum compensation under s 66 of the 1987 Act is not payable in respect of permanent impairment that results from a secondary psychological injury. Further s 65A(2) provides:
“In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The injury on which the applicant relies in these proceedings is distinct but is said to encompass those events as part of a series of traumatic events which cumulatively gave rise to a disease injury.
The occurrence of the meeting on 8 March 2012 and the right wrist injury on 29 August 2009 are not in dispute. There is, however, a lack of clarity or specificity in the applicant’s evidence as to what the other traumatic or causative events were.
The applicant’s own evidence suggests that for the first 10 years of her employment with the respondent, she loved her job and was always very good at her job. From about mid-2002 the applicant said she was getting stressed at work. The applicant described working longer hours on the ward without a break and performing nursing unit manager duties in addition to nursing duties in a unit that was short-staffed.
The evidence before me confirms that the applicant did work for a period of time as a nursing unit manager. The applicant’s evidence that the unit she worked in was short-staffed and that she had to perform additional duties and work longer hours without a break, is not disputed by any witness evidence and is plausible.
The applicant stated that she recalled that there were many “particularly stressful instances” but did not elaborate on or give examples of any of those instances other than one altercation with a fellow co-worker. The applicant’s statement does not indicate what that altercation involved or when exactly it occurred. There is, however, reference in the clinical records on 9 July 2002 to the applicant feeling stressed and experiencing insomnia as a result of the antics of a fellow worker whom she considered was insidiously trying to make her snap at him. Despite the lack of detail and specificity in the applicant’s evidence, given the contemporaneous account in the clinical records, I accept that in mid-2002, the applicant was involved in some interpersonal conflict with a co-worker which gave rise to symptoms of stress and insomnia.
The applicant’s evidence suggests that she continued to have altercations and encounter stressful working conditions until things became unbearable in about January 2006. No detail or examples of these further altercations or stressful working conditions has been provided.
The applicant’s evidence suggests that she began to take significant time off work to deal with the stress caused by work and was prescribed various medications which caused some significant side-effects, which affected the applicant’s work. The applicant’s evidence suggested that things came to a head in mid-2008 after her employer approached her with concerns about how she was coping with work. The applicant subsequently changed roles.
A clinical record made on 17 June 2008 and a report dated 19 June 2008 by Dr Patroulias do indicate that the applicant had been experiencing stressors related to work and that these had contributed to the applicant being off work for a period of about four weeks. These records and the clinical records predating them, confirm, however, that the applicant was also experiencing stress related to some significant personal matters.
On 26 November 2002, it was recorded that the applicant’s husband had walked out on her and her three children the previous Sunday, with no warning. The clinical records described an emotional decompensation as a result. On this occasion, the applicant was prescribed diazepam for the first time.
On 25 February 2003, there was a consultation in which the applicant disclosed that a close girlfriend had suddenly passed away. The applicant was again prescribed diazepam.
In July 2004, it was noted that the applicant had experienced a panic attack and was very irritable. The applicant said she had experienced similar episodes previously when going through her separation and when her friend passed away. The applicant was prescribed valium. No indication was given in this clinical record of any work-related event or stressor.
In November 2006 and November 2007 general reference was made to work insofar as the applicant noted that she had new responsibilities and was working night shifts. The clinical records did not, however, indicate the applicant was prescribed medication on these occasions. In the intervening period, there was also reference to stress and migraines and feeling fragile, without any indication being given of the cause.
In December 2007, a detailed note was prepared describing “stressors +++” in relation to the applicant’s ex-husband. The applicant was described as very anxious and teary and almost incomprehensible as she tried to tell her story. The clinical notes suggested the applicant was $40,000 in debt. Around this time, the applicant was prescribed propranolol and valium.
In February and April 2008, the applicant reported symptoms of depression and social withdrawal. The applicant said she had stressors that she did not wish to discuss. In June 2008, there was again a discussion about “stresses” without any indication of what those stressors were.
The correspondence and employment records referred to by Dr Walker in his supplementary report of 29 October 2016 disclosed that the applicant was around this time, having a high number of absences from work. Concerns were also being raised about the applicant having difficulty staying awake at work. The contemporaneous records do not suggest, however, that the applicant’s absences or drowsiness at work were related to work stressors.
In a record of a meeting at work on 26 May 2008, it was noted that the applicant had disclosed that she was taking more than the prescribed doses of diazepam, panadeine forte and prozac which she had obtained by lying to her doctors and doctor shopping. The applicant had been taking these medications since 2007 to cope with her marriage difficulties.
The contemporaneous medical and lay evidence from this period therefore indicates that while the applicant was experiencing some stressors related to work, and in particular, had a high-pressure job as a health administrator, a large part of her difficulties at work during this period were related to “over medication” and misuse of prescription medication to deal with migraines and psychological symptoms. The pattern of prescription in the clinical records, the clinical notes and the contemporaneous documents from the employer suggest that personal issues, and in particular issues related to the applicant’s marital breakdown and her husband leaving her in financial debt, were a major cause of the applicant’s psychological symptoms and the reasons why she was being prescribed medication.
Around mid-2008, the applicant was apparently referred to a psychologist and psychiatrist to deal with her stressors. Dr Patroulias indicated that the issue of over medication was under control. Dr Patroulias’s notes did, however, indicate that personal stressors continued to affect the applicant.
In October 2008, it was noted that the applicant had been experiencing migraines and stress associated with her daughter’s engagement party and contact with her ex-husband. In mid-2009, the applicant reported anxiety and other symptoms associated with dental issues.
In the immediate aftermath of the right wrist injury in August 2009, Dr Patroulias’s notes did not suggest any psychological symptoms associated with the injurious event. Psychological symptoms associated with a criminal investigation involving the applicant’s ex-husband and her daughter’s wedding preparation were, however, noted. Personal stressors including the applicant’s godson passing away and the applicant being required to appear as a witness in a court case were noted in early 2010.
The first reference to psychological symptoms associated with the right wrist injury appeared in the clinical records in about 2010. Dr Patroulias’ notes did not, during this period, suggest an experience of trauma related symptoms arising from the injurious event itself, but rather secondary symptoms including being depressed because of time away from work, the long and uncertain recovery and the associated effect on the applicant’s finances.
In 2011, personal stressors were again reflected in the clinical records, including an aunt dying of cancer, an Australian Federal Police investigation and the applicant’s son being manipulated by his father in two unknowingly being a drug “mule”.
In mid-2011 there were consultations relating to the applicant’s sister having an alcohol problem and a stroke. In December 2011, the clinical records noted that the applicant’s husband had somehow siphoned $400,000 from her home loan and was now in prison. The effects of this on the applicant and her children was discussed. In another consultation, the applicant reported concerns about her daughter’s marriage and her ex-husband causing problems for her daughter.
The meeting on 8 March 2012, which was the subject of a previous claim for lump sum compensation and Dr Parsonage’s MAC is contemporaneously referenced in Dr Patroulias’ clinical records but described as causing an “exacerbation” of the applicant’s depression.
In the period after this meeting there appears to have been a significant deterioration in the applicant’s psychological condition, resulting in multiple hospital admissions. Both
Dr Patroulias’ clinical records and the hospital records suggest that chronic pain and disability and the loss of the applicant’s job as a nurse were significant factors in the applicant’s declining mental health.
During one of the hospital admissions, it appears the applicant was diagnosed with PTSD. This diagnosis was picked up by Dr Patroulias. There is, however, conflicting evidence as to whether the injurious event in August 2009 caused the applicant to experience trauma related symptoms.
A history of trauma related symptoms was provided to Dr Westmore and Dr Rastogi including increased arousal, hypervigilance and issues of trust due to the nature of the “assault”.
Dr Walker was also told that the applicant had difficulty tolerating crowds and being touched and dreamt of the assault.
In contrast, the applicant denied any trauma related symptoms in her examinations with
Dr Ventura. The applicant was emphatic that she was not psychologically affected by the assault in 2009 and Dr Ventura found no evidence of preoccupation with that incident or intrusive re-experiencing phenomena.
Dr Parsonage was given a contradictory history in relation to that event. The applicant initially denied experiencing any psychological symptoms prior to being harassed by her manager in 2012 and said that she was not affected greatly by the assault. Later, however, the applicant said she was affected severely by assault and was hypervigilant and startled easily.
The foregoing analysis of the medical evidence suggests a long, complex and multifactorial psychological history.
There is no doubt that issues relating to the applicant’s work have been a contributing factor to the applicant’s psychological condition over time. In order for the applicant to discharge her onus in the present proceedings, however, it is necessary for her to establish, on the balance of probabilities that employment was “the main” contributing factor to the contraction of a psychological injury.
In AV v AW[5] Snell DP at [65]-[78] discussed the authorities on the main contributing factor test and noted:
“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.”
[5] [2020] NSWWCCPD 9.
The applicant relies on the opinions of Dr Rastogi to support her case. Dr Rastogi took a history of the applicant stepping down from her nursing unit manager position in 2008 due to a “multitude” of stressors. Dr Rastogi has not, however, described what those stressors were. Dr Rastogi identified the applicant’s physical injury as the first work related “main contributing trigger” leading to an “exacerbation of depression” and “onset of PTSD” from the nature of the assault itself. Despite this, Dr Rastogi recorded that the applicant functioned well until the meeting with the applicant’s manager in early 2012 which again triggered an “exacerbation of depression” and a need for intensive mental health services.
The respondent has suggested, and I agree, that Dr Rastogi does not appear to provide an opinion that a series of stressful and traumatic workplace events including the 2009 wrist injury and 2012 meeting were cumulatively causative of the onset of a psychological injury as claimed by the applicant in these proceedings. Rather, she appears to be diagnosing separate injuries comprising:
(a)    a secondary psychological condition resulting from the physical effects of the right wrist injury on 29 August 2009;
(b)    a frank primary psychological injury due to the traumatic nature of the event on 29 August 2009; and
(c)    a primary psychological injury in the nature of an aggravation of a pre-existing psychological condition due to the meeting with the manager in 2012.
Dr Westmore took a history of the applicant’s workplace difficulties, commencing with the assault in 2009. The applicant also identified the meeting with her manager in 2012 as a significant difficulty. Based on the history provided to him and the applicant’s clinical presentation, Dr Westmore provisionally diagnosed major depressive disorder and noted some trauma related symptoms. Although Dr Westmore expressed the view that the applicant’s psychological condition was “wholly or mainly” caused by the nature and conditions of the applicant’s employment, his focus appears to have been on the impact of the physical injury on the applicant’s mental state, including her reduced capacity to work, loss of employment, loss of recreational activities and the medico legal process. In this regard, he also appears to be diagnosing a secondary psychological condition resulting from the right wrist injury on 29 August 2009, rather than the kind of injury relied on in these proceedings.
Significantly, neither Dr Westmore nor Dr Rastogi appear to have been given or at least addressed the significant history of personal stressors outlined above. The contemporaneous clinical records showed that well prior to the August 2009 event and as early as 2002, the applicant was being prescribed medication for psychological symptoms associated with stressors in her personal life. The applicant experienced difficulties with over medication in 2007 and 2008. The contemporaneous evidence from the employer records that the applicant admitted to abusing prescription medication in order to deal with her marital difficulties. The issue of over medication appears to have been a significant factor in the applicant taking time off work and ultimately stepping down from her position as a nursing unit manager. Around this time, the applicant was referred to both a psychologist and psychiatrist by Dr Patroulias. The applicant continued to report psychological symptoms in association with non-work-related stressors until shortly before the 2012 meeting with her manager. I do not accept the applicant’s submissions that these non-work-related stressors were minor or irrelevant.
The applicant has not addressed these personal stressors in her own evidence and the failure of Dr Westmore and Dr Rastogi to deal with them, seriously undermines the reliability of their opinions as to the relative contribution of the applicant’s employment to her psychological condition.
A more complete history appears to have been provided to Dr Walker and Dr Ventura. In his first report, Dr Walker was only given a history of depression and anxiety from the time of the right wrist injury in 2009 but considered the applicant had a pre-existing personality disorder or substance use disorder. By the time of his supplementary report of 29 October 2016,
Dr Walker had been provided with various new documents and correspondence which led him to the conclusion that the applicant’s substance use disorder during 2008 was the main cause of her impaired work capacity. Dr Walker concluded that employment was not the main contributing factor to the applicant’s psychological condition and expressed the view that the applicant’s psychological conditions were due to personal, non-work-related factors.
Dr Ventura was given a history by the applicant that was noted in several respects to be inconsistent or contradictory. Dr Ventura was, however, provided with a brief of evidence that led her to conclude that the applicant had not sustained a psychological injury due to the nature and conditions of her employment. Dr Ventura considered the applicant suffered from an underlying opiate use disorder and likely personality disorder.
Dr Ventura appeared to accept that it was more likely than not that the applicant developed an exacerbation of a pre-existing depressive disorder as a result of difficulties with her manager in 2012. Dr Ventura did not accept, however, that employment was the main contributing factor to the genesis of the persistent depressive disorder.

Consistently with Dr Ventura’s opinion, Dr Parsonage, recorded that the applicant had significant psychological problems at least from 2007. Dr Parsonage did not proffer an opinion as to the causative factors contributing to those psychological problems.
Dr Parsonage considered that a great majority of the applicant’s impairment related to her ongoing pre-existing conditions, although he accepted that these were exacerbated by the applicant’s physical disabilities and the meeting in 2012.
Considering the evidence as a whole, I am not satisfied that a series of stressful or traumatic events during the course of the applicant’s employment with the respondent between 1 January 1993 and 8 March 2012 was the main contributing factor to the contraction of a psychological injury.
As indicated above, it is not in dispute that the applicant sustained a primary psychological injury in the nature of an aggravation or exacerbation of a pre-existing psychological condition as a result of events in the workplace on 8 March 2012. There is also clear evidence of a deterioration in the applicant’s psychological condition secondary to her physical injury on 29 August 2009. There is some evidence of a frank psychological injury as a result of the traumatic incident on 29 August 2009.
None of those “injuries” is relied on in these proceedings.
Dr Rastogi’s evidence does not suggest that the events on 29 August 2009 and 8 March 2012 contributed cumulatively, together with other stressful and traumatic workplace events, to the contraction of a psychological injury. Rather, her evidence suggests that they exacerbated a pre-existing depressive condition or independently gave rise to the onset of a new condition of PTSD.
To the extent that it can be inferred that Dr Rastogi considered the pre-existing psychological condition to be work-related, her opinion is undermined by the failure to take into account or address the significant history of non-work-related stressors. Dr Westmore’s opinion is undermined by the same omission in his history.
Whilst I am prepared to accept that workplace stressors contributed to the applicant’s psychological condition prior to the event on 29 August 2009, I am not satisfied, considering all of the evidence as a whole, that employment was the main contributing factor to the contraction of that condition. I find support for this view in the reports of both Dr Walker and Dr Ventura.
It follows from the findings above that I am not satisfied that the applicant has sustained an injury pursuant to s 4(b)(i) of the 1987 Act in the manner alleged.
There will be an award for the respondent in respect of the claims for compensation arising from the alleged injury which is the subject of these proceedings.

[2022] NSWPIC 359

6 July 2022