Roach v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roach v Secretary, Department of Education [2021] NSWPIC 312
APPLICANT:	Allana Roach
RESPONDENT:	Secretary, Department of Education
MEMBER:	Cameron Burge
DATE OF DECISION:	27 August 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment relating to a psychological injury; applicant suffered accepted injury to vocal cords as a result of exposure to protracted noise over the course of several months; also claims psychological injury arising from same circumstances; respondent denies injury on basis applicant does not suffer recognisable psychological condition (sections 4, 9A of the Workers Compensation Act 1987) and in alternative alleges psychological injury was secondary to the physical injury and therefore no permanent impairment compensation payable (section 65A of the Workers Compensation Act 1987); Held- applicant suffered a psychological injury; the preponderance of the medical evidence establishes she meets the criteria for a psychological injury rather than mere emotional upset or distress; Thazin-Aye v WorkCover Authority (NSW) referred to; the fact the applicant did not complain for some time to a general practitioner is not fatal to a claim for psychological injury; Baker v Southern Metropolitan Cemeteries Trust followed; the applicant’s psychological injury arose as a consequence of her physical injury; as such, there is no entitlement to permanent impairment compensation; award for the respondent.
DETERMINATIONS MADE:	1. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 28 August 2013. 2. The injury referred to (1) above was a secondary psychological injury caused as a result of the accepted physical injury suffered by the applicant to her vocal cords. 3. Award for the respondent on the claim for permanent impairment compensation in relation to the applicant’s psychological injury. 4. In accordance with the Consent Orders entered into on 9 June 2021, the claim for permanent impairment compensation with respect to the injury to the applicant’s vocal cords is remitted to the President for referral to a Medical Assessor on the terms set out in the consent orders.

STATEMENT OF REASONS

BACKGROUND

Allana Roach (the applicant) suffered an accepted injury to her vocal cords in a cause of her employment with Secretary, Department of Education (the respondent) as a teacher when she was exposed to excessive noise in the workplace between May and August 2013.
That injury will, by agreement of the parties reflected in Consent Orders dated 9 June 2021, be remitted to the President for referral to a Medical Assessor (MA) to determine the degree of the applicant’s whole person impairment.
The remaining dispute in the present proceedings surrounds the applicant’s claim for permanent impairment compensation in respect of a psychological injury said to arise from the same exposure to excessive noise.
By dispute notice dated 22 March 2021, the respondent denied liability on the basis the applicant did not suffer a psychological injury, and if she did, the injury was a secondary psychological injury caused by the accepted physical condition, which does not ground an entitlement to permanent impairment compensation (section 65A Workers Compensation Act 1987 (the 1987 Act)).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered a psychological injury in the course of her employment, and
(b) if the applicant did suffer such an injury, whether it was a primary or secondary psychological injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 30 July 2021. 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.

At the hearing, Mr G Niven of counsel appeared for the applicant and instructed by
Ms F Smith, solicitor. Mr Andrew Parker of counsel and instructed by Ms D Shrivaji, solicitor appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Psychological Injury

The applicant carries the onus of proving that she suffered a psychological injury in the course of her employment. To establish she had suffered such an injury, it is not enough for the applicant to demonstrate frustration and upset, even of a high degree. It is necessary there be a physiological effect and not a mere emotional impulse (Thazin-Aye v WorkCover Authority (NSW)) (1995) 12 NSWCCR 340.
It is apparent that the applicant was exposed to lengthy periods of excessive noise as a result of construction works being carried out at Bomaderry High School. The applicant commenced employment at the school on 27 January 2008 and received a permanent appointment there on or about 30 April 2010. She worked in the HSIE faculty of the high school, and in August 2012 was promoted to relieving head teacher of that faculty.
According to the applicant’s evidence, which is uncontested, in or about May 2013 major renovations were undertaken at the school to two of the science laboratories. Those works included demolition and removal of furniture and fittings, installation of new cupboards and benches, installation of new batons and ceiling, installation of new lighting and flooring together with associated works.
The applicant states the science laboratories the subject of these renovations were located underneath and opposite the classroom in which she taught. According to the applicant:
“I recall that the renovations created excessively high levels of noise which was the result of the constant use of jackhammers, drills and other power tools. Even when such equipment was not in use, loud and disruptive noises were created by hammering and the like.”
The applicant described the noise as almost constant in its various forms.
The applicant states she began noticing an altered sensation in her throat shortly after the renovations began, which deteriorated over the ensuing weeks. After several visits to her general practitioner, the applicant was referred to an Ear Nose and Throat specialist, Dr Cole. He diagnosed the applicant as suffering from vocal abuse arising from attempting to over project her voice at work in the face of the relentless noise, and recommended she stopped teaching a period of time to obtain voice therapy. As already noted, this injury was accepted and will be the subject of a referral to a Medical Assessor for assessment.
In or about April 2014, a case conference was organised between the applicant’s general practitioner Dr Roy and the respondent’s insurer. According to the applicant’s statement:
“60. It was at about this point in time where I had begun to feel extremely distressed and upset at the lack of progress with my recovery. The injury to my vocal cords had significantly affected my life; I was unable to teach and it was significantly affecting my personal life.
61. I attended upon Dr Roy on or about 8 April 2014 to discuss these feelings of sadness and distress.”
The applicant continued to receive treatment throughout 2014 with respect to her vocal cord injury until approximately August 2014, when her condition was such that she was forced to stop teaching altogether. The applicant states:
“79. As a result of my inability to work and the ongoing restrictions and disability which had been caused by my vocal cord injuries, I began feeling anxious and in a low mood.
80. I consulted Dr Roy on or about 18 September 2014, and we discussed my psychological state. I was referred to a psychologist.
81. On or about 26 September 2014 I attended an initial psychological assessment with Tammy Alhalaby. I discussed my circumstances with Ms Alhalaby explaining that I was feeling depressed and stressed. I recall conveying my frustration with my inabilities to interact normally due to my chronic vocal cord condition.”
The applicant then began arranging treatment for her psychological injury. This included an attendance upon her general practitioner on 22 January 2015, at which time she was in a distressed and tearful state. She said:
“I was continuing to struggle with my physical condition which was affecting every aspect of my personal life. I had continued applying for jobs, but was again unsuccessful in each application. On this occasion, I was again certified as unfit for employment by Dr Roy.”

The applicant was prescribed anti-depressant medication.

The applicant’s evidence in her first statement is broadly consistent with that provided to all of the doctors who have provided opinions in this matter. In my view, the medical evidence overwhelmingly supports a finding that the applicant suffered a psychological injury in the course of her employment with the respondent.
For the respondent, Mr Parker noted the applicant made no complaint of psychological symptoms to her general practitioner until 2014. I note, however, the absence of complaint to a treating practitioner is in no way fatal to a claim for psychological injury.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSW WCCPD 56, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:
“80. It was correct that Mr Baker did not complained to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint with general practitioner is a factor an Arbitrator is entitled to take into account and considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.    However, on its own, the absence of such complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained have caused a psychological injury and the Arbitrator erred in treating at is if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.    Whether Mr Baker suffered a psychological injury as a result of the events that work up to 26 September 2013 depended on assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between then and Mr Baker that created conflicts at work,… and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83.    The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for a corroboration in the civil case (Chanaa v Zarour [2011] NSW CA199 [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84.    Moreover, as Beazley JA (as Her Honour then was) (Campbell and MacFarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSW CA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believe his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
In this matter, the applicant’s general practitioner records clearly reveal she made complaint to him after a period of time concerning her psychological symptoms, after the physical injury suffered in the course of her employment. Her complaints related to matters arising from that employment, not to extraneous factors.
Treating psychologist Dale Haley, provided a report dated 4 February 2017. In that report, Ms Haley noted the applicant was referred by Dr Roy for counselling in October 2013 and that the applicant was suffering from “experiences of mixed anxiety and depression as a result of losing her voice due to over projection while teaching. Dr Roy added that Allana was also depressed as a result of losing her job because of the injury to her voice.”
Ms Haley noted the applicant attended 20 sessions of therapy and diagnosed her with depression and anxiety.
Ms Haley’s diagnosis is supported by the views of Dr Browne, who treated the applicant and also the opinion of Dr Oldtree Clarke, Independent Medical Examiner (IME) who has provided two reports in this matter. Each of the doctors takes a consistent history concerning the applicant’s onset of symptoms. Dr Oldtree Clarke diagnosed the applicant as suffering from an adjustment disorder in 2018 but by the time of his report in July 2020 he indicated this diagnosis had been usurped owing to the fact such conditions are, by definition, time limited and only apply in anxiety and depressive symptoms for up to 12 months. Keeping this in mind, Dr Oldtree Clarke then diagnosed the applicant as suffering from a persistent depressive disorder, having suffered symptoms since mid-2013.
For the respondent, Dr Teoh and Dr Samuell each indicate that the applicant’s condition is not consistent with a psychiatric diagnosis under DSM 5 diagnostic criteria. Dr Teoh’s report, however, lists a number of symptoms consistent with the applicant suffering such a condition, including anxiety, emotional distress owing to her impaired voice, symptoms of becoming withdrawn and lacking confidence, loss of passion in her relationship and a reduction in communication and concentration.
Dr Teoh acknowledges the applicant’s emotional distress was due to her vocal impairment and her employment, however, he then stated:
“it is my opinion that Mrs Roach’s presentation is not consistent with a psychiatric diagnosis under DSM 5 diagnostic criteria. She reported emotional distress, but her symptoms have not raised the threshold for a psychiatric diagnosis.”
Aside from quoting the report of Dr Samuell which had been provided some three years before Dr Teoh’s report, Dr Teoh does not provide any reasoning as to why the applicant’s symptoms do not constitute a psychological or psychiatric disorder. This approach contrasts with that of Dr Oldtree Clarke who set out a detailed history and record of symptoms including poor appetite or over eating, insomnia, low self-esteem and feelings of hopelessness. Dr Oldtree Clarke set out the criteria for the disorder and also explained which symptoms the applicant suffered which fell within that diagnosis. For those reasons, I prefer his view, supported as it is by Ms Haley, treating psychologist and also the applicant’s general practitioner.
For his part, Dr Samuell was also of the view the applicant’s condition did not satisfy the requirement for establishing a psychological or psychiatric impairment. However, Dr Samuell’s basis for this finding was essentially that the applicant was not under the care of a psychiatrist, psychologist or counsellor. He said:
“On balance, there was insufficient evidence in order to make a diagnosis of a mental health condition. In my opinion, the emotional symptoms that she describes at interview are best understood with an existential framework. She has understand we are unhappy about the alteration in her physical functioning and the impact that this has had on her employment, social functioning and relationships. Her response was neither excessive nor distorted.”
The difficulty with Dr Samuell’s view is, as with Dr Teoh, that he sets out through the course of his report a number of factors which would suggest the applicant was suffering from psychological difficulties however, he does not explain why they did not constitute a psychological or psychiatric condition. These include insomnia and repeatedly waking up at approximately 3:00 am, a “numbness” in her mood, tearfulness and periodic suicidal ideation. The applicant also described “meltdowns” to Dr Teoh, which she described as “collapsing into the floor and getting into the foetal position, not speaking for hours on end.” She described her mental status as “plateauing into numbness”.

With respect to Dr Samuell, these are symptoms suggestive of some difficulties being suffered by the applicant, and he does not deal with them in dismissing her symptoms as nothing more than “some changes to her lifestyle that she has found upsetting.”

In any event, the applicant was treated by both Ms Haley, psychologist and also Dr O’Neil, psychologist in 2015. It appears Dr Samuell was unaware that this was the case, and indeed if he was so aware he did not take into account the treatment history and opinions of those practitioners.

For these reasons, in my view the preponderance of the medical evidence establishes on the balance of probabilities the presence of a psychological injury in the applicant.

Primary or secondary psychological injury

Section 65A of the 1987 Act provides:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.”
Secondary psychological injury is defined in section 65A as a psychological injury which arises as a consequence of, or secondary to, a physical injury.
For the following reasons, I am of the view that the applicant’s psychological injury was a secondary one caused by her vocal cord injury.
Dr Oldtree Clarke in his first report considered the applicant’s psychiatric condition as a primary one which arose at the same time as the physical injury. He compared it to a post-traumatic stress disorder which occurs when a person has been caused great alarm of fear for their life and a trauma which may or may not cause physical injury. That is, the fear of death in that instance is a separate part of a shock reaction.
I do not prefer that view of Dr Oldtree Clarke, as it is at odds with the opinion of the vast majority of the treating medical practitioners in this matter. In his second report dated 22 July 2020, when Dr Clarke changed his diagnosis to a persistent depressive disorder, he simply stated “this is a recognised primary psychiatric disorder, as described in the DSM 5 criteria.”
The difficulty with Dr Clarke’s view is that it flies in the face of the contemporaneous medical evidence and the treating doctors’ opinion. It also contradicts the applicant’s own statement evidence, which I have already set out in these reasons. For example, the applicant stated at [60] of her first statement that she began to feel extremely distressed and upset at the lack of progress with her recovery from her vocal cord injury in or about April 2014, approximately eight months after the onset of the physical injury. That statement by the applicant is consistent with the clinical records of her general practitioner which note attendances in 2015 which reveal the applicant first complains of psychological injury relating to frustration and distress at being unable to return to work and as a result of her physical symptoms.

Dr Browne, who provided a report concerning the applicant’s physical injury noted “she has secondary physiological injury in that she experiences significant anxiety, depression and social and relationship disruption as a result of her physical injury.” He also noted the applicant suffered from features of anxiety and depression as a result of “loss of voice and the protracted nature of the complex Worker’s Compensation claim.”
Treating psychologist Ms Haley also provided the following statements as to causation:
“Allana was also depressed as a result of losing her job because of the injury to her voice…
Allana has been diagnosed with anxiety and depression and her reported symptoms are consistent with this diagnosis…
Allana has suffered a physical injury to her voice and I am not qualified to provide a diagnosis. Allana seeks assistance from her treating doctor and specialist regarding these matters. Allana has advised that her physical condition is likely to remain stable, therefore it is also likely that her psychological condition will not improve until she is able to achieve a greater level of adjustment to her condition.”
In her second report dated 4 February 2017, Ms Haley stated:
“Allana reported that prior to her injury she was satisfied and enjoyed all aspects of her life. I stated that she was prior probabilities as a teacher and she was also proud of her achievement to retrain to become a teacher. Allana stated that this was a career that she had chosen for herself and she was dedicated to continue to improve her skills.”
Ms Haley said “Allana’s psychological condition is likely to be negatively impacted while ever her physical injury continues to limit her ability to function normally.” When specifically asked for her opinion as to the relationship between the applicant’s physical injuries and her psychological injury, and whether on the balance of probabilities her psychological injuries resulted from the physical injuries to her vocal cords, Ms Haley replied:
“On the balance of probabilities, I believe that Allana’s psychological injuries have resulted from the physical injuries to her vocal cords.”

Another treating psychologist of the applicant, Mr Wenzel, provided a report dated 8 March 2017. Mr Wenzel took a detailed history of the applicant’s issues in the workplace, including an incident when she returned to work in August 2014 where she attempted to raise the attention of two students in danger, but was unable to do so. He diagnosed an adjustment disorder with mixed anxiety and depressed mood, and when asked about causation stated:
“On the basis of the detailed history provided by the patient and then reading the available documents, I am of the view that your client’s psychological injuries resulted from the physical injuries she sustained to her vocal cords whilst employed as a teacher at Bomaderry High School.”
That view of Mr Wenzel is also supported by the further comments made by the applicant in her first statement at [90] to [91], in which she recounts attending on her general practitioner in January 2015 in a distressed and tearful state because she was continuing to struggle with her physical condition which was in turn affecting every aspect of her personal life.
The applicant recounted her treatment sessions with Ms Haley in November 2015 at [108] which time she “discussed at length my struggle to cope with my physical limitations and the disappointment caused by my lack of success in finding alternate employment.”
On balance, I find the medical evidence concerning whether the applicant’s psychological injury is primary or secondary to overwhelmingly failure of the latter. Dr Oldtree Clarke provides what amount to Ipse Dixit opinions that the applicant’s condition was primary in nature, however, he provides no explanation as to why that is the case. As Mr Parker noted, the test of whether a psychological injury is primary or secondary in nature is a legal question, not strictly a medical one.
At [205] of the Application, the applicant provides a further statement dated 7 July 2020. In that statement, she describes enduring such loud noise and frequent interruptions was
“a source of significant stress and frustration to me. As a result of the significant frustration of the ongoing construction was, I often felt anxious and helpless. I was not coping during that time of loud noise. I would semi-regularly reach breaking point and crying in the staff room because the noise levels was so intrusive and interrupted my ability to carry on with my tasks.”
That evidence of the applicant is some seven years after her physical injury, and flies in the face of the contemporaneous evidence of her treating practitioners. In saying this, I do not wish to criticise the applicant, who I accept as a witness of truth, however, it is a human frailty to reconstruct matters long after the event, and there is no evidence of the applicant having felt that way aside from the latest statement. Indeed, that statement contradicts her earlier statement dated 18 January 2018, in which the applicant noted it was only when she began to feel extremely distressed and upset at the lack of progress with her physical recovery in or about April of 2014 that she consulted her doctor and the psychological injury overtook her.
On balance, I am not satisfied that the applicant’s psychological injury, genuine though it undoubtedly is, is a primary psychological injury. Rather, the contemporary lay and treating medical evidence supports a finding that the injury was a secondary psychological injury which arose as a consequence of the applicant’s injury to her vocal cords.

SUMMARY

For these reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2021] NSWPIC 312

27 August 2021