Van Den Hoek v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Van Den Hoek v Secretary, Department of Communities and Justice [2023] NSWPIC 61
APPLICANT:	Sarah Van Den Hoek
RESPONDENT:	Secretary, Department of Communities and Justice
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	16 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury alleged pursuant to section 4(b)(i) and in the alternative section 4(b)(ii); claim pursuant to section 60 in relation to treatment with medicinal cannabis; respondent denies the employment was the main contributing factor to the contraction of disease and/or to the aggravation of disease; it also disputes whether treatment with medicinal cannabis is reasonably necessary; entitlement to weekly compensation was not in issue if the applicant succeeded in establishing injury; Held – pursuant to section 4(b)(ii) the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the aggravation of disease; the respondent is to pay the applicant weekly benefits compensation pursuant to section 37(1); pursuant to section 60 the treatment with medicinal cannabis is reasonably necessary medical treatment as a result of the workplace injury; the respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to section 60 including for the medicinal cannabis.
determinations made:	1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the aggravation of disease. 2. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 17 December 2021 to date and continuing at the rate of $1,469.41 per week pursuant to s 37(1) of the Workers Compensation Act 1987. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the treatment with medicinal cannabis is reasonably necessary medical treatment as a result of the workplace injury. 4. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987 including for the medicinal cannabis.

STATEMENT OF REASONS

BACKGROUND

Ms Sarah Van Den Hoek was employed by the respondent, Secretary, Department of Communities and Justice. She alleges she suffered a psychological injury as a result of various incidents in the course of that employment including the following:
(a)    at Tamworth Jail between February to June 2015;
(b)    at Grafton Jail between October 2015 to March 2016;
(c)    in the Sydney CBD office from 27 February 2017 to 24 May 2017;
(d)    from 24 May 2017 to February 2018 when transferred to different teams;
(e)    17 July 2018 when locked in a room;
(f)    26 June 2019 at Waverly Local Court and bullied by two Legal Aid solicitors;
(g)    at Central Local Court in relation to drug testing;
(h)    in January 2021 on return to work overwhelmed by caseload and emails and pressured to work in the office and not at home;
(i)    reaction to hearing about client dying, and
(j)    in February 2021 receiving intimidating voice message from high risk domestic violence offender.
Ms Van Den Hoek has a complex psychiatric history and has been diagnosed with attention deficit hyperactive disorder (ADHD), traits consistent with autism spectrum disorder (ASD), post-traumatic stress disorder (PTSD), complex post-traumatic stress disorder (CPTSD), borderline personality disorder (BPD) as well as major depression and anxiety. There have been several events in her youth giving rise to her PTSD and CPTSD conditions as well as issues with family members, several of whom also have psychological conditions.
In these proceedings Ms Van Den Hoek seeks weekly compensation and her Application to Resolve a Dispute (ARD) was amended to claim the cost of medical expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act) including for medicinal cannabis.
The respondent’s insurer initially accepted provisional liability for Ms Van Den Hoek’s claim in a letter dated 8 July 2021[1] for a period of 12 weeks and for medical expenses up to $10,000. Her pre-injury average weekly earnings (PIAWE) figure was determined to be $1,836.76. Then, on 31 August 2021 it accepted liability[2].
[1] ARD p 13.
[2] ARD p 17.
The respondent’s insurer issued a dispute notice pursuant to s 78 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act) on 30 September 2021 disputing liability for CBD/THC oil on the basis it was not reasonably necessary treatment[3].
[3] ARD p 28.
However, a s 78 notice was issued on 26 November 2021 disputing liability for the whole of Ms Van Den Hoek’s psychological injury claim relying on ss 4, 4(b), 33, 59 and 60 of the 1987 Act[4]. On 16 May 2022 Ms Van Den Hoek’s solicitors requested that the insurer review their declinature, forwarding reports of Dr Canaris dated 3 March 2022 and Justin Harris dated 9 April 2022[5]. The insurer issued a review notice under s 287A of the 1998 Act dated 30 May 2022, maintaining their declinature[6].
[4] ARD p 35.
[5] ARD p 45.
[6] ARD p 46.
The main issue before the Personal Injury Commission (the Commission) is whether Ms Van Den Hoek’s employment was the main contributing factor to contracting the disease or main contributing factor to the aggravation etc of the disease. If so, there is no issue in relation to her incapacity for employment but there is an issue as to whether the medicinal cannabis treatment is reasonably necessary treatment pursuant to s 60 of the 1987 Act. The parties agree if she is successful in relation to establishing “injury” then there can be a general order made for the balance of the s 60 expenses.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing via the MS Teams platform on
22 November 2022. Mr Robison of counsel appeared for Ms Van Den Hoek instructed by
Mr Concannon, solicitor. Ms Van Den Hoek was present together with her support person, Mr Justin Harris her psychologist. Mr Dodd of counsel appeared for the respondent instructed by Mr Krieg, solicitor and Ms Lawrence from his office and Ms Borg from the insurer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission with the consent of the parties and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents filed by the respondent on
12 September 2022 attaching the Reply with annexed documents;
(c) a document dated 14 October 2022 filed by the applicant setting out in point form the key events relied upon in relation to the alleged sustaining a psychological injury and attaching annexure A and schedule of s 60 expenses (this has been described in the portal as submissions);
(d) further updated s 60 expenses schedule dated 21 November 2022, and
(e)    Application to Admit Late Documents (AALD-A) dated 11 November 2022 filed by the applicant.
Objection was taken by the applicant to the respondent’s Application to Admit Late Documents dated 16 November 2022 annexing an additional statement from Mr Pratley. Oral submissions were heard from both parties and I gave oral reasons for my decision not to admit into evidence this material. I was concerned about the lateness of the statement, prejudice to Ms Van Den Hoek as I accepted she was not presently well enough to respond to the statement, and therefore there would be the necessity for an adjournment if the statement was admitted and because of other listing commitments in the Commission the matter could not be re-listed until after January 2023.
The respondent had argued that the statement was obtained to deal with annexure A. However, annexure A is only an email sent by Mr Pratley to Ms Van Den Hoek and another person on 21 April 2017 relating to a direction by Unit Leader Ms Howe for them to stop work by 7:00pm the night before. Mr Pratley was emphasising in that email that Unit Leaders operate under his delegation and so they have the authority to give such a direction. Ms Van Den Hoek had referred to this email at [29] of her statement which was included in the ARD, so this was not a newly raised matter. In addition, the dot points about the events relied upon were already covered in her statement and so they were not new matters. I directed the applicant to file the dot points just so it was clear what events were being relied upon by her as giving rise to the alleged psychological injury. I reject the submission that this material necessitated the respondent obtaining a further statement from Mr Pratley and, had they wished to obtain further evidence from him, they could have done so when the ARD was served and not so close to the hearing.
Following this ruling, the applicant did not seek to tender its Application to Admit Late Documents lodged on 21 November 2022 attaching a letter from Mr Justin Harris and email to the respondent’s solicitors about their objection to the respondent’s documents.
The respondent did not tender the Application to Admit Late Documents dated
20 October 2022 due to the operation of Regulations 44 and 45 of the Workers Compensation Regulation 2016.

Oral evidence

Oral submissions were made by the parties which were sound recorded and a copy of the recording is available to the parties.

FINDINGS AND REASONS

I am required to provide brief reasons for my determination. However, because of the complexity of Ms Van Den Hoek’s presentation I have summarised in detail the evidence particularly from Dr Edema, her treating psychiatrist, before turning to consider both parties’ medico-legal evidence and submissions.

Ms Van Den Hoek’s statement

Ms Van Den Hoek relies on her statement dated 7 July 2022[7]. She relates her employment history. She elaborates on the events I have listed above. I will not summarise her statement here because when I refer to her counsel’s submissions later in these reasons he quotes extensively from the statement.
[7] ARD p 1.

Frederick Pratley’s statement

Mr Pratley is the Manager, Leichhardt Community Corrections. He is also known by the name Rick. He describes the training program to become a Community Corrections Officer. Ms Van Den Hoek was formally inducted into the office on 28 February 2017 after she had completed three months training. He states that Brooke Johnston was one of the unit leaders and she had experienced issues with Ms Van Den Hoek engaging in the process or providing work at the requisite standard. He says Ms Van Den Hoek did submit an informal complaint against Ms Johnston. He said it was not uncommon to move trainees to another supervisor so as to provide all opportunities to succeed. He said as Ms Van Den Hoek was displaying heightened anxiety and, without knowing the cause of this, she was moved to Unit Leader Meegan Shepherd. The only thing told to general staff was there was a reorganisation to meet operational needs. He said Ms Van Den Hoek put in excessive hours to achieve the same outcomes as her peers. Mr Pratley states that Ms Johnston is a person of the highest integrity and her management style has been metered and respectful.
He said the examples provided by Ms Van Den Hoek about claimed bullying seem to suggest a confusion on her part between working within line management and bullying.
Mr Pratley adds that the claim was dealt with as non-compensable as the origin of the issues declared to him were as directly related to issues she was having with her daughters and their school and difficulties gaining support from her former husband. He said despite these being domestic issues they worked with Ms Van Den Hoek to facilitate a return to work. He said her role was full time and part time work would have meant someone else would have had to take on additional work to cover the absence.
He said the complaint about the female Legal Aid staff at Waverly Local Court in 2019 did occur and an unreserved apology was given by the Legal Aid solicitor. He said they gave
Ms Van Den Hoek the option of being reassigned, which she took. He said periodic check ins with Ms Van Den Hoek did not identify any lasting issues.
In relation to the complaint about random drug test at work he said Ms Van Den Hoek’s complaint that a female colleague in January 2021 spoke to Unit Leader Joanne Howe could not have been correct because he said Ms Howe had been transferred to Long Bay in September 2020 and so she would not have been working in the office.
In relation to the claim about her caseload and emails, Mr Pratley said there was no part time job available and there had been no agreement to have reduced hours. But then he says on her return to work in February 2018 she worked only 70 hours out of her required 140 hours and the balance had to be done by other staff who were already at capacity. He denies a lack of supervision and that bullying occurred. He said that Ms Van Den Hoek had attempted to intimidate Ms Mathews in recent month to try to coerce her into giving a statement to support her claim and that this upset Ms Mathews.
Mr Pratley agreed there was a period where an admin officer took it upon himself to note down times when clients were checked in and seen. He said he was doing this on several staff and when management found out they told him to stop. He said it occurred for about two weeks.
The factual investigations report outlines attempts made by the investigator to obtain statements from other staff, however they declined mainly because they stated it was long time ago and they did not have sufficient recall.

Treating medical evidence

Hyde Park Medical Centre

Records from the Hyde Park Medical Centre start on 5 May 2017 noting Ms Van Den Hoek seeks a referral to a psychiatrist as she has depression and ADHD and her previous psychiatrist is too far away. On 6 June 2017 it is noted she was seeing Mr Harris[8]. On
[8] ARD p 199.
14 August 2017 it is recorded that she ceased alcohol two weeks earlier and was feeling much improved. Other consultations are recorded up to 2 March 2021 however, I will not summarise them as the entries are brief and I have summarised Dr Edema’s records below. He is the treating psychiatrist.

Dr Edema

On 16 May 2017 Dr Edema saw Ms Van Den Hoek at The Sydney Clinic having been referred by Mr Harris for diagnostic clarification. The doctor’s detailed clinical note sets out her past history and lists the psychiatric conditions of many members of her family, including one of her daughters. Since 2013 she was treated for depression and prescribed Sertraline. In 2014 she was diagnosed with ADHD and was prescribed dexamphetamine for 12 months in 2015/2016 and then moved to Vyvanse for the last six months with better effect. She had an admission in her early 20’s due to a breakup. Dr Edema noted she had increased distress over the past few months in the context of relationship breakdown and work difficulties.[9]
[9] ARD p 192.
On 13 June 2017 Dr Edema wrote a referral for Ms Van Den Hoek to Sydney Cognitive Development Centre to ascertain if she has Asperger’s, which Dr Edema said may help to understand the gamut of lifelong difficulties she had[10]. He advised:
“Sarah is a 48yo woman presenting with increased distress over the past few months in context of relationship breakdown and work difficulties - though on a background of a highly complex psychiatric history suggestive of neuro-developmental underpinning with a suite of lifelong challenges around communication, socialisation, mood, attention, sensory sensitivities, interests - alongside a prejudicial development with a genetic loading for personality and mood disorder - further complicated by co-morbid alcohol dependence and current difficult psychosocial circumstances.”
[10] ARD p 121.
On 11 July 2017 Dr Edema records that her work was very stressful with 40 offenders to manage. Her daughter had been staying with her and there was a change in her medication[11]. On 10 August 2017 the doctor records she is substantially better than on the last review but still has fragility. He notes the work stress continues. On 23 November 2017 Dr Edema records her work was going better, she was coping a lot better. On 4 January 2018 Dr Edema records that Ms Van Den Hoek had a good time with her family in Bali. He adds the assessment revealed she has ADHD with ASD traits. Dr Edema notes “returning to work-however fearful about this-given potential for re-traumatisation. Tearful, noting impact of work environment holding back her recovery”[12]. Dr Edema stated she needed to ensure her environment is safe, and this could mean changing jobs.
[11] ARD p 191.
[12] ARD p 190.
On 15 February 2018 Dr Edema noted that Ms Van Den Hoek was very distressed as she had received an email from work. The email is set out. It is from Rick Pratley, Manager, City Community Corrections. It seems quite a respectful email in my view. He explains he notes he needs to touch base about her absence from work and states she has not made an application under the workcover process and he therefore appreciates it is a personal journey for her and he does not wish to be more intrusive than necessary. He explains he needs to have Staff Health Services assist with return to work journey and are skilled in devising return to work programs. He asks her to discuss this with her doctor. Dr Edema has recorded in is clinical note that Ms Van Den Hoek says this email has triggered reminders of past work place issues, “bullying etc”.
Dr Edema responded to Mr Pratley and said he was supportive of her return to work, preferably on a part-time basis. He said the period of time she had off work had been put to good use and substantial progress had been made with her wellbeing. He said he would be very happy to be in contact with the employer’s staff support unit[13].
[13] ARD p 189.
On 9 March 2018 Dr Edema recorded that Ms Van Den Hoek was working part-time and the team leader had changed from Liam. On 24 April 2018 Dr Edema noted she was struggling with the potential of return to full time work. He stated current treatment commitments would make this very difficult. On 26 April 2018 Ms Van Den Hoek saw Dr Edema but he does not record any comments about work excepting she feels ready to cease sick leave and continue on a five day fortnight.
On 26 April 2018 Dr Edema wrote to the employer to advise Ms Van Den Hoek’s mental health had been stabilising through a combination of medication therapy and reduced work commitments. He said he encouraged her to continue this pattern to consolidate improvements to her wellbeing and work capacity and beginning in May a five day fortnight is recommended[14].
[14] ARD p 133.
On 24 May 2018 Dr Edema advised the employer that improvements have been maintained overall but there is fragility as the nature of her mood disorder is such that there will be exacerbations and periods of lesser impairment, however he adds there will continue to be a chronic mood disorder that will require continued vigilant treatment and monitoring.[15]
[15] ARD p 141.
On 21 June 2018 Dr Edema recorded in his clinical notes that certain clients were triggering at work. He notes she said that the workplace is insisting on a return to full time work which is exacerbating her distress[16].
[16] ARD p 187.
On 26 July 2018 in his clinical notes Dr Edema noted she had a physical altercation with her daughter. He also records she is handling work better[17].
[17] ARD p 187.

Dr Edema answered a questionnaire sent to him by the employer dated 16 July 2018. He was asked to advise her current clinical condition/diagnosis and he responded on
26 July 2018, “1. Adult ADHD 2. Autism Spectrum Disorder-mild”[18]. He was asked what was preventing her from returning to full time hours at present and Dr Edema replied she was progressing in individual and group therapy with a growing capacity to manage work and life stressors. He thought she would continue to improve over the following six months. He was asked whether he believed she requires further adjustment, what aspects of her role may be aggravating or causing a delay to her recovery? (Can you consider: interactions with clientele, size of case load, urgency her case load, interoffice culture/interactions, non-work related tasks). Dr Edema responded:
“Sarah reports managing the above elements well through therapy work + won’t need further adjustments. A change in workplace wont assist”[19].
[18] ARD p 111.
[19] ARD p 112.
On 21 September 2018 Dr Edema noted she was doing a lot better overall, however she had heightened anxiety in relation to her daughter finishing school and changes at work[20].
[20] ARD p 186.
On 3 December 2018 Dr Edema wrote to Ms Van Den Hoek’s general practitioner, Dr Ai Nhi Bui, at the Hyde Park Medical Centre and advised the following:
“Sarah has a diagnosis of adult ADHD, alcohol use - in sustained (17 months) remission, mood difficulties, probable borderline personality and high functioning autism traits.
Sarah has been doing well lately. She is coping a lot better with work and is in a position to help her daughters with their mental health challenges.
The current mental state is well groomed, fine rapport, mood good, reactive, no psychosis, sensorium intact, fleeting suicidal thoughts only still”[21]
[21] ARD p 157.
Dr Edema sent substantially the same report to the health insurer on 3 December 2018[22].
[22] ARD p 159.
On 15 February 2019 Dr Edema wrote to Dr Bui noting she continues to do better and she has taken on more responsibility at work and her home life is good with her daughter. He added there were blips of low mood but they were self-limiting. She was still attending weekly DBT group at the Sydney Clinic and twice weekly psychotherapy with Mr Harris as well as seeing Dr Edema monthly[23].
[23] ARD p 161.
On 29 March 2019 Dr Edema reported again that Ms Van Den Hoek was continuing to do well and her mood was more stable. The doctor was planning to rationalise her medications over the coming months[24]. On 10 May 2019 he reported that Ms Van Den Hoek had some irritability lately which he said could relate to medication withdrawal as he was tapering the medications. He noted she had only one food binge in the past month and she was drinking socially again[25].
[24] ARD p 163.
[25] ARD p 165.
On 10 May 2019 Dr Edema notes in his clinical notes:
“breakdown at work- recognizing pathological environment
noticing more impatient about people invading personal spaces
noticing injustices- not addressed- intolerant of them
Not backed up by management- whereas past coped with better.”[26]
[26] ARD p 184.
Dr Edema also notes Ms Van Den Hoek was having difficulties with her daughter.
On 11 July 2019 Dr Edema reported to Dr Bui that there had been stressors relating to bullying at Waverley Court, her daughter and building strata. He stated overall she had been doing well[27]. In his clinical notes for the same day Dr Edema adds “at work had a stressful time at Waverley Court- but feedback was positive of how she handled it”[28].
[27] ARD p 167.
[28] ARD p 183.
On 31 October 2019 it was noted she was doing really well. That she was a parole officer with a caseload of 25 people. Dr Edema states she had elevated anxiety and discussed medication options. It is noted that she hopes her daughter can start DBT therapy and she is seeing a psychiatrist.
On 13 February 2020 Dr Edema records in his clinical notes that she has conflict with her daughters[29]. A telehealth call with Dr Edema was conducted and the doctor noted all was going well, her mental health state was stable. On 15 December 2020 it was noted she was seeing Mr Harris once every five weeks and her medication was going ok. She had a month off work. He records that work was going fine[30].
[29] ARD p 183.
[30] ARD p 182.
On 12 January 2021 Dr Edema recorded that Ms Van Den Hoek was struggling with anxiety, she had been on holidays the prior month and could not get motivated in everyday life. He notes the struggles of her daughter and her mother had had a heart attack. The doctor says “hopefully the return to work will help in recovery”[31].
[31] ARD p 181.
On 28 January 2021 Ms Van Den Hoek rang Dr Edema’s mobile and sent him email message. Her 12 month relationship had ended, her partner left without an explanation. She was not working, could not get off the couch, she felt desperate and could not see a way out, she felt very alone. Her daughter knew. Dr Edema wrote his impression “?early depressive exacerbation triggered by breakup”[32]. She was prescribed diazepam.
[32] ARD p 180.
On 2 February 2021 Dr Edema recorded that Ms Van Den Hoek said the diazepam really helped her, calms her down. Her daughter said she was like a different person. Dr Edema said she was much improved. On 9 February 2021 Dr Edema notes that her daughter may be having a hospital admission but Ms Van Den Hoek was coping well considering[33]. On
[33] ARD p 180.
18 February 2021 the doctor noted work had got back to her and she was able to work Monday, Wednesday, Friday and Monday and Wednesday the following week. She said it would be hard to adjust to a work day as there is lots of anxiety in the job as it is so confronting but she needs energy to look for something else.
On 4 March 2021 it was noted that she had a very challenging time with her parents and work. The doctor stated she was coming from a low baseline and so she was fragile. She blew up at her father and her ex-partner was also triggering.[34] On 18 March 2021 Dr Edema notes her own trauma is destabilised by confrontation with offenders, she feels so fragile. Reference is also made to her mother being in hospital which was triggering. On 1 April 2019 Dr Edema noted she had not returned to work and she won’t return until there is some plan. On 27 April 2021 it was noted that work was making things difficult for her, and the uncertainty plus her parents situation and her relationship being over made it a difficult time. She binged on alcohol and her daughter had to call an ambulance. She asked about CBD oil[35]. He said admission to The Sydney Clinic was sought due to low mood, heightened anxiety, and distress[36].
[34] ARD p 179.
[35] ARD p 178.
[36] ARD p 177.
Dr Edema provided a discharge summary for the period 30 April 2021 to 16 July 2021 when she was admitted to The Sydney Clinic[37]. Dr Edema confirms he has treated Ms Van Den Hoek since May 2017. He states she has a complex psychiatric history with ADHD and ASD traits, suffering complex trauma and its sequelae including borderline personality traits, past alcohol abuse disorder, past binge eating disorder and current major depressive disorder, and anxiety difficulties. At the time of admission she had been experiencing four months of difficulties with mood and anxiety which had escalated in the context of workplace and relationship stressors and the week prior to admission she had an overdose of medication. Dr Edema outlies the treatment provided to Ms Van Den Hoek in this admission including CBD oil with a plan of tapering and ceasing diazepam and pregabalin. In his clinical note it was recorded the CBD oil was to help manage anxiety and wind down in the evenings[38]. Dr Edema saw Ms Van Den Hoek often during this admission as noted in his clinical notes. On 25 May 2021 he noted “aiming to better manage anxiety with CBD Oil (rather than diazepam and pregabalin)”[39].
[37] ARD p 61.
[38] ARD p 178.
[39] ARD p 175.
On 13 June 2021 Dr Edema noted it was day 45 of her admission and that her anxiety had remained elevated despite medication changes, which included CBD oil three times a day 0.9 dose. The doctor records the matters discussed and includes workers compensation.
[40] ARD p 172.
Ms Van Den Hoek had been using her private health insurance to cover the costs of treatment. On 19 June 2021 it was recorded she missed her CBD oil that morning and she felt it was very difficult with anxiety. She was distressed thinking about work’s response to her workers compensation claim. On 24 June 2021 it was noted her workplace packed up her things but she will attend to say goodbyes to colleagues and it was noted her boss had no problem with her accessing her email or computer[40]. On 28 June 2021 Dr Edema records “reassured that taking steps to leave a toxic workplace is a sign of health”. She was taking CBD oil three times a day with a dosage of 0.5.
On 3 August 2021 Dr Edema notes she will trial THC/CBD oil. She had to go the police about her father’s domestic violence of her mother. It was noted her parents would have big punch ups as she was growing up[41]. On 19 August 2021 it is noted Ms Van Den Hoek micro dosed on the weekend and as a result her daughter had limited contact. Difficulties with her father were noted. It was noted she doesn’t feel like returning to work on 1 September 2021, she was emotionally labile, crying lots and it was a very challenging time[42].
[41] ARD p 170.
[42] ARD p 169.
On 3 October 2021 Dr Edema sought an Occupational Therapy assessment to provide
[43] ARD p 65.
Ms Van Den Hoek with support as she was struggling with acts of daily living such as organising her home and self. Dr Edema noted “In essence there had been a workplace related exacerbation of her Major Depressive Disorder and PTSD” leading to the need for her admission for treatment[43]. He refers to her background of ADHD, ASD and early traumas leading to borderline personality traits, past alcohol use disorder and past binge eating disorder.

Dr Tyshing

Dr Tyshing advised on 1 June 2021 in relation to Ms Van Den Hoek’s medicinal cannabis treatment[44]. She states that Althea CBD100 was best suited to help alleviate symptoms related to her anxiety/depression/ADHD. Dr Tyshing advises that this medication is a full spectrum CBD medication which only contains trace amounts of THC 0.0035mg/ml and 100mg/mml of CBD. She advises that CBD is non intoxicating and the level of THC will not cause impairment. She says the suggested maximum dose of CBD is 3mls in a 24 hour period and Ms Van Den Hoek was taking at 7am 0.6mls, 1pm 0.2mls and 7pm 0.6mls.
[44] ARD p 64.
Dr Tyshing from Tetra Health wrote to the Sydney Clinic on 16 September 2021 to advise
Ms Van Den Hoek had been prescribed Althea CBD 100, Dr Tyshing also advises Ms Van Den Hoek is prescribed Althea Capilano which has 12mg/ml CBD and 10mg/ml THC which she says can cause impairment in high doses and the maximum daily dose of THC is 2mg but Ms Van Den Hoek is to take 0.5mls at night.
By email dated 22 March 2022 Dr Edema wrote to Dr Tyshing advising that the oils with greater THC content were not well tolerated by Ms Van Den Hoek, but locally sourced buds through Tetra were recommended so she could have a reliable, consistent source[45]
[45] AALD p 3.

Neuropsychological Assessment Report

Dr Edema referred Ms Van Den Hoek for a neuropsychological assessment. The report by Constance Peng and Amanda Olley is dated 8 November 2017[46] sets out various recommendations to assist her with time management, planning and organisation and including psychological well-being strategies.
[46] ARD p 54.

The Sydney Clinic

In the Reply are 533 pages of clinical notes from The Sydney Clinic[47]. I have not summarised these records because I have already summarised in considerable detail the records made by Dr Edema who treated Ms Van Den Hoek at the Sydney Clinic.
[47] Reply pp 261-794.

Justin Harris

Mr Harris is Ms Van Den Hoek’s treating psychologist. He has provided a report dated 9 April 2022[48]. He confirms that she has been assessed, diagnosed with and treated for Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), Complex Posttraumatic Stress Disorder (CPTSD), Posttraumatic Stress Disorder (PTSD), borderline personality traits and major depressive disorder. He says she has attended long term psychiatry and psychotherapy, individual and group modalities, and intermittent inpatient treatment. Mr Harris says he started treating Ms Van Den Hoek in March 2017 in order to manage alleged abuse at work. Mr Harris advised due to her diagnostic history she was vulnerable toward mistreatment.
[48] ARD p 95.
Mr Harris opines that that the alleged injury at work was the main contributing factor to her agitation and exacerbation of her pre-existing psychological conditions. He said work was fundamental for her welfare and the abuse alleged from her unit leaders at work was the most likely cause for her psychological deterioration.
Mr Harris lists six reasons leading to her failure to lodge her claim in time including that there was a power differential with the persons who she said abused her at work, they gave her no advice to lodge a claim, the organisation was involved in law enforcement and it would have been daunting to make a claim against it, Ms Van Den Hoek saw work as important to her well-being and she hoped the problems would resolve, her underlying ASD and ADHD made it difficult to follow any process for a claims lodgement and when she had been sexually assaulted at age 14 at school there was no support from her school which led to her lack of confidence in submitting a claim.

Dr Barrett

Dr Barrett, psychiatrist, has provided medico-legal reports for the respondent dated 11[49] and 12 November 2021[50] and 21 December 2021[51]. Dr Barrett records a history of Ms Van Den Hoek’s past psychological and medical conditions. She also details her extensive treatment in particular since the beginning of 2021. Dr Barrett examined Ms Van Den Hoek by video conference noting at the time she was an in-patient in a psychiatric facility. Dr Barrett diagnosed Ms Van Den Hoek as suffering from a major depressive disorder with melancholic features. She stated this was on a background of borderline personality traits, which were exacerbated after the breakdown of a long term marriage in 2014, estrangement in her relationship with her daughters and breakdown of another relationship in 2021.
[49] ARD p 67.
[50] ARD p 80.
[51] ARD p 82.
Dr Barrett was asked her opinion whether Ms Van den Hoek’s employment was the main contributing factor to the development of a psychological injury on 13 June 2017 (deemed). She advised that there is rarely a single main contributing factor to any psychiatric diagnosis as most causes involve an interplay between genetic, temperamental, and environmental factors. She advised in Ms Van Den Hoek’s case she had significant vulnerability in the form of borderline personality traits, and possibly ADHD and high functioning autism spectrum disorder.
In her supplementary report dated 12 November 2021 Dr Barrett considered the factual investigation material including a statement from Mr Pratley. Dr Barrett stated there appeared to be conflicting views as to whether bullying occurred or not and that issue is not a medical issue and is outside her expertise to determine. She also said whether Ms Van Den Hoek’s medical conditions and medical capacity for work were managed appropriately by the workplace were also not issues for her to determine.
In her report dated 21 December 2021, Dr Barrett reinforced the opinions she offered in her first report. She added that she had only seen her once when she was unwell and hospitalised and she did not have the additional information that would be obtained by longitudinal assessment as does Dr Edema nor did she have school reports or neuropsychological reports.

Dr Canaris

Dr Canaris, psychiatrist, provided a medico-legal report for Ms Van Den Hoek dated
3 March 2022[52]. He diagnosed she has a major depressive disorder with anxious distress in partial remission arising predominantly from the workplace difficulties between
[52] ARD p 85.
February 2015 to February 2021. He noted she had a pre-existing autism spectrum disorder, ADHD and post-traumatic disorder together with borderline personality traits. Dr Canaris stated that these conditions contribute to disorganisation, greater reactivity and vulnerability to stress, difficulty dealing with challenging workplace dynamics and difficulties with social communication. Dr Canaris expressed the opinion that her employment was the main contributing factor to the emergence of the major depressive disorder. He said this would have made it more difficult for her to deal with her pre-existing psychiatric co-morbidities.
Dr Canaris found Ms Van Den Hoek was not capable of working in her current condition.
Dr Canaris noted that Ms Van Den Hoek was being treated by Dr Edema, who saw her fortnightly and Mr Harris twice a week and listed her medications. Dr Canaris also recorded that Ms Van Den Hoek had been an in-patient at The Sydney Clinic three times in 2021 including from December 2021 to January 2022. He noted she was also taking CBD oil for anxiety, which she found worked better that THC oil.
In his answer to question 9, Dr Canaris discusses whether treatment with CBD oil is reasonably necessary. He concludes that while he has never prescribed it, he would leave the decision to the treating psychiatrist while asking him to outline the rationale for such treatment. He adds that the Therapeutic Goods Administration approves such treatment on a case by case basis.
In terms of causation, Dr Canaris concludes that irrespective of the difficulties Ms Van Den Hoek experienced in the past she appears not to have decompensated in the way she appears to have done when working for the respondent. The doctor concluded that if the account of her work there was broadly accurate, it was suggestive of a workplace culture inherently likely to precipitate a psychological injury even for workers with no increased vulnerability.

Injury

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
In Attorney General v K[53] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a) employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
[53] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.

Even though K’s case was decided before the 2012 amendments to the definition of injury, the principles set out are still relevant to determining the issue of causation in a psychological injury case. The additional consideration that needs to be undertaken is whether the employment was the main contributing factor to the contracting of the disease, if s 4(b)(i) is being relied upon. If the case comes within s 4(b)(ii) then the employment needs to be the main contributing factor to the aggravation etc of the disease not to the underlying condition.
Ms Van Den Hoek has the onus of proof in establishing that she has suffered an injury within the terms of s 4 of the 1987 Act. Her case is based on s 4(b).
Mr Robison submits the historical diagnoses of Ms Van Den Hoek’s psychological conditions are different to that suffered as a result of her employment with the respondent. He mentioned as an example the fact that she was assaulted in her youth and suffers PTSD as a result. He adds that later in life she was diagnosed with ADHD and ASD but as a result of her work injury she was diagnosed with a major depressive disorder. So, he argues that her injury is not an aggravation, and he relies on s 4(b)(i). However, Mr Robison as a secondary position relies on s 4(b)(ii).
Mr Robison referred to Ms Van Den Hoek’s statement and the fact that she had employment in the Police and as a District Court associate. He says no doubt she would have been exposed to stressful situations in such jobs, but he says this is a matter of taking the applicant as you find her in other words recognising the egg-shell skull principle.
In relation to the causal connection with her work, Mr Robison submitted many of the events she relies upon as causing her psychological injury fall within the scenario discussed by the Court of Appeal in State Transit Authority v Fritzi Chemler[54], which have been summarised above and applied regularly in the Commission and the former Workers Compensation Commission.
[54] [2007] NSWCA 249, Chemler.
Mr Robison gives the following examples from Ms Van Den Hoek’s statement to demonstrate real events occurred in the workplace which gave rise in Ms Van Den Hoek’s mind to her perception she was working in a hostile environment:
(a)    when working at Tamworth jail she was provided with accommodation provided for employees of the prison and at [12] of her statement she recounts Sue Hall shouting at Ms Van Den Hoek and as a result she was shaken and sobbing. It was submitted that even if her perception was greater than was reasonable it is still capable of providing the necessary causal nexus. Attention was drawn to the fact that Ms Van Den Hoek clearly had a significant reaction to this event because she slept in the car, rather than go inside the shared accommodation;
(b)    on 21 May 2015 it is alleged that Sue Hall put a wine bottle outside her office, with Ms Van Den Hoek believing she did this to give the impression that she had been drinking at work. Mr Robison submitted it was a real event that there was a wine bottle placed outside her office;
(c)    when she worked at Grafton jail there was bullying and an excessive workload. Mr Robison submitted her evidence is that she did 28 hours of overtime at that time because another person took leave. Ms Van Den Hoek stated this put tremendous pressure on her and she was not paid for the extra work. Again it was submitted that the fact she had to take on extra work has not been traversed by other factual evidence;
(d)    reference was made to the work as a trainee with Corrective Services in Sydney as canvassed at [18] of her statement. It was submitted this job would be inherently stressful because it involved dealing with criminal offenders;
(e)    Mr Robison also submitted the allegation by Ms Van Den Hoek that she was bullied by Brooke Johnson could also be a Chemler situation, that whether she was objectively belittled is not relevant. It was argued if there were real facts involved and she perceived herself being belittled then that is sufficient to be regarded as causative. He also referred to the evidence of her feeling she was being constantly watched, humiliated, criticised, ostracised, interrupted and unfairly questioned. It was submitted there existed objective facts that occurred which Ms Van Den Hoek perceived as unfair. It was argued she was particularly vulnerable because of her underlying psychiatric conditions and her perfectionistic traits. It was submitted that there is a link between these events and the current treatment Ms Van Den Hoek is having because she commenced treatment with Mr Harris on 20 March 2017. At paragraph 27 of her statement she advises that Mr Harris never suggested workers compensation was an option;
(f)    at [29] of her statement Ms Van Hoek advises that on 21 April 2017 Mr Pratley sent an email about leaving the office late and she says he knew she was not coping with the workload. This email is annexure A to the list of alleged causative events filed by her solicitors. Mr Robison submitted that in her six monthly review she found her colleague was hostile;
(g)    on 17 July 2018 she was locked in a room by a colleague and Ms Van Den Hoek at [69] of her statement says she made a complaint about this and she says nothing was done about this;
(h)    Mr Robison also relied upon the incident with the Legal Aid solicitor at Waverley Court and that Ms Van Den Hoek described herself at [67] as being inconsolable;
(i)    reliance was also placed upon Ms Van Den Hoek’s reaction to the drug testing, which she found was embarrassing in the way it was conducted and the fact that she returned a positive test due to her taking prescribed ADHD medication, and
(j)    in relation to the allegations about being overworked, it was submitted if the Commission found the case load was high that is an objective fact and her subjective reaction is sufficient to the matters discussed in Chemler.
Mr Robison drew attention to her underlying ADHD and ASD conditions as described in the neuropsychological report and submitted that the characteristics of such conditions made her vulnerable to Chemler type situations. He said the fact that she had such vulnerability assists in finding the nexus with an aggravation with the work situations. In addition to her difficulties with social awareness she has executive functioning difficulties and performing work with difficult clients would be even more challenging to her than to others.
Mr Robison says the content of Dr Edema’s reports, and treatment, support a finding that there is a clear temporal link with her experiences at work and it is apparent from all the evidence that the work incidents caused her to suffer from major depression, which was in addition to the other underlying psychiatric illnesses.
Reliance was placed on the fact that Dr Barrett in her examination of Ms Van Den Hoek found there were no delusions. So it was submitted that her responses were due to real workplace facts. The diagnosis was major depressive disorder with melancholic features and Mr Robison submitted this was a similar diagnosis to that reached by Dr Canaris, and this diagnosis is different from Ms Van Den Hoek’s pre-existing psychiatric conditions.
It was also submitted that even though Dr Barrett advises that in psychiatric cases there really does not exist one main contributing factor and she refers to work and non-work events, the doctor states she does not have any real understanding of what happened at work and she makes no attempt at apportioning the various factors. In the third report of
Dr Barrett, she was asked if Ms Van Den Hoek’s pre-existing conditions caused her to misperceive events. Mr Robison submitted that if she had a misperception of real events
Ms Van Den Hoek should succeed based upon Chemler.
Mr Robison also relied upon the opinion of Dr Canaris who related the various stressors set out above. He noted that Dr Canaris also recorded that Ms Van Den Hoek was affected by hearing an offender had killed another client. He submitted Dr Canaris’ opinion supported a finding in the favour of Ms Van Den Hoek under s 4(b)(i) of the 1987 Act.
Mr Robison also submitted the claim of Ms Van Den Hoek was supported by Mr Harris excepting to acknowledge that as a psychologist his comments about diagnosis would not be given weight over that of the psychiatrists. For instance, he expresses the view that her work has caused a major depressive disorder which had been in remission. Mr Robison, submitted because of such comments about remission he puts an alternate submission under s 4(b)(ii).
It was also submitted that the other lay evidence supports the view that Ms Van Den Hoek had a significant workload. In relation to Mr Pratley’s statement he referred to [35] of his statement that he thought Ms Van Den Hoek seemed to have confusion between working within line management and bullying. Mr Robison submitted that this statement was supportive of Ms Van Den Hoek’s case.
In summary, Mr Robison submitted perhaps because of her personality traits and other psychiatric conditions she may have had difficulty with human interactions and led to her misunderstanding those interactions however, the principles discussed in Chemler apply.
Mr Dodd submitted that the most relevant decision to consider is AV v AW[55]. He outlined the facts of that case, that the worker had experienced a miscarriage and suffered PTSD. On her return to work she wanted to be seated away from other staff so she would not hear conversations about pregnancy but she was not moved and she was emotionally upset at work. It was submitted that the facts are similar in that Ms Van Den Hoek had many pre-existing psychiatric conditions and if she has misperceptions he submits it is because of those conditions. However, it is trite to observe that every case needs to be determined on its own facts. I do not regard the matters are that close factually. In AV the arbitrator dealt with allegations about a particular day and he found her version of events that day were a distortion and took place at a time when she was extremely ill and was to be admitted to hospital the next day. He found the worker’s condition was exacerbated by exposure to pregnancy and babies both within and outside the workplace. He found that he was not satisfied that employment was the main contributing factor to the aggravation etc of the psychological condition. His decision was upheld by Snell DP on appeal.
[55] [2020] NSWWCCPD 9, AV.
Mr Dodd relied on Mr Justin Harris’s finding that she was suffering from a major depressive disorder which had been in remission. He submitted her chaotic family circumstances and problems with her daughter are matters like in AV that can happen anywhere. It was argued if you came to work with her problems, her perceptions would be a manifestation of those factors.
It was submitted that the Commission would be more assisted by Dr Barrett, that her psychological state has a multifactorial cause and AV required there be one main contributing factor, which is not the case here.
I find that AV did not create any new law. It was a case dealing with its own particular facts.
In Ms Van Den Hoek’s case she had been able to work as a Judge’s associate and in other roles for many years notwithstanding the existence of the conditions of ASD, ADHD, PTSD, CPTSD and borderline personality traits. Many of these conditions were not actually diagnosed until later in her life but the evidence is such that she would have been suffering from them as she was maturing.
In reply, Mr Robison submitted co-morbidity does not render the case a multifactorial case on causation and the conditions she suffered from were co-morbidities.
As to whether the matter should be dealt with under s 4(b)(i) or s 4(b)(ii) of the 1987 Act, it largely seems to depend upon whether the Commission accepts the submission that the work with the respondent caused Ms Van Den Hoek to suffer from a separate psychological condition, that is a major depressive disorder. The Commission does not have before it records pre-dating 2017 but there is some evidence that she did suffer from depression earlier. Dr Edema has the history that in 2013 she was treated for depression and was prescribed Sertraline, which is one of the medications Dr Edema treated her with when she was an in-patient in The Sydney Clinic in 2019.
In addition, the entry in the Hyde Park Medical Centre on 5 May 2017 refers to her suffering from depression and ADHD but her previous psychiatrist is too far away, so she sought a referral to a local psychiatrist[56]. Mr Harris was one of the first practitioners to treat Ms Van Den Hoek. He states the various psychiatric diagnoses and traits from which Ms Van Den Hoek suffers are lifelong and their effects are either constant or cyclic[57]. He included major depressive disorder in the diagnoses. He says she began treatment with him on
[56] ARD p 200.
[57] ARD p 96.
20 March 2017 “in order to manage alleged abuse at work and, subsequently, an acute depressed disposition”. He adds given the severity of her presentation twice weekly sessions with him were recommended. He states her major depressive disorder had been in remission.
Even though Mr Robison submitted the Commission would prefer the opinion of psychiatrists to a psychologist in terms of diagnosis, this history was taken by Mr Harris at an early point of time, and together with Dr Edema’s history about treatment with Sertraline in 2013, these facts lead me to accept the accuracy of Mr Harris’s statement that Ms Van Den Hoek had previously suffered a major depressive disorder. I find he was not diagnosing this but taking a history about the presence of such a condition. He also finds that all of her conditions were exacerbated by the workplace factors.
These matters have led to me forming the view that, despite Mr Robison’s primary submission, the matter should be approached as a determination as to whether the requirements in s 4(b) (ii) have been established. Mr Robison did rely on this section as a “back-up” submission.
The question as to what constitutes “aggravation, acceleration, exacerbation or deterioration” of a disease was dealt with in Federal Broom Co Pty Ltd v Semlitch[58]. In Austin v Director General of Education[59] Clarke JA, applying Semlitch, said a judge, faced with the potential application of the ‘disease’ provisions, should ask the following questions:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
…”
[58] [1964] HCA 34; (1964) 110 CLR 626, Semlitch.
[59] (1994) 10 NSWCCR 373, Austin.
Deputy President Roche at [93] in Duncan v Roads & Traffic Authority of NSW and Anor[60] applied this test as an “appropriate starting point”.
[60] [2007] NSWWCCPD 113, Duncan.
Since the Workers Compensation Legislation Amendment Act 2012 the above references to “a contributing factor” should be replaced with a consideration of “main contributing factor”.
If these questions are determined in the affirmative, then an injury exists under s 4(b)(ii) of the 1987 Act.
In this jurisdiction psychological conditions are commonly held to be “diseases” for the purposes of the 1987 Act. I have found that it is more likely than not on the balance of probabilities that Ms Van Den Hoek had suffered from a major depressive disorder which had been in remission. Therefore, the first question in Semlitch is answered in the affirmative. I consider the weight of medical evidence does support a finding that there was aggravation or exacerbation of that condition. I find this is evident from the records of Dr Edema and
Mr Harris’s report, in particular. It seems clear that over the period of time she was being treated by them there were periods of deterioration and improvement. The main issue in the case is whether her employment with the respondent was the main contributing factor to the aggravation etc of the disease.
The respondent submits that Ms Van Den Hoek has not discharged her onus of proof in this regard because she has not established that the work incidents were the main contributing factor. Its argument seems to be that her other psychiatric conditions were being displayed in the workplace as they would be in other areas of her life. I do not accept this submission because there were real events such as the incident at Waverley Court, which clearly happened as confirmed by Mr Pratley and Ms Van Den Hoek says made her inconsolable. Also her reaction to the drug testing, being locked in a room and receiving intimidating voice messages from a violent offender, just to give a few examples.
In addition, when one reads Dr Edema’s clinical notes there are many references to work difficulties that cannot be just attributed to revelation of her underlying conditions coming to the fore. For instance on 11 July 2017 Dr Edema refers to her work being very stressful with 40 offenders to manage and in January 2018 he records that returning to work made her fearful given the potential for re-traumatisation. She was stated to be tearful and the impact of the work environment was holding back her recovery. Dr Edema mentioned she needed to ensure her environment is safe and this could mean changing jobs. On 21 June 2018
Dr Edema recorded certain clients were triggering at work. She seemed to improve somewhat by the end of 2018 and it was noted in February 2019 she had taken on more responsibility at work but by 10 May 2019 she had a breakdown at work. On 2 February 2021 Dr Edema noted there was a lot of anxiety in her job as it is confronting. On 18 March 2021 Dr Edema stated her own trauma is destabilised by confrontation with offenders, she feels so fragile. On 3 October 2021 Dr Edema found that her workplace exacerbation of her major depressive disorder and PTSD lead to her need for admission for treatment.
These are just some examples of how the difficulties she experienced at work continued over the relevant period to affect her mental state. It is the case there were other stressors in her life within her family and in particular with her daughter and a relationship breakdown. However, I consider that Mr Harris, who was treating her throughout the period and seeing her sometimes twice weekly, is in the best position together with Dr Edema, to advise as to the cause of the aggravation of her psychological state. Mr Harris considers her employment was the main contributing factor to the aggravation of her major depressive disorder. He considered her other mental health diagnoses made her vulnerable toward mistreatment. He also made the point that work was fundamental for her welfare.
When considering Ms Van Den Hoek’s statement it is apparent that work was important to her. She had quite a long work record prior to her employment in this period and it seems she could not cope in this workplace, which is a challenging environment.
While Dr Barrett expresses the view that there is no one main contributing factor she advised Ms Van Den Hoek had significant vulnerability because of her underlying conditions. However, Dr Barrett has acknowledged she was hampered in considering the issue further because at the time of her examination of Ms Van Den Hoek she was an in-patient in a psychiatric facility and unwell. Because of these factors I consider it would be unsound to draw conclusions from Dr Barrett’s reports. Dr Canaris, on the other hand, while coming to a similar diagnosis felt able to express the opinion that her employment was the main contributing factor to the emergence of the major depressive disorder, which I have accepted had previously been in remission. Dr Canaris makes the point that in the past, irrespective of her non-work related difficulties, she appears not to have decompensated in the way she has done when working for the respondent. I find that Dr Canaris’s opinion should be preferred to that of Dr Barrett because he did not suffer from the constraints which Dr Barrett laboured under.

While acknowledging the difficulties in this matter due to the co-morbidities suffered by
Ms Van Den Hoek and her family circumstances, I am satisfied on the balance of probabilities that her employment with the respondent was the main contributing factor to the aggravation of her psychiatric disease. Hopefully her condition will again return to a remission state but on the present evidence the aggravation persists.

Weekly compensation

The claim made is pursuant to s 37 of the 1987 Act on the basis of Ms Van Den Hoek having no capacity for any employment from 9 November 2021 to date and ongoing. There is no medical evidence presently before the Commission asserting to the contrary. Dr Barrett in her report dated 11 November 2021 found she had no current capacity for employment contributed to by the alleged workplace stressors and non-workplace stressors noting she was a person with significant pre-existing vulnerabilities. Dr Canaris in March 2022 found she was not capable of working. The respondent agrees to the PIAWE figure of $1,836.76. Eighty per cent is $1,469.41.
Accordingly, I order that the respondent pay Ms Van Den Hoek pursuant to s37 of the 1987 Act from 17 December 2021 to date and continuing at the rate of $1,469.41 per week.

Medical expenses

It was agreed at the outset of the arbitration hearing between the parties that the issue requiring determination in relation to the s 60 expenses was whether the CBD treatment was reasonably necessary treatment. It was agreed the balance of the s 60 expenses could be dealt with by way of a “general order”.
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Ltd[61] wherein Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
[61] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[62] with approval and stated:
[62] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

Ms Van Den Hoek claimed the cost of CBD treatment. The respondent disputed such treatment was reasonably necessary treatment. Dr Barrett in her report dated
11 November 2021 stated that the evidence for treatment with medicinal cannabis is still evolving and she said there was some evidence of dissociation with CBD oil. Dr Barrett concluded there was insufficient evidence at that time to support the use of such treatment. Dr Canaris advised that Ms Van Den Hoek reported that she responded better to CBD oil. He said the evidence suggests CBD oil is said to be indicated for anxiety and depression whereas THC oil is for chronic pain. He added that CBD oil does not induce intoxication and so does not present a problem with workplace screening and driving. Dr Canaris says he has never prescribed medicinal cannabis, however, he says he would defer to the decision of the treating psychiatrist and he says it is subject to the approval of the Therapeutic Goods Administration.
I have summarised in some detail the treatment records of Dr Edema. This is a case where Ms Van Den Hoek has complex mental health conditions and over the years she has been prescribed a variety of medications. Dr Edema has carefully adjusted her medication regime when he considered it was necessary to do so. He introduced CBD oil as part of her treatment while she was an in-patient in The Sydney Clinic in mid-2021 with a plan of tapering and ceasing diazepam and pregabalin. In his clinical note it was recorded the CBD oil was to help manage anxiety and wind down in the evenings[63]. Dr Edema saw Ms Van Den Hoek often during this admission as noted in his clinical notes. On 25 May 2021 he noted “aiming to better manage anxiety with CBD Oil (rather than diazepam and pregabalin)”[64]. The dosage of the CBD oil was adjusted from time to time. Dr Tyshing has also provided reports explaining about the prescribing of medicinal cannabis products in Ms Van Den Hoek’s case.
[63] ARD p 178.
[64] ARD p 175.
I find that Dr Canaris’s opinion on this type of treatment should be preferred to Dr Barrett, and that the preferable course is to leave the medication regime in the hands of Dr Edema with the input from Dr Tyshing. Dr Edema has been Ms Van Den Hoek’s treating psychiatrist for many years. Her mental health state varies over time and therefore there is a need for her treatment regime to be closely monitored and adjusted when needed. This can only be done by her treating psychiatrist. While the medicinal cannabis products are expensive, that of itself is not determinative. If the use of such treatment can mean a reduction in other medications that is an appropriate consideration. The effectiveness of the medicinal cannabis products has been demonstrated as part of the treatment regime she has undertaken. Ms Van Den Hoek’s presentation is complex due to the underlying mental health conditions she suffers such as ADHD, ASD, PTSD as well as depression and anxiety. It is the nature of psychological injury cases that the presentation can wax and wane. The CBD oil was aimed at treating depression and anxiety which I have found was exacerbated by her employment with the respondent. In such a case, I find reliance necessarily has to be placed on the treating psychiatrist who has had the care of Ms Van Den Hoek for many years. I find he is in a better position that a medico-legal expert who has only examined Ms Van Den Hoek for a limited time. Dr Edema has trialled the medicinal cannabis products and I find this type of treatment falls within the criteria discussed above in Diab.
Mr Robison referred to cases of other Members about CBD oil. However, I accept the respondent’s submission that those cases were dealt with on the evidence in those matters. So I have not taken them into account but have expressed my reasons above for finding for Ms Van Den Hoek on this issue.
I order that the respondent is to pay Ms Van Den Hoek’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the 1987 Act including for the medicinal cannabis treatment.

[2023] NSWPIC 61

16 February 2023