Raoufi-Rad v Randstad Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Raoufi-Rad v Randstad Pty Limited [2022] NSWPIC 289
APPLICANT:	Aria Raoufi-Rad
RESPONDENT:	Randstad Pty Limited
Member:	Kerry Haddock
DATE OF DECISION:	14 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted psychological injury; claim for ongoing weekly benefits and medical expenses; respondent relied primarily on the results of psychometric testing and surveillance, as well as evidence of independent medical examiner; consideration of Paric v John HollandConstructions Pty Ltd; Held- surveillance not at odds with evidence of applicant and treating practitioners; evidence of treating practitioners preferred over evidence of psychometric testing and respondent’s independent medical examiner; applicant has had no capacity for work since payments ceased; award for applicant of weekly benefits and medical expenses.
determinations made:	1. That there is an award for the applicant of weekly benefits pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $789.76 per week from 4 October 2021 to date and continuing. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Aria Raoufi-Rad (Mr Raoufi-Rad)) was employed by the respondent, Randstad Pty Limited (Randstad) as a line leader.
2. Mr Raoufi-Rad sustained a psychological injury in the respondent’s employ on 28 October 2020. Liability for the injury was accepted.
3. On 17 September 2021, the respondent, which is a self-insurer, issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
4. The respondent maintained that the applicant had recovered from his injury. It did not consider that he was incapacitated as a result of an injury, or that he required any further medical treatment for the injury. It advised that payments of compensation would cease from 4 October 2021.
5. The applicant lodged an Application to Resolve a Dispute (the Application) on 19 November 2021. He claimed that on 28 October 2020, during the course of his ordinary employment duties, he was physically assaulted by another employee, whereby his life was threatened. He reported the incident to management. However, he was met with a lack of support. As a result of the assault, he developed severe psychological injuries. He has pleaded that the injury is a disease, deemed to have occurred on 28 October 2020.
6. The applicant claimed weekly benefits compensation from 4 October 2021, ongoing, pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act); and medical expenses of $5,000, pursuant to section 60 of the Act.
7. The respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 17 December 2021.

ISSUES FOR DETERMINATION

8.           The parties agree that the following issues remain in dispute:
a.   (a)       whether the applicant has been incapacitated for work since 4 October 2021, and
b.   (b)       whether medical treatment has been reasonably necessary since 4 October 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

a.9.           The matter was listed for conciliation/arbitration hearing by telephone on 22 March 2022. Ms Grotte of counsel, instructed by Mr Joy, appeared for the applicant, who was present.  Mr Doak of counsel, instructed by Mr Ainsworth, appeared for the respondent.
b.10.         Due to the time taken in conciliation, it was not possible to conclude the matter on 22 March 2022. Directions for the filing of further evidence, and for written submissions were made. The parties have complied with those directions, extensions having been granted due to circumstances beyond the parties’ control.
c.11.         I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

a.12.         The following documents were in evidence before the Commission and considered in making this determination:
b.   (a)       the Application and attachments;
c.   (b)       Application to Admit Late Documents dated 17 December 2021 and attachments (Reply), filed by the respondent and admitted by consent;
d.   (c) Application to Admit Late Documents dated 22 February 2022 and attachments, filed by the applicant and admitted by consent;
e.   (d)       Application to Admit Late Documents dated 16 March 2022 and attachments, filed by the respondent and admitted by consent;
f.    (e)       Video surveillance footage, filed by the respondent on 23 March 2022, and which was referred to in its Application to Admit Late Documents dated 16 March 2022, and
g.   (f) Application to Admit Late Documents dated 24 March 2022 and attachments, filed by the applicant and admitted by consent.

Oral evidence

a.13. There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Aria Raoufi-Rad

a.14.         Mr Raoufi-Rad’s first statement is dated 12 November 2022 [sic: 2021].
b.15.         Mr Raoufi-Rad completed a Bachelor of Medical Science at the University of Western Sydney in 2012.
c.16.         The applicant developed symptoms of depression as a teenager. He was never formally diagnosed but given antidepressants by his family general practitioner (GP). He only took the medication for two to three weeks. He does not recall this being of major concern, and he recovered very quickly. Before the injury, he considered himself to have a happy and calm disposition, with strong mental fortitude. His personal and family life was unproblematic.
d.17.         In the five years before the injury, the applicant worked as a sales representative; a medical liaison officer; and a general assistant. In about August 2019, he commenced employment with the respondent as a line leader. Among other matters, his position included training, supervising and managing staff.
e.18.         In about August 2020, two staff members, Marcel and Ali Alavi, told the applicant they were getting married, and requested a couple of days off. They were both hardworking and he agreed. They thanked him.
f.19.         A few weeks later, Marcel asked Mr Raoufi-Rad if he would be guarantor for the wedding. He was uncertain what that entailed but was told all he had to do was to witness the ceremony and fill out some paperwork. He agreed and asked Marcel to print the questions.
g.20.         Two weeks later, Marcel asked the applicant to fill out the document. He said he was busy, and asked her to write the questions on a piece of paper. The questions included his name, date of birth, address, phone number, how he knew them, his relationship to them, and his signature. He filled out the paper and handed it back, not thinking much of it.
h.21.         Sometime after, Marcel and Ali approached the applicant in the locker room and asked him to fill out a new document, as they had made an error. It appeared to be a statutory declaration. He felt uncomfortable about filling it out and told them he did not want to do it anymore. They kept insisting, and he told them he would do it if he had time, which was unlikely. They accepted this.

22. On or about 24 October 2020, a warehouse supervisor, Ian Garcia, organised a birthday party, to which he invited most of the respondent’s workers. Ali was jealous that Marcel was dancing with someone else, whom he punched in the face. He also punched Marcel. The applicant only heard about this but became very wary of Ali’s aggressive nature.

j.23.         On or about 26 October 2020, the applicant still had the marriage papers in his locker. He wanted to give them back but did not want to tell Ali he would not be filling them out, as he was scared about what he would do. He gave them back to Marcel and told her he was not comfortable filling them out. She responded that it was OK.
k.24.         On the date of the injury, the applicant was at his desk, in a discussion with his boss, Adarsh Ghale. Ali approached and told him he had to clean his desk. He said he would do it later. Ali yelled at him, moved into his personal space, and pushed a broom and dustpan into his chest, yelling “do it”.
l.25.         The applicant was taken aback and told Ali he was assaulting him. He took the broom and put it away. Adarsh told Ali to calm down, but he was still very aggressive and continued to follow the applicant. Ali grabbed the broom and pushed it onto him.
m.26.         By this stage, the applicant was very scared and did not know what to do. He put his hands up and called three times for security. Security and Ian Garcia finally came and told the applicant to leave.
n.27.         The applicant went upstairs to talk to HR, Chris Cho, who was asleep at his desk. The applicant woke him to inform him what had happened, and Chris said to go upstairs and wait for him. The applicant went to the roof to have a cigarette. Chris came up and he explained what had happened. He said the applicant would need to provide a statement the next day. He told Chris he did not feel safe at work and wanted Ali terminated.
o.28.         When the applicant went downstairs to sign out, Ali was playing ping pong in the lunch area. He could feel Ali staring at him and was shocked that he had not been escorted off the premises. He was shaken up and had constant anxious thoughts about what would happen next day. He contacted SafeWork that night and was told to contact HR the next morning.
p.29.         The applicant barely got any sleep. He skipped breakfast as he was too anxious to eat, and his heart kept racing when he thought about the incident.
q.30.         On arrival at work, the applicant told Chris he did not feel safe while Ali was still employed. Chris tried to reassure him that they took Ali’s pass, and he would not be in the building. He explained he had contacted SafeWork, and Chris asked if he was threatening him. He was taken aback and felt Chris was not properly prioritising his safety.
r.31.         By the afternoon, the applicant tried to return to work, but felt constantly anxious, unsafe and uncomfortable. He then received a text message that Ali was in the building and to stay away from work. Chris called him later to explain that Ali had stolen Marcel’s pass, had been aggressive, and was looking for him. He felt overwhelmed with anxiety and was physically shaking. He could barely eat and forced himself to have a banana.
s.32.         At about 11:21pm, the applicant received a call from a number he did not recognise. Ali was speaking Farsi, saying he was going to kill him. He was yelling and swearing, and the applicant told him to message him. Ali said he wanted to meet him and kept attempting to video call him.
t.33.         The applicant contacted Chris and explained Ali was threatening him and he needed to call the police. He answered one of Ali’s video calls and saw he was walking in front of what looked like the applicant’s building. He hung up and called the police.
u.34.         On or about 30 October 2020 at about 12:53am, the police arrived, and the applicant was required to provide a report. He had Adarsh on the phone while he waited for the police, and he gave a statement over the phone. The applicant “was a complete mess and struggling to cope with my anxiety”. He knew he could not go to work and had to receive treatment.

35. Later that day, the applicant consulted his GP, Dr Yan Ren. Dr Ren prescribed medication for his anxiety and wrote a certificate of capacity (COC).

w.36. After this incident, the applicant’s mental health rapidly declined. He became withdrawn and lacked motivation to look after himself. He had panic attacks and his sleep was disturbed by nightmares and anxious thoughts. His mind was constantly occupied by thoughts of Ali and he began to develop low depressed moods.

37. The applicant consulted psychologist Ms Esther Wong on or about 23 November 2020. He attended three sessions but did not feel she was properly addressing his symptoms, or feel comfortable consulting her. He asked his GP for a new referral.

y.38.         On or about 2 February 2021, the applicant was examined by the insurer’s independent medical examiner (IME), Associate Professor Robert Kaplan. He found A/Prof Kaplan completely unprofessional and felt he was playing down his symptoms. Following this consultation, his mental health rapidly declined, and his anxiety and depression got worse. He attributed this to the consultation.
z.39.         On or about 11 February 2021, the applicant consulted psychologist Nicole [sic: Michal] Polonsky. He attended twice a week. He found her helpful and had continued to consult her.
aa.40.         On or about 16 April 2021, the applicant was referred to psychiatrist Dr Peter Young. He attended once every three weeks and found Dr Young helpful. He was initially reluctant to take medication, but found the medication prescribed by Dr Young useful.
bb.41.         The applicant continued to struggle with constant ruminating thoughts and low moods. He suffered frequent panic attacks and preferred staying home. He found medication and his treating specialists helpful but had not seen any significant improvements in his mental health.
cc.42.         The applicant continued to suffer depression; anxiety; headaches; reliance on medication; stress; intrusive and ruminating thoughts; skipping meals and loss of appetite; loss of interest in and enjoyment of activities; distress and frustration; panic attacks; agoraphobia; mood swings and anger bouts; loss of concentration; broken sleep and lethargy; recurring nightmares; loss of motivation; hypersensitivity; reclusive habits and loss of self-esteem and confidence; feelings of worthlessness and hopelessness; and inability to return to pre-accident employment and loss of income and career opportunities.
dd.43.         The applicant no longer had the energy or motivation to care for himself. He showered less and let his beard grow. He prepared only basic meals, the quality of which had reduced significantly. He wore the same clothes for days in a row, and only comfortable clothes. He struggled to fall asleep and often felt lethargic throughout the day.
ee.44.         The applicant previously considered himself to be a very social person, who enjoyed hanging out with friends, going to clubs, bars and on dates. He played soccer and basketball. He no longer enjoyed the social and recreational activities he once loved. He preferred to stay home, avoided going out and rarely attended social events. He had ceased playing soccer and basketball.
ff.45.         The applicant previously had no difficulties travelling, including driving and taking public transport. He now felt uncomfortable and anxious leaving the house. He did not drive as he found it difficult to concentrate with his high dosage of medication. His supermarket is in his building and he shopped only when there were no crowds. He avoided crowded places.
gg.46.         Since the injury, the applicant had lost many friends and strained relationships with his family. He actively avoided seeing his friends. He struggled to form new relationships. Due to his cultural background, many of his family do not fully understand his condition and believe he should just move on with his life. He and his father no longer spoke.
hh.47.         The applicant struggled to concentrate for extended periods. He often lost concentration watching TV or a movie. He re-read a sentence multiple times to understand it.

48. The applicant would not be able to return to Randstad as he would not feel comfortable in an environment where his anxiety could be triggered. He had difficulty communicating, which would make it difficult to work in a team. He lacked self-esteem and confidence and did not believe he could work at his full capacity. He would struggle to stay focused and meet the demands of a high paced environment.

jj.49. On 8 February 2022, the applicant made a second statement, addressing his bank statements/records.
kk.50. The applicant had derived income from an app called Skout, which involves the purchase of diamonds for a fee and giving them to others. The diamonds can be converted to money and sent to a Paypal account. The applicant was successful for a short period, earning less than $15,000. He lost approximately $300 using the ASX and crypto market.

51. There were some reversals of payments. There were also loans of $1,500 from the applicant’s mother; and $1,100 from his father, and some transfers from friends. He had been unable to work and had been granted Job Seeker payments from 16 January 2022.

mm.52.         The applicant’s final statement is dated 18 March 2022. It addresses the surveillance footage relied on by the respondent.
nn.53.         The applicant parks his car in the street and needs to check it every two hours. It does not mean that he does not suffer PTSD (post-traumatic stress disorder) because he goes outside to check on his car.
oo.54.         Ms Polonsky advised the applicant to leave the house whenever possible. She would recommend he play basketball, go shopping, get fast food. During their sessions, they would often walk to the metro area with all the cafes. This was extremely difficult for him, but she would force it. Drs Ren and Young also suggested not staying indoors.
pp.55.         The applicant has good weeks and bad weeks. In good weeks, he is motivated to go out and exercise, or maybe have a close friend over. In bad weeks, he does not want to leave the house. He stays in bed and turns off his phone.
qq.56.         The applicant refers to a good week during which he bought food from a food court; walked around the mall; and visited a hairdresser, who was formerly a friend. The hairdresser would cut his hair for free.
rr.57.         The applicant was at times wearing a hat, which was usually an indication that he had not showered for a few days. On one occasion, his brother had asked him to his place, as his family gets concerned and wants him to go out.
ss.58.         The applicant “was scared out of [his] mind by the “incompetent bozo” the respondent hired as a private investigator. He tailgated the applicant, who did an illegal turn to “get him off my arse” and drove first past Eastwood Police and later to his brother’s.
tt.59.         The applicant drove 20 minutes to a quiet basketball court, rather than play on the court across the road, as he did not want to play in the vicinity of anyone. The court where he played was next to a main road, so if something happened to him, it was in the public eye.
uu.60.         The applicant has referred to various times when he was out of home, for a total of 9/120 hours. He believes that people in Supermax prison get one hour of daylight a day.

61. The report started that the applicant “was aware of his surroundings and made note of the people around him”. This is agoraphobia, one of the criteria listed in DSM 4. The report did not mention that when the new agent came close to him, he turned with his fist up, “ready to give him a crack”. His heart rate accelerated and it was triggering.

ww.62. On one occasion, the applicant’s friend was worried and took him to Coles, forcing him to go out. He saw the applicant’s fridge was empty. They also went for a five minute walk to buy a pen.

Procare

a.63.         Procare was retained by the respondent to conduct surveillance of the applicant. It reported on 10 February 2021, having observed the applicant on 18 December 2020; 16 January 2021; 20 January 2021; 24 January 2021; and 2 February 2021.
b.64.         Procare reported again on 17 January 2022, having observed the applicant on 4, 5, 7, 10 and 11 January 2022.
c.65.         Procare reported again on 28 January 2022, having observed the applicant on 22 and 23 January 2022.
d.66.         I have viewed the surveillance videos. The description of the applicant’s activities in the reports is largely accurate, leaving aside the operatives’ subjective views of the applicant’s behaviour.
e.67.         The first report covers periods of surveillance that occupied 34 hours, and approximately 72 minutes of video was obtained.
f.68.         On 18 December 2020, the applicant attended a medical appointment, a pharmacy, a food court and a Starbucks. He met a man for about 13 minutes and returned home.
g.69.         On 16 January 2021, the applicant twice moved his car, which were the only times he was seen.
h.70.         On 20 January 2021, the applicant was followed to Castle Hill, where contact with him was lost. The agents went to his parents’ address but were unable to establish if he was there.

71. On 24 January 2021, the applicant checked his tyres for markings. He later left in his car. According to the report, he was “driving suspiciously”, below the speed limit, and staring into his rear view mirror. Based on his behaviour, surveillance ceased.

j.72.         On 2 February 2021, the applicant drove to Gladesville, where he played basketball by himself, appearing “vigilant”. After returning home, he again left to attend a medical appointment. As he walked around the location while smoking, he “was seen intently looking into a car parked outside the building”. Surveillance ceased while he was at the appointment.
k.73.         The second report covers periods of surveillance that occupied 72 hours, and approximately 33 minutes of video was obtained.
l.74.         On 4 January 2022, the applicant drove to a pharmacy. He “conducted counter-surveillance techniques” as he drove home. He left his home later that day on foot, looking into vehicles in his area. A search of the area failed to locate him.
m.75.         On 5 January 2022, the applicant walked to buy cigarettes at Coles, before returning home. He later moved his car.
n.76.         On 7 January 2022, the applicant left his home with a woman. They “pretended not to know each other” before meeting and departing in her car. They drove to a convenience store, where the applicant again bought cigarettes. On his return, he “intentionally looked at vehicles and persons in the vicinity”. Later that day, he drove to Star Track Express – Australia Post before driving home.
o.77.         On 10 January 2022, the applicant rubbed markings off his tyres. He later drove to Macquarie Shopping Centre, “conducting counter-surveillance driving techniques” as he returned. He emerged carrying a bag and basketball, when contact with him was lost. He returned home. On again leaving home, he checked his car and walked to a chicken shop to collect an order.
p.78.         On 11 January 2022, the applicant checked his tyres twice. He later walked to Blenheim Park, where he played basketball. It was noted that “he was aware of his surroundings and made note of the people around him”. He later walked home, again checking his tyres.
q.79.         The third report (which is headed 4^th Surveillance Report, but only three are in evidence, unless a photograph schedule of activities on 18 December 2020 is counted) covers periods of surveillance that occupied approximately 30 hours, and approximately 19 minutes of video was obtained.
r.80.         On 22 January 2022, the applicant checked his tyres. He and another man went to Coles, where contact was briefly lost. He was relocated in Office Works. After making a purchase, he and the other man returned to his home.
s.81.         On 23 January 2022, the applicant checked his tyres twice, but was otherwise not seen to leave his home.

Medical evidence

Macquarie Medical Centre

a.82.         The clinical records of the practice are in evidence.
b.83.         Dr Yan Ren recorded on 30 October 2020 that the applicant was physically assaulted at work two days ago. The description of events is consistent with the applicant’s evidence. He wanted Ali terminated but had no clear response. He had anxiety “the whole night since”.
c.84.         The applicant was shaky throughout the consultation. His biggest concern was that HR did not take action at the first point of call. The applicant lived by himself and loved his job. He was not sleeping or eating well and had not yet told his parents but had discussed it with his brother. He did not feel safe to return to work or wish to see anyone.
d.85.         On 6 November 2020, Dr Ren recorded that the applicant wanted to see a psychologist. He had not left the house much and was feeling nervous. He had broken down two days after the last consultation, “anxiety”. He did not take the Valium and had an AVO.
e.86.         The applicant still did not feel comfortable returning to the workplace on 20 November 2020. He asked about medicinal cannabis. Dr Ren recorded “chronic back pain”. He had anxiety.
f.87.         On 4 December 2020, Dr Ren recorded that the applicant had seen the psychologist once. He was not suitable for work and had anxiety when his workplace called him. He had mainly stayed at home, “sleeping +++, drinks alcohol at times”. He had anxiety when he left the house. They again discussed medicinal cannabis which Dr Ren noted was only a treatment after failed conventional treatments.
g.88.         Dr Ren recorded on 18 December 2020 that the applicant was not sleeping well, nightmares, poor eating. He was anxious when talking about the workplace. He had been “smoking +++”. He had mood swings. He had seen a psychologist for two sessions. He did not wish to work in his workplace anymore. He was very frustrated with ASD (autism spectrum disorder) v PTSD diagnosis. He would “like a payout and leave work”. It needed to go through the national office, and he might get a response in January.
h.89.         On 8 January 2021, Dr Ren recorded that the applicant had Sertraline, and still felt similar. He had disrupted sleep and nightmares, waking every night and sweating. His paranoid [sic] was better, with friends visiting twice a week and he was getting more reactive to his family. He had seen Esther Wong but wanted to change psychologists. He had been referred to a psychiatrist by his workplace and was happy with this.

90. Dr Ren recorded on 5 February 2021 that the applicant’s mood had improved. He had made an appointment with New Vision Psychology next week. He saw a psychiatrist “(does not like him)”. He had been playing basketball and feeling less anxious before seeing the psychiatrist. He thought someone had been following him.

j.91.         On 5 March 2021, Dr Ren recorded that the applicant did not like his psychiatrist and did not want to work for his company again. He wanted a second opinion from a different psychiatrist – Dr Young. He was happy with his psychologist. He would gradually increase his Sertraline over the next two weeks. He had been playing basketball and piano.
k.92.         On 1 April 2021, Dr Ren recorded adjustment disorder with anxiety/depression and PTSD, “poor sleeping”, mood is bad”. The applicant had started Pristiq three days ago, after being weaned off Sertraline. He used cannabis flower recreationally at times and used it a few days ago for sleeping. He had bilateral flank pain and was worried about his kidney.
l.93.         On 10 May 2021, Dr Ren recorded a case conference with “Dee/OT” (Dee Linehan, who is employed by Ranstad). The applicant was happy with Dr Young. Dr Ren noted “agoraphobia, depression, anxiety, panic attacks.” The applicant’s symptoms had been the same – anxiety. He was not sleeping well. Pristiq was not helping, so was ceased. He did not want antidepressant. He was seeing a psychologist twice a week and was not ready to return to work. He was booked for psychometric assessment on 25 May. He still played basketball.
m.94.         Dr Ren recorded on 4 June 2021 that the applicant still had panic disorders and anxiety. He had an episode where he thought a man was following him. They discussed medicinal cannabis for his symptoms. He would benefit from a trial of CBD oil.
n.95.         On 2 July 2021, the applicant consulted Dr Ren about horseshoe kidney and “back pain +++”. He had tried his friend’s gummy, which worked well, but WorkCover would not pay for it or was just ignoring him. His psychiatrist had increased the Sertraline. He had bad nightmares and headaches. He was doing two sessions of CBT (cognitive behavioural therapy) a week. EMDR (eye movement desensitising and reprocessing) was not suitable and had ceased. Dr Ren spoke to “Rebecca”, the applicant’s case manager, about medicinal cannabis and was to send further information about this.
o.96.         There are no further entries in the clinical records.

Ms Esther Wong – psychologist

a.97.         Ms Wong reported to Dr Ren on 8 January 2021. She had treated the applicant on 23 November 2020, 7 December 2020 and 21 December 2020.
b.98.         The applicant had initially presented with anxiety, reporting increased heart rate, sweating, anxiety and dry mouth. He also reported depressive symptoms, including lack of motivation and loss of pleasure. He had recurrent memories of the incident, avoiding external reminders and places where he might see his ex-colleague. He was hypervigilant and had difficulty relaxing.
c.99.         In the third session, the applicant reported having nightmares of the incident. He had not been able to attend work. Assessment indicated adjustment disorder with mixed anxiety and depressed mood. A differential diagnosis was acute stress disorder.
d.100.       The applicant appeared agitated and felt angry that his company failed to ensure his safety after the incident. He generally presented as polite, cooperative and intelligent. His DASS on 22 November 2020 indicated extremely severe levels of depression, anxiety and stress.
e.101.       Ms Wong recorded that the applicant had been competent in his work, found it rewarding and it had a positive impact on his self-image. He felt respected and valued by his peers.
f.102.       It was agreed that the applicant would benefit from CBT, and strategies were implemented. He attended and engaged in scheduled sessions. He reported feeling supported and validated, and the relaxation strategies and psychoeducation were helpful.
g.103.       The applicant had established contact with insurance case workers, despite initially finding it hard to trust. He said he was not ready to return to work.
h.104.       The applicant cancelled his scheduled appointment in January 2021, until further notice.  Ms Wong opined that he would need psychological therapy to assist him to manage the symptoms and recover.

New Vision Psychology – psychologist

a.105.       The applicant was treated by Ms Polonsky, whose clinical records commence on 11 February 2021. I will refer to them in some detail, as they are relevant to the credit issue raised by the respondent.
b.106.       Ms Polonsky recorded that the applicant was frustrated from the process. He was against meds. He found coming there and talking about it triggering. He had had friends at work and was close to his boss, but they had faded away due to his paranoia. The workplace was high pressure and toxic, and he did not want to go back, but had enjoyed his time there.
c.107.       The applicant had been assaulted at work. His sleep was terrible. His relationship(s) had suffered, He did not have a sex life since the incident. He tried to exercise daily.
d.108.       During the session, the applicant got worked up, cried, and laughed agitatedly. He was angry and frustrated – “I’m not a victim”. He did not trust his psychiatrist and felt he was biased. He was paranoid and had nearly punched a person he thought was following and looking at him when he played basketball, “but then he picked up his kids”.
e.109.       On 2 March 2021, Ms Polonsky recorded that the applicant dreaded coming, as it was triggering. Last time he had felt great that day, but then deflated for a few days. Basketball was a great stress reliever. He was unable to do that when he was stressed.
f.110.       The applicant passed out in front of the TV as he was paranoid. At some point he moved to bed. Cleaning helped to destress. He was playing piano for half an hour a day and helping his mother. A cousin has a form of schizophrenia, and the applicant and his father both had OCD (obsessive compulsive disorder). The applicant had dissociative feelings and anxiety when friends came by.
g.111.       Ms Polonsky added that the applicant had panic attacks and dissociation feelings when around friends. He was worried he might have schizophrenia. He could see slight progress in his emotion management, when he was able to doubt his paranoia and avoid acting upon it. During the session he was teary and had a panic attack. They practised breathing and talked about the applicant challenging himself gradually, step by step.
h.112.       On 9 March 2021, Ms Polonsky recorded that the applicant had presented with intense anxiety and stress reactions. He was fidgeting, his hands and legs were shaking, there were waves of stress/anxiety, intense chewing gum and thirst and crying outbursts triggered by questions or memories. He felt better after the sessions but could not sleep and was very stressed leading up to them.

113. The applicant struggled to fill in questionnaires, as it was triggering. He tended to look in the mirror at home and talk to himself or to memories of others. He was very proud and reluctant to see himself as a victim. He was embarrassed and worried he might have a more serious mental health condition. He seemed to be worried he would not control his actions if Ali came up to him in the street. As a result of a post Ali had put on the applicant’s brother’s social media wall, Mr Raoufi-Rad had deleted all his social media accounts.

j.114.       Ms Polonsky asked the applicant to drop the judgment towards himself and the frustration from his current state and focus on trying to feel better. He forwarded the GP’s psychiatrist referral and referral to the psych clinic to Dee, as the applicant found that too triggering, as did opening emails or answering calls from a private number.
k.115.       On 16 March 2021, Ms Polonsky recorded that the applicant had been up and down. They did some “beuiocracy” [sic] he had been avoiding. He identified that he needed to keep his mind busier as he tended to ruminate and spiral about random negative things. They had a few ideas that the applicant didn’t like. The applicant advised he could not meet twice a week, so they scheduled once a week. The applicant was “less snappy”.
l.116.       On 25 March 2021, Ms Polonsky recorded that the applicant started to wean off SSRI and was to move to SNRI next week. This and the rainy weather was hard on him as he didn’t get out and play basketball and had been avoiding human contact. He had another cousin who was schizophrenic and in jail.
m.117.       They validated the applicant’s feelings that were triggered by remembering old friends, or Ali, about whom he had lately had some information. The applicant had prepared himself that it would take longer than he wanted, about a year, to come back to himself. He was worried he would never be able to find another job, due to his mental state and WorkCover claim. His father was dismissive of the claim and his mental health.
n.118.       On 1 April 2021, Ms Polonsky recorded that the applicant was not well. He was getting used to his new meds, hadn’t been playing basketball or going out as much. He was engaging on social apps and enjoyed talking to people. Ms Polonsky psycho-educated him about PTSD. He discussed past close friends who ended up being criminals, and they linked that to his PTSD. Ali was apparently arrested following an attempted murder, leading to mixed emotions for the applicant.
o.119.       Ms Polonsky referred the applicant to Dr Young on 2 April 2021, noting that she had had six sessions with the applicant. She agreed with the applicant’s former psychologist that he had symptoms of acute stress disorder and PTSD.
p.120.       The applicant’s medication had recently been changed. Ms Polonsky was combining psychotherapy, CBT and ACT (acceptance and commitment therapy). The applicant was very motivated to work to improve his well-being but struggled. He didn’t trust the psychiatrist who assessed him last. Ms Polonsky thought he needed a specialist, due to his acute symptoms and minor relief from medications.
q.121.       Ms Polonsky recorded on 13 April 2021 that the applicant felt worse since the change of meds. He was not exercising, had broken sleep and sharp mood swings that felt “hormonal driven”. They agreed he would try to exercise more and see how it affected his mood. His GP recommended applying for medicinal marijuana tablets for sleep.
r.122.       The applicant was exhausted by the process. He wanted to get a settlement with his former employer, so he wouldn’t have to deal with them anymore. He expressed anger towards them for his suffering in the last six months.
s.123.       On 27 April 2021, Ms Polonsky recorded that the applicant was frustrated with the process, the WorkCover system and the psychiatrist he saw. He directed his anger at his former employer. He wished to discontinue his involvement with it, as he found it triggering. He was pushing himself to play basketball more and go down to talk to the hairdresser.
t.124.       They discussed practical goals, exercising and socialising more, seeing the GP and psychiatrist, and upping the dose according to the psychiatrist’s recommendation.  Ms Polonsky recommended EMDR treatment for his PTSD, and the applicant would “give it a think”.
u.125.       On 6 May 2021, Ms Polonsky recorded that the applicant had stopped taking his meds as he was against meds. He recognised that his anxiety had worsened but felt better since he had a sense of control. He was less engaged in activities such as basketball, going out of the house, meeting friends, and talking to the hairdresser.

126. Ms Polonsky disagreed with the applicant’s choice, explained again why she thought appropriate anxiety meds would help, and urged him to push himself to go out and exercise and socialise gradually.

w.127. The applicant had texted earlier that week to cancel his appointment, but Ms Polonsky did not think this a good idea, and he agreed to go. She again offered to meet twice a week, but the applicant refused as he found it triggering.

128. On 13 May 2021, Ms Polonsky recorded that she and the applicant had agreed on a timeframe of a month to check if his no meds approach was working well enough for him. He agreed to try EMDR and come twice a week.

y.129.       The applicant had “opened up to his mum about everything”, and she was, to his surprise, supportive and accepting. He also felt more understanding from his father.
z.130.       The applicant’s psychiatrist had identified anxiety, depression and agoraphobia. The applicant was to see him again when a final diagnosis would be determined.
aa.131.       The applicant had played basketball twice that week, helped his mother around the house, and was rarely in the shops or outside, as he was very anxious and avoidant. He claimed his anxiety level was the same as last week. During the session, he was more controlling of his behaviour and rated his anxiety as 5/10.
bb.132.       They went to the train station as an exposure session. The applicant’s anxiety level was 5, and he constantly looked over his shoulder. When they came back, his anxiety level was 4.5. He felt exhausted and was on board with everything suggested.
cc.133.       Ms Polonsky reported to the respondent on 12 May 2021. She opined that the applicant had symptoms of PTSD. His prognosis for recovery was perhaps four to six months.
dd.134.       The applicant was very motivated to recover and was frustrated with the pace of his progress. He was now open to EMDR and therapy twice a week, which Ms Polonsky recommended.
ee.135.       Ms Polonsky opined that the applicant had no work capacity, as he had symptoms of severe anxiety, which was debilitating. She guessed that the applicant would have capacity for work at around four to six months, “hopefully sooner”. She suggested two sessions a week for the next three months, including EMDR sessions, then one session a week for two months, and one a fortnight for six months.
ff.136.       Ms Polonsky did not have experience with the use of cannabis oil as treatment but stated that according to research it may be helpful, especially since the applicant did not agree with SSRI.
gg.137.       On 20 May 2021, Ms Polonsky recorded that the applicant was not well. He had paranoid thoughts and a panic attack when he played basketball a few days ago, and almost hadn’t left his house since. He also had an argument with his dad, who told him to “snap out of it”.
hh.138.       They went for a walk to the train station, plus escalators and in a shop. The applicant reported anxiety levels of 5/10 and kept checking over his shoulder. He advised he was triggered by men.

139. On 27 May 2021, Ms Polonsky recorded that the applicant had had a clinical psych assessment, as the insurance requested. He was very stressed and anxious before and during it.

jj.140. The applicant was occupied with the time the assessment took and whether he got the answers right. He was fidgety and anxious; and advised he almost hadn’t been out/exercising/cooking since they met, aside from the assessment. He had had some visits from friends and family, which went OK. He had considered going back on meds, as his anxiety was severe. He denied any SI (suicidal ideation) or SH (self-harm).
kk.141. They went for an exposure round, where the applicant rated his anxiety around 6-7 and kept looking over his shoulder. He felt better when they got closer to a wall, and he felt secure. He had previously advised he felt safer with Ms Polonsky, or when he went out to eat with friends near his house earlier that week.

142. They discussed having the applicant’s mother cook for him so he could reduce expenditure on deliveries, money he was missing and needing to ask from his father.

mm.143.       The applicant again reported having “weird emotions” – while watching a YouTube video, laughter that becomes a “sobbing cry”, to his surprise. He had sharp, strong out bursting emotion fluctuations, which bothered him.
nn.144.       On 31 May 2021 (EMDR session one), Ms Polonsky recorded that the applicant was shaking his legs, tense and irritable. He reported anxiety, agoraphobia and depression. He was blocking the door at home, worried about people coming in.
oo.145.       They went out for exposure exercises. The applicant had been checking people on the platform before the session. He thought he was being followed by a guy on the train, so he followed the guy back and almost confronted him. He was not going out much, had broken sleep and relevant nightmares, and was sweating. He had sudden outbursts of anger and was crying without reason. He used to play basketball on his own. He had been on SSRI before.
pp.146.       Ms Polonsky explained EMDR. The applicant’s worst image was being cornered by the guy who said he would kill him. His distress level was 8-10/10. His physical symptoms were sweating palms, heavier breathing, and a panic attack.
qq.147.       The applicant felt angry at himself, disappointed, miserable, ashamed of the insurance claim and light-headedness. He could not think of a positive cognition.
rr.148.       On 3 June 2021, Ms Polonsky recorded that the applicant had been to the “neuropsych” once more, saw his psychiatrist that week, and started EMDR. It had been a long week.
ss.149.       The applicant had had a paranoid incident last week, when he thought someone followed him and followed him back. He was feeling very angry. His friend calmed him down and he felt remorse and shame for the anxious thinking taking over as much.
tt.150.       The applicant had a new script for Sertraline from the psychiatrist and agreed to take it, as the trial without meds had not been going well. Ms Polonsky provided some treatment. She asked the applicant to start the online PTSD/Anxiety course from This Way Up, but he refused, as he felt overloaded. They went to the pharmacy, where the applicant noted he was anxious, 6.5/10.
uu.151.       On 8 June 2021 (EMDR session two), it was recorded that the applicant had been taking medication since Thursday, with side effects of nightmares, nausea and stomachache. He had played basketball once but had to go home when people came. They started EMDR. At the end, the applicant seemed calmer.

152. On 10 June 2021, Ms Polonsky recorded that the applicant was more relaxed. He was struggling to get out of the house and played basketball once, stopping when people came. He had gone downstairs twice to meet his mother and had two visits from friends. He was not showering daily. He had decided to come in a cab, as he felt less triggered.

ww.153. The applicant had some side effects from his meds, insomnia, and could not sleep during the day as he had. He still refused to start the anxiety/PTSD online course. The EMDR sessions were very triggering and made him angry. The mood swings were less frequent and severe since the meds.

154. They discussed the need for the applicant to challenge himself and manage/tolerate his anxiety and expand his comfort zone. They aimed at doing exercise, going out, stretching, cleaning etc. They went to the train station to get coffee. Mr Raouifi-Rad rated his SUD as 4-5, less than previously.

yy.155.       On 15 June 2021 (EMDR session three), the applicant did not want to go through the EMDR image again. He seemed irritable and asked for a rest. He was told that the process could be overwhelming, but if he stopped whenever her felt distressed, the image and feelings might never get processed. The applicant was a bit rude and thought he was being pushed. His most distressing image was one he had somehow fabricated, imagining that the guy had come in and smashed the windows etc. He was ashamed of having to get insurance money.
zz.156.       The applicant imagined three dogs chasing and attacking the guy, guarding his home and windows. He smiled and reported a change of affect, feeling lighter and being able to laugh at the image.
aaa.157.       On 22 June 2021 (EMDR session four), it was reported that the applicant complained that everything was just the same. His resting anxiety had gone down a bit since beginning EMDR, but he experienced more fluctuations. It was explained to him this was normal.
bbb.158.       The applicant seemed to feel better at the end of the last session but hadn’t done any homework. He said he never believed EMDR would help. He was angry that he felt worse when asked to recall the image. They discussed that progress is not linear and they could not work on his anxiety without him recalling the disturbing images.

159. They agreed it would be best to discontinue EMDR and continue with other treatment if the applicant found them more helpful. This decision was discussed with Ms Polonsky.
160. On 22 July 2021, Ms Polonsky recorded that the applicant could see progress. He had a great sleep the other day for the first time. The Seroquel made him groggy at times. He was cooking for himself, socialising online, and buying groceries.

eee.161.       The applicant went for a walk with Ms Polonsky for 25 minutes and bought himself a coffee during their online session. He rated his anxiety as 2-4/10. They agreed on the applicant to start walks around the block daily and build up to a more intense workout. They discussed strategies to execute it and find motivation to challenge his anxiety and agoraphobia.
fff.162.       On 8 October 2021, Ms Polonsky reported that the applicant had attended nearly 40 sessions.
ggg.163.       Ms Polonsky had recorded a consistent history of the injury. The applicant denied any history of mental illness or notable stress. He had maintained stability across all areas of life, except for the current period. He had had stable relationships and stability in his finances, housing and health.
hhh.164.       The applicant’s past stability contrasted significantly with his current situation. He reported a marked loss of function in all areas, including his social, financial, self-care and employment domains. He attributed this to psychological workplace injury in October 2020.

165. Ms Polonsky recorded that the applicant’s mother had untreated anxiety and a cousin had been diagnosed with schizophrenia.

jjj.166. Since February 2021, the applicant had presented with significant and enduring symptoms of trauma, depression and anxiety. They included avoidance; extreme social withdrawal and isolation; extreme mistrust and paranoid thinking; irritability, emotionality and mood instability; extreme loss of confidence; loss of concentration and focus; outbursts of crying and anger; feelings of helplessness and hopelessness; anxiety when having to get out of the house or having contact with the WorkCover system; sleep disturbances; and recurring repetitive nightmares.
kkk.167. The applicant had also reported avoidance of social contact and self-isolating behaviour; loss of function as a self-sufficient provider (causing extreme loss of confidence); difficulty with activities of daily living and basic health management; inability to focus or concentrate; and extreme mistrust and paranoid thinking, leading to panic attacks and high alertness.

168. Ms Polonsky reported that early sessions attempted to assist the applicant to work through his emotions. His level of distress was so severe at times that they largely focused on de-escalation of presenting emotions. He appeared overwhelmed by his situation and extremely frustrated.
169. The applicant had had a few sessions with another psychologist (Ms Wong). He presented with great mistrust and paranoid thinking, including towards the professionals involved. They were able to form rapport and he was dedicated to the sessions. He had built trust with Drs Ren and Young.

nnn.170.       The applicant was later more able to participate in CBT; mindfulness; ACT; and activities scheduling. Ms Polonsky recommended EMDR treatment with a certified colleague. He attended a few sessions and found it very triggering. They continued meeting more frequently to stabilise him and gain some progress, as he was in much pain, frustration and despair.
ooo.171.       Once the applicant was stabilised, he started to sleep and feel better. He started socialising online, walking, and resuming interaction with his family (which was triggering at times).
ppp.172.       The applicant’s mental health was generally exacerbated with any contact from the WorkCover system. He felt a deep distrust of the system and professionals involved. He felt that mental health assessments sought to find blame in a pretend psychological condition, which he denied. At some point he advised he wanted to disconnect altogether from the system, due to his high level of distress.
qqq.173.       Their later sessions focused on gradual exposure and fighting avoidance of every day vital activities such as shopping, exercise, being around and communicating with people. They also focused on maintaining and developing relationships with his friends and family.
rrr.174.       Ms Polonsky opined that the applicant was experiencing a trauma related disorder, as a result of his workplace injury. There were two differential diagnoses, PTSD and other specified trauma and stressor-related disorder.
sss.175.       Ms Polonsky disagreed that the applicant had exaggerated his symptoms or did not have a diagnosable condition. He was extremely triggered by the psychological assessments for weeks prior, as they reaffirmed his fear that someone (in this case, the insurance company) was trying to hurt him.
ttt.176.       Ms Polonsky opined that the applicant’s injury had not resolved. His symptoms had reduced lately, and he reported feeling better, but he was yet to be a functional member of the community as he was before the injury. He still suffered symptoms of PTSD, including high avoidance, which was difficult to treat. She hoped that with continuous support, he would “get there in the next few months”, and be able to work among people, socialise in vivo and sustain himself.
uuu.177.       The applicant did not present with a capacity for employment, as his symptoms and loss of function were too great to be able to maintain work. He had lost confidence in himself and trust in others. He was aware of his disability and the thought of having responsibilities of work was overwhelming. It was unlikely that he would be able to engage in employment or study in the next few months.

178. Ms Polonsky recommended the continuous support of a GP, psychiatrist, and weekly therapy, as well as weekly rehab return to work provider to support the applicant’s recovery and return to work.

Associate Professor Robert Kaplan – forensic psychiatrist

a.179.       A/Prof Kaplan was qualified by the respondent and reported first on 2 February 2021.
b.180.       A/Prof Kaplan recorded a consistent history of the injury, which occurred at Pegatron, where the respondent had placed Mr Raoufi-Rad. After the injury, he withdrew, did not socialise, was irritable with his family, and worried for his safety. He became suspicious, thinking that people were following him, and worrying about someone he saw in a car outside his place. He did not want anything further to do with the respondent or Pegatron, only to resolve the claim and get on with his life.
c.181.       The applicant was feeling better but had not recovered. He had returned to playing basketball daily. He was upset by nightmares and felt “disconnected”. He blamed the respondent and Pegatron.
d.182.       The applicant was cautious when opening the door and put things behind it so he could hear an intruder. He attributed this to an incident when he was six, and a threatening man came to the door. He struggled with motivation and worried about his security. There had been no further contact with Ali or Marcel and nothing else untoward had occurred.
e.183.       A/Prof Kaplan recorded that the applicant was uncertain of the future and could not say when he could return to work. Finding work depended on regaining his confidence. He would like to be a project manager. He estimated this would take several months. He was not interested in mediation, having lost trust.
f.184.       The applicant did plenty of house cleaning to keep occupied. He maintained contact with friends and family and was joining a gym. His parents visited. He was distracted in crowded places like supermarkets, experiencing anxiety.
g.185.       The applicant did not abuse alcohol, use drugs or gamble. There were no problems driving. He went to bed after midnight, watching TV and waking several times with bad dreams (not nightmares), which he could not remember. He was grinding his teeth, which A/Prof Kaplan noted is a common side effect of Zoloft, advising that he change antidepressant. The dosage was likely to be subtherapeutic.
h.186.       A/Prof Kapan recorded that the applicant saw a psychologist for a short period many years ago but had not had any work claims. He noted that Mr Raoufi-Rad was smartly dressed and well-groomed. His manner was relaxed and friendly, he was at times laconic, but became tense when talking about Ali. He was neither suicidal nor violent, had lost confidence in his employers but could not say when he would be ready for work.

187. A/Prof Kaplan diagnosed adjustment disorder with anxiety and depression. Employment was a substantial contributing factor to the injury. The cause of the condition was the clash with Ali, followed by harassment. A secondary feature was the perception of lack of support from the employer, especially HR.

j.188.       A/Prof Kaplan opined that the applicant could do any type of work within his skill range. He recommended that the applicant commence work in four weeks, doing 20 hours a week for four weeks, before resuming full duties. In view of his attitude, A/Prof Kaplan could not see him returning to Pegatron.
k.189.       A/Prof Kaplan recommended that the applicant have four sessions with a psychologist and a discussion with his doctor about increasing his medication. He did not require any tests, His prognosis was good, noting his presentation and the removal of further problems with Ali.
l.190.       A/Prof Kaplan again reported on 7 September 2021, having re-examined the applicant by Zoom.
m.191.       The applicant’s account of his progress was “ambiguous”. He had good and bad days when his mood either improved or slumped. When he felt better, he could cook, go out, shower, and walk, and his sleep was better. On bad days, often lasting a fortnight, his sleep was poor, with “weird” nightmares. They were based on his experiences at the factory. He described this as being like “Groundhog Day”.
n.192.       A/Prof Kaplan asked the applicant about his plans. He shook his head and said he could only do what his doctor and psychologist told him. To work and have a normal life, he needed to have his mood stable, not be erratic, anxious, or paranoid. He would decide when he recovered what work he would do.
o.193.       The applicant denied using alcohol or drugs, aside from cigarettes, and did not gamble. A/Prof Kaplan noted that this was contradicted in Mr Haralambous’ report. The applicant then added that he had been having binge episodes but had since stopped.

p.194.       The applicant fell out with his father and did not see him much. He still had contact with his mother. He cut himself off from friends and did not see his brother, missing contact with his nephews. During the lockdown, he went to the supermarket in his building, which was not a problem. He felt “paranoid” in public, believing he was under surveillance, and preferred to stay home for long periods. He had not driven for a long time, as he got dizzy, and travelled by taxi. His sleep was disturbed, and he would nap during the day and stay up for long periods. He often talked to a caring friend to settle his mind.
q.195.       A/Prof Kaplan recorded that the applicant got up at about 11:30am, had coffee, cleaned his unit, watched TV and went to the coffee shop. He may walk around the block, buy food, and cook when he felt better. He checked social media. If he felt better, he went for walks and had coffee. On bad days, he could stay in bed all day, having only two meals and coffee. He saw Dr Ren and Ms Polonsky, preferring to attend her rooms rather than go online, as this provided him with an excursion.
r.196.       The applicant was happy with his “fantastic” psychologist and tried hard to follow her directions. He was seeing Dr Young every three weeks and travelling to his appointments.
s.197.       A/Prof Kaplan recorded that the applicant was bearded. His dress was unremarkable. He shook his head vigorously to emphasise points, blowing through his lips. His mood was, if anything, superficial and at times cynical. He did not become distressed or break down. A/Prof Kaplan gained the impression that at times he was not taking the interview seriously.
t.198.       A/Prof Kaplan had been provided with medical certificates, Procare’s report and Mr Haralambous’ report.
u.199.       The applicant complained of mood swings, depression, anxiety, and paranoia. A/Prof Kaplan noted that his attitude and demeanour were not consistent with this. His mood was superficial, and if anything, he appeared more settled and composed. Inconsistencies and exaggeration were possible.

200. There was a difference between the applicant’s account of alcohol and drug use and what  Mr Haralambous discovered. He said he was not having contact with his parents, and then that he frequently talked to his mother. The videos were difficult to interpret, but he was seen carrying a ball and bag, possibly suggesting sporting activity that he did not mention.

w.201. A/Prof Kaplan opined that it was difficult to sustain the diagnosis of adjustment disorder, which had in all likelihood resolved, leaving the applicant with a sense of disloyalty, dismay and frustration. He opined that Mr Haralambous’ findings were likely to be correct.

202. A/Prof Kaplan did not change his earlier recommendation about return to work. Further treatment was not recommended. He opined that the applicant had recovered from adjustment disorder. Failure to lead normal activities and return to the workforce was a matter of attitude, not psychiatric disorder.

y.203. On 10 February 2022, A/Prof Kaplan reported that there was no change to his findings.

Mr George Haralambous – clinical and forensic psychologist

a.204.       Mr Haralambous was qualified by the respondent and reported first on 24 June 2021. His assessment included a clinical interview; and administering the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Test of Memory Malingering (TOMM). The tests were interspersed with breaks, and the applicant was offered further breaks, which he declined.
b.205.       The MMPI-2 usually takes 60 to 90 minutes, but the applicant took about 165 minutes to complete it.
c.206.       Mr Haralambous recorded a consistent history of the injury and the applicant’s treatment. He was “very anti” medications.
d.207.       The applicant reported feeling constantly nervous, with sweaty palms and episodes of panic when his heart rate went up. He felt lightheaded, his thoughts were muddled, and his mind went into a negative trail. He recalled a panic attack when he was about 19, but one time only. His next attack was soon after the incident in October 2020, and they had been persistent since then, occurring on average two to three times per week. They happened without obvious precipitant.
e.208.       The applicant was worried about someone breaking into his house. He had been depressed, more so in the last two weeks. Until approximately three weeks ago, he went downstairs every day and had coffee and a cigarette with the hairdresser. He didn’t like himself, the situation or how he was dealing with it. He wished for more compassion from his family.
f.209.       The applicant’s sleep was disturbed. He didn’t trust people and felt he was paranoid. He was constantly looking over his shoulder and never left the house. He had stopped shooting hoops in the last two weeks, as someone was following him.
g.210.       The applicant thought his concentration was all right, but his memory was not up to par. He had pads everywhere to write things down. He didn’t do anything but watch TV. He had meals delivered and had not been shopping in the last two weeks. He only showered if someone was visiting him. A friend or family member would visit. He had been out with two people the previous Saturday, but his hypervigilance was up, and he was looking out for a surprise attack, although Ali was in prison.
h.211.       Mr Haralambous recorded that the applicant saw a psychologist when he was about 25, as he was “having a bit of a rough time” while “unemployed and stuff”. He was frustrated that he couldn’t get a job and his parents were putting pressure on him.

212. The applicant consumed alcohol maybe once a month and “weed” also maybe once a month. He had never consumed either to problematic levels.

j.213.       Mr Haralambous recorded that the applicant appeared fully alert and orientated and appropriately engaged and responsive. His speech varied considerably in volume, laughing when it did not seem appropriate and swearing with apparent anger while describing lack of support from HR. His speech was generally clear, coherent, logical and sequential. He continuously paced as “it makes my anxiety chill a little bit”. There were no signs of disordered thought form, delusional thought processes, blunted affect, pressured speech, hallucinations, or impaired capacity for reality testing.
k.214.       Mr Haralambous explained the process of psychometric testing, which he described as a relatively straightforward process wherein a particular psychometric instrument is administered in a standardised way to assist with diagnosis and/or facilitate understanding of the nature of psychological and/or cognitive functioning.
l.215.       The TOMM was widely regarded as extremely easy and effortless. It is particularly sensitive to malingered cognitive impairment, as even severely brain damaged patients would be expected to perform well. The applicant’s responses were within normal limits and not further interpretable.
m.216.       The MMPI-2 is the most widely used standardised, research-based diagnostic instrument for psychological pathology. Mr Haralambous noted that the applicant read each question aloud and provided audible commentary on his thought processes in answering the questions, conveying an impression of carefully and fully considering his responses. There was no indication from the findings that the applicant did not comprehend the questions/test items, or that his responses were affected by lethargy, fatigue, or any other factor.
n.217.       Mr Haralambous concluded that the applicant’s endorsement of extreme items, with an associated unusual and wide range of psychological problems of a severe nature, was the result of careful item responding, rather than an inconsistent response pattern. The applicant claimed many more psychological symptoms than most patients, so an exaggerated response set could be ruled out and there was a substantially increased likelihood that the findings on the substantive scales were an exaggerated and unreliable representation of the applicant’s psychological status and problems.
o.218.       Mr Haralambous listed the characteristics of individuals with the pattern of scores demonstrated by the applicant. He opined that this was not consistent with the history available to him; and it was highly likely that the findings of MMPI-2 were not a valid and/or reliable representation of the applicant’s actual psychological status.
p.219.       On reviewing Dr Ren’s records, Mr Haralambous stated that “physical assault at work” did not constitute a recognisable, formal psychological diagnosis; that the applicant had an AVO was not consistent with his account; that he had nightmares was not consistent with his account; that he had friends visiting twice a week and was spending time with his family was not consistent with his account; that it was not clear whether Dr Ren knew the applicant thought Ms Wong believed he was trying to manipulate her; and it was noteworthy that in early February 2021, Dr Ren formed the impression his mood was improved.
q.220.       Mr Haralambous reviewed the report of Procare. He opined that the observations of the applicant were not consistent with socially isolating or avoidant anxious behaviours or diagnosable psychological pathology that may result in avoidance of public places.
r.221.       Mr Haralambous also reviewed A/Prof Kaplan’s first report. He regarded it as noteworthy that he reported the applicant was feeling better, albeit not recovered. A/Prof Kaplan’s observations neither confirmed nor did not confirm the presence of a diagnosable psychological condition.
s.222.       The diagnosis of adjustment disorder suggested a situation-specific and reactive condition from which would ordinarily be expected a complete recovery with removal from the alleged stressor(s) and/or the provision of strategies that help the individual deal more effectively with them. Adjustment disorder is not a condition that would be expected to be associated with persistent symptoms or lasting impairment of over seven months to date, especially with early signs of symptom improvement.
t.223.       Mr Haralambous reported that it appeared A/Prof Kaplan had largely relied on the applicant’s self-report, without the benefit of findings from external, corroborative sources of information or from objective, evidence-based psychometric measures.
u.224.       Mr Haralambous opined that the findings from MMPI-2 were not consistent with any genuine known form of diagnosable psychological pathology that may be reasonably attributed to the circumstances of employment from which the applicant’s claim arose. It was more likely than not that the endorsed exaggerated and/or embellished manifestations of psychological pathology were voluntary.

225. It was noteworthy that there was an absence of findings of symptom exaggeration on the TOMM. Mr Haralambous reported that its real purpose may have been transparent to the applicant. It is for this reason that it is cautioned that a “high score” on the TOMM cannot be used to rule out malingering for several reasons.

w.226. Mr Haralambous reported that there were signs of early improvement from any actual diagnosable psychological pathology that may have been experienced. The applicant’s account suggested a deterioration of status and functioning. His presentation on assessment seemed inappropriate and markedly different from the description of his presentation to A/Prof Kaplan. The finding of adjustment disorder was not supported by his findings. The applicant also did not appear pervasively depressed.

227. Mr Haralambous’ findings were inconsistent with the applicant having persistent manifestations of diagnosable psychological pathology that may reasonably be attributed, by cause or persistent aggravation, to his employment. He added that that was not to say that the applicant did not experience emotional upset, but that does constitute diagnosable psychological pathology.

y.228.       Mr Haralambous opined that the applicant, with potential secondary gains, was motivated to convey an impression of far greater psychological pathology than may be reasonably attributed to the circumstances of his claim.
z.229.       Mr Haralambous opined that the applicant’s account of panic attacks appeared to resemble a panic disorder, which is regarded as an underlying constitutional condition that is characterised by recurrent persistent panic attacks that often occur “out of the blue”. He was unable to rule out the possibility of a very long-term condition with a pattern of chronic psychological maladjustment.
aa.230.       Mr Haralambous agreed with A/Prof Kaplan that, while the applicant was unlikely to be motivated to return to work with Randstad, it was most likely that he was fit for duties commensurate with his education, training, and experience. There was no reason why he would not be capable of a return to his pre-injury duties.
bb.231.       On 9 March 2022, Mr Haralambous provided a further report, having been provided with copies of reports of Drs Khan and Young, Ms Polonsky, and the applicant’s statements.
cc.232.       Mr Haralambous found inconsistencies between what Dr Khan had recorded and the history he obtained. He concluded that it appeared Dr Khan’s opinion generally relied on what the applicant “said” or “described” and had not been independently corroborated. The findings from MMPI-2 were not consistent with a diagnosis of PTSD or genuine functionally limiting manifestations of such condition.
dd.233.       As regards Ms Polonsky’s opinion, Mr Haralambous reported that clinical research indicates that the success rate with clinicians’ attempts to detect feigned impairment by using interview observations alone are little better than chance. Ms Polonsky did not describe a concerted attempt at treatment for PTSD that would be regarded as compliant with widely accepted guidelines.
ee.234.       In Mr Haralambous’ opinion, that the applicant’s mental health was exacerbated by contact from the WorkCover system, distrust of the system and professionals involved, and he “feels” that mental health assessments have sought to uncover “a pretend psychological condition (which he denies)”, suggests a reactivity to current circumstances pertaining to the investigation and assessment of his claim, rather than manifestations of a condition arising directly from the circumstances of employment.
ff.235.       Mr Haralambous believed it was noteworthy that Dr Young described the applicant’s presentation as “atypical” and presenting “some diagnostic challenge”. It was further noteworthy that the apparent manifestations of psychological disturbance, described as “hebephrenic”, had not been described or recorded elsewhere. Mr Haralambous opined that, if authentic, they would represent very disturbed manifestations of psychological functioning that would generally be apparent to even the casual untrained observer.
gg.236.       Mr Haralambous noted that the apparent manifestations of disturbance of a psychotic nature add to extreme mistrust and paranoid thinking. There is a family history of schizophrenia, which is generally considered to be constitutional and not regarded as caused by specific circumstances. Although it may be argued that the applicant had not sought treatment before the injury, doing so would require self-insight that is notoriously limited in psychotic conditions. There is also a widely recognised stigma associated with seeking such treatment.
hh.237.       Mr Haralambous opined that it could not be argued with confidence that an individual with such purported inherent fragility of psychological stability, with a propensity to psychosis, would not have developed a psychotic disorder irrespective of any precipitating circumstances. The symptoms described and their persistence are disproportionate to the circumstances from which the claim arises, and there are potential secondary gains from the applicant seeking treatment.

238. Dr Young distinguished between over-reporting of symptoms and exaggeration that implied a conscious process. Mr Haralambous again referred to the results of the MMPI-2, which suggested the applicant’s endorsement of the test items resulted from careful item responding, rather than an inconsistent response pattern. He opined that, on the balance of probabilities, the weight of the combined findings suggested deliberate behaviour with conscious intent.

jj.239. Mr Haralambous noted that Dr Young opined that if the applicant was consciously exaggerating, he would have returned abnormal results on the TOMM and FBS and FBS-r scales. Mr Haralambous reiterated that the absence of a positive finding on the TOMM, or any symptom validity measure, does not rule out symptom misrepresentation. He maintained that the applicant was exaggerating and/or embellishing the negative effects of the circumstances from which his claim arose.
kk.240. It was unlikely that the findings of over-reporting on the MMPI-2 represented, as Dr Young opined, an “exaggerated stress response”; and “potentially histrionic traits” do not negate the likelihood that the MMPI-2 findings represent a carefully considered and deliberate representation of how the applicant chose to portray himself.

241. As regards Dr Khan’s opinion, Mr Haralambous disagreed that the applicant struggled to complete the MMPI-2. Rather, his scores suggest that he was able to comprehend and respond to the test items, and he generally endorsed them in a content-specific, non-random and deliberate manner that allows for valid interpretations. The time taken to complete it is not in itself an indication of a struggle to do so.

mm.242. Mr Haralambous disagreed with Dr Khan that MMPI-2 constitutes “arduous and superfluous psychological testing”, as his own professional body endorsed assessment guidelines that recommend such diagnostic instruments and caution against reliance on self-report alone for diagnosis of PTSD.
nn.243. Mr Haralambous referred to the applicant’s statements. He opined that if he suffered from agoraphobia or other condition that limited his capacity to move freely in public places, this would not appear consistent with independent observations of his behaviour. It is questionable how a self-reported well-functioning individual could be so dramatically affected by circumstances at work perpetrated by a single individual with whom he has had no contact since in or around October 2020.

Dr Abdal W. Khan - psychiatrist

a.244.       Dr Khan was qualified by the applicant and reported first on 31 August 2021. He recorded a consistent history of the injury.
b.245.       The applicant had nightmares and flashbacks about the threats from Ali; distressing memories; physical and emotional symptoms of anxiety and panic; irritability; agitation; avoidance of trauma-related reminders, including his workplace; low mood; social isolation; reduced motivation and enjoyment of activities; reckless behaviour with escalating alcohol use; sleep disturbance; reduced appetite and energy; impaired attention, concentration and memory; hypervigilance; heightened startle reaction; reduced self-confidence; and difficulties with trust.
c.246.       Dr Khan recorded that the applicant continued to have pervasive symptoms of trauma, depression and anxiety, impacting his self-care and personal hygiene; social and recreational activities (including no longer playing basketball); travel; social functioning; concentration, persistence and pace; and employability.

d.247.       The applicant had been diagnosed by Ms Polonsky with PTSD. He had been treated by his psychiatrist every three to four weeks, and prescribed Sertraline and Quetiapine, having previously trialled other medication.
e.248.       Dr Khan recorded that the applicant first had mental health difficulties at about the age of 14. He developed symptoms of depression and his mother arranged an assessment with a GP, who commenced Sertraline. The applicant ceased this after a few weeks and his mental state stabilised. He denied any other past psychiatric history.
f.249.       The applicant was a long-term smoker but did not consume alcohol before the injury. His use had escalated with periods of binge drinking. While his parents separated when he was 14, he denied that it caused any long term emotional effects.
g.250.       On examination. Dr Khan found evidence of psychomotor agitation. The applicant described his mood in anxious terms. His affect was agitated and irritable. At times his speech was rapid and intense, but he was able to de-escalate. His thought content comprised pervasive symptoms of trauma, depression, and anxiety. There was some evidence of impairment in attention, concentration, and memory. He had appropriate insight and judgment.
h.251.       Dr Khan diagnosed PTSD. The applicant had also developed the comorbid condition of alcohol abuse. His past history was not considered significant. Before the workplace injury he was asymptomatic and in good health.

252. Dr Khan opined that the applicant’s psychiatric/psychological injury was severe. His present and continuing disabilities related to PTSD. This had resulted in pervasive symptoms of trauma, depression, and anxiety that had perpetuated alcohol use and caused significant impairment in his mood regulation; motivation; energy; attention; concentration; memory; coping mechanisms; self-confidence; and trust in interpersonal relationships. These disabilities continued to have a profoundly negative impact on his functioning.

j.253.       The applicant required ongoing treatment, including two psychotropic medications, one of which was sedating. The condition and treatment related factors precluded him from currently having any realistic prospect of resuming his pre-accident occupation in the future.
k.254.       Dr Khan noted that the applicant had expressed motivation to focus on his recovery, with the goal of resuming suitable duties. It might be possible with an alternate employer in approximately six to nine months, depending on his recovery. At that stage, he had no capacity for employment. He would need to be well-supported by any prospective employer, with a gradual return to work. His prognosis was uncertain.
l.255.       Dr Khan opined that the applicant required regular follow-up with a GP, psychologist, and psychiatrist; inpatient private psychiatric hospital admissions; day-patient private psychiatric hospital groups; and ongoing medication. His condition had not stabilised to allow assessment of permanent impairment.
m.256.       Dr Khan again reported on 8 November 2021. He had been asked to review the report of  Mr Haralambous. He disagreed with Mr Haralambous that the applicant did not have a diagnosable psychological pathology and was exaggerating his symptoms.
n.257.       Dr Khan opined that it was not surprising that the applicant struggled to complete MMPI-2. When he assessed the applicant on 31 August 2021, he was struggling with cognitive difficulties. Dr Khan noted that Mr Haralambous had failed to highlight the applicant’s normal results on the TOMM. If he was exaggerating his symptoms, that ought to have been identifiable on the TOMM.
o.258.       Dr Khan explained the testing as arduous psychological testing on an individual presenting with significant psychological distress caused by PTSD, whom one would expect to struggle with it.
p.259.       Dr Khan was critical of the referral to Mr Haralambous, opining that there was no clinical indication for it, and his opinion has been established as an “outlier”, which should be considered immaterial.
q.260.       Dr Khan also disagreed with A/Prof Kaplan. He opined that, when he assessed the applicant on 31 August 2021, he still had active symptoms of PTSD and alcohol abuse.
r.261.       Dr Khan opined that the applicant’s current psychological injuries were due to his workplace injury; and employment was the main and predominant contributing factor. He agreed with  Dr Young and Ms Polonsky that the applicant was unable to return to any form of employment. His injuries had not resolved.
s.262.       Dr Khan last reported on 17 March 2022, having been asked to comment on the report of  Mr Haralambous dated 9 March 2022.
t.263.       Dr Khan opined that Mr Haralambous’ comments only served to highlight the irrelevance of the use of MMPI-2 in clinical psychiatric practice. It is not a diagnostic instrument.  Mr Haralambous has cited evidence from psychological journals and not psychiatric journals. The guidelines referred to are merely that, not diagnostic measures. The reference is to guidelines in relation to “Diagnosis and Treatment of Post-traumatic Stress Disorder in Emergency Service Workers”, not injured workers receiving treatment in the workers’ compensation scheme.
u.264.       Dr Khan reported that there is no robust medical research indicating the validity of MMPI-2 for individuals from culturally and linguistically diverse backgrounds, such as Mr Raoufi-Rad.

265. Dr Khan was highly critical of Mr Haralambous’ opinion. It had not led him to change his opinion, which was congruent with those of the applicant’s treating psychiatrist and psychologist. They have had the opportunity to longitudinally assess the applicant’s mental state and provide him with reasonable and necessary treatment for this workplace injury.

Dr Peter Young – consultant psychiatrist

a.266.       Dr Young reported to the applicant’s solicitors on 22 October 2021. He referred to his previous report, but there is no earlier report in evidence, unless he was referring to his undated report to the respondent’s solicitors.
b.267.       The applicant continued to attend for review and was compliant with treatment. His condition had improved somewhat but he continued to experience disabling anxiety symptoms, particularly panic attacks. Dr Young opined that reasonably necessary treatment included ongoing review and medication optimisation, as well as CBT-based psychological treatment.
c.268.       Dr Young has provided a report to the respondent’s solicitors.
d.269.       Dr Young had recorded a history of anxiety symptoms after the applicant was threatened at work. The applicant reported panic, dissociative symptoms and anxiety bordering on paranoia. His symptoms qualified for the diagnosis of adjustment disorder, but more serious conditions such as brief psychosis remained differential diagnoses. The main contributing factor to his injury occurred in the course of his employment.
e.270.       Dr Young opined that the applicant’s incapacity for work resulted from the injury. He would benefit from a graduated return to work in the near future, commencing with limited duties and hours, most likely working remotely. He was likely to require a graduated re-introduction to the workplace because the worksite was an anxiety trigger.
f.271.       Dr Young concluded that, although there had been some improvement, the applicant continued to report moderate to severe symptoms of anxiety, despite escalation of medication. His progress had been less rapid than desirable. There was likely to be continued improvement in the medium term. Dr Young expected the applicant would require further support in the next three to six months to fully resolve his symptoms.
g.272.       Dr Young had not reviewed A/Prof Kaplan’s or Mr Haralambous’ reports, so I assume this report pre-dated his next report to the applicant’s solicitors. He did not expect that over-reporting was related to malingering. It was more likely that it reflected an exaggerated stress response and potentially histrionic traits. Dr Young was confident the applicant was genuinely impaired by anxiety symptoms.
h.273.       Dr Young again reported to the applicant’s solicitors on 29 October 2021. He had reviewed the reports of A/Prof Kaplan and Mr Haralambous, but not the investigation report of Procare or the surveillance material.

274. Dr Young noted that the applicant’s presentation was atypical and presented some diagnostic challenge. There was a clear history of an identifiable precipitating stressor and significant subjective anxiety with functional impairment, so the threshold for adjustment disorder was met. The precipitating work-related stressor qualified for the A criterion in PTSD, and the applicant reported other PTSD criteria, so that could be considered a differential diagnosis. He had also reported anxiety symptoms that at times resulted in panic attacks and appeared to cross over into frank paranoia.

j.275.       Dr Young’s working formulation was that the applicant suffered a significant stressor that had resulted in a condition that had increasingly come to resemble PTSD with likely dissociative and possibly psychotic elements. This would indicate possibly a brief psychotic disorder or that the stressor had precipitated what may prove to be a longer term psychotic illness. This is a rare though well-recognised possibility, so the treatment had attempted to cover them with antidepressant/antianxiety medications and antipsychotic with concurrent psychological therapy.
k.276.       Dr Young disagreed with Mr Haralambous’ conclusions. There is a distinction between over-reporting of symptoms and exaggeration, which implies a conscious process. Dr Young thought that if the applicant was consciously exaggerating, he would have received abnormal results on the TOMM, FBS and FBS-r scales. As he subjectively reported cognitive difficulties, it seemed unusual that he would not seek to emphasise them on the TOMM.  Dr Young thought the level of symptoms he reported reflected his level of subjective distress.
l.277.       The description of the applicant’s behaviour during the assessment was similar to that observed by Dr Young, which had prompted his use of antipsychotic medication. There seemed to be a dose related response. Mr Haralambous had noted that some individuals with genuine illness do present with these results, but it is unusual. Dr Young agreed that this was an unusual case.
m.278.       Dr Young disagreed with A/Prof Kaplan that the applicant’s injury had resolved. He noted the conclusion was inconsistent with A/Prof Kaplan having recorded many examples of subjective symptoms as well as observed behaviour that indicated ongoing symptoms.
n.279.       Dr Young maintained that the applicant’s condition had been caused by his workplace injury, which was the main contributing factor. He did not believe the applicant was fit to return to work but would benefit from review by a rehabilitation specialist to support and facilitate a suitable progressive return. Ideally, this would be non-time dependent work from home at first, at probably 20% of normal hours.

SUBMISSIONS

a.280. The parties have provided written submissions and I will therefore summarise them only briefly.

Applicant

a.281.       As regards his current capacity for work, the applicant relies on his own evidence; the COCs certifying no current capacity, continuing; and the opinions of Ms Polonsky, Dr Young and  Dr Khan. The respondent relies on the opinions of A/Prof Kaplan; Mr Haralambous; and surveillance material conducted over approximately 136 hours, yielding 72 minutes; 33 minutes; and 19 minutes of footage. The applicant submitted that his evidence ought to be preferred to the evidence of the respondent.
b.282.       The applicant submitted that the evidence of Mr Haralambous ought to be given no, or very little, weight. His opinion was based on the results of the MMPI-2 only. The TOMM test was for symptom validity, but the results were inconsistent with the MMPI-2. Mr Haralambous did not explain this, or why the MMPI-2 should be preferred over the TOMM. As Dr Khan noted, if the applicant was exaggerating, why would the results of the TOMM be within normal limits? This is not explained, and the applicant submitted this undermines Mr Haralambous’ opinion. He has picked out evidence that suits the opinion, rather than objectively analysing it all.
c.283.       The applicant submitted that Mr Haralambous’ opinion is general and given in the context of what typically the results mean. As Dr Young stated, this is an unusual case. (Emphasis in original). The applicant ought to be assessed as an individual, and his responses to what happened to him assessed on an individual basis, not by applying “one-size fits all”.
d.284.       The applicant submitted that the psychometric testing was not requested by any treating doctor, as not one questioned the validity of his presentation. They all diagnosed psychological injury, as did A/Prof Kaplan. Mr Haralambous sought to undermine the diagnosis, and to this extent his opinion is inconsistent with that of A/Prof Kaplan. A/Prof Kaplan said in February 2021 that no further tests were required.
e.285.       The applicant submitted that Mr Haralambous’ opinion has been criticised by Drs Young and Khan, whose opinions, particularly that of Dr Young, ought to be preferred. The test results cannot be determinative, particularly when the treating doctors support an ongoing diagnosis, need for treatment and incapacity for work.
f.286.       The applicant submitted that Mr Haralambous did not deal with Ms Polonsky’s evidence that she encouraged him to go out and expose himself to outdoor activities. His doing so, as demonstrated in the surveillance footage, was part of his rehabilitation process.
g.287.       The applicant referred to Jafari v Khoury & McDonalds Australia Ltd [2019] NSWDC 394 (at [40] and [54]) in submitting that the opinion of Mr Haralambous was commissioned to attack his credit and not to obtain further medical opinion on his condition. It has therefore exceeded the bounds of expert opinion because it seeks to “assign the task of making an assessment on matters of credibility to an expert”, which would have the effect of “bypassing the function of the Court in assessing disputed questions of fact”.
h.288.       The applicant submitted that A/Prof Kaplan’s opinion ought to be given no, or limited, weight because he does not explain why he considered the injury had resolved when he saw the applicant in September 2021, other than to say he seemed more composed. This opinion requires more detailed explanation, as it is at odds with the evidence of Dr Young, Ms Polonsky and Dr Khan. Their evidence ought to be preferred, as they are best placed to assess him.

289. The applicant submitted that his evidence ought to be accepted. He experienced a threat to his life and assault from a very aggressive person whom he understood and believed would carry out his threats. His mental health deteriorated significantly, he became paranoid, and has sought treatment. He is motivated to improve and wishes to return to work once he has recovered sufficiently. He has embraced treatment and was encouraged to expose himself to social situations.

j.290.       The applicant submitted that the surveillance is not inconsistent with his statement as to his disabilities and Ms Polonsky’s notes. There is no reason he ought not to be believed. His evidence is that he continues to experience significant symptoms that functionally impair him and to have no current capacity. His evidence as to not receiving income from work and his explanation for the entries in his bank account ought to be accepted. There is no evidence of any work or income.
k.291.       The applicant’s PIAWE was $987.20. He made submissions as to the orders that should be made.
l.292.       In reply to the respondent, the applicant submitted that the respondent sought to diminish the cause/injurious event of the injury. He referred to his evidence of what occurred.
m.293.       The applicant referred to the surveillance, which was conducted between 18 December 2020 and 22 January 2022, over 136 hours, with 124 minutes of footage obtained. His explanation that he was encouraged to go out is supported by Ms Polonsky. He was also encouraged to play basketball, which he undertook as a sole activity. The footage is not inconsistent with his evidence of “good days and bad days”.
n.294.       The applicant asked if Mr Haralambous believed he would identify the purpose of the TOMM and tailor his answers, what then was the purpose of the test? It appears that the submission is that because he has intellect and was able to manoeuvre his car when being followed, he is assumed to be devious and calculating. He submitted it must be borne in mind that part of his injury has manifested as paranoia based on a real fear that Ali would carry out his threats.
o.295.       The applicant further submitted that it is one thing for him to be aware of people following him, and another to assume he had knowledge of the methodology and purpose of the TOMM. There is no evidence to substantiate the assertion, which is without foundation and ought to be rejected. Nothing turns on his comment on his consultation with A/Prof Kaplan.
p.296.       The applicant submitted that Dr Young is a highly experienced professional, charged with diagnosing and assessing him. It is unfair and unwarranted to suggest he is incapable of determining whether his patient is genuine. He has assessed the applicant as genuine and treated him on the basis of that assessment. It is based on his significant clinical skill and judgment. He accepted that psychometric testing was of some value in respect of diagnosis, but it is not infallible and cannot displace the primary place of the medical specialist practitioner. The testing is not determinative of the applicant’s capacity [sic incapacity] resulting from his injury, which has been, and continues to be, significant.

Respondent

a.297.       The respondent submitted that there is no issue about primary liability. It referred to the factual background as the applicant becoming involved in a dispute with Ali, who menaced him with a broom and later made threats against him. Dr Ren issued a medical certificate on 30 October 2020, on the basis of a physical injury, seemingly as a result of the applicant being prodded by the broom.
b.298.       The respondent submitted that A/Prof Kaplan initially recommended that the applicant recommence work within weeks, the inference being that he could resume full duties after a short period of working 20 hours per week.
c.299.       The respondent submitted that the applicant’s criticism of it conducting surveillance when he was suffering a psychiatric disorder is self-serving and misguided. At the time it was arranged, the only medical certification that had been provided certified him unfit for work due to physical injury.
d.300.       The respondent submitted that the surveillance on 18 December 2020 did not show any apparent anxiety or “distraction” while the applicant was engaging in the activity described. That stands in stark contrast to the history he gave A/Prof Kaplan in February 2021. There is no evidence to support an argument his condition became worse between December 2020 and February 2021. He had resumed playing basketball, which A/Prof Kaplan noted was a sign of improvement.

e.301.       The respondent submitted the applicant’s activities within the shopping centre are not consistent with his claimed level of incapacity and restriction. He is shown smiling and laughing, without apparent sign of anxiety or distress. His erratic driving when being observed was because he noticed he was being followed, not a sign or symptom of paranoid belief. His dismissal of the “abilities” of investigators demonstrates the same type of knowledge and response to the MMPI-2 testing.
f.302.       The respondent submitted that Mr Haralambous recorded a history of panic attacks about three times a week, and that the applicant restricted his visits to the supermarket. That is similar to the history he gave A/Prof Kaplan, but at odds with the surveillance in December 2020. He “never [left] the house”, which was clearly inconsistent with his activity between December 2020 and February 2021.
g.303.       It is difficult to refute that the applicant has “good days and bad days”, but the respondent submitted that as he was not working, he naturally would have more limited activity. The investigators were fortunate to observe him only on “good days”.
h.304.       The respondent submitted that it is open to conclude that the applicant suspended playing basketball not because he believed he was being followed, but because it was inconsistent with his case and the observations of him doing so would be used against him.

305. The respondent submitted that Mr Haralambous’ report is very detailed and provides a comprehensive review of the testing, his assessment of the applicant, the results, and his conclusions. He concluded that the results of the MMPI-2 indicated that the applicant was exaggerating or embellishing his psychological and cognitive dysfunction. It was clearly anticipated by those who designed the TOMM that in some cases individuals would be able to anticipate the outcomes and tailor their responses.

j.306.       The respondent submitted that the applicant had sought to demonstrate that he was able to identify and outwit the investigators, and that evidence also shows he was alive to the possibility that the testing was designed to show inconsistencies in his presentation.
k.307.       The respondent submitted that when A/Prof Kaplan re-examined the applicant, he sought to give the impression of a person who largely avoided going out. A/Prof Kaplan’s observations of his mood and demeanour as superficial and cynical demonstrated an attitude similar to his recent statement evidence. A/Prof Kaplan observed that it was quite possible he was exaggerating his complaints. He concluded that the applicant’s condition had likely resolved, and he was not incapacitated for work (consistent with his earlier report) and did not need further treatment.
l.308.       The respondent referred to the applicant’s statements. It submitted that his evidence that immediately after ceasing work he became withdrawn and had panic attacks is not consistent with the surveillance in December 2020.
m.309.       The applicant’s attack on A/Prof Kaplan’s professionalism is a theme that runs through a number of aspects of his evidence. The respondent submitted it was consistent with Mr Haralambous’ opinion and A/Prof Kaplan’s observations in his second report of the applicant’s approach to the assessments.
n.310.       The respondent submitted that the applicant’s claim that after his initial assessment by A/Prof Kaplan, his condition got worse is not borne out by the contemporaneous medical evidence. It referred to Ms Polonsky’s report and Dr Ren’s records at about the same time.
o.311.       The respondent submitted that the applicant’s evidence about a rapid decline in his mental health in February 2021 is not only demonstrably false, but an attempt to discredit A/Prof Kaplan to further his own case. His request that he be referred to Dr Young, a SIRA approved psychiatrist, was hardly consistent with someone in the midst of a rapid mental decline and far more in keeping with someone directing his GP to refer him for a medical assessment that he anticipated would support his claim.
p.312.       The respondent submitted that the applicant’s statement dated 18 March 2022 does not provide any evidence to suggest his level of functioning has improved. To the contrary, his attack on its approach to the management of his claim and the litigation is premised on the assertion that he remains significantly restricted to a degree that he would be incapable of working. It is notable that his shift in his evidence about his motivation and attempts to leave the house on the recommendation of his medical practitioners was provided at the same time as he was required to produce financial records, which were likely to demonstrate whether his level of activity was consistent with his earlier claims. The respondent submitted those records provide a very different perspective on his level of activity.
q.313.       The respondent submitted that the applicant’s financial records show expenditure on shopping, food, restaurant and fast food, petrol and transport. Contrary to his evidence and the history he has given to a number of doctors, the patterns of expenditure provided a very different picture to his account of his level of disability and restriction. The respondent has referred in detail to the records.
r.314.       The respondent submitted the pattern of expenditure is inconsistent with the level of psychological disability the applicant has described in his statements and history to medical practitioners. It is quite consistent with the surveillance and Mr Haralambous’ opinion about the likelihood that he is exaggerating or malingering.
s.315.       The respondent submitted that Ms Wong did not record any history that the applicant was unable to leave his home or was suffering symptoms of paranoia or agoraphobia. Dr Young’s reasons for disagreeing with A/Prof Kaplan that the adjustment disorder had resolved appear principally based on the applicant’s history of significant ongoing symptoms. The respondent submitted there is significant doubt about the accuracy of the history. Dr Young stated he considered the applicant would be capable of a graduated return to work in the near future.
t.316.       The respondent submitted that Dr Young took issue with the opinions of A/Prof Kaplan and Mr Haralambous without having seen their reports, which significantly undermines the objectivity of his opinion and prevents any real weight being given to it. He maintained that view after reading the reports. Despite conceding the applicant’s presentation was “atypical”, he maintained his view that he suffered a condition that had begun to resemble PTSD. He appears to have placed considerable reliance on “dissociative elements”, without properly identifying them.
u.317.       The respondent submitted that Dr Young does not appear to have considered the possibility that the applicant manipulated the results of the TOMM but accepted his presentation as genuine. That leads to a major deficiency in his opinion, as he was not provided with the surveillance or the applicant’s financial records. Dr Khan also did not have available to him either the report of Mr Haralambous or the surveillance.

318. The respondent relied on the decisions in City of Brimbank v Halilovic [2000] VSCA 12 at [23] – “[a]n expert opinion is only as good as the foundation upon which it is based”. In Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101] – [102] and [105] –[134], the court stated that while assumed facts relied on by an expert medical witness do not have to correspond “with complete precision” with the facts established, it is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509 - 510; [1985] HCA 58; 59 ALJR 844 at 846).

w.319. The respondent submitted the assumed facts relied on by Dr Khan in forming the opinion the applicant sustained PTSD as a result of the workplace injury are not supported by the contemporaneous medical records, the history given to A/Prof Kaplan in February 2021 and the surveillance. His opinion should be given little weight. He made a “quite remarkable attack” on Mr Haralambous. He has significantly undermined his objective stance as a witness. His evidence should be given little, if any, weight.

320. The respondent finally submitted that the Commission should enter an award in its favour.

SUMMARY

a.321.       It is not in dispute that the applicant sustained a psychological injury on 28 October 2020, although there is no consensus on his diagnosis. The respondent maintains that the applicant has recovered from the effects of the injury and has had no incapacity for work or need for medical treatment since 4 October 2021. Mr Raoufi-Rad maintains that he has no capacity for work and requires medical treatment for his condition.
b.322.       There is force in the applicant’s submission that the respondent has attempted to diminish somewhat the event that gave rise to his condition. The incident and its aftermath have been described in his evidence. There is no evidence from the respondent that contradicts his account, which I accept.
c.323.       The applicant has support from his GP, treating psychologist and psychiatrist, and Dr Khan, who has been qualified on his behalf. The respondent relies heavily on surveillance evidence and the results of psychometric testing, as well as the opinion of A/Prof Kaplan.
d.324.       It should be noted that A/Prof Kaplan accepted that the applicant had sustained a psychological injury, which he diagnosed as adjustment disorder with anxiety and depression. He initially recommended a graded return to work.
e.325.       The applicant has given various accounts of his symptoms at different times. He told  A/Prof Kaplan he had good and bad days, which, if one has regard to the evidence of his treating practitioners, appears to be the case.
f.326.       I have referred in some detail to Ms Polonsky’s records, as she has been treating the applicant since February 2021, he has consulted her frequently since that time, and because of the attack on the applicant’s credit.
g.327.       I do not accept the submission that the applicant shifted his evidence about his motivation and leaving the house because his financial records contradicted his earlier evidence.  Ms Polonsky’s records have been in evidence since the Application was filed. The applicant was unable to “shift” them.
h.328.       Ms Polonsky has recorded such histories as “felt great that day [after consulting her] but then deflated for a few days”; had been “up and down”; anxiety had worsened but he “felt better since has had a sense of control”; “more relaxed” but struggling to leave the house; and “could see progress”.

329. Ms Polonsky tried or recommended various treatments, some of which the applicant rejected. When the applicant underwent EMDR, it was noted that progress was not linear. Ms Polonsky recorded physical symptoms such as tearfulness, panic attacks, fidgeting, intensely chewing gum and shaking.

j.330.       While the applicant did leave his home, shop, meet up with friends and play basketball, albeit alone, he was clearly encouraged by Ms Polonsky to undertake such activities. She sometimes accompanied him and was able to observe and record his responses.
k.331.       I do not believe Ms Polonsky was misled or that the applicant exaggerated his symptoms to her. She has specifically disagreed that he did so. She was in an excellent position to observe and assess him over, by October 2021, almost 40 sessions. Her records are detailed, as are her reports.
l.332.        It appears most unlikely that Ms Polonsky would have recommended such a range of different therapies had she had any misgivings about the applicant’s genuineness. It also appears unlikely that, had he been attempting to mislead her, he would have conceded any improvement, which she at times recorded.
m.333.       Mr Haralambous suggested that research cast doubt on the ability of clinicians to detect feigned impairment by interview observations alone, but unless every patient is required to undergo psychometric testing, experienced clinicians must rely on their own training and observations of their patients.
n.334.       The respondent relies on the opinion of Mr Haralambous that it was highly likely that the findings on MMPI-2 were not valid or reliable, and more likely that the applicant’s exaggerated and/or embellished manifestations of pathology were voluntary. Mr Haralambous opined that the applicant was motivated by potential secondary gain.
o.335.       Mr Haralambous reported on the one hand that the TOMM is particularly sensitive to “malingered” cognitive impairment, and on the other that its real purpose may have been transparent to the applicant, so a “high score” cannot be used to rule out malingering. I find it difficult to accept both propositions. As Dr Khan opined, if the applicant was consciously exaggerating, it may be expected that this would also be apparent on the TOMM.
p.336.       Both Dr Young, who has been treating the applicant since April 2021, and was reviewing him every three weeks, and Dr Khan, have commented on Mr Haralambous’ reports. Their opinions have not changed.
q.337.       Dr Young accepts that the applicant’s presentation was atypical and presented some challenges. A longer term psychotic illness, precipitated by the stressor, was a rare though well-recognised possibility, and the treatment had attempted to cover this.
r.338.       Dr Young drew a distinction between over-reporting of symptoms and exaggeration, the latter implying a conscious process. If the applicant was consciously exaggerating, Dr Young would have expected him to receive abnormal results on the TOMM, FBS and FBS-r scales. He believed that over-reporting was likely to reflect an exaggerated stress response and potentially histrionic traits, rather than malingering.
s.339.       A/Prof Kaplan, having been provided with Procare’s first report and Mr Haralambous’ first report, opined on 7 September 2021 that inconsistencies and exaggeration were “possible”. It was difficult to sustain the diagnosis of adjustment disorder, which had “in all likelihood” had resolved. Mr Haralambous’ findings were “likely to be correct”. This is hardly an unequivocal expression of opinion.
t.340.       I accept that Ms Polonsky and Dr Young, having treated the applicant over an extended period, are best placed to provide an opinion on his condition and capacity for work. Neither believes he is exaggerating his condition or malingering. They have both made considerable efforts to treat what Dr Young described as an unusual case.
u.341. I do not accept the respondent’s submission that Dr Khan’s opinion should be given little or no weight because it was not given in “a fair climate”. He was provided with the applicant’s statement; the clinical records of Macquarie Medical Centre, New Vision Psychology and  Dr Young; Dr Young’s reports; Dr Wong’s report; Ms Polonsky’s report, the section 78 notice; and A/Prof Kaplan’s reports, as well as Mr Haralambous’ report. He referred to this material in providing his opinion. He was hardly ill-informed.

342. I also do not agree that Dr Khan’s “quite remarkable attack” on Mr Haralambous means that his evidence should be accorded little weight. He has been forthright in his criticism of  Mr Haralambous’ opinion but has provided his reasons. Dr Young, in a more measured response, also disagreed with Mr Haralambous.

w.343. I have not attached any importance to the applicant’s attempts to evade the investigators. He has given evidence of his paranoid reaction to various events, which have been noted by his treating practitioners. He was on one occasion “scared out of his mind” by being tailgated by the investigators and did an illegal turn to prevent this. It is unlikely that being placed under surveillance and followed did anything to allay his fears and paranoia.

344. I give little weight to the evidence that the applicant’s bank records show purchases at various outlets and travel on public transport. It is not inconsistent with him suffering a psychological condition and nor does it establish that he has capacity for work.

y.345.       I prefer the evidence of Ms Polonsky and Dr Young, supported by Dr Khan, to the evidence of A/Prof Kaplan and Mr Haralambous. The applicant has not recovered from the effects of the injury on 28 October 2020.
z.346.       The COCs in evidence have consistently certified the applicant as having no capacity for work. A/Prof Kaplan opined in February 2021 that he could commence a graduated return to part-time work in four weeks and did not change that recommendation in September 2021. Ms Polonsky opined that he had no capacity for employment, while in August 2021, Dr Khan opined that resuming suitable duties with an alternate employer might be possible in six to nine months, depending on his recovery. Dr Young opined that he was not fit to return to work but would benefit from support to initially perform ideally non-time dependent work from home, at probably 20% of normal hours. He did not suggest what this work should be, and the applicant has of course not received any support to return to work.
aa.347.       I am satisfied that the applicant has had no capacity for work since payments of compensation ceased.
bb.348. The applicant claims his PIAWE was $987.20, and that is confirmed in a letter from Randstad dated 30 March 2021. Pursuant to section 37 of the 1987 Act, the weekly benefits payable are therefore $789.76 (80% x $987.20). He is entitled to a general order for payment of medical expenses pursuant to section 60 of the 1987 Act.
cc.349.       The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 289

14 June 2022