Schouten v State of New South Wales (Northern NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Schouten v State of New South Wales (Northern NSW Local Health District) [2023] NSWPIC 565
APPLICANT:	Juliette Louisa Schouten
RESPONDENT:	State of New South Wales (Northern NSW Local Health District)
MEMBER:	Karen Garner
DATE OF DECISION:	25 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66 for psychological injury caused by a disease process; claim for past medical and related expenses; no dispute that applicant had a primary psychological injury; no dispute in relation to claim for past medical and related expenses; whether the psychological injury was caused by a disease process due to the nature and conditions of work; Held – the applicant sustained a primary psychological injury pursuant to sections 4(b) and 11A(3), due to the nature and conditions of work, with a date of injury of 31 January 2019 (deemed); the matter is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment; respondent to pay the applicant’s past medical and related expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury pursuant to ss 4(b) and 11A(3) of the Workers Compensation Act 1987 (the 1987 Act), due to the nature and conditions of work, with a date of injury of 31 January 2019 (deemed). The Commission orders: 1. The respondent to pay the applicant’s past medical or related expenses in the sum of $357.25 upon production of accounts, receipts or Medicare notice of charge. 2. The matter is to be remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 31 January 2019 (deemed) Body parts: Psychological Method: Whole person impairment 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents; (b) Reply to ARD and attached documents; (c) applicant’s Application to Admit Late Documents (AALD) dated 8 September 2023 and attachments, and (d) insurer’s AALD dated 15 September 2023 and attachments. 1.

STATEMENT OF REASONS

BACKGROUND

Juliette Louisa Schouten (the applicant) brings these proceedings against the State of New South Wales (the respondent) seeking payment of permanent impairment compensation pursuant to s 66 of Workers Compensation Act 1987 (the 1987 Act) arising from a psychological injury suffered in the course of her employment with the respondent as a registered nurse.
By a claim dated 12 February 2019, the applicant made a claim for workers compensation in relation to post-traumatic stress disorder as a result of a frank injury on 31 January 2019. The claim described the circumstances of the injury as “Abusive & threatening confrontation with Patient LF – 2015”.
By letter dated 27 May 2022,[1] the applicant made a claim for permanent impairment compensation for psychological injury with a deemed date of injury of 27 May 2022, based on an assessment of 19% whole person impairment (WPI) of Dr Clayton Smith dated
[1] ARD, page 211.
25 May 2022.
By notice dated 25 October 2022,[2] issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer disputed liability for permanent impairment compensation for psychological injury on the grounds that the applicant was not assessed as having at least 15% WPI as required by
[2] ARD, page 213.
s 65A of the 1987 Act, based on an assessment of 14% WPI of Dr Yajuvendra Bisht dated 23 October 2022.
The applicant initiated separate proceedings in the Personal Injury Commission (Commission) being proceedings W7185/22. On 6 December 2022,[3] the Commission issued a Certificate of Determination – Consent Orders which remitted to the President, for referral to a Medical Assessor, psychological injury with a date of injury of 31 January 2019 in respect of the applicant’s exposure to a traumatic incident on 31 January 2019 during the course of her employment. The applicant subsequently discontinued those proceedings.[4]
[3] Reply, page 24.
[4] Reply, page 25.
By a Workers Compensation Claim Form dated 13 January 2023,[5] the applicant made a claim for workers compensation in relation to psychiatric injury as a result of the nature and conditions of her work from 2011 until 31 January 2019, being exposure to numerous traumatic incidences including vitriolic outbursts and verbal and physical assaults by violent drug affected patients and mental health patients.
[5] ARD, page 203; Reply, pages 26, 27.
By letter dated 27 June 2023,[6] the applicant made a claim for permanent impairment compensation for psychological injury with a deemed date of injury of 27 May 2022 and in respect of the nature and conditions of the applicant’s employment from 2011 to
[6] ARD, page 238.
31 January 2019 with a deemed date of injury of 31 January 2019, based on an assessment of 19% WPI of Dr Clayton Smith dated 25 May 2022 and 19 June 2023.
By notices dated 22 March 2023[7] and 27 July 2023,[8] issued pursuant to s 78 of the 1998 Act, the insurer disputed liability for psychological injury due to the nature and conditions of the applicant’s employment pursuant to ss 4, 9A or 4(b), 11A(3), 11A(7), 33, 59, 60 of the 1987 Act and ss 254 and 261 of the 1998 Act. It also disputed liability for permanent impairment compensation for psychological injury on the grounds that the applicant was not assessed as having at least 15% WPI as required by s 65A of the 1987 Act.
[7] ARD, page 226.
[8] Reply to ARD, page 1.
The applicant initiated proceedings in the Commission by Application to Resolve a Dispute (ARD) dated 31 July 2023, in relation to:
(a) medical and related expenses pursuant to s 60 of the 1987 Act, and
(b) permanent impairment compensation pursuant to s 66 of the 1987 Act, calculated on the basis of 19% whole person impairment (WPI).
The respondent replied by way of Reply to ARD (Reply) dated 23 August 2023.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a hearing on 5 October 2023. Mr Hammond of counsel appeared for the applicant, instructed by Mr Clarke of Stacks/Tweed-Gold Coast Lawyers. Mr Stockley of counsel appeared for the respondent, instructed by Mr Franco of Bartier Perry Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

At the outset of the hearing, Mr Stockley acknowledged on behalf of the respondent that:
(a)    the respondent no longer maintains a dispute in relation to the applicant’s claim for medical and related expenses;
(b)    the respondent no longer maintains a dispute on the grounds of ss 254 and 261 of the 1998 Act, and
(c)    the respondent accepts that the applicant sustained a primary psychological injury with a date of injury of 31 January 2019, in relation to an injurious event on 31 January 2019 and to the extent that it rekindled a memory of a patient, L.F., in 2015 and that it is appropriate that the matter is remitted to the President for referral to a Medical Assessor for determination of WPI in respect of that injury.
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury in the nature of a disease with a deemed date of injury as a result of the nature and conditions of her employment with the respondent between 2011 and 31 January 2019 pursuant to ss 4(b) and s 15 of the 1987 Act, and
(b) whether the applicant satisfied the requisite threshold for permanent impairment to recover permanent impairment compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Oral evidence

There was no oral evidence called at the hearing.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply to ARD and attachments;
(c)    worker’s Application to Admit Late Documents (AALD) dated 8 September 2023 and attachments, and
(d)    insurer’s AALD dated 15 September 2023 and attachments.

The lay and documentary evidence

Applicant

The applicant gave evidence by way of statements dated 2 November 2022[9] and
[9] ARD, page 1.
[10] AALD by worker dated 8 September 2023, page 1.
7 September 2023.[10] The applicant stated that, between 2011 and 31 January 2019, she worked for the respondent as a registered Nurse at the Nimbin Hospital. The applicant stated that, at least from 2017, the nursing staff had to work shifts without a doctor and to rely on calling an ambulance service for anything serious, which took half an hour to arrive.
The applicant stated that her work at Nimbin Hospital was stressful and distressing from the outset because she was dealing with a great number of psychiatrically disturbed patients and drug-affected patients. The applicant stated that she was exposed to a great number of traumatic incidents during the course of her employment. The applicant stated that almost every shift she would encounter a drug-affected or psychiatrically disturbed patient causing a disturbance and she was exposed to traumatic incidents with patients which involved vicious vitriolic verbal abuse. The applicant stated that almost every shift, patients would become angry, abusive, aggressive and violent because, without a doctor present, she would not be able to prescribe opiates and benzodiazepines that they requested. The applicant stated that this caused her to become anxious and agitated in going to work under those conditions.
The applicant stated that that there was an incident during a busy shift in approximately 2014 when a patient, L.F., screamed, yelled, was verbally abusive, vocalizing profanities on the applicant. L.F. threw a blood pressure monitor across the room. The applicant stated that caused her to feel extremely upset and agitated for her own safety at the time, and fearful for the safety of other patients in the waiting room.
The applicant stated that was one example of many of the incidents she regularly encountered during the course of her employment over a period of some eight years from 2011 to 31 January 2019. The applicant stated that she was subjected to things being thrown at her by patients, and the glass door was smashed one day by a highly agitated person. She stated that other nurses had been chased by highly agitated patients and had to lock themselves and hide in the drug room to escape.
The applicant stated that she complained to her manager, Tracey Sheehan, and to the business manager, Kevin Carter, about the violent and disturbing incidents that she was subjected to during her work. The applicant stated that she lodged Incident Reports for incidents during the course of her employment on 12 June 2012, 27 July 2012, 22 February 2015, 9 August 2015, 29 August 2015 and 7 May 2017. The applicant stated that there were other incidents of upset and angry patients which were not recorded as IMMS Reports, but they were recorded in the Patient Notes of the patient at the time.
The applicant stated that when she commenced her shift on 31 January 2019, she noticed that the name of the patient L.F. was included in the handover sheets. The applicant stated that seeing that patient’s name then triggered an emotional response, she felt in a state of shock and could not stop crying. The applicant states that is the first time she experienced a panic attack. The applicant stated that she then left work and was unable to return to work.
The applicant stated that she consulted her general practitioner, Dr Van Dyken, and was referred to a psychologist and a psychiatrist, Dr Ben Hadikusumo.
The applicant described experiencing ongoing psychological symptoms following that incident and stated that she has remained incapacitated from work since 31 January 2019, apart from a brief period.
The applicant stated that it was the severity of the incident on 31 January 2019 that forced her to make a claim for workers compensation.

Nancy Martin

Ms Martin provided evidence by way of a statement dated 24 July 2023.[11] Ms Martin stated that the applicant submitted various IIMS incident reports between 2012 and 2017 in relation to aggressive, violent and unsafe patient behaviour. Ms Martin stated that the applicant reported that the patient L.F. was verbally abusive and aggressive in an incident involving the applicant on 29 August 2015.
[11] Reply, page 44.
Ms Martin stated that the applicant appeared to work normally and did not complain about work stress, notwithstanding that there would have been opportunities for the applicant to do so. Ms Martin stated that she was not aware that the applicant experienced any fear or anxiety regarding the patient L.F. Ms Martin stated that the applicant became “heightened easily” at work.[12]
[12] Reply, page 46, paragraph 16.

Tracey Sheehan

Ms Sheehan provided evidence by way of statements dated 12 July 2023[13] and
11 September 2023.[14] Ms Sheehan worked as Nurse Manager of Nimbin Hospital from 2016 to 2022. Ms Sheehan acknowledged that at times patients would be verbally aggressive and that was to be expected in an Emergency Department. Ms Sheehan acknowledged that on
7 May 2017, the applicant reported an incident when a patient with dementia got distressed and was unable to be distracted and left the building. Ms Sheehan stated that, prior to
[13] Reply, page 50.
[14] AALD by insurer dated 15 September 2023, page 1.
31 January 2019, the applicant worked normally and never made any complaint to her regarding working at the Nimbin Hospital or any psychological distress that she was experiencing, although the applicant did identify that she did not want to work with patient L.F. and that she had previous history in the workplace with that person. Ms Sheehan stated that on 31 January 2019, the applicant was distressed by a patient that she had previous experiences with.

Other evidence

Other evidence included:
(a)    emails from the applicant dated 17 April 2017, 22 April 2017, 25 June 2017,
26 August 2017, 22 July 2018, and the applicant’s performance appraisal dated 18 December 2017, when the applicant expressed concern about inadequate staffing and skill mix and clinical and safety risks;
(b)    various IIMS Incident Detail Reports between 2012 and 2017, which recorded various physical and verbal aggression and unsafe patient behaviour, including patient’s throwing chairs and overturning tables;
(c)    factual investigation report of Worksite Investigations, and
(d)    various policies, procedures and records of the respondent.

The medical evidence

Treating medical evidence

Dr Yasmin Trinidad, general practitioner

On 27 August 2007,[15] Dr Trinidad referred the applicant for psychological treatment and noted that she had presented with feeling increasingly teary and stressed for the past year. Dr Vandyken noted that the applicant had no history of mental illness. A Mental Health Care Plan stated a that the applicant had “Generalised anxiety”.[16]

Dr Anthony Vandyken, general practitioner

[15] Reply, page 200.

[16] Reply, page 201.

The evidence includes various reports of the applicant’s treating general practitioner,
Dr Vandyken.
On 31 December 2013,[17] Dr Vandyken referred the applicant for psychological treatment for anxiety and stress with somatic symptoms of severe exacerbation of irritable bowel syndrome.
[17] Reply, page 205.
On 12 January 2015,[18] Dr Vandyken referred the applicant for an opinion in relation to severe facial angioedema.
[18] Reply, page 206.
On 12 October 2015,[19] Dr Vandyken referred the applicant for psychological treatment. The referral stated that the applicant required help for anxiety and stress with somatic symptoms of severe urticaria. Dr Vandyken stated that the applicant’s symptoms had been “much worse” since a traumatic abuse at work by an inpatient and that the applicant “has been describing what may be verging on panic attacks/?ptsd”.
[19] Reply, page 208.
On 26 November 2015,[20] Dr Vandyken referred that applicant for an opinion in relation to severe facial dermatitis and oedema.
[20] Reply, page 209.
On 3 October 2018,[21] Dr Vandyken referred the applicant for psychological treatment in relation to a grief response.
[21] Reply, page 211.
On 4 February 2019,[22] Dr Vandyken referred the applicant for psychological treatment. The referral stated that the applicant was suffering from post-traumatic stress disorder from a work related incident from four years ago which she had only recently commenced counselling for. Dr Vandyken stated that the perpetrator of the incident was an inpatient the day after commencing treatment with the psychologist and the applicant suffered a panic attack and was unable to complete work, had ongoing psychological symptoms and had an appointment to consult a psychologist.
[22] Reply page 217.
On 15 February 2019,[23] Dr Vandyken referred the applicant to Dr Hadikusumo, psychologist. The referral stated that the applicant “was exposed to workplace aggressive patient over several occasions over number of years – was not managed well the first time through work – she had just started to address with psychologist when same pt presented to work again – has triggered significant ptsd like symptoms...”. Dr Vandyken noted that there was no history of depression or anxiety.
[23] ARD, page 247.
On 27 August 2019,[24] Dr Vandyken reported that he agreed with Dr Hadikusumo’s diagnosis of post-traumatic stress disorder and stated that the events of the applicant’s poor function correlated with that diagnosis. Dr Vandyken disputed that the applicant had a pre-existing mental health condition. Dr Vandyken explained clinical notes regarding the applicant’s prior consultations as relating the ups and downs of life which did not constitute a pre-existing mental health condition. Dr Vandyken acknowledged the stressful nature of the applicant’s work and the applicant’s high level of functioning at work despite the ups and downs of life.
[24] ARD, page 264.
On 15 May 2020,[25] Dr Vandyken agreed with Dr Hadikusumo’s diagnosis of post-traumatic stress disorder.
[25] ARD, page 274.
Dr Vandyken subsequently noted that the applicant’s attempted return to work had not gone well and he referred the applicant for further psychological treatment for ongoing psychological symptoms.[26]

Dr Hadikusumo, psychiatrist

[26] ARD, page 285; Reply, pages 223, 225, 229.

The evidence includes various reports of the applicant’s treating psychologist,
Dr Hadikusumo.
On 5 March 2019,[27] Dr Hadikusumo reported a history that the applicant had presented with several years duration of heightened anxiety, which was initially triggered by an incident four years ago, when a patient was verbally and physically abusive and violent towards the applicant at work. Dr Hadikusumo stated that following that incident, the applicant continued working in her role for the next few years, albeit with some personal struggle along the way, which was a testament to her resilience at the time. Dr Hadikusumo stated that in January 2019, the applicant fell apart when she saw on a handover report the name of the patient that had attacked her four years ago. Dr Hadikusumo stated that the applicant subsequently experienced a rapid psychological decline. Dr Hadikusumo diagnosed post-traumatic stress disorder.
[27] ARD, page 249.
On 29 May 2019,[28] Dr Hadikusumo confirmed the diagnosis of post-traumatic stress disorder and stated that it was “Work-related trauma, which is vicarious in nature but precipitated by specific events leading up to her main injury. In her role as a ‘first-line- in Emergency Department, she was subject to a lot of abuse including physical abuse”.
[28] ARD, page 255.

On 27 August 2019,[29] Dr Hadikusumo disputed the opinion of Dr Bisht that the applicant had a pre-existing adjustment disorder. In that regard, Dr Hadikusumo noted that the applicant had been functioning “just fine” prior to the incident in January 2019 and stated that “Feeling stressed” from her usual daily life is not a diagnosis, and does not constitute a pre-existing adjustment disorder. Dr Hadikusumo maintained that the applicant’s diagnosis is post-traumatic stress disorder. Dr Hadikusumo also disputed Dr Bisht’s opinion that work-related factors had a partial but not predominant contribution to the applicant’s condition of post-traumatic stress disorder. Dr Hadikusumo stated that the applicant’s prior normal life stressors were not diagnosable as an adjustment disorder. Dr Hadikusumo stated that
[29] ARD, page 258.
Dr Bisht’s explanation and justification as to why he did not believe the incident in January 2019 was the main contributing factor to the applicant’s psychological injury made very little sense. Dr Hadikusumo stated that “There is a temporal relationship between the 2015 incident and the January 2019 incident, but the incident in January 2019 was itself causative. Even if the incident in 2015 contributed to this, it is still work-related, and in the same context, and therefore cannot be considered ‘pre-existing’”. Dr Hadikusumo stated that the applicant required ongoing treatment for her post-traumatic stress disorder.
In various other reports,[30] Dr Hadikusumo reported that the applicant required continuing treatment for ongoing symptoms of post-traumatic stress disorder and required further treatment.
[30] ARD, pages 266, 267, 271, 277, 282, 283, 287, 294, 296; Reply, page 218.
On 9 May 2022,[31] Dr Hadikusumo expressed the opinion that the applicant was unlikely to be able to return to any kind of vocation.

Kylie O’Brien, clinical psychologist

[31] ARD, page 296.

On 18 April 2019,[32] Ms O’Brien reported that the applicant required ongoing psychological treatment for her psychological injury.

Dr Thomas O’Neill, clinical psychologist

[32] ARD, page 253.

On 2 October 2020,[33] Dr O’Neill conducted an independent review as a SIRA Independent Consultant and recommended that the applicant have further psychological treatment.

Daniel Murphy, clinical psychologist

[33] ARD, page 278.

Mr Murphy reported on the applicant’s psychological treatment.[34] On 15 September 2021,[35] Mr Murphy reported that the applicant’s psychological condition was chronic and he was handing over her psychological treatment to Ms Chung.

Fei Chung, clinical psychologist

[34] Reply to ARD, pages 227, 228.

[35] ARD, page 290.

Ms Chung reported on her treatment of the applicant between October 2021 and
August 2022. [36]

Guardian Exercise Rehabilitation

[36] ARD, page 292; Reply, page 231, 233.

In a report dated 2 April 2020,[37] Guardian Exercise Rehabilitation stated that the applicant “reported sustaining her condition approximately four years ago, but was recently triggered again after making a return to work and seeing the same patient”.
[37] Reply, page 219.

Certificates of Capacity

The evidence includes various Certificates of Capacity.[38] The applicant was certified to have no current capacity for any work from 31 December 2013 to 17 February 2023.[39]
[38] Reply, pages 235 to 241.
[39] Reply, page 240.

Clinical records

Various clinical records recorded:
(a)    King Street Medical Centre:
(i)on 21 February 2019,[40] a Patient Health Summary recorded the applicant’s prescribed medications;
[40] ARD, page 323.
(ii)on 27 August 2007,[41] the applicant consulted Dr Yasmin Trinidad regarding worsening stress over the last 12 months;
[41] ARD, page 329.
(iii)on 8 January 2013,[42] the applicant consulted Dr Vandyken regarding sleep issues after work and anxiety;
[42] ARD, page 329.
(iv)on 31 December 2013,[43] the applicant consulted Dr Vandyken regarding interrelated irritable bowel syndrome and stress including work stress;
[43] ARD, page 331.
(v)on various dates, the applicant consulted Dr Vandyken regarding physical symptoms triggered by stress, such as irritable bowel syndrome and uticaria;
(vi)on 12 October 2015,[44] the applicant consulted Dr Vandyken regarding a stressful work incident one month prior when an aggressive patient directed vitriol at the applicant and since then she had experienced horrible days at work. The note recorded that the applicant experienced a lot of aggressive patients and when the applicant was getting abuse from a patient she experienced tunnel vision and found it hard to think. The note recorded that the applicant was feeling anticipation anxiety and the emotional stress had triggered uticaria. The note recorded that the applicant was given a doctors’ certificate for three days off work, prescribed antidepressant medication and was referred for psychological treatment;
(vii)on 26 November 2015,[45] the applicant consulted Dr Vandyken and advised that she had undergone one psychological treatment session and she was experiencing an anxiety reaction of recurrent skin infection;
(viii)on 8 February 2016,[46] the applicant consulted Dr Vandyken regarding difficult sleeping and they discussed the risk of work burnout;
(ix)on 7 June 2016,[47] the applicant consulted Dr Vandyken and reported that stressful work was the main trigger for flares of her skin condition, and
(x)on 4 February 2019,[48] the applicant reported to Dr Vandyken that she had recently seen a psychologist Ms Chiu and talked about an incident which occurred 4 years prior when a patient had been horribly abusive, and then the following day after seeing the psychologist, the same patient was listed on the screen. Dr Vankyken issued a certificate of capacity and a referral to a psychiatrist.
(b)    Tweed Health for Everyone;
(c)    The Shrink Company;
(d)    Mascha Chiu, and
(e)    Nimbin Hospital.
[44] ARD, page 335.
[45] ARD, page 336.
[46] ARD, page 366.
[47] ARD, page 338.
[48] ARD, page 341.

Independent medical evidence

Dr Yajuvendra Bisht

Dr Bisht provided independent medical evidence, qualified by the applicant.
In a report dated 14 June 2019,[49] Dr Bisht recorded a history that the applicant described feeling persistently stressed the last few years, due to the amount of work at her job, as well as the shift work. Dr Bisht recorded that the applicant reported experiencing psychiatric symptoms after she found out, in January 2019, that a patient who had previously been aggressive to her in 2015, had been admitted to hospital. Dr Bisht diagnosed a “pre-existing adjustment disorder, and this was aggravated as a result of the incident in January 2019”.[50] Dr Bisht stated that the applicant’s employment was not the main contributing factor (which he attributed to personal life stressors) to the onset of the condition, but was the main contributing factor to the aggravation of the pre-existing psychological condition.
[49] Reply, page 242.
[50] Reply, page 246.
In a report dated 26 November 2020,[51] Dr Bisht stated the “original work injury on ‘date of injury’ [being 31 January 2019] has been one of the contributors to the psychiatric injuries alleged by the worker, but is not the sole cause”.
[51] Reply, page 249.
In a report dated 24 March 2021,[52] Dr Bisht stated that in his opinion, because it was been more than two years since the “original work injury” on 31 January 2019, that injury “has resolved” and was “not the main contributing factor to the worker’s current psychiatric injuries”.[53] Dr Bisht then stated that pre-existing conditions relating to personal life issues “partly account for the workers current symptoms”.[54] Dr Bisht later stated that;
“It has been more than 2 years since the injury on 31/1/2019. However, the worker tried to return to work with her employer in late 2019 and had an interaction with an aggressive patient, which re-exacerbated her condition. Therefore, I am of the opinion, that the employment at Nimbin Hospital is still a substantial contributing factor to the workers current psychiatric injuries. At the same time, there are several substantial non-work related contributors. Therefore, I am of the opinion, that the employment at Nimbin Hospital is not the main contributing factor to the workers current psychiatric injuries.”[55]
[52] Reply, page 258.
[53] Reply, page 259.
[54] Reply, page 259.
[55] Reply, page 259.
In a report dated 23 October 2022,[56] Dr Bisht stated a diagnosis of major depressive episode and post-traumatic stress disorder. Dr Bisht stated that he did “not consider the psychiatric disorder is a disease because the symptoms evolved in a reasonably short period of time in early 2019”.[57] Dr Bisht stated that the applicant’s employment “was the main contributing factor to aggravation of the pre-existing condition, as… there were not any non-work related psychological stressors, around the time of exacerbation”. Dr Bisht assessed total 14% WPI.
[56] Reply, page 262.
[57] Reply, page 269.
In a report dated 23 June 2023,[58] Dr Bisht stated that he did not consider that the applicant was suffering from a definable or recognizable psychological or psychiatric illness or disorder based on acceptable diagnostic criteria as a result of recurrent traumatic incidents, involving patients over the duration of employment, rather than just the incident on 31 January 2019.
[58] Reply, page 276.
Dr Bisht stated that, although the applicant had mentioned other stressful incidents during the course of her employment at the hospital, “there was no mention of those stressors in any clinical records”. Dr Bisht stated that the mere presence of stressors prior to the events on 31 January 2019 did not indicate the presence of a psychiatric condition prior to that date because there was no evidence of significant functional impact. Dr Bisht stated that because the applicant was able to work until the incident on 31 January 2019, on the balance of probabilities, she did not suffer from diagnosable post-traumatic stress disorder prior to that date. Dr Bisht stated that there was no evidence in the clinical records that the applicant was unable to work nor that she received treatment for post-traumatic stress disorder due to events at work between December 2013 and January 2019.

Dr Clayton Smith

Dr Smith provided independent medical evidence, qualified by the applicant.
In a report dated 25 May 2022,[59] Dr Smith recorded a history that, following the applicant being assaulted at work by patient L.F. in or about 2014: the applicant felt overwhelmed with what she had to do in addition to patient’s L.F.’s abusive behaviour; the applicant went straight back to work; the applicant attended a counselling session and an inhouse debriefing; and the applicant then continued to work normally for the next three to four years but developed a stress related rash. Dr Smith recorded that on 31 January 2019, when the applicant saw patient L.F.’s name on the handover sheet she had a severe psychological reaction and was sent home from work.
[59] ARD, page 300.
Dr Smith diagnosed a primary psychiatric injury of post-traumatic stress disorder with delayed onset. Dr Smith noted that the applicant;
“described the onset of acute anxiety and depressive symptoms when she was exposed to reminders of a frightening incident with a patient some years earlier. Her mental health subsequently broke down, developing symptoms of chronic post-traumatic stress disorder with delayed onset and major depressive disorder.”[60]
[60] ARD, page 306.
Dr Smith assessed total 19% WPI.
In a report dated 19 June 2023,[61] Dr Smith recorded a detailed history of the applicant’s experience with patient L.F. in or about 2014. Dr Smith reported that no other traumatic incidents at work unrelated to patient L.F. that would meet Criterion A for post-traumatic stress disorder affected the applicant, like the incident with patient L.F. in 2014. Dr Smith stated that he asked the applicant to clarity how difficult interactions with patients at the hospital differed from the incident with patient L.F. in 2014 and the applicant described L.F. screaming and threatening her in a personal and targeted manner over a 15 minute period, which included threats to kill and put a curse on the applicant and calling her a “lying fucking bitch” and a “lazy fucking bitch” and attempting to throw things at the applicant, while the applicant was in full line of sight as she attended other patients. Dr Smith stated that the applicant reported feeling overwhelmed, helpless and unable to make a decision and she was in a heightened and anxious stated compounded by the fact that the only other person with her was a junior nurse.
[61] ARD, page 311.
Dr Smith noted the history that the applicant had reported stressful working conditions in 2013 and 2015 and been prescribed medication for stress related conditions between 2013 and 2019. Dr Smith stated that in his opinion “the diagnosis of post-traumatic stress disorder with delayed onset was entirely consistent with the history provided, the evidence of subclinical symptoms of post-traumatic stress disorder leading up to the eventual decompensation in her mental state leading to a clinically significant syndrome of post-traumatic stress disorder in 2019 and the history of repeated exposure to progressive dangerous, threatening and frightening incidents in the workplace on an almost daily basis”.[62] Dr Smith considered that it was particularly relevant that the applicant had revisited the incident from around 2015 with her psychologist the day before seeing patient L.F.’s name in the department on the day of her final breakdown.
[62] ARD, page 317.
Dr Smith diagnosed:
“post-traumatic stress disorder with delayed onset in 2019, sensitized by an incident in or around 2015. She revisited the incident with her psychologist the day before she viewed Patient L’s name on the hospital list and the incident was fresh in her mind. There was a background of repeated exposure to traumatic incidents involving threatening, hostile and aggressive patients in a high-stress and inadequately resourced environment causing her to feel generally unsafe and vulnerable. Still, the personal and targeted nature of Ms L’s menacing and threatening behaviour towards Ms Schouten caused her to decompensate to the extent she developed post-traumatic stress disorder.”[63]
[63] ARD, page 318.
In a supplementary report dated 1 September 2023,[64] Dr Smith disagreed with the opinion of Dr Bisht that there was no mention in clinical records of other stressful incidents during the applicant’s employment at the hospital. Dr Smith stated that there was evidence that the applicant had psychiatric symptoms in the clinical records predating 31 January 2019 linked to work related stressors at the hospital. Dr Smith stated:[65]
“I agree that she did not meet the full clinical syndrome until 31 January 2019, when the applicant developed post-traumatic stress disorder with delayed onset. In my view the diagnosis was entirely consistent with the history provided, the evidence of subclinical symptoms of post-traumatic stress disorder leading up to the eventual decompensation in her mental stated in 2019 and the history of repeated exposure to dangerous, threatening and frightening incidents in the workplace on an almost daily basis. Dr Bisht has not considered the temporal link between Ms Schouten revisiting the incident from 2015 with Patient L with her psychologist the day before seeing Patient L’s name in the department on the day of her final breakdown.”
[64] AALD by worker dated 8 September 2023, page 5.
[65] AALD by worker dated 8 September 2023, page 7.

SUBMISSIONS

Counsel’s submissions were recorded.

Applicant’s submissions

In summary, Mr Hammond submitted, for the applicant, that various evidence supports a finding that the applicant sustained a psychological injury of post-traumatic stress disorder in the nature of a disease of gradual process as a result of the nature and conditions of the applicant’s employment over the period of the applicant’s employment from 2011.
Mr Hammond referred to evidence of numerous work events over the course of the applicant’s employment. Mr Hammond also referred to various medical evidence which recorded that the applicant experienced psychological distress and symptoms as a result of ongoing stressful events at work.
Mr Hammond submitted that the evidence of the respondent’s medical expert, Dr Bisht, is not persuasive because it is contradictory, illogical and difficult to understand. Mr Hammond submitted that evidence of the applicant’s independent medical expert, Dr Clayton Smith, should be preferred and accepted because it is persuasive and supported by the treating medical evidence.
Mr Hammond submitted that the Commission should find, by virtue of the operation of the provisions of s 15 of the 1987 Act, that the deemed date of injury is any of: 31 January 2019; 27 May 2022, or 27 June 2023.

Respondent’s submissions

At the outset of the hearing, Mr Stockley acknowledged on behalf of the respondent that:
(a)    the respondent no longer maintains a dispute in relation to the applicant’s claim for medical and related expenses;
(b)    the respondent no longer maintains a dispute on the grounds of ss 254 and 261 of the 1998 Act, and
(c)    the respondent accepts that the applicant sustained a primary psychological injury with a date of injury of 31 January 2019, in relation to an injurious event on 31 January 2019 and to the extent that it rekindled a memory of a patient, L.F., in 2015 and that it is appropriate that the matter is remitted to the President for referral to a Medical Assessor for determination of WPI in respect of that injury.
In summary, Mr Stockley submitted that the applicant’s claim has been poorly articulated so that it is difficult to discern a disease diagnosis and the alleged mechanism of injury, particularly in the circumstances that the respondent has accepted that the applicant sustained a primary psychological injury as a result of the accepted frank incident on
31 January 2019. Mr Stockley referred to various lay evidence and medical evidence and submitted that the evidence does not support a finding that the applicant sustained a disease of gradual onset as a result of the nature and conditions of her work from 2011 and
31 January 2019.
Mr Stockley submitted that there is no contemporaneous evidence of psychiatric symptomatology as a result of alleged traumatic events. Mr Stockley referred to various medical evidence and submitted that the treating and independent medical evidence all support a finding that the only work-related events which were causative of the applicant’s psychological condition were the events involving the patient, L.F., in 2015 and on
31 January 2019. Mr Stockley submitted that the treating medical evidence did not demonstrate a clear causal relationship between any psychological diagnosis and the nature and conditions of the applicant’s work prior to the events of 31 January 2019. Mr Stockley submitted that it is apparent from the treating medical evidence that the applicant’s various attendances with her general practitioner and prescriptions of anti-depressant medication were related only to the normal ups and downs of life and did not demonstrate a psychological diagnosis caused by work events.
Mr Stockley submitted that the evidence of both Dr Clayton Smith and Dr Bisht recorded that the applicant herself distinguished between the incident involving the patient, L.F., on
31 January 2019 and other events because of the personal and targeted nature of L.F.’s conduct on that occasion, which caused the applicant to decompensate. Mr Stockley submitted that the evidence of Dr Clayton Smith and Dr Bisht supports a finding that the applicant’s psychological condition was causally related only to those two specific incidents involving L.F. in 2015 and on 31 January 2019.
Mr Stockley submitted that, although the medical evidence demonstrates that the applicant had some clinical symptoms of post-traumatic stress disorder after the 2015 incident with L.F. but pre-dating the incident on 31 January 2019, the evidence falls short of establishing that those symptoms reached a clinical threshold to establish a psychological diagnosis and also of establishing a causal nexus with the nature and conditions of the applicant’s work between 2011 and 31 January 2019, apart from those two incidents involving L.F.

Mr Stockley submitted that there is also no lay evidence which establishes a causal connection between the applicant’s emerging psychological symptoms and other incidents at work.
Mr Stockley submitted that, in the event that the Commission did find psychological injury caused by the nature and conditions of work, the Commission should find that the deemed date of injury is 31 January 2019.
Mr Stockley submitted that the only relevance of such a determination is to support a potential work injury damages claim that may be made by the applicant in relation to psychiatric injury.

Applicant’s submissions in reply

In summary, Mr Hammond submitted in reply that the Commission’s determination is not relevant to any work injury damages claim but, rather, is to counter any potential endeavour to apportion liability in respect of the applicant’s compensation claim.
Mr Hammond submitted that the applicant’s evidence details various work incidents which are causative of the applicant’s psychological injury, apart from the incidents involving L.F. in 2015 and 31 January 2019.
Mr Hammond submitted that Dr Clayton Smith’s evidence needs to be read in the context of the question answered by him and the clear history recorded by Dr Clayton Smith which includes the 2015 incident involving L.F.
Mr Hammond submitted that, even if the Commission were to find that the only events causative of the applicant’s psychological injury were the incidents involving L.F. in 2015 and on 31 January 2019, the provisions of s 15 of the 1987 Act would apply, with the effect that there is a deemed date of injury.

THE LAW

Section 4 of the 1987 Act states:
“4 Definition of ‘injury’
In this Act:
injury:
(a)means personal injury arising out of or in the course of employment,
(b)includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is defined in s 11A(3) of the 1987 Act in the following terms:
“(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
Determination of whether the applicant sustained an injury as alleged is a question of fact and consideration of lay evidence and medical evidence is required.
The applicant bears the onus of proving she sustained psychological injury as alleged, on the balance of probabilities.
To be satisfied on the balance of probabilities of a fact, I am required to feel an actual persuasion of the existence of that fact.[66]
[66] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWC 246.
Relevant to the issue of causation, in Kooragang Cement Pty Ltd v Bates,[67] Kirby P (as he then was) stated:[68]
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question of whether the dispute of incapacity or death ‘resulted from’ the work injury which is impugned.”
[67] (1994) 35 NSWLR 452.
[68] (1994) 35 NSWLR 452, at [463].
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[69] Roche DP (as he then was), summarised the principles to be applied:[70]
[69] [2020] NSWCCPD 76.
[70] [2020] NSWCCPD 76, at [52].
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on a ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52])”.
And said:[71]
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”
[71] [2020] NSWCCPD 76, at [54].
Section 15 of the 1987 Act states:
“15    Diseases of gradual process—employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case—
where—
C is the contribution to be calculated for the particular employer concerned.
T is the amount of compensation to which the employer is required to contribute.
A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.
B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.
(3)     Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”

FINDINGS AND REASONS

Disease injury due to nature and conditions of work

The alleged stressors

The applicant alleged that her psychological injury was caused by her being subjected to numerous incidents of aggressive, violent and unsafe patient behaviour during the course of her employment with the respondent as a registered nurse at Nimbin Hospital between 2011 and 31 January 2019. These events included an incident with patient L.F. in 2014 or 2015. The applicant alleged that those incidents were traumatic and caused her to become anxious and agitated in going to work and culminated in her decompensating when she saw patient L.F.’s name in the handover records on 31 January 2019.
Emails and incident reports corroborate the applicant’s evidence as to various incidents of physical and verbal aggression and unsafe patient behaviour between 2012 and 2018. Various emails and the applicant’s performance appraisal dated 18 December 2917 indicate that the applicant expressed concern about inadequate staffing and skill mix and clinical and safety risks.
Ms Martin and Ms Sheenan also both corroborated that the applicant reported various incidents of aggressive, violent or unsafe patient behaviour, which included patient L.F. being verbally abusive and aggressive in 2015.
Ms Martin stated that the applicant appeared to work normally and did not complain about work stress, anxiety or fear regarding patient L.F. However, Ms Martin did acknowledge that the applicant became “heightened easily” at work.
Ms Sheehan also stated that the applicant appeared to work normally without complaint prior to 31 January 2019. However, Ms Sheehan did acknowledge that the applicant had previously stated that she had previous history in the workplace and did not wish to work with patient L.F.
The treating medical evidence and the expert medical evidence record broadly similar stressors reported by the applicant.
No applicant was made to cross-examine the applicant and the applicant’s credibility was not specifically challenged.
Considering the evidence as a whole, I consider that the applicant’s evidence had a truthful flavour and I accept her evidence.
Considering the evidence as a whole, I accept on the balance of probabilities that, over the period between 2011 and 31 January 2019, the applicant experienced numerous real events at work which included aggressive, violent and unsafe patient behaviour and a particular incident of abusive, aggressive and unsafe behaviour by patient L.F. in 2015. Further, I accept that the applicant perceived those events as creating an offensive and hostile working environment.

The medical evidence as to diagnosis and causation of psychological condition

There is no dispute that the applicant sustained a primary psychological injury with a date of injury of 31 January 2019, in relation to an injurious event on 31 January 2019 and to the extent that it rekindled a memory of a patient, L.F., in 2015.
It is apparent from the clinical records and treating reports that the applicant contemporaneously reported stressful working conditions to her treating practitioner and was treated with prescription medication and psychological treatment for somatic symptoms on a number of occasions prior to 31 January 2019. These include:
(a)    on 31 December 2013, Dr Vandyken recorded that the applicant experienced irritable bowel syndrome, interrelated with stress including work stress. The applicant was referred for psychological treatment and prescribed antidepressant medication;
(b)    on 12 October 2015, Dr Vandyken referred the applicant for psychological treatment in relation to anxiety and stress with somatic symptoms of recurrent severe urticara. Dr Vandyken also certified that the applicant should have three days off work and prescribed antidepressant medication. Dr Vandyken recorded that the applicant’s symptoms had been “much worse” since a traumatic abuse at work by an inpatient one month prior and that the applicant “has been describing what may be verging on panic attacks/ptsd”. Dr Vandyken recorded that the applicant experienced a lot of aggressive patients at work and when she was getting abuse from patients she experienced tunnel vision and she found it hard to think. Dr Vandyken recorded that the applicant was feeling anticipation anxiety and the emotional stress had triggered urticaria;
(c)    on 26 November 2015, Dr Vandyken recorded that the applicant was experiencing an anxiety reaction of recurrent skin infection after having undergone one psychological treatment session;
(d)    on 8 February 2016, Dr Vandyken recorded that the applicant reported difficulty sleeping and they discussed the risk of work burnout. The applicant was undergoing psychological treatment and was prescribed antidepressant medication, and
(e)    on 7 June 2016, Dr Vandyken recorded that the applicant reported that stressful work was the main trigger for flares of her recurrent skin condition.
I consider it particularly relevant that Dr Vandyken’s clinical record dated 4 February 2019 and referral to psychiatrist Dr Hadkisumo dated 15 February 2019, both recorded a history that the applicant had recently commenced psychological counselling with psychologist Ms Chiu. They recorded that, the very next day after the applicant had “opened up” to Ms Chiu about a work incident that occurred about four years prior involving a “horribly abusive” patient, the applicant had decompensated when the same patient again coincidentally presented at the hospital, which “triggered significant ptsd like symptoms.
Dr Vandyken recorded that the applicant had previously seen the patient and had “not been great but managed”.
Similarly, various Certificate of Capacity completed by Dr Vandyken stated that the applicant was first seen on 4 February 2019 regarding post-traumatic stress disorder involving a traumatic work incident from work four years ago which she had recently commenced psychological counselling for and the applicant then experienced a panic attack when the perpetrator was an inpatient the day after the applicant’s counselling session.
In March 2019, the applicant’s treating psychiatrist, Dr Hadikusumo, diagnosed
post-traumatic stress disorder which he believed was caused by work-related trauma.
Dr Hadikusumo acknowledged that the applicant decompensated in January 2019.
Dr Hadikusumo stated that the applicant had previously presented with several years duration of heightened anxiety, which was initially triggered by an incident some four years prior when the applicant was subjected to an abusive and violent patient at work.
Dr Hadikusumo stated that following that incident, the applicant continued working in her role for the next few years, albeit with some personal struggle along the way. In his report dated 29 May 2019, Dr Hadikusumo very clearly expressed his opinion that the post-traumatic stress disorder was “vicarious in nature but precipitated by specific events leading up to her main injury. In her role as a ‘first-line- in Emergency Department, she was subject to a lot of abuse including physical abuse”.
Turning to the independent medical evidence, the respondent’s IME, Dr Bisht, in his report dated 14 June 2019, initially diagnosed a pre-existing non-work related adjustment disorder, which the work incident in January 2019 contributed to and aggravated.
Both Dr Vandyken and Dr Hadikusumo expressly rejected Dr Bisht’s diagnosis of pre-existing non-work related adjustment disorder. In his report dated 27 August 2019, Dr Hadikusumo stated that the applicant’s prior normal life stressors were not diagnosable as an adjustment disorder. In that report, Dr Hadikusumo clearly articulated that there was a temporal relationship between the 2015 work incident and the January 2019 work incident.
Dr Hadikusumo stated that the “incident in January 2019 was itself causative” but he also acknowledged that the 2015 incident could have been a contributory factor. In reports dated 27 August 2019 and 15 May 2020, Dr Vandyken noted the applicant’s high level of functioning “despite the ups and downs of life”. However, Dr Vandyken did agree with
Dr Hadikusumo’s diagnosis of post-traumatic stress disorder.
There appears to be some inconsistency and lack of clarity in Dr Bisht’s various reports. For example, in his report dated 24 March 2021, Dr Bisht stated that because it had been more than two years since the “original work injury” on 31 January 2019, that injury “has resolved” and was “not the main contributing factor to the worker’s current psychiatric injuries”. However, in the same report, Dr Bisht subsequently stated that the applicant’s employment continued to be a substantial, but not the main contributing factor to her current psychiatric injuries, after she tried to return to work with the respondent in late 2019 and had an interaction with an aggressive patient, which re-exacerbated her condition. Dr Bisht did not explain the relevance of the applicant’s “original work injury” on 31 January 2019 to the “re-exacerbation” of work injury.
Further, in his later report dated 23 October 2022, Dr Bisht stated a diagnosis of major depressive episode and post-traumatic stress disorder and that the applicant’s employment was the main contributing factor to aggravation of the pre-existing condition. Dr Bisht stated that he did not consider the psychiatric disorder was a disease because the applicant’s symptoms evolved in a reasonably short period in early 2019. However, in his report dated 23 June 2023, Dr Bisht expressed the view that, although the applicant had mentioned other stressful incidents during the course of her employment with the respondent, there was no diagnosable post-traumatic stress disorder prior to 31 January 2019 because there was no evidence of significant functional impact such as the applicant being unable to work prior to that time.
Relevantly, as I noted above, the clinical records do indicate that the applicant did demonstrate somatic symptoms and was certified unfit to work as a result of work stress prior to 31 January 2019.
In contrast, the applicant’s IME, Dr Smith, in his reports dated 25 May 2022 and
19 June 2023, diagnosed chronic post-traumatic stress disorder with delayed onset and major depressive disorder. Dr Smith noted the applicant’s repeated exposure to progressive dangerous, threatening and frightening incidents in the workplace on an almost daily basis. Dr Smith noted that the applicant had demonstrated sub-clinical symptoms of post-traumatic stress disorder prior to 31 January 2019, when she had been prescribed medication for reported stressful working conditions in 2013 and 2015. Dr Smith considered it particularly relevant that the applicant had revisited the incident involving patient L.F. in around 2015 with her psychologist the day before she finally decompensated when she saw patient L.F.’s name in the hospital handover records.

In his supplementary report dated 1 September 2023, Dr Smith expressly disagreed with Dr Bisht’s opinion that there was no reference to the applicant having psychiatric symptoms linked to the work-related stressors in clinical records prior to 31 January 2019. Further, Dr Smith stated that Dr Bisht had not expressly considered the temporal link between the applicant revisiting the 2015 incident with her psychologist the day before her final breakdown. As I have set out above, I consider that those matters are particularly relevant.
For the reasons that I have set out above, I do not accept Mr Stockley’s submission that there is no contemporaneous evidence of psychiatric symptomatology as a result of alleged traumatic events. To the contrary, I accept that the treating medical evidence did demonstrate a clear causal relationship between the diagnosis of post-traumatic stress disorder and the nature and conditions of the applicant’s work prior to the events of
31 January 2019.
I note that, the applicant herself distinguished between the incident involving the patient, L.F., on 31 January 2019 and other events However, Dr Smith clearly explained his opinion that that the applicant’s psychological condition was causally related not only to the two specific incidents involving L.F. in 2015 and on 31 January 2019, but was also related to the applicant’s repeated exposure to progressive dangerous, threatening and frightening incidents in the workplace on an almost daily basis. I consider that is consistent with the treating medical evidence which I have noted above.
Considering the evidence as a whole, and for the reasons I have set out above, I prefer and accept the evidence of Dr Smith. I consider that Dr Smith provided a thorough and careful analysis of the applicant’s symptoms in the context of the whole of her psychological and work history. Further, I accept that his opinion is consistent with a logical and likely explanation for the applicant’s psychological injury.
I do not accept Mr Stockley’s submission that the applicant’s claim has been poorly articulated so that it is difficult to discern a disease diagnosis and the alleged mechanism of injury. To the contrary, for the reasons set out above, I find that the evidence does support such a finding, and I accept, that the applicant sustained a disease of gradual onset as a result of the nature and conditions of her work from 2011 to 31 January 2019.

Deemed date of injury

Mr Hammond submitted that the Commission should find, by virtue of the operation of the provisions of s 15 of the 1987 Act, that the deemed date of injury is any of: 31 January 2019; 27 May 2022, or 27 June 2023.
Mr Stockley submitted that, in the event that the Commission did find psychological injury caused by the nature and conditions of work, the Commission should find that the deemed date of injury is 31 January 2019.
I find that the deemed date of injury, determined in accordance with s 15(1)(a)(i) of the 1987 Act, is 31 January 2019 when the applicant decompensated.

Determination of whole person impairment

There is a dispute in relation to assessment of WPI. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI.

Medical expenses

As the respondent no longer maintains a dispute in relation to the applicant’s claim for medical and related expenses, it is appropriate to make an order in that regard.

SUMMARY

The applicant sustained a primary psychological injury pursuant to ss 4(b) and 11A(3) of the 1987 Act, due to the nature and conditions of work, with a date of injury of 31 January 2019 (deemed).
The respondent to pay the applicant’s past medical or related expenses in the sum of $357.25 upon production of accounts, receipts or Medicare notice of charge.
The matter is to be remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:      31 January 2019 (deemed)
Body parts:          Psychological
Method:               Whole person impairment
The materials to be referred to the Medical Assessor are to include:
(a)    ARD and attached documents;
(b)    Reply to ARD and attached documents;
(c)    applicant’s AALD dated 8 September 2023 and attachments, and
(d)    insurer’s AALD dated 15 September 2023 and attachments.

[2023] NSWPIC 565

25 October 2023