State of New South Wales (Hunter New England Local Health District) v Bramble
[2025] NSWPICPD 57
•5 August 2025
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| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |||
CITATION: | State of New South Wales (Hunter New England Local Health District) v Bramble [2025] NSWPICPD 57 | ||
APPELLANT: | State of New South Wales (Hunter New England Local Health District) | ||
RESPONDENT: | Kylie Bramble | ||
INSURER: | QBE TMF | ||
FILE NUMBER: | A1-W26176/24 | ||
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | ||
DATE OF APPEAL DECISION: | 5 August 2025 | ||
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 28 November 2024 is confirmed. | ||
CATCHWORDS: | WORKERS COMPENSATION – whether psychometric testing must be preferred over the opinions of medical experts whose opinions were based upon clinical assessment – Zahr v TAL Life Limited [2014] NSWSC 358; Brighten v Traino [2019] NSWCA 168 considered | ||
HEARING: | On the papers | ||
REPRESENTATION: | Appellant: | ||
| Mr P Perry, counsel | |||
| Hicksons Lawyers | |||
| Respondent: | |||
| Mr G Young, counsel | |||
| Law Partners Personal Injury Lawyers | |||
DECISION UNDER APPEAL: | Bramble v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 655 | ||
MEMBER: | Ms J Toohey | ||
DATE OF MEMBER’S DECISION: | 28 November 2024 | ||
INTRODUCTION AND BACKGROUND
Ms Kylie Bramble (the respondent), a dental assistant employed by the State of New South Wales (Hunter New England Local Health District) (the appellant), brought proceedings in the Personal Injury Commission (the Commission) in respect of an alleged psychological injury resulting from an incident on 4 July 2023 when she was abused and threatened by a patient. The respondent also asserted that the appellant failed to provide her with support in relation to the incident, which contributed to her injury.
The respondent’s treatment providers diagnosed the respondent as suffering from post-traumatic stress disorder (PTSD). The appellant arranged for the respondent to undergo psychometric testing in the form of a Minnesota Multiphasic Personality Inventory (MMPI-2) conducted by Dr Paul A Phillips, psychologist, who diagnosed the respondent as “malingering”. As a consequence, the appellant disputed that the respondent suffered a psychological injury.
The dispute proceeded to arbitration before Member Toohey, who determined that the respondent suffered a psychological injury as a result of the incident occurring in the course of the respondent’s employment on 4 July 2023. The Member ordered the appellant to pay the respondent weekly payments of compensation and her treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The appellant appeals the Member’s decision. The dispute in this appeal involves a consideration of whether the Member erred by failing to accept the MMPI-2 assessment, in which it was concluded that the respondent was malingering, and by preferring the evidence of the respondent’s treatment providers.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant indicates, and the respondent agrees, that it is appropriate for the appeal to be determined on the basis of the documents and the written submissions of the parties, and that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, including the submissions that the appeal can proceed to be determined on the basis of the documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met.
The respondent disputes that the appeal was filed within the time frame prescribed by s 352(4) of the 1998 Act.
Section 352(4) of the 1998 Act provides that:
“(4) The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
The respondent submits that the Member’s decision was dated 28 November 2024, the appellant’s submissions were dated 18 December 2024, but the appeal was not filed until 6 January 2025, which was after the appeal period had closed.
The time to lodge the appeal, which would have been extended because Christmas Day and Boxing Day are excluded by operation of s 36(2)(b) of the Interpretation Act 1987, closed on 27 December 2024.
The date of 6 January 2025 appears on the Form 9 – Appeal Against Decision of Member (the appeal) as the date that the appeal was registered with the Commission. The appeal, however, which was dated 19 December 2024, was lodged with the Commission at 15.33 on 23 December 2024, that is, it was lodged within the 28-day timeframe required by s 352(4). It was not registered with the Commission until 6 January 2025 because that date was the first day that the Commission had returned after the Christmas shut down period, which commenced from 5 pm on 20 December 2024. The shut down period did not operate to abridge the 28-day period for lodging the appeal.
The date the appeal was registered is not the date upon which the appeal was lodged. Thus, the appeal was made within the timeframe provided for in s 352(4) of the 1998 Act.
I note that a Delegate of the President issued a Direction on 6 January 2025 directing the appellant to serve a sealed copy of the appeal and the respondent was given until 10 February 2025 to lodge its Notice of Opposition (the opposition). The opposition was filed on 10 February 2025 at 17.14.
Rule 26 of the Personal Injury Commission Rules 2021 (the 2021 rules) provides as follows:
“26 When documents taken to be received or served
(1) A document lodged with or served on the Commission, or correspondence directed to the Commission, by an ECM system or email, is taken to be received—
(a) at the time of entering the information system at the Commission, or
(b) if it is received after 5 pm—on the next working day.”
The respondent’s opposition was therefore lodged outside of the timetable set by the Delegate.
The 2021 rules provide that the Commission may dispense with the rules if it is satisfied that it is appropriate to do so. Given the document was out of time by only 14 minutes, and the appellant has not raised any issue as to whether there ought to be an extension of time, I consider that, in the interests of justice and in the absence of any identifiable prejudice to the appellant, it is appropriate to dispense with r 26 of the 2021 rules, and the respondent’s opposition is accepted.
THE EVIDENCE
The respondent’s statement evidence
The respondent provided a statement dated 9 August 2024.[1] She said that she commenced full-time employment with the appellant on 20 July 2015. She described her duties, which included arranging appointments for patients, dealing with patients over the telephone and triaging walk-in patients at the Taree Dental Clinic.
[1] Application to Resolve Dispute (ARD), pp 1–16.
The respondent indicated that on 4 July 2023, a patient arrived 20 minutes late for her appointment at the clinic so the respondent advised the patient that she would need to wait until she could be seen by the dentist. The respondent said that the patient became agitated, and her mood escalated to the point that she became verbally abusive to the respondent and demanded an emergency voucher so that she could attend her usual dentist. The respondent said that the patient pulled up her top lip in an aggressive manner and the respondent could see that the patient would require more than one visit for dental treatment, so she attempted to explain to the patient that an emergency voucher was only to be used for a one-off consultation such as to treat a particular tooth or to provide pain relief.
The respondent said that she offered the patient an appointment at 2 pm, but the patient continued to be abusive and was behaving erratically.
The respondent stated that, later that day, she received a telephone call from the operator of the oral health contact centre in Newcastle, in which the operator advised the respondent that the patient had contacted her demanding a voucher so that she could see a private dentist. The respondent indicated that the operator issued a voucher in order to de-escalate the situation but reported to the respondent that the patient made a threat that if the patient returned to the Taree clinic, she would kill the staff.
The respondent said that she advised her colleague who was working with her that because of the personal nature of the threat, a “code black” should be entered but when she checked the contact centre notes, they had only recorded that a voucher was issued, and no mention was made of the death threats. The respondent advised that she documented the encounter with the patient in the patient’s file and contacted the call centre manager who agreed to raise the issue with the professional team leader. The respondent said that the professional team leader noted in the patient notes that she should be provided with a voucher or offered an in-house appointment, a solution the respondent did not agree with.
The respondent advised that a staff Member made a courtesy call to the patient, who again was abusive and made threats against the respondent, including that the patient’s husband would “bash [the respondent’s] head in”.[2]
[2] Respondent’s statement, ARD, p 4, [19].
The respondent described how she felt unsafe when walking to her car and said that the staff were advised that if they were leaving the clinic, they should leave together. She added that on the following day she felt apprehensive at work every time the door opened in case it was the patient. The respondent found it concerning that the appellant’s zero tolerance policy in respect of violence and aggression towards staff was not raised. She said that she was advised by management that if the patient presented to the clinic and she felt unsafe, she should leave the reception area or the clinic. The respondent considered that the response did not take into account the severity of the threat and said that she felt unsupported by the appellant. She added that she asked the appellant to contact the police, however, the appellant did not respond to that request.
The respondent advised that since 6 July 2023, she had been unable to attend work as she was concerned, upset and frightened because of the serious nature of the patient’s threats. She stated that she did not feel safe in the small town in which she lived. She said that she attended her general practitioner, Dr Su Oo, who certified that she had no capacity for work, prescribed medication, and referred her to a psychologist, Ms Jeanette Pheiffer.
The respondent described how she felt overwhelmed, fearful, frightened, scared for her safety and unsupported. She reproduced the appellant’s zero tolerance policy. The respondent added that the appellant advised that they would support her if she reported the matter to the police but said that Dr Oo was of the view that, in order to protect the respondent’s privacy, the appellant should report the matter.
The respondent stated that for her own peace of mind she requested to be copied into the appellant’s emails regarding safety measures but the request was denied. The respondent said that on 15 July 2023, as she had not received a response from the appellant, she reported the matter to the police, however she elected not to pursue court action. She advised that she was subsequently contacted by the police officer who expressed concern that the patient’s husband had a criminal record and suggested she seek a personal violence order. She said that she did not pursue the order because of the stress associated with the process. She said that she was extremely distressed that the husband of the patient had a criminal record.
The respondent provided a background of having to deal with aggressive and demanding patients and what she described as inadequate security measures in the workplace. She provided a summary of the treatment prescribed by her psychologist. She said that the appellant informed her that it accepted liability for the claim, however she was referred for assessment by Dr Paul Phillips, psychologist, who diagnosed her as malingering on the basis of psychometric testing and compared her to a psychopath. She reported that the consultation with Dr Phillips, which lasted five hours, was very distressing. She said that it “felt more like an interrogation than a medical assessment”,[3] and Dr Phillips was very intimidating. She added that she was at home alone when she received the report, which caused her to completely break down, cry uncontrollably, experience palpitations in her neck and a racing heart, as well as numbness in her hands and lips.
[3] Respondent’s statement, ARD, p 8, [31].
The respondent challenged Dr Phillips’ statements and conclusions and denied reporting to Dr Phillips the matters suggested by him.
The respondent described her ongoing symptoms, including the fact that she continued to feel unsafe and that she did not have the trust in her employer for her to return to work safely.
The respondent indicated that on 6 November 2023, at the request of the appellant, she attended an independent medical assessment with Dr John Honey, psychiatrist, who diagnosed her as suffering from PTSD but subsequently retracted that opinion on the basis that Dr Phillips had diagnosed malingering. The respondent said that she consulted Dr Jennifer Young, psychiatrist, and personally paid for those consultations.
The respondent addressed her inability to work and her lack of self-care and hygiene, lack of social and other activities, and the detrimental affect the condition had had on her social functioning, concentration and recreational activities. She confirmed her ongoing psychological difficulties.
The medical evidence
Dr John Honey
Dr Honey was asked by the appellant to assess the respondent and provide an opinion in respect her claim. He provided his initial report dated 6 November 2023.[4] He took a history of the events that occurred on 4 July 2023, including the respondent’s concerns about her safety at work. He noted the symptoms complained of by the respondent and that she was receiving treatment from a psychologist in respect of her symptoms of anxiety. He further noted that she was prescribed sertraline, which provided some benefit. He reported that the respondent had no history of prior psychological symptoms other than a brief history of counselling following an incident at work when she fractured her wrist.
[4] Reply to Application to Resolve a Dispute (reply), pp 84–92.
Dr Honey described the respondent’s symptoms of being extremely anxious, teary and avoidant, with hypervigilance, nightmares and intrusive images of the event and the particular patient involved in the incident. He considered that his impression was that the respondent was very genuine, she loved her job and suffered a significant psychological illness as a consequence of the events that occurred which led her to fear for her life. He observed that the respondent’s complaints satisfied the criteria required by the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM V) for the diagnosis of PTSD. He observed that the history provided by the respondent was consistent with her written account that accompanied the referral to him. He was of the opinion that the respondent’s employment was a substantial contributing factor to the injury and, as it was a disease injury, the employment was the main contributing factor to the injury. He considered that she was highly motivated to recover and noted that she loved her job but did not feel safe to return to work. He said that she was not fit for work and required further treatment.
Dr Honey provided a further report dated 14 December 2023 following a review of the psychometric assessment by Dr Phillips.[5] He described the test used by Dr Phillips as “well validated” and difficult to contradict.[6] He confirmed that the report diagnosed the respondent as malingering, and said that, in accordance with Dr Phillips’ reasoning, he accepted that diagnosis. He explained that once a diagnosis of malingering is made, the diagnostic process cannot proceed further partly because exaggerating is considered to be the same as malingering, and if the person is being untruthful about the severity of their symptoms, then they are taken to be also untruthful about the presence of those symptoms.
[5] Reply, pp 93–96.
[6] Reply, p 94, (a).
Dr Honey conceded that the respondent continued to suffer from anxious apprehension about the workplace and felt unprotected, thus there was no prospect of her returning to that workplace while those concerns were not addressed.
Dr Paul A Phillips
The appellant arranged for the respondent to be assessed by Dr Phillips, who administered the psychometric testing of the respondent on 9 October 2023. He reported on the outcome of the testing on 23 October 2023.[7] The report comprised of 83 pages, much of which contained extensive technical data. Dr Phillips did, however, provide a “plain English” version of the report to assist the reader’s comprehension.[8] He quoted from various publications and judicial comment in relation to making a psychiatric diagnosis and the application of psychometric testing. He said that in order to diagnose, explain or treat a psychological illness, expertise is required, and it is not simply a matter of common sense. He observed that, in diagnosing a disorder, empirical evidence, rather than initial observations should be preferred. He explained that in the respondent’s case, the empirical evidence (that is the psychometric testing) indicates one diagnosis, while the clinical interview provides one that is different. Dr Phillips said that the body of his report was filled with empirical evidence and satisfied the requirements of the expert code of conduct.
[7] Reply, pp 1–83.
[8] Reply, pp 3–25.
Dr Phillips observed that the respondent’s medical evidence provided a number of diagnoses, none of which were based upon psychometric testing and none of which followed the instructions contained in psychiatric textbooks that provided for the administration of MMPI-2. Dr Phillips asserted that none of those diagnoses could therefore be considered “a full psychological diagnosis”,[9] and therefore for medico-legal purposes, the process adopted was deficient.
[9] Reply, p 4, [6].
Dr Phillips explained that in a mental health examination, the assessment would comprise of a clinical interview and a mental state examination that included the clinician’s observations, and said that the process turns upon the accuracy with which the patient reports their symptoms. He stated that the accuracy depends upon the motivation to correctly report symptoms, the person’s insight into their symptoms and the presence or absence of symptoms that may affect the accuracy of the reporting. He said that, in some circumstances, a person may be motivated to grossly exaggerate or fabricate symptoms for monetary gain. He quoted from the Textbook of Forensic Psychiatry,[10] in which the clinician was advised that the assessment of malingering was critical and should be considered in a medicolegal context in circumstances where there is a discrepancy between reporting and the objective findings, the person is uncooperative in respect of treatment or the person suffers from an antisocial disorder.
[10] Sadock BJ, Sadock VA, Ruiz P, Kaplan HI (2009), 9th edition.
Dr Phillips asserted that the textbooks tell psychiatrists to use the MMPI-2 and that in medico-legal circumstances, they should not rely on clinical interview or therapy history alone. He further explained:
“When the test results indicate that the self-report is distorted, either by denial, gross exaggeration or fabrication, then the self-report must be rejected. The distortion prevents any accurate diagnosis of a mental illness being made. Such a situation is instead covered by the diagnosis of malingering, if there is an external motivator present, and factitious disorder, if there is no external motivator present.”[11]
[11] Reply, p 6, [11].
Dr Phillips observed that the test involved a system of group or known profiling in order to consider whether a person fits the diagnosis of the condition. He said that both the respondent and the people profiled were asked the same questions in the same order, and using the same possible answers. He indicated that the respondent’s profile was compared with:
(a) people with diagnostically probable adjustment disorder and PTSD, which were common disorders arising from stress or trauma;
(b) injured workers who were subjected to harassment or no harassment and workers diagnosed with PTSD as a result of workplace events;
(c) patients with significant impairments in relation to schizophrenia and dissociative identity disorder;
(d) two known individual profiles, rather than group profiles, and
(e) known malingering profiles.
Dr Phillips observed that, if taken at face value, the respondent was far more mentally ill than the average person:
(a) with an adjustment disorder;
(b) who was a holocaust victim with PTSD, despite the alleged facts which in the respondent’s case were less prolonged and less horrendous;
(c) who had been bullied at work, injured by harassment or non-harassment or suffered PTSD as a result of a workplace injury;
(d) with schizophrenia, yet she denied hallucinations and delusions and did not react to those suggestions on mental status examination, and
(e) with dissociative identity disorder, yet there was no history of severe or repeated trauma.
Dr Phillips indicated that the difference between the respondent’s profile and those published in the literature was not medically possible, especially in the light of the alleged mechanism of injury. He compared the respondent’s profile with that of a criminal who killed three people and injured 23 others by sending bombs in the mail and another who dismembered 17 people. He observed that, if taken at face value, the respondent was more mentally ill than those criminals. He concluded that the respondent was not more mentally ill than those people who all had accurate symptom reports, so that it was necessary to explore whether the respondent’s profile was a better fit with those who did not have an accurate symptom report.
Dr Phillips noted that the respondent’s profile showed a similar score and shape as those who faked a mental illness and the only profile that was at all similar to that of the respondent was the profile showing malingering, and thus the finding of a genuine mental illness was excluded. He referred to the literature setting out the context in which malingering may be present, which included medico-legal situations where the person may be seeking financial gain, together with the presence of exaggerated or fabricated responses. He said that the assessor should take into account that the person presenting in a medico-legal context may be malingering. He concluded that as this was a medico-legal case involving money, which was an external motivator, malingering could not be ruled out and was the only diagnosis to be made. He stated:
“The diagnosis from the psychometric testing of malingering supersedes, prevents, and overrides all other diagnoses. Until ruled out by evidence of similar quality as that presented above, it is the standing diagnosis.”[12]
[12] Reply, p 26.
Dr Su Oo, general practitioner
Dr Oo provided a report dated 26 July 2024 at the request of the respondent’s legal representatives.[13] She advised that the respondent had first consulted her about the incident the subject of these proceedings on 6 July 2023, complaining of insomnia, inability to sleep, excessive worrying and symptoms of anxiety. Dr Oo recorded a consistent history of the incident that occurred on 4 July 2023, including the violent threat made by the patient directed at the respondent. She noted that the appellant put in place some safety measures which the respondent considered were not sufficient to ensure her safety at work.
[13] ARD, pp 94–95.
Dr Oo advised that the respondent was initially diagnosed with an acute stress reaction as a result of the incident and was issued with a Certificate of Capacity certifying that she had no capacity for work. Dr Oo said that the respondent was referred to Dr John Honey, psychiatrist, who diagnosed the respondent with PTSD, resulting from the incident. Dr Oo reported that Dr Honey subsequently retracted his opinion after reviewing a report from Dr Phillips, who performed psychometric testing of the respondent and considered that it was most likely that the respondent was malingering. Dr Oo indicated that she did not have the expertise to comment on the validity of psychometric testing, but said that the respondent’s symptoms were in her view suggestive of PTSD initiated by the incident at work.
Dr Oo indicated that the respondent was referred to Dr Jennifer Young, psychiatrist, who first assessed the respondent on 17 April 2024, recording that the respondent was visibly distressed and was experiencing ongoing symptoms that appeared to be a direct result of the events at work commencing from July 2023. Dr Oo was of the view that the respondent did not have any capacity for work, and said that Dr Young, as well as the respondent’s treating psychologist, Ms Jeanette Pheiffer, were of the same view.
Dr Oo described the respondent’s ongoing treatment regime. She indicated that she was unable to provide a prognosis but considered it likely that without proper support, the respondent’s psychological condition would persist on a long-term basis, and the stressful process of pursuing an appeal from her workers compensation claim would impact her recovery.
Ms Jeanette Pheiffer, psychologist
Ms Pheiffer reported to Dr Oo on 30 August 2023.[14] She advised that the respondent had attended seven consultations for treatment of depression, anxiety and stress, all of which were described after a “DASS21” assessment as severe. She further advised that the respondent had completed a self-reporting trauma checklist for screening for a diagnosis of PTSD, which indicated a provisional score and diagnosis for PTSD. She noted that at all consultations, the respondent reported severe anxiety, depression and sleep impairment.
[14] ARD, p 76.
Ms Pheiffer recommended a trial of medication aimed at managing trauma symptoms and sleep impairment and a referral of the respondent to a psychiatrist for the purposes of providing a diagnosis and a treatment plan. She considered that the respondent had no capacity to return to work.
Ms Pheiffer provided a comprehensive report dated 23 July 2024, which appears to have been generated at the request of the respondent’s legal representatives.[15] She recorded an accurate and detailed account of the event in July 2023, including the violent threat initiated by the patient, the respondent’s awareness that the patient’s husband had a criminal record, and the respondent’s complaints of the unsatisfactory safety protocols in the workplace despite the appellant’s policy of zero tolerance of aggression in the clinic. Ms Pheiffer said that the respondent was fearful, distressed and hypervigilant, suffered panic attacks and sleep disturbance, depressed mood and anxiety.
[15] ARD, pp 77–80.
Ms Pheiffer diagnosed the respondent as suffering from PTSD with major depression, anxiety and panic attacks. She described the respondent’s ongoing disabilities and opined that, despite the respondent having experienced past workplace abuse, she was fully functional until the events in July 2023, after which she presented with significant mental health symptoms. She said that the symptoms resulted from those events, the respondent’s employment was the main contributing factor to her injury, and as a consequence of the injury the respondent had no capacity for work.
Ms Pheiffer provided an analysis of the reports of Dr Phillips and Dr Honey. She noted that after a five-hour psychometric assessment, Dr Phillips concluded that the respondent was malingering. She noted that the respondent had a long history of being able to manage patient aggression until she was directly and personally threatened by the patient in July 2023, which event satisfied Criterion A required for a diagnosis of PTSD in accordance with DSM V. She added that:
(a) the recurring intrusive and distressing nightmares, memories and flashbacks satisfied Criterion B;
(b) the respondent avoided Taree because of the fear of being attacked, which satisfied Criterion C;
(c) variations in the respondent’s mood and cognition satisfied Criterion D;
(d) the disturbance of the respondent’s sleep, cognitive and concentration difficulties, symptoms of arousal, hypervigilance and startled response satisfied Criterion E, and
(e) the persistence of her symptoms, which were not attributable to substance abuse or a general medical condition, satisfied Criterion F, G, and H.
Ms Pheiffer opined that:
“Considering the DSM V criteria, the documentation provided from [the respondent’s] GP and psychiatrist Dr Jennifer Young, and recurring trauma symptoms evident and reported in psychological therapy sessions is consistent with a diagnosis of PTSD.
Prior to the July 2023 incident at work, [the respondent] was fully functional, relishing her long-term career as a dental clinic assistant. Considering all the available information, therapy session observations and psychological assessment, [the respondent] has suffered with PTSD, major depressive disorder with panic symptoms since the July 2023 traumatic work incident.
[The respondent’s] fear of returning to work was compounded by the [appellant’s] delay in action to remedy the safety protocols.
Her symptoms were further exacerbated by Dr Philips’ July 2023 report of malingering. [The respondent] received the report by email, proceeding to read it on her own, without support or debriefing.”[16]
[16] Ms Pheiffer’s report dated 23 July 2024, ARD, p 79.
Ms Pheiffer reported that the respondent suffered a further shock when she also learned that Dr Honey had reversed the diagnosis made by him that the respondent suffered from PTSD. She pointed out that Dr Young had confirmed the diagnosis as PTSD and had instigated a psychiatric treatment plan. Ms Pheiffer observed that there was no suggestion of exaggeration, malingering or that the respondent was being untruthful about her symptoms in the psychological therapy sessions conducted. She reiterated that the respondent had no capacity for work. She set out the treatment plan for the respondent, which included psychiatric intervention, trauma informed therapy and ongoing medication. She recommended a review of the psychiatric and psychological treatment after a further 12 months.
Dr Jennifer Young, psychiatrist
Dr Young reported to Dr Oo on 22 April 2024.[17] She provided a brief summary of the respondent’s personal history and recorded a consistent description of the events involving the aggressive and threatening behaviour of the patient in July 2023. She noted that the respondent was unable to return to her employment and experienced ongoing significant anxiety, depression and traumatic memories. Dr Young observed that the respondent’s claim for compensation was initially accepted, and her symptoms were diagnosed as PTSD by Dr Honey. She noted, however, that the diagnosis was reversed in November 2023 following psychological review, following which the respondent was advised that she was “malingering”.
[17] ARD, pp 84–86.
Dr Young confirmed that, at the consultation conducted on the date of this report, the respondent was visibly distressed, and it was apparent that she was suffering from ongoing symptoms resulting from the incident in the workplace in July 2023. She noted that the respondent reported suffering panic attacks, insomnia, racing thoughts, intrusive memories, flashbacks, hypervigilance and avoidance behaviour and that her symptoms were not improving in the context of developing depression.
Dr Young diagnosed PTSD with panic attacks and secondary major depression. She made recommendations in relation to appropriate medication and was of the view that ongoing psychological treatment should continue and would probably be required on a long-term basis. Dr Young noted the presence of anxiety and hypervigilance with no psychotic features, no issues with alcohol, no significant mental health issues. She considered that the respondent had no capacity for work and confirmed that the respondent’s description of events and her presentation was consistent with a diagnosis of PTSD directly attributable to the events at work.
Dr Young reported to the appellant on 26 June 2024.[18] She confirmed that the respondent was receiving treatment from her for significant mental health issues directly related to the workplace incident in July 2023, “including but not limited to, lack of support from management, intimidating and lengthy independent assessments, subsequent decline of claim, decline of long service leave.”[19] She noted that the respondent’s claim for compensation was denied, and said that the respondent was herself paying for her ongoing treatment. She referred to the respondent’s application to be paid her long service leave entitlements, which also had been denied. Dr Young indicated that it was difficult to understand why the respondent’s compensation claim was denied and said that the respondent should be entitled to compensation and that she supported the respondent’s application for long-service leave payments. Dr Young indicated that it was “certainly” her impression that the respondent suffered from PTSD and major depression with anxious distress, which were directly related to the workplace incident in July 2023.
[18] ARD, p 87.
[19] Dr Young’s report dated 22 July 2024, ARD, p 89.
Dr Young provided a further extensive report directed to the respondent’s legal representatives.[20] She provided a long list of the respondent’s symptoms that were consistent with a diagnosis of PTSD and those that were consistent with the additional diagnosis of major depression. She advised that it was her opinion that the respondent’s symptoms and presentation were consistent with those diagnoses, her presentation at clinical review was consistent and the respondent displayed a distressed manner. Dr Young considered that the respondent’s presentation was consistent with true “PTSD”, was not feigned and was not “malingering.” She noted that the psychometric testing results refuted that the respondent genuinely suffered those symptoms but said that, as the respondent’s treating psychiatrist, she could not ignore or discount the respondent’s level of distress, consistent description of symptoms, and agitation presented at clinical review. Dr Young said that those matters, together with the significant negative impact those matters were having on her life and the fact that the respondent was motivated to seek treatment, which she was paying for herself, were all consistent with true PTSD and not malingering.
[20] ARD, pp 88–91.
Dr Young said that, on her understanding, the psychometric testing used by Dr Phillips, which was a general tool, should not be used as a stand-alone test when making an assessment or forensic evaluation. She said that it should be used in combination with the history, the clinical examination, the longitudinal assessment and knowledge. She stated that it should not be used to replace clinical diagnosis and judgment.
Dr Young was critical of Dr Phillips’ use of the tool, which she said should be used to assist patients and not judge them. She suggested that, as a way forward, another symptom validity test should be performed as the literature indicated that that is appropriate in circumstances where it is implied or reported that the patient is malingering. Dr Young referred to further research that indicated that there were more specific, sensitive and appropriate malingering scales that should be used for PTSD. She added that the respondent’s treating general practitioner, her psychologist and three psychiatrists (including herself) all diagnosed the respondent as having symptoms consistent with PTSD and depression and those clinical judgments should have been considered by Dr Phillips, just as those clinicians were asked to consider the psychometric results. She expressed the view that the psychometric test used should have been supported by multiple evidence sources. Dr Young referred to the DSM V indicators for suggesting malingering and observed that none of those factors were present with the respondent, who undertook the assessment, was pursuing private treatment which she paid for herself, was complying with all the treatments and was not displaying anti-social personality disorder.
Dr Young advised that the respondent had no capacity for work and provided a list of likely future treatment. She concluded that:
“It is my opinion that [the appellant] has a guarded prognosis, with likely enduring symptoms, given the nature of inciting event (threat of personal violence, fear for life), the duration of ongoing symptoms, the severity of symptoms and the contributing effect of claim being denied, lack of support and intimidating, judgemental and personally inflammatory nature of being labelled a malingerer.”[21]
[21] Dr Young’s report dated 22 July 2024, ARD, p 91.
Dr Glen Smith, consultant forensic psychiatrist
Dr Smith assessed the respondent at the request of the respondent’s legal representatives. He provided a report dated 7 May 2024.[22] He reviewed the available documentary material, including the appellant’s dispute notice issued pursuant to s 78 of the 1998 Act, in which the appellant referred to the psychometric assessment conducted by Dr Phillips that found the respondent was malingering. He noted Dr Honey’s retraction of his opinion on the basis of Dr Phillips’ assessment.
[22] ARD, pp 53–75.
Dr Smith took a detailed history of the incident on 4 July 2023 and its aftermath. He recorded the respondent’s current symptomology and the impact on her daily functioning. He noted that the respondent had a brief period of counselling in 2019 following a physical injury but otherwise had no past psychiatric history, only occasionally consumed alcohol and denied illicit drug use. Dr Smith performed a mental state examination and provided a provisional diagnosis of PTSD with major depressive disorder and anxious distress, noting that the symptoms arose following the traumatic experience in July 2023. He referred to the various criteria required by DSM V to diagnose PTSD. He observed that:
“[The respondent] reported symptoms consistent with the diagnosis of PTSD in the context of aggression and direct threats of death made by a patient in her workplace (Criterion A). She has experienced recurrent, intrusive distressing memories, flashbacks and nightmares of the traumatic incident (Criterion B). She described avoidance of Taree due to her anxiety and fear of being attacked (Criterion C). She has experienced marked negative alterations in cognition and mood (Criterion D). She described marked alterations in arousal and reactivity with hypervigilance, an exaggerated startle response, difficulties with concentration and thinking and sleep disturbance (Criterion E). The symptoms have persisted since July 2023 (Criterion F). The symptoms have been substantially distressing and resulted in impairment (Criterion G). The symptoms are not attributable to the physiological effects of a substance or a general medical condition (Criterion H).”[23]
[23] Dr Smith’s report, ARD, p 68.
Dr Smith indicated that it was his opinion that the respondent’s symptoms were consistent with the diagnosis of PTSD and major depressive disorder with anxious distress. He noted the history of the respondent’s previous exposure to aggressive patients and considered that that experience rendered the respondent vulnerable to the severe decompensation in the form of anxiety and depression following the incident in July 2023. He opined that the symptoms were compounded by the respondent’s feelings of lack of safety at work and the workers compensation process, including having to undergo lengthy psychometric testing by Dr Phillips and reading his report, in which he found her to be malingering. Dr Smith was of the opinion that the respondent’s employment was the main contributing factor to the onset of her anxiety and depression.
Dr Smith said that he disagreed with the report of Dr Phillips and the revised opinion of Dr Honey. He observed that there was corroborative evidence of the respondent being threatened, which satisfied Criterion A of the diagnosis of PTSD. He advised that the respondent’s history and presentation was consistent with that recorded by her general practitioner, and her treating psychologist and psychiatrist. He considered that the respondent’s presentation was more consistent with true PTSD as opposed to malingering PTSD and that she did not appear to be exaggerating her symptoms.
Dr Smith described the assessment by Dr Phillips as “particularly distressing”[24] and said that it resulted in a worsening of her condition. He concluded that:
“Considering the totality of the available information, including her own history, the mental state examination, the evidence that the traumatic incident actually occurred as described and the available documentation from treating practitioners, in my opinion, on the balance of probabilities, [the respondent] has suffered from symptoms consistent with the diagnoses of PTSD and major depressive disorder after the traumatic incident in July 2023.”[25]
[24] ARD, p 71, (e).
[25] ARD, p 74, (d).
He proceeded to consider the respondent’s capacity for work and need for ongoing treatment.
THE MEMBER’S REASONS
The Member provided a brief factual summary of the respondent’s injury, her claim and the issues requiring determination. She summarised the evidence, including the reports provided by the various medical experts, as well as the notes recorded by the respondent’s manager as to the circumstances surrounding the injury and the respondent’s safety concerns.
The Member noted in detail the submissions from the parties as to the acceptance or otherwise of the expert evidence.
The Member observed that there was no dispute that the events as described by the respondent occurred and that the real dispute was the question of the weight that should be afforded to Dr Phillips’ report, and that of Dr Honey who agreed with Dr Phillips, in determining whether the respondent suffered a compensable psychological injury.
The Member noted that the respondent bore the onus of proof. She referred to the submissions made by the respondent that went to the question of the validity of the tests performed by Dr Phillips but rejected those submissions on the basis of the appellant’s submission that the validity of the testing cannot be challenged in the absence of contrary cogent evidence, citing Strinic v Singh.[26] She reasoned that Dr Young did not challenge the validity of the tests but took issue with Dr Phillips’ opinion that the testing outweighed clinical judgment.
[26] [2009] NSWCA 15.
The Member observed that Dr Young cited research studies that showed that applying MMPI-2 in cases of PTSD had a “mixed evidence base on its ability to detect malingering” and that other malingering scales for PTSD were “more specific, sensitive and appropriate.” The Member noted that the appellant did not challenge Dr Young’s opinion on that issue.
The Member added that Dr Young obviously accepted that the tests could be useful, but that Dr Young disputed that it was a “stand-alone tool” and disputed that it should be given greater weight than clinical experience and judgment. The Member considered that Dr Young’s reasoning for her opinion was clearly and cogently expressed. The Member referred to Dr Young’s suggestion that, because the research literature considered that more than one test is recommended in circumstances where malingering was to be considered, perhaps another symptom validity test could be administered. The Member indicated that she was unsure of what Dr Young had intended but said that while Dr Young suggested that might be an option, Dr Young did not resile from her opinion that the respondent suffered the symptoms the subject of her complaints and that the respondent satisfied the criteria meeting a diagnosis of PTSD.
The Member referred to the evidence of Ms Pheiffer, who she noted had treated the respondent over a number of months, agreed with Dr Young and provided detailed reasons for her opinion. The Member further referred to the evidence of Dr Smith, noting that he had not read the reports of Dr Phillips or Dr Honey. The Member considered that that did not cause her to discount the opinion of Dr Smith. She observed that Dr Smith found the respondent’s presentation to be consistent with the notes and reports from Dr Oo, and with the evidence of Ms Pheiffer and Dr Young. She further observed that Dr Smith provided the source for his opinion that the respondent suffered from true PTSD and not malingering PTSD. The Member said that, while Dr Smith did not explain his opinion in the degree of detail provided by Dr Young, the appellant did not challenge Dr Smith’s sources and Dr Smith’s opinion lent weight to that of Dr Young.
The Member noted that Dr Honey retracted his initial opinion purely on the basis of Dr Phillips’ assessment and did not provide a reasoned evaluation of that opinion in the context of the opinions of Dr Young, Ms Pheiffer or Dr Smith, or even his own initial opinion.
The Member observed that the psychometric testing used by Dr Phillips had been considered in several other cases but, while it was clear that there were differing views as to its usefulness, none of those cases were of assistance in this case because they all turned on the weight to be afforded to psychometric testing as opposed to clinical judgment. The Member referred to the New South Wales Supreme Court case of Zahr v TAL Life Limited,[27] identified and relied upon by Dr Phillips in his report, in which the MMPI-2 was used as well as other forms of testing and resulted in a finding that the claimant did not have a diagnosable psychological condition. The Member observed:
“Pembroke J noted at [30] that the clinical psychologist who carried out the testing did not rely exclusively on an objective evaluation. His opinion was also derived in part from his interview with the patient and his consideration of the reports of other practitioners. The plaintiff’s treating psychiatrist said he would defer to the clinical psychologist. At [30] Pembroke J rejected the idea that testing mechanisms are merely ‘a tool’. He said:
‘I think they are better described as a screening instrument that is able to play a critical role in identifying false or exaggerated claims. In an appropriate case, such tests are, in my view, valuable, and in some cases indispensable, aids to the formation of an accurate judgment, and consequently a correct diagnosis.’
I do not read Zahr as standing for unqualified support for Dr Phillips’s assessment.”[28]
[27] [2014] NSWSC 358 (Zahr).
[28] Bramble v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 655 (reasons), [81]–[82].
The Member also referred to Michael Burke v MetLife Insurance Limited[29] and Brighten v Traino.[30] She reviewed the facts in Burke and noted that that case “was factually and procedurally complex, and does not stand for unqualified acceptance of testing over clinical judgment.”[31] The Member further observed that in Brighten, Basten JA criticised the validity and the inability to comprehend the neuropsychological testing. She said, however, that the ultimate determination in that case rested on its facts.
[29] [2019] NSWSC 177 (Burke).
[30] [2019] NSWCA 168 (Brighten).
[31] Reasons, [83].
The Member said that she considered Dr Young’s opinion to be more persuasive than the assessment made by Dr Phillips. She observed that Dr Young did not reject the notion that that testing had a valid role to play, Dr Young had the benefit of observing the respondent over numerous treatment sessions, and Ms Pheiffer and Dr Smith both agreed with Dr Young. She further observed that Dr Honey also agreed with Dr Young but altered his opinion when provided with the report of Dr Phillips. The Member formed the view that Dr Young’s opinion was “careful and considered, and she gives cogent reasons for maintaining her diagnosis”.[32]
[32] Reasons, [85].
The Member determined that the respondent suffered a psychological injury as a consequence of her employment with the appellant. She proceeded to determine the respondent’s entitlement to weekly compensation and treatment expenses pursuant to s 60 of the 1987 Act.
The Certificate of Determination issued on 28 November 2024 records:
“The Commission determines:
1. The [respondent] suffered a psychological injury arising out of or in the course of her employment on 4 July 2023 to which her employment was a substantial contributing factor.
2. The [appellant] to pay the [respondent] weekly compensation from 29 March 2024 to date and continuing based on her pre-injury average weekly earnings of $1,263.12 as indexed.
3. The [appellant] to pay the [respondent’s] reasonably necessary treatment expenses.”
GROUNDS OF APPEAL
The appellant brings four grounds of appeal as follows:
(a) Ground One: Having expressly accepted the validity and relevance of the tests administered by Dr Phillips, the Member erred in rejecting the results of those tests;
(b) Ground Two: The Member fell into error in impermissibly eliding an opinion and assessment;
(c) Ground Three: The Member erred by considering that it was of no relevance that the respondent’s expert witness [Dr Smith] was not provided with the appellant’s evidence, and
(d) Ground Four: The Member was in error by rejecting the evidence of Dr Honey.
SUBMISSIONS
As to Ground One
The appellant’s submissions
The appellant points to the Member’s consideration of the question of the relevance and validity of the testing performed by Dr Phillips and the Member’s acceptance that the validity of the testing cannot be challenged in the absence of acceptable expert evidence. The appellant further refers to the Member’s reasoning at paragraphs [80] to [81] of her reasons in respect of Pembroke J’s remarks in Zahr and submits that the Member cited only the two final sentences of those relevant remarks. The appellant reproduces the entre paragraph from his Honour’s reasoning and submits that Pembroke J rejected the proposition that objective psychological testing was not a substitute for the evidence obtained from clinical examination. The appellant says that his Honour’s judicial reasoning supported the argument put forward by Dr Phillips that if psychometric testing is correctly administered and reveals malingering, that finding negates or at least undermines a psychiatric diagnosis.
The appellant submits that Dr Phillips’ evidence in that regard was accepted by Dr Honey when Dr Honey concluded that where malingering was present, the process of reaching a diagnosis could not proceed further and that the conclusion that the respondent was malingering was established by Dr Phillips’ evidence.
The appellant asserts that the Member did not reject the conclusions reached in the psychometric testing and observes that it is important to consider what the Member did not find. The appellant says that the Member correctly identified that the respondent bore the onus of proof. The appellant submits that there was clear evidence in the form of Dr Phillips’ “painstaking administration”[33] of the testing, which the Member accepted as valid, that the respondent was not being truthful when recounting her symptoms, which did not assist her in discharging her onus. The appellant asserts that the Member “did not say”[34] (emphasis in the original) that Dr Phillips’ evidence was that the respondent was a malingerer and that she rejected his evidence. The appellant adds that the Member did not make a finding that the psychometric testing was “impenetrable” and “unproven” as Basten JA found in Brighten.
[33] Appellant’s submissions, p 19, [3.1.8].
[34] Appellant’s submissions, p 19, [3.1.9].
The appellant submits that the Member made no criticism of the evidence of Dr Phillips or of the forensic value of the testing performed by him, and in fact determined that the testing was valid. The appellant says that, if Dr Phillips’ findings were correct, then the logical conclusion is that the opinions based upon the fact that the respondent’s psychological condition exists must be found to be incorrect and that evidence should have been determined to be of no value, citing Hevi Lift (PNG) Ltd v Etherington[35] as authority for that proposition. The appellant asserts that the Member fell into error by affording value to those opinions in the face of the unchallenged evidence that the respondent was malingering.
[35] [2005] NSWCA 42 (Hevi Lift) per McColl JA, [84]–[85].
The respondent’s submissions
The respondent refers to the appellant’s submission that because the Member accepted that the testing performed by Dr Phillips was valid, she was bound to find that the respondent was not being truthful and thus did not suffer from a psychological injury. The respondent submits that the appellant’s submission is misconceived. The respondent explains that, while the Member accepted that the testing was valid, she accepted the respondent’s submission that the test was not a stand-alone diagnostic tool. The respondent contends that instead, the assessment performed by Dr Phillips had to be weighed against all of the medical and lay evidence.
The respondent asserts that the Member correctly noted that the history of injury reported by the respondent that included reference to threats and abuse was not challenged by the appellant and was corroborated by the respondent’s manager’s record of events. The respondent refers to the Member’s reasons where she noted that Dr Young, the respondent’s treating psychiatrist, provided evidence that there were “more specific, sensitive and appropriate” tests for measuring malingering PTSD than those performed by Dr Phillips. The respondent submits that the Member correctly observed that the appellant did not challenge Dr Young’s view that Dr Phillips’ testing and findings was of limited value.
The respondent submits that it was open to the Member to accept the opinion of Dr Young, particularly when Dr Young’s opinion was supported by Ms Pheiffer’s opinion and that of Dr Smith.
As to Ground Two
The appellant’s submissions
The appellant refers to the Member’s finding that “Dr Young’s opinion [was] more persuasive than Dr Phillips’ assessment”[36] (emphasis added by the appellant). The appellant describes the language used by the Member as “unusual.” The appellant submits that the Member’s task was to consider the competing opinions and to determine whether one opinion was more persuasive than the other and which would lead to a rejection of the less persuasive opinion and an acceptance of the other. The appellant says that the Member was correct to refer to the evidence of Dr Phillips as an “assessment”, because it was not an “opinion” but was a reporting of an assessment which was not the subject of challenge.
[36] Member’s reasons, [85].
The appellant submits that had there been evidence before the Member which was accepted by the Member that Dr Phillips’ testing was incorrectly administered or in some other way flawed, there would have been a basis for rejecting an opinion based upon that evidence, such as the revised opinion of Dr Honey.
The appellant says that “[t]he finding that an opinion is more persuasive than an assessment, a finding which the Member reported to make at [85], rather suggests that the latter is rejected, but this is processing what the Member has done.”[37] The appellant asserts that, in affording more weight to Dr Young’s opinion because it was more persuasive than the assessment performed by Dr Phillips, the Member fell into error.
[37] Appellant’s submissions, p 20, [3.2.5].
The appellant asserts that Dr Phillips’ assessment meant that the respondent was an unreliable historian, and unless Dr Phillips’ findings were rejected, Dr Young’s report carried no evidentiary weight, just as McColl JA concluded in respect of the opinions of Dr Selby-Brown and Dr Khoo in Hevi-Lift.
The respondent’s submissions
The respondent submits that, inherent in the appellant’s submission that the Member erred by preferring the evidence of Dr Young over that of Dr Phillips is the notion that the testing and assessment was objective and could not be challenged and that Dr Young’s assessment was based upon incorrect and inaccurate clinical assessment. The respondent contends that the appellant has failed to understand the limited value of the tests performed by Dr Phillips in assessing malingering PTSD. The respondent reiterates that Dr Young’s opinion was founded upon assessments made in clinical consultations over a period of time and found support from both Ms Pheiffer and Dr Smith.
The respondent asserts that the appellant did not challenge the evidence given by Dr Young that Dr Phillips’ testing and findings were of limited value. The appellant contends that the Member gave due regard to the assessment performed by Dr Phillips and provided cogent reasons for preferring the opinion of Dr Young.
As to Ground Three
The appellant’s submissions
The appellant refers to the Member’s reasons at paragraph [77], in which the Member acknowledged that Dr Smith had not read Dr Phillips’ and Dr Honey’s reports but was of the view that that fact did not undermine Dr Smith’s opinion. The appellant submits that:
“Despite what might be seen as a glaring absence from the basis of a report reporting to disagree with another expert, clearly the Member has afforded credence to that former report. Dr Honey had seen the results of Dr Phillips’ assessment. The results of the testing were sufficient to cause Dr Honey to change his former view that a psychiatric diagnosis was available.”[38]
[38] Appellant’s submissions, p 20, [3.3.2].
The appellant points out that Dr Smith did not have available to him the thorough and detailed assessment performed by Dr Phillips. The appellant asserts that, for the Member to consider that the inability of Dr Smith to have available to him the assessment report was immaterial, means that, in the Member’s view, the testing was of no probative value or had no relevance.
The appellant says that the Member commented that the validity of the evidence could not be challenged, yet that comment distinctly contrasted with her view that, in effect, the fact Dr Smith had not seen the evidence of the psychometric testing would not lead to an adverse finding.
The appellant refers to Basten JA’s observations made in Brighten that the psychometric testing, which was the same testing applied by Dr Phillips in this case, was “impenetrable,” and submits that the Member erred by not fairly weighing the opinion of Dr Honey, who had seen the results of the testing, against the opinion of Dr Smith, who did not have the benefit of those results.
The respondent’s submissions
The respondent submits that the Member considered Dr Smith’s report and took into account the fact that Dr Smith had not seen the assessment by Dr Phillips and the report of Dr Honey. The respondent submits that the Member did not afford significant weight to the report of Dr Smith but merely noted that Dr Smith’s clinical findings lent support to the report of Dr Young, which was detailed and more reasoned.
As to Ground Four
The appellant’s submissions
The appellant submits that the Member’s reason for rejecting the revised opinion of Dr Honey was that it added “little.” The appellant points out, however, that Dr Honey had seen the test results, had considered the method adopted by Dr Phillips, and found the results to be so relevant that it caused Dr Honey to alter his initial opinion.
The appellant asserts that the Member fell into error by contrasting the “opinion” with Dr Phillips’ “assessment”. The appellant says that the Member fell into error when she observed that Dr Honey had not attempted to “evaluate” the opinion of Dr Phillips. The appellant submits that Dr Phillips’ evidence was a presentation of the results of the neuro-psychological testing, so that it was not necessary for Dr Honey to consider an “opinion”, as against other opinions. The appellant asserts that it was Dr Honey’s task to examine the basis for his earlier opinion, and whether that opinion was sustainable given the later evidence. The appellant further asserts that Dr Honey was correct to review his earlier opinion and reverse it.
The appellant submits that the Member failed to recognise the task required of Dr Honey and her conclusion that his opinion carried little weight “deprived the appellant of [having] Dr Honey’s opinion given its proper weight.”[39]
[39] Appellant’s submissions, p 21, [3.4.6].
The respondent’s submissions
The respondent refers to the appellant’s submission that Dr Honey’s opinion should be accepted because Dr Honey had taken into consideration the assessment by Dr Phillips. The respondent submits that, inherent in that assertion is that the Member should have preferred Dr Phillips’ assessment to the opinion of Dr Young.
The respondent relies on her submissions already made in this appeal and submits that the Member did not err by preferring the opinion of Dr Young. The respondent adds that, in his second report, Dr Honey did not provide any adequate reasons as to why he altered his opinion or why it was that Dr Phillips’ assessment should be a “stand alone tool” when assessing malingering. Further, the respondent says that Dr Honey did not make any comment about Dr Young’s opinion, particularly in relation to the limitations on the assessment performed by Dr Phillips.
The appellant’s submissions in conclusion
The appellant concludes by submitting that there are demonstrable errors on the part of the Member which have affected the outcome of these proceedings and that the opinions preferred by the Member in finding for the respondent are founded upon facts that are demonstrably unreliable and are thus undermined. The appellant submits that the respondent has failed to meet the requisite onus of proof, so that the Member’s findings to the contrary are erroneous.
The respondent’s submissions in conclusion
The respondent contends that while the appellant attempts to identify errors of law, the Member’s findings were findings of fact and were open to her. The respondent asserts that the Member’s decision should therefore not be disturbed on appeal, citing Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[40] and Andersen v J & M Predl Pty Ltd.[41]
[40] [2001] FCA 1833.
[41] [2018] NSWWCCPD 40.
THE ORDERS SOUGHT
The appellant seeks to have the Certificate of Determination set aside and submits that an award should be entered in its favour. In the alternative, the appellant submits that the Certificate of Determination should be set aside, and the dispute should be remitted for re-determination by another member of the Commission.
The respondent seeks an order that the appeal be dismissed.
CONSIDERATION
Ground One: Having expressly accepted the validity and relevance of the tests administered by Dr Phillips, the Member erred in rejecting the results of those tests
The appellant refers to the Member’s acceptance of its submission that a challenge to the validity of Dr Phillips’ testing can only be made where there is acceptable expert evidence to support such a challenge.
The appellant further refers to Pembroke J’s observations in Zahr and complains that the Member only quoted two of his Honour’s concluding two sentences from the relevant paragraph. The appellant says that those observations support the argument advanced by Dr Phillips that a finding of malingering undermines a psychiatric diagnosis. The relevant paragraph from his Honour’s reasons is as follows:
“The result is that, except in obvious cases, the conventional clinical interview does not provide a ready means or a convenient opportunity for testing a dishonest patient’s account of his history and symptoms, unless accompanied by any of the well-known and well-regarded objective psychological testing mechanisms. The armoury of available objective mechanisms includes those tests administered by Mr Haralambous. The plaintiff’s counsel submitted that these mechanisms for objective psychological testing are only a ‘tool’, just as an MRI scan is only a ‘tool’, and that they are not by themselves a substitute for clinical examination, assessment and judgment. However, I think that they are better described as a screening instrument that is able to play a critical role in identifying false or exaggerated claims. In an appropriate case, such tests are, in my view, valuable, and in some cases indispensable, aids to the formation of an accurate judgment, and consequently a correct diagnosis.”[42]
[42] Zahr, [30].
It is notable from his Honour’s reasoning that his remarks were qualified by a number of exceptions, such as “except in obvious cases”, where a clinical review did not provide a “convenient” means for assessing a “dishonest” patient’s account, and in an “appropriate” case, the testing is a valuable tool, in “some cases” invaluable. It is clear from his Honour’s reasoning that he did not intend to say that in all cases, psychometric testing that reveals malingering overrides clinical evaluation. The Member in this case discussed Zahr at paragraphs [80] to [82] of her reasons. She noted that in Zahr, the clinical psychologist performing the assessment (whose evidence was preferred by Pembroke J), did not rely solely upon the objective testing using MMPI-2. She observed that the psychologist interviewed the patient and took into account further evidence contained in the reports of other practitioners, as well as the view of the treating psychiatrist that he would defer to the clinical psychologist’s findings. On a proper reading of his Honour’s observations, it is patently clear that he was of the view that in some cases, such as the one before him, objective testing was appropriate and valuable. In the present case, The Member concluded that Zahr did not offer support for the notion that Dr Phillips’ assessment should attract unqualified acceptance in all cases. That observation was undoubtedly correct. She rejected the appellant’s assertion to that effect and reached her own conclusion as to whether the assessment, which she noted was accepted in medical spheres as a valid mechanism to investigate malingering, was appropriate and of evidentiary value in this case. The facts and the medical evidence in Zahr were distinctly different to those in the present case. It should be noted that in the present case, until the psychometric testing was performed (the motivation for which is unclear) there was no suggestion at all across the unqualified evidence from three treatment providers and two medico-legal experts that the respondent was exaggerating or feigning her symptoms or was dishonest, or that her reporting of the cause of injury was in any way inconsistent. Thus, the basis upon which Pembroke J in Zahr considered that evidence appropriate and valuable was not present in this case. In this case, the respondent consistently reported the events that triggered her symptoms and consistently reported those ongoing symptoms, not only to her treatment providers but also the independent medico-legal experts who were asked to provide an opinion. The Member took those matters into account and also took into account that Dr Phillips paid no regard to the opinions of the treatment providers or their evidence that the respondent met the criteria set out in DSM V for a diagnosis of PTSD.
The appellant submits that the Member did not criticise the evidence of Dr Phillips or its forensic value and accepted that the testing was ‘valid’. The Member did not expressly determine the validity of the test. She accepted that, in accordance with the view taken by experts in the field of psychology, the test was useful in detecting malingering. She did not conclude that the test should be given unqualified support in the face of clinical judgment. The Member discussed the various authorities, including Zahr and Brighten. She observed that each case involved a consideration of the facts and the evidence. She proceeded to weigh the evidence of Dr Young against that of Dr Phillips and explained why she preferred the evidence of Dr Young. There was no error in the approach taken by the Member. It is a matter for the court or tribunal to determine the weight to be afforded to the evidence before it and the decision-maker cannot be constrained in assessing that evidence by a rule adopted by a third party, in this case the governing psychiatric body, that the process of making a diagnosis ceases once malingering is established.
The Member provided cogent and detailed reasons for her conclusion, a conclusion that was readily apparent on the evidence. The appellant has failed to establish error on the part of the Member in her evaluation of the evidence and her preference for the well-reasoned opinion of Dr Young over the assessment by Dr Phillips and this ground of appeal fails.
Ground Two: The Member fell into error in impermissibly eliding an opinion and assessment
The appellant argues that the Member was in error to find that an “opinion” was more persuasive than an “assessment”. That assertion is somewhat dependent upon the appellant’s argument raised in Ground One of this appeal that the evidence of Dr Phillips must be preferred by the Member. That assertion has failed.
The appellant submits that the assessment by Dr Phillips was not challenged. The submission cannot be accepted. Dr Young expressly challenged the assessment by pointing out the reasons why her diagnosis should be accepted over that of Dr Phillips. She referred to the long and consistent list of symptoms displayed by the respondent, including significant distress and agitation during consultations, which satisfied the diagnosis of PTSD and major depression, as well as the consistency in the respondent’s presentation. Dr Young explained that as a treating psychiatrist, she simply could not ignore or discount the respondent’s presentation, or the impact on the respondent’s life. She added that the respondent was motivated to seek and pay for treatment. She said that all of those matters pointed against a diagnosis of malingering. Dr Young criticised the use of the assessment as a stand-alone tool and opined that it should not be used to replace clinical judgment and diagnosis. She offered the view that the research showed that there were other, more suitable validity tests available and that Dr Phillips should have taken into account the diagnoses and clinical judgments of the respondent’s treating general practitioner, her psychologist and three psychiatrists (including herself) in his assessment. She further pointed out that none of the DSM V indicators for malingering were present.
Dr Young’s observations and opinion presented a clear challenge to the probative value of the assessment by Dr Phillips. The assertion that the evidence of Dr Phillips was not challenged by other evidence cannot be accepted. The Member concluded that she preferred the evidence of Dr Young, which was supported by other medical evidence from the respondent’s treatment advisers and a medico-legal expert. The reasons put forward by Dr Young were compelling and persuasive.
The appellant asserts that the assessment by Dr Phillips discloses that the respondent was an unreliable historian. The competing evidence across the range of the respondent’s treatment providers that the respondent’s account of the traumatic events and her symptom presentation was entirely consistent, which evidence was accepted by the Member, indicates otherwise. For the reasons already provided, the Member was correct to accept that competing evidence. The appellant has failed to establish error on the part of the Member by her preference for the “opinion” of Dr Young over the “assessment” by Dr Phillips. This ground of appeal fails.
Ground Three: The Member erred by considering that it was of no relevance that the respondent’s expert witness [Dr Smith] was not provided with the appellant’s evidence
The appellant refers to the Member’s observation that, in her view, the fact that Dr Smith did not have available to him the evidence of both Dr Phillips and Dr Honey did not undermine Dr Smith’s evidence. The appellant asserts that, for the Member to consider that the inability of Dr Smith to have available to him the assessment report was immaterial, means that, in the Member’s view, the testing was of no probative value or had no relevance.
The Member dealt with the evidence of Dr Smith at paragraph [77] of her Certificate of Determination. The Member observed that Dr Smith found the respondent’s presentation to be consistent with the documents from the treating general practitioner, Dr Young and Ms Pheiffer. She noted that Dr Smith was of the view that the respondent’s presentation was more consistent with true PTSD than with malingering. She further noted that he considered that the criteria required by DSM V in order to diagnose PTSD were satisfied, a finding that was not challenged by the appellant. She acknowledged that there were shortcomings in Dr Smith’s explanation but considered that his evidence “lent weight” to the opinion of Dr Young.
The fact that Dr Smith reported that the respondent presented consistently was a factor for consideration as was Dr Smith’s assessment that the criteria required by DSM V for a diagnosis of PTSD were present. That evidence of itself lends support to the opinion of Dr Young, regardless of whether Dr Smith had read the assessment by Dr Phillips and the revised opinion of Dr Honey, although it is apparent that he was alive to the allegation that the respondent was malingering.
As the respondent submits, the Member did not afford “significant” weight to Dr Smith’s evidence, which, in my view, is a fair observation. The Member referred to the fact that there were “shortcomings” in Dr Smith’s evidence, noting that he did not analyse the evidence of Dr Phillips or that of Dr Honey.
I do not consider that the Member’s treatment of Dr Smith’s evidence discloses that she considered that the testing was not relevant. She took into account the assessment by Dr Phillips and made the finding that she preferred the evidence of Dr Young. Her acceptance of Dr Smith’s opinion was qualified by the fact that he had not considered the evidence of Dr Phillips, although Dr Smith was well aware, and disagreed with, the conclusion by both Dr Phillips and Dr Honey that the respondent met the criteria for malingering. The process adopted by the Member is not indicative of error on her part. The assertion is rejected.
The appellant refers to the observation by Basten JA in Brighten that the assessment (which was the same type of assessment conducted in the present case) was “impenetrable.” The appellant submits that the Member erred by failing to weigh the evidence from Dr Smith against the opinion of Dr Honey, who was aware of the results of Dr Phillips’ assessment. Dr Smith was clearly aware that Dr Phillips and Dr Honey had found that the respondent was malingering.
The Member analysed both the reports of Dr Smith and Dr Honey. She found that the report of Dr Smith had its shortcomings but lent some support to the opinion of Dr Young. Her analysis of the opinion of Dr Honey is relevant to Ground Four of the appeal and is dealt with accordingly.
The appellant’s assertion that the Member erred by considering it irrelevant that Dr Smith had not considered the evidence of Dr Phillips or Dr Honey is not made out. She in fact recognised that Dr Smith had not had access to the assessment of Dr Phillips, but despite that shortcoming, Dr Smith did provide some evidence relevant to the reliability of the respondent’s evidence and whether the criteria required by DSM V had been met, which supported the opinion of Dr Young.
It follows that this ground of appeal fails.
Ground Four: The Member was in error by rejecting the evidence of Dr Honey
The appellant asserts error on the part of the Member when she observed that Dr Honey had not “evaluated” the opinion of Dr Phillips. The appellant submits that because Dr Phillips’ evidence was a presentation of the results of neuropsychological testing, Dr Honey did not need to evaluate it and did not need to consider the opinions put forward by the other experts. The appellant says that Dr Honey was required to examine his original opinion and consider whether it was sustainable in the light of Dr Phillips’ evidence.
The respondent contends that the appellant’s complaint is basically an assertion that the Member should have preferred the evidence of Dr Phillips over that of Dr Young, and for the reasons already provided in the previous grounds of appeal, the Member did not err by preferring the opinion of Dr Young.
The appellant makes reference to the observation by Basten JA in Brighten that the assessment was “impenetrable”. It is not clear what the appellant intended to raise by pointing to that observation. Read in context, Basten JA’s remarks that the assessment was “unproven” and “impenetrable” can be reasonably taken to be a critical analysis of an assessment which was difficult to decipher.
The appellant submits that the Member erred by failing to weigh the evidence of Dr Honey, who was aware of the results of Dr Phillips’ assessment, against the evidence of Dr Smith.
In his report dated 14 December 2023 (the second report), Dr Honey said that it was “hard to contradict” the “well validated psychological test”.[43] He accepted the diagnosis provided by Dr Phillips of malingering and observed that, once the diagnosis was made, the diagnostic process cannot proceed further. Dr Honey clearly was reliant upon what was required of him by the psychiatric textbooks referred to by Dr Phillips and did not further explain the reversal of his own opinion or take into account the competing views of the other qualified experts. The Member reviewed the evidence of Dr Honey contained in his second report. She observed:
“Dr Honey retracted his earlier opinion entirely on the basis of Dr Phillips’s assessment. In my view, his opinion adds little because he did not attempt to evaluate Dr Phillips’s opinion in light of Dr Young’s, Ms Pheiffer’s and Dr Smith’s opinions or even his own.”[44]
[43] Reply, p 93.
[44] Reasons, [78].
In the context of legal proceedings where the diagnosis of the respondent’s condition was the central issue in the case, the Member was correct to observe that the evidence of Dr Honey added “little” to the resolution of that issue. He did not reconcile his acceptance of the findings and diagnosis reached by Dr Phillips with his earlier clinical assessment and did not consider it in the context of the evidence relied upon by the respondent.
Moreover, the Member did not “reject” the evidence of Dr Honey. She concluded that it simply offered “little” assistance. The appellant has failed to establish error on the part of the Member in relation to her treatment of the evidence of Dr Honey and this ground of appeal fails.
CONCLUSION
The appellant has failed to establish error on the part of the Member and the Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 28 November 2024 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
5 August 2025
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