State of New South Wales (Sydney Local Health District) v BNV - [2025] NSWPICPD 73

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Sydney Local Health District) v BNV [2025] NSWPICPD 73
APPELLANT:	State of New South Wales (Sydney Local Health District)
RESPONDENT:	BNV
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W24722/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	17 October 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Certificate of Determination dated 12 February 2025 is confirmed. 3. Pursuant to Rule 132 of the Personal Injury Commission Rules 2021 I de-identify the matter.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – whether the worker sustained primary psychological injury in the nature of an aggravation of her pre-existing psychological injury in the course of her employment and whether employment was the main contributing factor to the injury – no error by Member found
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Balendra, counsel
Turks Legal
Respondent:
Mr C Tanner, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	12 February 2025

INTRODUCTION

The appeal is from the Personal Injury Commission (Commission) Workers Compensation Division determination dated 12 February 2025.
The respondent was employed by the appellant at the Royal Prince Alfred Hospital (RPA) as an office clerk.
Proceedings were filed by the respondent alleging a primary psychological/psychiatric injury as a result of protracted bullying, harassment, isolation, ostracisation, lack of support and unrealistic expectations.
On 12 February 2025 the Commission determined:
“(1) The [respondent] sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological condition) in the course of her employment with the [appellant], with a deemed date of injury of 26 July 2022, with her employment being the main contributing factor to injury.
(2) The [respondent] has no current capacity for work resulting from the injury from 4 December 2023 to date and continuing.
(3) As at 4 December 2023, the [respondent’s] pre-injury average weekly earnings were $1,170 (subject to indexation). The [respondent] has an entitlement to weekly compensation payable under s 37 of the Workers Compensation Act1987 from 4 December 2023 ongoing in accordance with the Workers Compensation Act 1987 at $936 (subject to indexation).”
For the reasons that follow, the appeal is dismissed and the Member’s determination is confirmed.
Pursuant to rule 132 of the Personal Injury Commission Rules 2021 I have directed that this decision should be de-identified. My reasons are:
(a)    The respondent has a history of trauma and psychological ill health.
(b)    Her daughter who has provided statement evidence also has a history of significant trauma.
(c)    I recognise the necessity for proceedings in the Commission to be open and transparent nevertheless in my view there is significant and unacceptable risk to the respondent and her daughter’s health and well-being.
(d)    A de-identification order will not in my view operate to prejudice the administration of justice or the Commission’s proceedings.
(e)    The public interest in open justice is outweighed to a substantial extent by the need to limit the degree of trauma likely to be experienced by the respondent who will inevitably be further impacted by reading these reasons.
(f)    The respondent has advised that she does not oppose de-identification. The appellant did not respond to a direction to advise of any opposition.

MEMBER’S STATEMENT OF REASONS

The Member made three interlocutory decisions which are not the subject of challenge.
Firstly, she determined that the statements of employees of the appellant which were served late should not be received in evidence.
Secondly, she refused an application for leave to cross-examine the respondent.
Thirdly, she allowed the appellant to rely upon a report of Dr Berry dated 12 November 2024.
The parties agreed the issues for determination as follows:
(a) whether the respondent sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) in the course of her employment with RPA with her employment being the main contributing factor to the injury, and if so,
(b) whether the respondent had suffered/suffers an incapacity for work resulting from the injury from 4 December 2023 and has an entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987.
The respondent was employed by the appellant from 25 October 2021. She last worked for the appellant on 25 July 2022. She was admitted to Hornsby Hospital on 26 July 2022.
The evidence before the Commission was entirely written.
The Member summarised and paraphrased the extensive lay and medical evidence.
The Member quoted from the respondent’s statement at length and she noted:
“… [the respondent] particularised a number of events between December 2021 and July 2022 involving her manager, … which she said amounted to bullying and harassment. In submission RPA did not take issue with the fact that interactions occurred during the course of [the respondent’s] employment with RPA which were capable of leading to a perception by [the respondent] that she was bullied and harassed.”[1]
[1] Certificate of Determination dated 12 February 2025 (reasons), [27].
On 25 July 2022 the respondent contacted her general practitioner, Dr Yacoub, who in turn directed her to the closest accident and emergency department. The respondent was picked up by her daughter from work. She attended Hornsby Hospital on 26 July 2022 and was subsequently transferred to Northern Beaches Hospital where she remained for three to four weeks.
The Member observed that the respondent reported her suicidal ideation became severe despite receiving intensive treatment after her discharge from hospital, resulting in her admission to Gordon Private Hospital from 23 November 2022 to 24 December 2022.
The Member quoted the respondent’s daughter’s statement:
“I strongly believe that my mother’s mental health had significantly deteriorated after suffering from the bullying and harassment that she experienced whilst working at Royal Prince Alfred Hospital. I am fully aware of my mother’s pre-existing psychological injuries; however, I strongly believe that my mother has never been impacted to this extent after suffering from her work injury at the Royal Prince Alfred Hospital.”[2]
[2] Reasons, [36].
The Member quoted from the respondent’s mother’s statement:
“I am fully aware that [the respondent] has suffered from pre-existing psychological injuries in the past, particularly due to some traumatic experiences that she had faced with her ex-partner and previous childhood sexual abuse. However, I have never seen [the respondent] in such a fragile state.”[3]
[3] Reasons, [41].
The Member noted from the records of a previous employer:
“On 6 October 2020 [the respondent] was requested by [the] director of [the previous employer] to attend a meeting on 9 October 2020 to discuss a number of concerns regarding [the respondent’s] performance, which had reportedly previously been raised with [the respondent]. On 13 October 2020 [the respondent] was provided with a written warning relevant to [the respondent’s] failure to meet the required standard of her role, with her workplace performance to be reviewed on 3 November 2020. On 30 October 2020 [the respondent] was again requested by [the director of the previous employer] to attend a meeting on 3 November 2020 to review her work performance, as previously foreshadowed.”[4]
[4] Reasons, [32].
The respondent was granted, subject to the provision of a medical certificate, stress leave on 9 February 2022 by the appellant.
On 7 July 2022, the respondent’s manager’s manager wrote to the respondent in the following terms:
“Thanks for the meeting with us today. It was a good discussion and thank you for your input. In particular we discussed:
Your leave and hope that most of your illnesses are now over and you can have a healthy rest of year with very little sick leave.
That you have had at least 6 EAP and the guidelines suggest that from now on you arrange these outside your daily shift.
That you meet with [the manager] and [a colleague, M] when [M] is back from holidays to go through the daily admin duties that must be completed. Your specific duties will be documented together with [the manager] to provide clear guidance to ensure that they are completed by the end of each day. To monitor this and get feedback from both you and [the manager] on workload and distribution and to see if [M] has any advice for work practices, [M] will meet with you and [the manager] on a weekly basis.
That I follow up with [a colleague, S] about wrapping up the team discussions that he has led and providing a way forward to healthy team collaboration.”[5]
[5] Reasons, [44].
The Member quoted extensively from the respondent’s clinical records with the Dural Medical Centre; the Hornsby Ku-ring-gai Hospital; and Psychology Today (Raynor Lander), a clinical psychologist.
The respondent had specialist psychiatric care from Dr Manambrakkat. The Member observed “[the respondent] apparently cancelled her consultation with Dr Manambrakkat scheduled for 15 November 2021.”[6]
[6] Reasons, [90].
Dr Manambrakkat recorded that the respondent gave up work in November 2020 as she was not effective. He diagnosed her as having “current depression since November 2020” and major depression with psychotic features and post-traumatic stress disorder. During the consultation on 18 October 2021, Dr Manambrakkat said the respondent reported her mood was better. The Member incorrectly said Dr Manambrakkat recorded that she feels “she has turned a corner”. Dr Manambrakkat did record the respondent was “considering getting a part-time job.”
The respondent was admitted to Gordon Private Hospital on 17 November 2022. The treating psychiatrist, Dr Sazhin, recommended that the respondent make an application for a disability support pension.
The evidence of the appellant’s independent medical witness, Dr Berry, was contained in a series of reports. The Member summarised the past psychiatric history given to Dr Berry at the initial assessment, and quoted the following summary at length.
Dr Berry diagnosed complex post-traumatic stress disorder and major depressive disorder.
The Member said:
“Dr Berry accepted [the respondent’s] diagnosis of Major Depressive Disorder was an aggravation of the pre-existing condition for which [the respondent] was already receiving treatment and said, ‘work was a contributing factor to the worsening of her symptoms’. Dr Berry explained:
‘She has significant pre-existing vulnerabilities which make her most susceptible to developing further psychiatric issues and having difficulties managing interpersonal relationships. It is against this background that work and the difficulties she had with other staff and the issues raised about her attendance must be viewed. They appear to directly precipitate the onset of psychological symptoms but only did so because of [the respondent’s] pre-existing vulnerabilities.’”[7] (my emphasis)
[7] Reasons, [104].
The Member reviewed Dr Berry’s further supplementary reports and opinions. Dr Berry did not accept that immediately before the commencement of her employment with RPA the respondent had enjoyed a consistent period of mental health stability. Dr Berry identified the key stressors, apart from those arising from the employment at RPA, impacting on [the respondent’s] mental health as:
(a)    previous sexual trauma in childhood;
(b)    a previous lengthy abusive relationship;
(c)    the unexpected death of her brother;
(d)    her daughter’s sexual assault with slow recovery, and
(e)    her son’s illness which resulted in intensive care unit admission.
The Member quoted Dr Berry’s opinion:
“(c) the identified stressors are a more significant factor affecting [the respondent’s] psychological injury than her employment with RPA, and while it is not possible to identify one particular stressor as the main contributing factor, ‘her history to exposure to trauma over many years, particularly in childhood, is likely the key to her presentation.’”[8]
[8] Reasons, [106].
The Member noted:
“Dr Khan provided an opinion [the respondent] suffered an aggravation of her pre-existing psychological injury in the course of her employment with RPA, with her employment being the main contributing factor to the aggravation of her pre-existing psychological injury of major depressive disorder with anxious distress.”[9]
[9] Reasons, [111].
Dr Khan, the respondent’s independent medical witness, challenged Dr Berry’s opinion in his reports of 25 July 2023, 4 September 2023 and 28 September 2023 on the basis that:
“Despite her longitudinal history of trauma and mental health difficulties, she had been able to pursue tertiary education and obtain and [sustain] long-term employment, including as a practice manager at an orthodontics practice. If her pre-existing conditions were as debilitating as suggested by Dr Berry, it is unlikely that she would have been able to function before the subject injury in this capacity. Furthermore [the respondent’s] engagement in mental health treatment in the past for [her] pre-existing conditions was not continuous but was rather limited to periods of one to one and a half years of treatment on a few occasions in her adult life. If her pre-existing conditions were as debilitating as suggested by Dr Berry, she would be expected to have needed to continue psychological treatment and psychiatric treatment without any significant breaks in her treatment …
Leading up to her workplace psychiatric/psychological injury, [the respondent’s] pre-existing psychiatric/psychological conditions had been stable for an extended period of time. This is consistent with the medical records from her treating practitioner, Dr Ben Yacoub, where there were no progress notes about mental difficulties between 21 October 2021 and 9 February 2022.”
The Member quoted Dr Khan as maintaining the opinion that the pre-existing mental health difficulties and other non-related stressors did not significantly impede the respondent’s capacity to work. It was Dr Khan’s opinion that the injury was the result of her employment with the RPA.[10]
[10] Reasons, [116].
After referring to the parties’ submissions, noting that copies were available and were not reproduced, the Member proceeded to identify the relevant statements of legal principle. There is no dispute as to the correctness of those statements of principle and there is no appeal on the basis that the Member misstated the law, misapplied a correct principle or failed to determine the matter in accordance with authority.
The Member returned to the detail of the respondent’s history as given in her statement.[11] She observed there was no dispute by the appellant that the interactions between the respondent and other members of the appellant’s staff occurred and were “capable of leading to perception by the respondent that she was bullied and harassed.”[12]
[11] Reasons, [128]–[130].
[12] Reasons, [129].
I infer the Member accepted the evidence of the respondent’s daughter and mother as to the deterioration of the respondent’s mental state associated with the workplace complaints at the Royal Prince Alfred Hospital.
The Member reconciled the entries in the documents produced by the previous employer and the Dural Medical Centre records and said:
“While [the respondent] explained she ceased working with [the previous employer] to become a full time carer for her daughter during her slow recovery from sexual assault, it is evident from Dr Yacoub’s clinical records that during the period of her employment with [the previous employer] [the respondent] was suffering mental health fragility against a backdrop of childhood sexual abuse, her brother’s sudden death overseas, her daughter’s sexual assault and her son’s hospital admission. Dr Yacoub noted on 19 October 2020 that [the respondent] was ‘struggling at work’ and noted on 2 December 2020 [the respondent] ‘lost her work, not able to work with all health, mental health issues, her daughter still not well, with very low mood’.”[13]
[13] Reasons, [133].
The Member therefore noted the inconsistency between the respondent’s current evidence and the documented history with respect to the events. The Member recognised that there was an inconsistency which she described as an “anomaly”, but she said:
“… I do not consider any anomaly arising relevant to reason behind [the respondent] ceasing work with [the previous employer] is of significance in circumstances where [the respondent’s] ceasing work with [the previous employer] in late 2020 coincided with significant familial stressors [the respondent] was under during 2020, including [the respondent’s daughter’s] slow recovery from her sexual assault earlier the same year and [the respondent’s] intention to engage in full time care of her daughter. While it may be [the respondent’s] mental fragility during 2020 played a part in her inability to perform her role with [the previous employer] … I am of the view [the respondent] has provided a consistent history to her treating practitioners, her treating psychologist, her treating psychiatrist and the independent medical examiners of a significant deterioration in her mental health due to behaviours she was subjected to in the course of her employment with RPA, being a deterioration observed by both [the respondent’s daughter] and [the respondent’s mother]. Although none of the hospitals’ clinical records record complaint by [the respondent] about the behaviours she was subjected to while working with RPA, this is perhaps not surprising in circumstances where it is evident one of the hospitals specifically advised [the respondent] that they ‘do not do workers compensation matters’.”
The latter was a reference to the Northern Beaches Hospital statement by Dr Lawler. The Member was alert to the fact that Hornsby Ku-ring-gai Hospital and Northern Beaches Hospital did not have any note of complaint on presentation of difficulty at work. Indeed the Hornsby Ku-ring-gai Hospital had a note “works as admin RPA (feels supported)”.
The Member said that particular entry was clearly at odds with the clinical records of the Dural Medical Centre and the evidence of the respondent, the respondent’s daughter and the respondent’s mother.[14] The Member also noted that Gordon Private Hospital, to which the respondent was referred on 17 November 2022, made no mention of the respondent’s complaint while at RPA.
[14] Reasons, [135].
The Member discounted the absence of history of the RPA events because of Dr Lawler’s statement that the Northern Beaches Hospital did not do workers compensation. The Member said, “I have no reason to believe Gordon Private Hospital was any different in its approach to workers compensation matters.”[15]
[15] Reasons, [139].
The Member thus discounted the absence of an extensive history of the RPA complaint to the hospitals because there was a consistent history of complaint at the Dural Medical Centre and that Dr Lawler at the Northern Beaches Hospital had said that that hospital did not treat workers compensation patients.
The Member said:
“Dr Berry felt that while [the respondent’s] employment with RPA was a significant factor to the aggravation of her symptoms, the main contributing factor was the familial stressors, which he identified as previous sexual trauma in childhood, a previous lengthy abusive relationship, the unexpected death of her brother, her daughter’s assault and difficult recovery, and her son’s illness that resulted in intensive care unit admission.”[16]
[16] Reasons, [140].

Dispositive of the issue of injury:
“142. Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept [the respondent] as a credible witness and I accept [the respondent] sustained psychological injury, in the nature of an aggravation of her pre-existing psychological injury, with her employment being the main contributing factor to injury.
143. I accept [the respondent’s] pre-existing psychological injury was aggravated in the course of her employment with RPA and that her symptoms ‘intensified’, ‘increased’ or became ‘more serious’ due to the behaviours she was subjected to while working with RPA, and I am of the view that when considering the competing causal factors (both work related and non-work related) of the aggravation [the respondent] suffered, it was the behaviours to which [the respondent] was subjected while working with RPA that represent the main contributing factor to the aggravation of her pre-existing psychological injury. While there is no doubt there are a number of non-work factors that have impacted [the respondent’s] mental health over time, which are neatly identified by Dr Berry, these non-work factors are stressors that are longstanding and are stressors for which [the respondent] was treated before she commenced her employment with RPA in October 2021 and for which she was not treated again until after a reported deterioration in her mental health with complaint of being subjected to concerning behaviours by [the manager] and her work colleagues in February 2022.
144. In circumstances where there is no new non-work factor identified which is a competing causal factor of the respondent’s injury in the nature of an aggravation of her pre-existing psychological injury, for the reasons outlined I am satisfied on the balance of probabilities that the respondent sustained injury in the nature of an aggravation of her pre-existing psychological injury, with her employment being the main contributing factor to injury. As required by Nguyen, I feel an actual persuasion of the existence of that fact.”[17]
[17] Citing Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The Member then considered the issue of incapacity, finding that the respondent had no current work capacity from 4 December 2023 and that that incapacity resulted from the injury.

PROCEDURAL MATTERS

Time

The respondent does not dispute that the appeal was filed within time.

THRESHOLD ISSUES

The respondent does not dispute the appeal satisfies sections 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Interlocutory decision

The decision is not an interlocutory decision.

ON THE PAPERS

The appellant submits that the matter is appropriate for determination on the basis of the papers. The respondent accepts the appellant’s submissions in this regard.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC 2 and WC 3 provide that I may be satisfied with the documents and the submissions of the parties such that they are sufficient to enable the appeal to be determined on the papers without holding any formal hearing. I am satisfied that this is a proper matter in which to determine the issues in the appeal without holding any conference or formal hearing.

NATURE OF THE APPEAL

The appellate jurisdiction conferred by s 352(5) of the 1998 Act is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In State of New South Wales v Culhana[18] the Court of Appeal constituted by five members delivered important guidance as to the appellate jurisdiction which I exercise. The leading judgment delivered by Leeming JA (with whom Kirk and McHugh JJA agreed, with short agreeing judgments from Bell CJ and Free JA) directed at [91] as follows:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential Member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
[18] [2025] NSWCA 157 (Culhana).
The kind of matters identified in Lee v Lee are in summary:
“… factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.”[19] (emphasis added)
[19] Quoted by Leeming JA in Culhana, [62].
In this matter, the Member determined the respondent’s claim on the basis of the written evidence. Her findings of fact did not depend on impressions about credibility or reliability of the witnesses in so far as she neither saw nor heard them. Nevertheless, it is important to note the jurisdiction provided by s 352(5) is not engaged unless there is error on the part of the Member with respect to fact, law or discretion.

GROUNDS OF APPEAL

The appellant relies on the following four grounds of appeal:
(a)    Accepting the lay evidence in circumstances where it was unreasonable to do so.
(b)    Failing to consider a relevant consideration in evaluating the evidence, namely the psychiatric symptoms and treatment regime of the respondent immediately prior to commencing employment and their effect.
(c)    Determining that a “new non-work factor” needed to be identified as a competing causal factor of the respondent’s injury.
(d)    Failing to consider a relevant consideration in determining that the respondent’s current incapacity arose as a result of her employment with the appellant.

Ground A: Accepting the lay evidence in circumstances where it was unreasonable to do so

Appellant’s submissions

The appellant submits that the Member expressly noted the following matters from the evidence:
(a)    the respondent stated that her medical health had never impacted her work capacity (at reasons [25]);
(b)    the respondent ceased work to become a full-time carer for her daughter and that once her daughter’s health had improved she commenced seeking re-employment (at reasons at [26]), and
(c)    the respondent’s mother stated that the respondent had never suffered any previous or prior work incapacity and that the respondent always continued to work through confronting situations about her family breakup and separation.
The appellant submits that whilst the Member did not extract in the reasons the evidence of the respondent’s daughter, her evidence at pages 19 to 20 of the Application to Resolve a Dispute (ARD), at paragraphs [8] and [10], was that the respondent was hardworking, career driven and was moving up in the ranks by way of career progression.
The appellant submits:
(a)    On 2 December 2020, 2 March 2021, 29 May 2021, 2 September 2021 Dr Yacoub had issued Centrelink Medical Certificates to the respondent certifying her totally unfit for work with a diagnosis which initially included depression but by March 2021 included post-traumatic stress disorder.[20]
(b)    In October 2020 the respondent was provided with a written warning in relation to her ability to perform her work at her previous employer, and attended meetings in relation to her work performance.[21]
(c)    On 19 October 2020 Dr Yacoub’s clinical records revealed that the respondent had lost her job as she was unable to work due to the mental health issues, her daughter was still not well and she continued to experience very low mood.[22]
[20] Reasons, [53]–[57].
[21] Reasons, [32].
[22] Reasons, [52].
Having refused leave to the appellant to cross-examine the respondent on the basis that the appellant (sic, respondent) was not fit to be cross-examined, the Member did not address the appellant’s submissions at first instance regarding the credit of the respondent.[23]
[23] Referring to the appellant’s written submissions before the Member dated 22 November 2024, [4.1]–[4.22].
The appellant submits that the Member did not address the inconsistencies between the statement evidence of the respondent’s daughter, the respondent’s mother and the medical and employment records. The only inconsistency the Member sought to address was in relation to what the respondent said was the cause of her leaving her previous employment and what was recorded in the medical and employment records.[24]
[24] Reasons, [133].
What the Member did not address were the assertions made by the lay witnesses that the respondent’s mental health issues had not previously affected her capacity to work.
The appellant submits the Member’s uncritical acceptance of the evidence of the respondent’s daughter and mother supported the Member’s finding that the respondent suffered an injury in the form of an aggravation of pre-existing injury.
The appellant submits:
“In circumstances where the Member did not address inconsistencies between the lay evidence and medical and employment records, did not allow the Appellant to cross-examine the Respondent, and did not address the issue of credit, the acceptance of the lay evidence was unreasonable.”[25]
[25] Appellant’s submissions, [7].

Respondent’s submissions

The respondent filed submissions on 22 April 2025 and then filed amended submissions, after publication of the judgment in Culhana, on 25 August 2025. I proceed on the basis that the amended submissions are intended to substitute for the original submissions.
The respondent submits:
“2. … the appellant’s submissions are challenged on the basis that they:
(1)fail to acknowledge or address the limited issues requiring determination by the Member, i.e. as noted at [7] of the Statement of Reasons:
‘whether [the respondent] sustained [a] primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) in the course of her employment with RPA with her employment being the main contributing factor to injury’ and
(2)[not pressed]
(3)disclose no error (asserted without foundation as ‘errors of law’ in the appeal submissions) that would constitute a basis for revocation of the Member’s decision.
3. The four grounds of appeal raise irrelevant issues regarding evidence that has no bearing on the material issues determined in favour of the worker, i.e. whether, in the course of the worker’s employment with the appellant, she was subjected to work related stressors which served to aggravate her pre-existing psychological injury, and were the main contributing factor to such aggravation.”
The respondent submits that the appellant conceded in its written submissions that “interactions between the [worker] and her managers occurred and that they were capable of leading to the [worker’s] perception, correctly or not, that she was bullied and harassed.”
The respondent submits that, given that concession, the remaining and material issues for determination of the liability were limited to whether the interactions:
(a) caused her to suffer a psychological injury, and
(b) were the main contributing factor to such injury.
The respondent notes that the appellant does not submit that the interactions between the worker and her managers did not cause her to suffer a psychological injury (emphasis in the original).
The respondent noted that Dr Berry confirmed in response to questions seeking revision of his opinion that “on balance, work was a significant factor to the exacerbation of symptoms.”
The respondent then poses the question, was the work the main contributing factor to the aggravation, exacerbation, acceleration or deterioration of the worker’s underlying psychological condition, and submits that determination of that issue required evaluation of whether there were other factors not related to work which caused during the period of the worker’s employment with the appellant the aggravation, exacerbation, acceleration and deterioration of the worker’s pre-existing psychological condition.
The respondent submits that there are two issues requiring evaluation, namely:
(a) during the course of the worker’s employment from 25 October 2021 to 25 July 2022 (the period of injury) was the worker exposed to stressors unrelated to work which caused her to suffer aggravation, exacerbation, acceleration and deterioration of her pre-existing psychological injury, and, if so
(b) were work related stressors, or other stressors, during the period of injury the main contributing factor to the aggravation, exacerbation, acceleration or deterioration of her pre-existing psychological injury or were other stressors not related to her employment the main contributing factor to such aggravation, exacerbation, acceleration or deterioration.
The respondent then directs attention to the Member’s conclusion at reasons [143] that it was the behaviours to which the respondent was subjected while working with RPA that represent the main contributing factor to the aggravation of her pre-existing psychological injury.
The respondent submits that no other conclusion was open to the Member. Furthermore, the respondent submits, “it would follow as a matter of commonsense that such intensification of, and increase in, the worker’s symptoms reflected an aggravation of her pre-existing condition, pursuant to the behaviours to which she was subjected in the course of her employment with the appellant.”
The respondent submits that the appellant’s preoccupation with the pre-existing history is likewise dealt with by the Member in reasons [143] where the Member acknowledges:
“… there is no doubt that there are a number of non-work factors that have impacted [the respondent’s] mental health over time, which are neatly identified by Dr Berry, these non-work factors are stressors that are longstanding and are stressors for which [the respondent] was treated before she commenced her employment with RPA in October 2021 and for which she was not treated again until after a reported deterioration in her mental health with complaint of being subjected to concerning behaviours by [the manager] and her work colleagues in February 2022.”
The respondent submits the appellant has failed to demonstrate any source of aggravation during the period of the worker’s employment with the appellant on 25 October 2021 to 25 July 2022 that was not work related and capable of being assessed to be a greater contributing factor to the aggravation of her condition than the undisputed work related stressors and refers to paragraph [142] of the Member’s reasons to the effect that there was no new non-work factor identified.
The respondent concludes her general submission with:
“The appellant’s grounds of appeal do not engage with the material questions of cause and contribution. If, in the imagination of those representing the appellant, the worker was, during the period of her employment with the appellant, subjected to another source of aggravation of her pre-existing condition which contributed to a greater extent to the aggravation of her condition than the undisputed work-related stressors, that other source was not identified in the proceedings before the Member, and [has] not been identified on appeal.”[26]
[26] Respondent’s amended submissions, [18].
Dealing specifically with Ground A, the respondent submits that the width of the ground is not supported by the appellant’s submissions and that the appellant’s complaint is limited to the lay evidence of the respondent’s daughter and mother relating to the issue of whether the worker was incapacitated for work prior to her period of employment with the appellant.
The respondent submits that whether the worker took time off work or struggled at work prior to commencing employment with the appellant was irrelevant to the question of whether the stressors experienced at work between October 2021 and July 2022 where the main contributing factor to the aggravation of her pre-existing condition.
The evidence establishes that the worker had a capacity for employment with effect from 25 October 2021 notwithstanding her pre-existing psychological injury. She was, as the evidence establishes, able to work for 8 months until the cumulative effect of workplace stressors resulted in the decompensation and incapacity on 25 July 2022. The respondent submits that the evidence does not disclose any other contemporaneous stressor arose during the 8-month period which would have caused the worker’s decompensation and incapacity on 25 July 2022.
The respondent submits that periods of incapacity preceding the worker’s employment with the appellant are not relevant to whether following demonstrated capacity to her employment with the appellant she suffered an aggravation resulting in her undisputed incapacity in July 2022.
The erroneous recollections of the respondent’s daughter regarding the worker’s capacity prior to her employment with the appellant do not negate the reliability of the rest of her evidence, including her observation of the deterioration of the worker’s mental health during the period of her employment with the appellant.
Likewise, the impressions of the worker’s mother, that the worker had never suffered from any previous work-related incapacity is no basis to reject the rest of her evidence.
The respondent points out that the worker was not reliant on the evidence of either witness to establish that she was subjected to work related stressors during the period of employment with the appellant and those stressors aggravated her pre-existing condition. Nor did those witnesses bear upon the issue of the main contributing factor to such aggravation.
The respondent says that those witnesses were peripheral and there is no attack on the worker herself, who the Member accepted as a credible witness.
The respondent submits that there is a wealth of evidence which confirms the stressors to which the worker was subjected in the course of her employment with the appellant which are conceded by the appellant and recorded by the worker in her statement and the histories provided to a variety of medical practitioners.
There are contemporaneous records of the onset of symptoms in response to those stressors in the clinical notes of Dr Yacoub on 9 February 2022, 15 March 2022 and 17 March 2022. Similarly, Dr Berry acknowledged the relevance of work-related stressors in aggravating the worker’s condition.

Consideration

The appellant conceded in its submissions to the Member dated 22 November 2024:
“… The [appellant] does not take issue with the fact that interactions between the [respondent] and her managers occurred and that … they were capable of leading to the [respondent’s] perception, correctly or not, that she was bullied and harassed.”[27]
[27] Appellant’s written submissions before the Member dated 22 November 2024, [1.2].
The dispute identified in the s 78 Notice as indicated by the appellant in the submission to the Member was:
“Liability was disputed on the basis that the [respondent’s] employment with the [appellant] was not the main contributing factor to the aggravation of her pre-existing psychological condition.”[28]
[28] Appellant’s written submissions before the Member dated 22 November 2024, [1.6].
Dr Berry’s clear evidence was that:
“Work was a significant factor in the exacerbation of her pre-existing PTSD. Work stress was identified in the medical record of her hospital admission but did not appear to be a significant focus of treatment. In terms of other contributing factors, during the assessment, [the respondent] reported:
· That her daughter’s assault took place four years previously. It did not appear to be a significant factor for [the respondent’s] PTSD
· That she left her abusive partner in July 2020 and that, although this had been stressful, it was ‘not bad stress’. Despite this, given that the relationship had been ongoing for many years and led to [the respondent] losing control over significant areas of her life, this may also have been a contributing factor.”

Dr Berry says:
“The work issues she experienced in July 2022 would be unlikely on their own to have caused such significant symptoms. Her symptoms were severe because of her background trauma including childhood abuse and spending many years in a controlling relationship with her former husband.”[29]
[29] Dr Berry’s report dated 4 September 2023, Reply to Application to Resolve a Dispute (reply), pp 13–15.
In the report of 28 September 2023 Dr Berry says:
“… on balance, work was a significant factor to the exacerbation of symptoms (she presented to hospital the day after ceasing work). However, it was not the main contributing factor. The main contributing factor was a series of stressors which had been ongoing for some time.”[30]
[30] Dr Berry’s report dated 28 September 2023, reply, pp 16–17.
What Dr Berry does not say is that absent the work stressors, the respondent’s psychological condition would have deteriorated to the extent to which it did. In other words, on the appellant’s own case the Member’s conclusion at paragraph [144] adverse to the appellant is correct.
The Member’s assessment of the appellant’s submissions with respect to the respondent’s credit may not have been as comprehensive as demanded by the appellant, but her conclusion adverse to the appellant did not depend on the evidence of the respondent’s daughter or her mother on this point. The respondent’s pre-RPA history of ill-health or employability was not really an issue with respect to the matters to be determined by the Member. Even if it be assumed, contrary to the evidence of the respondent’s daughter and mother, the pre-existing conditions were florid before the commencement of employment with RPA and that the respondent’s psychological condition impacted on her pre-RPA employment and employability, the evidence does not establish that either was the main contributing factor to the aggravation in the course of employment between 21 October 2021 to 25 July 2022. Those matters were, as Dr Berry said, part of the background stressors.
The only factor relevant to the deterioration in the respondent’s psychological condition between 25 October 2021 and 25 July 2022 were the workplace stressors. There was no competing contributory factor. Unless there was a new non-work factor or the respondent’s pre-existing medical conditions were such as to be responsible for the psychological deterioration, the Member’s conclusion that the work stressors were the main contributing factor was both inevitable and correct.
Ground A of the appeal is dismissed.

Ground B: Failing to consider a relevant consideration in evaluating the evidence, namely the psychiatric symptoms and the treatment regime recorded by Dr Manambrakkat prior to the respondent’s employment

Appellant’s submissions

The Member noted that the respondent was under the specialist psychiatric care of Dr Manambrakkat between 5 May 2021 and 18 October 2021. At the first consultation Dr Manambrakkat diagnosed major depression with psychotic features and post-traumatic stress disorder.
At paragraph [92] of the reasons, the Member noted that on 18 October 2021 Dr Manambrakkat said that the respondent had reported that her mood was better and that she “feels she has turned a corner”. Dr Manambrakkat reported that the respondent was considering getting a part-time job.
The appellant submits that there is no reference to the respondent saying that she feels she has “turned a corner” in that report and it is unclear to what the Member was referring.
The appellant quotes from Dr Manambrakkat’s report, noting that a review was to occur on 15 November 2021.
The appellant submits that the symptoms experienced by the respondent, as well as the expectation that she would continue to be treated by her specialist, are relevant matters that the Member should have considered in evaluating the evidence and reaching her conclusions. The Member extracted parts of Dr Manambrakkat’s reports, but at no point did she note or consider any of the symptoms that were recorded by Dr Manambrakkat. This failure resulted in the Member failing to critically evaluate the medical evidence before her.
The appellant quotes from Dr Khan’s report that by 18 October 2021, the respondent’s symptoms had improved in their frequency and intensity. Dr Khan “maintained” that her mental state was stable and the respondent was not experiencing any enduring symptoms of trauma, depression and anxiety prior to her employment with the Royal Prince Alfred Hospital.
The Member did not evaluate the validity of Dr Khan’s opinion, which the appellant submits was both internally inconsistent in that Dr Khan stated the respondent was not suffering from enduring symptoms of depression and anxiety prior to her employment when accepting that a record just 7 days earlier noted that her symptoms had improved in their frequency and intensity, and also inconsistent with the symptoms actually recorded by Dr Manambrakkat.
Similarly, the Member extracted and relied on the records of Raynor Lander, but this witness did not have a record of the psychiatric symptoms recorded by Dr Manambrakkat. Ms Lander also recorded that the respondent stressed to her that despite her evidence of psychological fragility she had always remained in the workforce, either on a part-time or full time basis, which is at odds with the medical records of Dr Yacoub, however, the Member makes no attempt to evaluate the validity of the opinion of Ms Lander in light of these inconsistencies.
The appellant submits that the Member uncritically relied upon the opinions of Dr Khan and Ms Lander for the observations at reasons [141] and at [143].
It is submitted the Member misread the report of Dr Manambrakkat as the doctor did not note that the respondent “feels she has turned a corner” on 18 October 2021. Further, the doctor noted that the respondent’s symptoms were improving but were still experienced as at 18 October 2021. Finally, there was no basis for the inference that the respondent’s failure to seek medical assistance for her mental health between 21 October 2021 and 9 February 2022 meant that she did not require medical assistance for her mental health. She was experiencing significant symptoms 3 days earlier and had suffered COVID over Christmas as noted by the Member at [60].
The appellant submits that the effect of the Member’s failure to evaluate and analyse the medical evidence in light of the symptoms recorded by Dr Manambrakkat was that the Member reached her conclusion that the respondent suffered an aggravation of her pre-existing condition on an incorrect basis.

Respondent’s submissions

The respondent submits that the submissions in support of Ground B do not address the issue which required determination, that is, whether the worker’s employment was the main contributing factor to the aggravation of her pre-existing condition.
The records of Dr Manambrakkat during the period 5 May 2021 to 18 October 2021 are evidence of the worker’s condition prior to commencing employment with the appellant on 25 October 2021. That evidence confirms the worker’s pre-existing condition with reference to which it was then necessary to consider the issue of aggravation by reason of the stressors experienced in the course of employment with the appellant.
The respondent submits that there was no dispute that the worker, following her last consultation with Dr Manambrakkat, had the capacity to secure and commence employment with the appellant as she did on 25 October 2021. She was, notwithstanding her pre-existing condition, able to work for a period of 8 months until becoming totally incapacitated. The issue for determination was the cause of such incapacity.
Dr Berry, whose opinions have not been acknowledged in the appellant’s submissions, accepted that the psychological symptoms which the worker developed around 2022 were precipitated by multiple stressors of which work was one.
In the circumstances, the appellant’s endeavour to avoid liability was reduced to whether, given multiple stressors, employment was the main contributing factor to the undisputed aggravation of the worker’s condition.

Consideration

I accept the respondent’s submissions.
It was not in issue that the work stressors had played some part in the aggravation of the pre-existing psychological condition. The dispute was as to whether the work stressors with the appellant were the main contributing factor to the aggravation.
This did not depend on the existing condition of the respondent, at least in the absence of evidence that the pre-existing condition itself, without the work stressors, would have resulted in the respondent being in the same condition in which she was on 25 July 2022.
Any misreading of Dr Manambrakkat’s report had no effect on the conclusions expressed by the Member at reasons [143] which are factually accurate. Contrary to the appellant’s submission, the evaluation of Dr Manambrakkat’s evidence made no difference to the conclusion that the respondent had suffered an aggravation of her pre-existing condition. It was common ground that the respondent had suffered an aggravation to her pre-existing condition as a consequence, at least in part, of the stressors in the course of employment with RPA. The issue was whether those stressors represented the main contributing factor.
Ground B of the appeal is dismissed.

Ground C – Determining that a new non-work factor needed to be identified as a competing causal factor of the respondent’s injury

Appellant’s submissions

The appellant submits that it is not sufficient for there simply to be no new non-work factor identified. As noted in Federal Broom Co Pty Ltd vSemlitch,[31] what also must be considered is whether the consequences of the respondent’s affliction have become more serious. This requires an evaluation of the respondent’s symptoms and treatment both before and after the commencement of work.
[31] [1964] HCA 34 (Semlitch).
The Member failed to consider the symptoms the respondent suffered, as noted by Dr Manambrakkat, before her injury. The Member also failed to consider the circumstances of the respondent both before and after commencing work with the appellant, namely, that the respondent was receiving regular treatment and was monitored by a psychiatrist prior to her employment. The respondent ceased treatment with her psychiatrist and commenced full time work. These considerations were specifically noted in the submissions of the appellant as causative of the respondent’s post-work symptomatology.
The appellant submits that by failing to consider the respondent’s pre-work employment circumstances and concluding that a new non-work factor needed to be established in order to establish that employment was not the main contributing factor to a deterioration in the respondent’s symptoms, the Member committed an error or law.

Respondent’s submissions

The respondent notes the appellant’s reference to Semlitch, that “what also must be considered is whether the consequences of the [worker’s] affliction have become more serious.” The respondent submits the worker’s condition underwent transition from being able, notwithstanding her underlying condition, to discharge her responsibilities as an employee to the appellant for a period of 8 months, to being rendered totally incapacitated and requiring hospitalisation.
The issue for determination was why, what caused her to suffer the onset of such serious incapacitating symptoms.
The appellant’s medicolegal case as provided by Dr Berry was that the work was one factor precipitating her symptoms in 2022. In order to consider whether work was the main contributing factor to the aggravation of the pre-existing condition it was necessary to consider whether there were competing sources of aggravation at the relevant time. If there were competing sources of aggravation, it would then have been necessary to engage in a comparative evaluation in order to determine whether the worker’s employment, as distinct from other causal factors, was the main contributing factor to the aggravation.
The respondent submits the Member was correct. The appellant does not identify any aggravating factor in addition to the undisputed work-related stressors.
Dr Manambrakkat’s records regarding the worker’s condition in 2021 cannot offer any assistance in evaluating whether the worker encountered stressors capable of aggravating her condition in 2022 and which of those factors was predominant.

Consideration

The medicolegal case advanced by the appellant through Dr Berry was that the respondent had suffered an aggravation of the pre-existing psychological conditions by reason of a number of factors including the work-related stress. He thought the work stressors were significant but not the main contributing factor.
There was no case advanced by the appellant that the respondent had not suffered an aggravation of the pre-existing conditions. It was not necessary therefore to evaluate the respondent’s symptoms and treatment regime before and after commencing work to establish whether the respondent’s condition had deteriorated during the period she was subjected to the work-related stressors.
To the extent that such an evaluation was required, the respondent is correct in its submission that as at 21 October 2021 she was able to pursue full-time employment with the appellant, whereas as at 25 July 2022 her psychiatric condition had deteriorated to such an extent that she was unable to pursue employment, required admission to hospital as an inpatient and was psychiatrically very unwell. It is not disputed that she was then totally incapacitated for work.
There was no evidence to the effect that the symptoms exhibited by the respondent as at 25 July 2022 were caused by the cessation of her treatment with her psychiatrist or by her non-attendance at the medical review with Dr Manambrakkat on 15 November 2021. The appellant’s submission at [26] is not grounded in any medical evidence.
It would have been open to the appellant to run a case along the lines that because the respondent had failed to persist with her treatment by Dr Manambrakkat, her pre-existing psychiatric condition had regressed. But that is not the case that was advanced by the appellant and there was no medical evidence to support such a contention.
The submission presented by the appellant to the Member[32] that the respondent’s condition was symptomatic and deteriorating immediately prior to her commencing employment with the appellant on 25 October 2021 due to multiple pre-existing stressors is not grounded in the evidence.
[32] Appellant’s written submissions before the Member dated 22 November 2024, [5.28].
The contemporaneous evidence is that of Dr Manambrakkat in his report of 18 October 2021. He says: “At review today, she reported sleeping better. Nightmares had reduced to 2 times a week instead of daily. Flashbacks were 2 times a day instead of multiple times a day. She did not need somebody outside her bathroom when she used it and she could sometimes complete her activities in the bathroom in one go without needing to come out to allay her anxiety. Her mood was better and she was doing more at home. She was also considering getting a part time job. She walked her dog 2 times a day, cooked once a day and also managed to do some cleaning at home.”[33] The doctor suggested he would review her on 15 November 2021. Those observations, with respect, do not support the submission made to the Member at [5.28] that the respondent “was symptomatic and deteriorating immediately prior to her commencement of employment with the [appellant] on 25 October 2021 due to multiple pre-existing stressors”.
[33] ARD, p 1,014.
Dr Manambrakkat does not say that the respondent’s condition was unstable or that it was likely to deteriorate. There is simply no evidence that the respondent’s “psychiatric condition relating to her pre-existing stressors very likely deteriorated to the point of requiring psychiatric admission on 26 July 2022 absent ongoing psychiatric treatment and review since 18 October 2021.” There is no medical evidence from Dr Manambrakkat, Dr Khan or Dr Berry.
It is not to the point that the respondent had multiple stressors immediately prior to admission to Hornsby Hospital. There is no doubt the aggravation acted upon a pre-existing psychiatric condition.
The appellant does not in its submissions to the Member at [5.28] identify “non-work related stressors”. That is the very point the Member makes at reasons [144].
The Member accepts that the worker did not make reference to her employment as having a contribution to her presentation when admitted to the Hornsby Hospital or the Northern Beaches Hospital. She provides her explanation for accepting that explanation, which is not challenged on the appeal.
With respect, the medical advisers at the two hospitals do not address the contribution from employment at all. As the appellant correctly notes, employment did not figure largely in the history given to the hospitals. But the absence of such a history in the hospital records was accepted by the Member to be due to Dr Lawler’s telling the respondent that the Northern Beaches Hospital did not service compensation claims. Furthermore, the Member regarded the history contained in the GP’s notes as establishing that the respondent did report the stressors at RPA to her medical adviser commencing 9 February 2022.
Ground C of the appeal is dismissed.

Ground D – Failing to consider a relevant consideration in determining that the respondent’s current incapacity arose as a result of her employment with the appellant

Appellant’s submissions

The appellant submits that the Member’s reliance on Ms Lander’s belief that the respondent’s incapacity for work was a result of her employment with RPA, was at odds with the contemporaneous medical and employment records and an issue that was not addressed by the Member.
The Member also relied upon Dr Khan at [154] who stated that she had dealt with a number of personal stressors through comprehensive mental health treatment. However, as noted in the reports of Dr Manambrakkat, the respondent was still obtaining treatment at the time she commenced working with the appellant. She had not dealt with her personal stressors as she was still experiencing symptoms related to them which are relevant considerations which the Member failed to consider in accepting the opinion of Dr Khan.
The Member also failed to consider what effect the subsequent diagnosis of schizoaffective disorder at February 2024 had on the employment of the respondent.
The appellant submitted that the Member failed to consider the relevant considerations in determining that the respondent’s current incapacity arose as a result of her employment with the appellant.

Respondent’s submissions

The respondent submits that she had a capacity for work as at 25 October 2021 when she commenced employment with RPA, notwithstanding her underlying condition which had been the subject of treatment by Dr Manambrakkat. She was able to work each day and discharge her contractual obligations as an employee of the appellant.
The Member found that the undisputed work-related stressors were the main contributing factor to the aggravation of the worker’s psychological condition. The aggravation, that is, the injury deemed to have been received on 26 July 2022, marks the worker’s transition from a capacity for employment which she had demonstrated for 8 months notwithstanding her underlying condition, to being totally incapacitated. Her injury is manifestly a material factor which has caused her incapacity.

Consideration

There is no evidence that the aggravation sustained in the course of employment to which the RPA stressors were the main contributing factor resolved. In the absence of such evidence, the conclusion that the respondent’s undoubted incapacity for employment was caused by the injury in the course of employment with RPA is correct and without error.

Ground D of the appeal is dismissed.

DECISION

The appeal is dismissed.
The Member’s Certificate of Determination dated 12 February 2025 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

17 October 2025