Vella v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vella v State of New South Wales (NSW Police Force) [2024] NSWPIC 689
APPLICANT:	Jacob Vella
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Michael Moore
DATE OF DECISION:	11 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for whole person impairment arising from a psychological injury; respondent conceded that the applicant police office had suffered a psychological injury in the course of his employment; a section 11A defence raised in the section 78 notice was not pressed at hearing; only real issue was whether the applicant had suffered a psychological injury in the course of one assault and was it an injury within the meaning of section 4(a) or whether the injury was a disease injury within the meaning of section 4(b)(i); Held – that having regard to all the evidence the applicant’s psychological injury was a disease injury within the meaning of section 4(b)(i); no issue of principle.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a disease injury that was contracted in the course of his employment and to which his employment was the main contributing factor within the meaning of s 4(b)(i) of the Workers Compensation Act 1987. 2. The disease injury is a major depressive disorder and post-traumatic stress disorder. 3. The deemed date of injury is 7 November 2022. 4. I remit the matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 7 November 2022 (deemed); (b) body systems/parts: psychiatric/psychological, and (c) method of assessment: whole person impairment. 5. The documents to be reviewed by the medical assessor are: (a) Application to Resolve a Dispute and attached documents; (b) respondent’s Reply and attached documents; (c) Amended Application to Resolve a Dispute; (d) applicant’s Application to Admit Late Documents dated 8 October 2024 and attached documents; (e) respondent’s Application to Admit Late Documents dated 8 November 2024 and attached documents, and (f) a copy of these reasons. 6. Following the issue of a Medical Assessment Certificate the matter is to be relisted for a further preliminary conference to deal with the balance of the claim.

STATEMENT OF REASONS

BACKGROUND

The applicant Jacob Vella is a 29-year-old police officer who has been employed by State of New South Wales (NSW Police Force) (the respondent) for approximately nine years.
It is non-controversial that the applicant was employed as a general duties constable at Green Valley Police Station from around April 2016 presumably after completing a period of training.
The applicant states that he enjoyed working at that station and that while there he worked with and had the benefit of great mentors.
By early 2019 after performing general duties policing for three years the applicant applied for and joined the Proactive Crime Team – Anti Theft Unit (the Anti Theft Unit) which also operated out of the Green Valley Police Station.
The Anti Theft Unit is described by the applicant as:
“(R)esponsible for the reactive response and subsequent investigations into Break and Enters, Steal from Motor Vehicle and Fraud offences. Further duties included a proactive response to crime, to deter and disrupt activity in high crime area. These duties included person searches, vehicle searches and the execution of arrest warrants and search warrants.”[1]
[1] Application to Resolve a Dispute (Application) p 27.
On 11 June 2019 when executing an arrest warrant at Heckenberg the applicant suffered serious stab wounds to his neck and arm which resulted in immediate hospitalisation and surgery.
The physical injuries appear to have been severe with muscular and vascular involvement with the penetrating injury to the neck and right hand/wrist tendon and nerve injury to the right forearm.[2]
[2] Reply pp 166-205 – Certificates of capacity.
The applicant was off work as a consequence from 11 June 2019 to approximately July 2020.
The applicant also displayed some psychological symptoms following the assault prior to his return to work with the Certificates of capacity issued by his treating doctor during the period between 11 June 2019 and July 2020 referencing “psychological aspects” in addition to the applicant’s physical injuries.[3]
[3] Reply pp 166-205.
On 10 October 2019 Dr Lance Holland-Keen the applicant’s treating general practitioner commented in the certificate of capacity issued that day as follows:
“Multiple specialists – now able to start more active exercise – rehabbing physically towards return to full duties. Currently states he is psychologically not feeling like return to workplace – requested psychological review. Currently fit for light duties based on physical recovery – encouraged continued and progressive rehab and loading but remains off due to psychological wellbeing.”[4]
[4] Reply p 173.
Dr Holland-Keen continued certifying the applicant as having no current work capacity essentially repeating in the multiple certificates of capacity the comment noted at point 10 above until 30 April 2020 when he commented in the following terms in a certificate of capacity dated that day:
“Currently fit for duties based on physical recovery – encouraged continued and progressive rehab and loading – but remains off due to psychological wellbeing - further time off suggested by psychiatrist then return part time initially as previously discussed.
It is noted that he must be working full time hours prior to return to General Duties.”[5]
[5] Reply p 191.
The applicant remained certified as having no current work capacity until 2 July 2020 when Dr Holland-Keen certified the applicant as having “capacity for some type of work from 27/8/2020 to 1/10/2020 for 4 hours/day 3 days/week – non consecutive days.”[6]
[6] Reply p 199.
As of 7 October 2020, Dr Holland-Keen certified that the applicant would be fit for his pre-injury duties from 12 October 2020.[7]
[7] Reply p 203.
During the period the applicant was off work as a consequence of the assault on 11 June 2019 he was referred by Dr Holland-Keen to Dr Abhishek Nagesh psychiatrist who saw the applicant in consultation on 24 April 2020.
Following the consultation on 24 April 2020 Dr Nagesh provided a report to Dr Holland-Keen dated 7 May 2020 where he expressed a diagnosis and opinion in the following terms:
“Impression/diagnosis
Currently Jacob Vella’s mental state remains stable. In my opinion he doesn’t suffer from any mental illness, he didn’t present with any signs of mental illness.
He did experience some acute stress disorder symptoms post the stabbing incident at work, which is normal, and these symptoms have resolved now and Jacob doesn’t suffer from any mental illness at this stage. There was no evidence of any mood disorder, psychotic illness or PTSD.
Plan or recommendation
Jacob doesn’t suffer from any mental illness at the moment. He doesn’t need to be on any psychotropic medications.
Jacob currently doesn’t have the capacity for work however he should be ready to return to work in the next 2-3 months. This is because he still has some anxiety and sleep disturbance which he is working on by doing meditation and exercises. These symptoms should resolve in the next 2-3 months and he should be able to return to full duties in the next 2-3 months.
He doesn’t need any further treatment or additional rehab from a mental state point of view. There doesn’t appear to be any medical co-morbidities likely to impact on his condition at this point in time.”[8]
[8] Application p 91 (omitting the numbering in the original).
The applicant states that three months after seeing Dr Nagesh he returned to work and that within two weeks of returning to work he was performing full duties[9] (I note that history from the applicant of a return to full duties after two weeks is hard to reconcile with the fact that as of 7 October 2O20 Dr Holland-Keen was first certifying a return to full duties with effect from 12 October 2020).
[9] Application p 30.
The applicant states that following his return to full duties he did not return to desk duties but instead found himself in the Proactive Crime Unit which involved him working with new supervisors that he had not worked with before in a new office.
In his statement dated 28 June 2024 the applicant sets out his duties in the Proactive Crime Unit as involving him regularly interacting with offenders some of whom were dangerous, executing arrest warrants, being involved in foot and vehicle pursuits, violent arrests, wrestles and searches of vehicles and persons.[10]
[10] Application p 30.
The applicant’s uncontradicted evidence is that his performance in that unit was above average and within two months of commencing work in the unit he was the highest performer on the basis of the key performance indicators (KPIs) used by the respondent.[11]
[11] Application p 30.
Further the applicant states that he was enjoying the work and when teaching junior officers was confident, assertive, able to communicate effectively and had a sound knowledge of Police powers and how to apply them lawfully and appropriately.[12]
[12] Application p 30.
In late 2021 the applicant was apparently the subject of an unfounded complaint of sexual assault on a female colleague who subsequently admitted that the claim was false. The applicant states that he found the accusation and his treatment by some fellow workers as “extremely uncomfortable” but he continued to perform his duties to a high standard.
The applicant states that he was put forward for a role involving supervisory duties at “Operation Hawk” which was an operation created to combat organized crime networks operating from the Bass Hill Police Station.
The applicant acted in that role for around two months before returning to Liverpool Police Station where he was nominated by his supervisors to perform a supervisory role for Liverpool general duties policing. That role was performed for one month before a request was received to return the applicant to Operation Hawk supervisory duties for a further period of two months.
Although the applicant’s statement evidence is somewhat unclear as to the actual timeline of the appointments noted at [22] and [23] it appears that those deployments took place in the first half of 2022.[13]
[13] Application pp 30-31.
In mid 2022 the applicant submitted an application to join the Tactical Operations Unit and was undertaking intense physical training outside work at that time so that he would be fit to undertake the physical tests required for that unit.
The physical tests were to occur in September 2022.
In late August/September 2022 the trial for the person accused in relation to the wounding of the applicant on 11 June 2019 commenced in the District Court.
That marked the start of a number of serious events in the applicant’s life.
The applicant apparently completed his Tactical Operations Unit barrier testing on 8 and 9 September 2022.
The applicant was attending the trial as a witness around that time and underwent cross examination over the events when he was stabbed for what he states was a period of a week.[14]
[14] Application p 31.
On 9 September 2022 the applicant was advised that the Judge in the trial had made a ruling that resulted in the two most serious charges against the accused being dismissed which the applicant felt was the result of incompetent preparation on the part of the Crown Prosecutor.
The applicant was disappointed and frustrated by that event.
The following week the applicant underwent a psychological evaluation for the Tactical Operations Unit selection process and states that he successfully passed that evaluation.[15]
[15] Application p 32.
Having passed the psychological evaluation and barrier testing the applicant apparently had progressed to the final state of the selection process being the Tactical Operations Unit Selection Course which was to commence on 5 October 2022.
On 21 September 2022 the applicant was to work his last shift before going on leave to prepare for the selection course referred to at [34].
On arrival at the station the applicant was asked to attend the commander’s office where he met with Commander Newton and an Inspector Haberly. The applicant states that he was advised that he was the subject of an anonymous complaint about anabolic steroid use and that he was required to undergo a urine sample test immediately.[16]
[16] Application pp 32-33.
The applicant states that he found the process uncomfortable and embarrassing.
The applicant states that he had the proposed leave off and then attended the selection course for the Tactical Operations Unit from 5 October to 11 October 2022.
The precise chronology of what subsequently occurred is somewhat uncertain however in broad and non-controversial terms the applicant’s urine sample was initially found to be non-negative with further testing and investigation required.
On or about 7 November 2022 the applicant was placed on an interim risk management plan and steps were taken that included the applicant having to surrender his gun and take off his police vest and equipment.
The applicant returned home and did not return to work.
It is the applicant’s case that existence of the complaint, the urine sample result and the interim management plan were general knowledge in the stations of the police command area where he worked which he found highly distressing. He further states that rumours about the matter continued to circulate with embellishments being added such as the applicant having been criminally charged and having lost his job.
The applicant saw Dr Ben Touma general practitioner on 14 November 2022 about the psychological distress he was experiencing and was referred by Dr Touma to a psychologist and a psychiatrist.
Dr Touma certified the applicant as being unfit for work as a consequence of anxiety, stress and possible depression and post-traumatic stress disorder.
While off work the applicant states that he was distressed by the result of the sentencing in the trial of the person responsible for his injuries in the 11 June 2019 who only received an Intensive Corrections Order and did not receive a custodial sentence. That sentencing occurred on 20 February 2023.
In April/May 2023[17] the applicant was advised that the complaint in relation to prohibited drug use was not sustained.
[17] The applicant states that he was advised in late May of the result whereas the letter to him from the area commander is dated 24 April 2023.
The applicant sought payment of weekly compensation and medical expenses alleging that he was suffering from a work related psychological injury.
The claim was declined by the respondent in a s 78 notice dated 25 January 2023 relying on s 11A of the WorkersCompensation Act 1987 (the 1987 Act) with the notice also denying incapacity and liability for s 60 expenses.[18]
[18] Reply pp 95-99.
The applicant subsequently made a claim for lump sum compensation for whole person impairment resulting from his claimed psychological injury with the claim being made on 15 January 2024. In addition the applicant made a claim for lump sum compensation for whole person impairment resulting from his physical injuries sustained in the 11 June 2019 assault with that claim being made on 1 March 2024.
Unfortunately the notices of claim dated 15 January 2024 and 1 March 2024 do not form part of the evidence before me so I am unable to determine whether different dates of injury were alleged in each of the notices of claim however it seems to be that the probable position is that the claim for the lump sum compensation for whole of person impairment resulting from the psychological injury nominated a date of injury of 7 November 2022 and the notice of claim for whole of person impairment resulting from the physical injury nominated a date of injury of 11 June 2019.
The respondent issued a s 78 notice dated 4 June 2024 which treated both the impairment resulting from the physical injury and the impairment resulting from the psychological injury as having the same date of injury and an offer being made to settle the lump sum claims on the basis that the impairment resulting from the psychological injury was higher and an offer being based on a 19% whole person impairment.[19]
[19] Reply pp 103-113.
The letter of offer of settlement was predicated on the applicant conceding that:
“…he only developed a psychological injury sustained on 11 June 2019 and that the 2022 claim is a mere recurrence of the 2019 injury.”[20]
[20] Reply p 112.
Essentially the s 78 Notice of 4 June 2024 accepted that the applicant had suffered a compensable psychological injury that had resulted in a whole person impairment of 19% , that the respondent was not relying on a s 11A defence but was arguing that the psychological injury was sustained only on 11 June 2019 and that subsequent events at work had no role in the causation of the psychological injury.
The applicant commenced proceedings in the Personal Injury Commission (Commission) on 16 August 2024 seeking lump sum compensation under ss 66 and 67 of the 1987 Act alleging that he suffered a psychological injury in the nature of a disease with a deemed date of injury of 7 November 2022.
The matter came before me for a preliminary conference on 26 September 2024 following which directions were issued in the following terms:
“1.     Matter is listed for a conciliation/arbitration hearing at 10.00am on 18 November 2024 at 1 Oxford Street Darlinghurst New South Wales.
2.     The applicant is to file and serve a proposed amended Application to Resolve a Dispute providing a detailed pleading of the circumstances of injury and the date or dates of same on or before 5.00pm on Friday 4 October 2024.
3.     The respondent is given liberty to apply to the Commission on or before 5.00pm on 11 October 2024 for further orders if the respondent alleges that the proposed amendments to the application to resolve a dispute referred to in order 2 cause prejudice to the respondent.
4.     The respondent to have leave to file an application to admit late documents attaching any proposed amended section 78 notice and/or supplementary medical report to meet the proposed amended application to resolve a dispute with such application to be filed and served on or before 5.00pm on 11 November 2024.
5.     The applicant is given leave to issue directions for production in accordance with the orders made in the direction of today’s date.
6.     Both parties are to have leave to file and serve applications to admit late documents arising out of the directions referred to in order 5 with such applications to admit late documents being filed on or before 5.00pm on 11 November 2024.
7.     The questions of admission of any late documents or whether to allow the proposed amendments to the application to resolve a dispute will be dealt with on the hearing date.”
An Amended Application to Resolve A Dispute (Amended Application) was filed by the applicant in an Application to Admit Late Documents dated 3 October 2024 which pleaded the cause of the applicant’s alleged disease injury in the following terms:
“The Applicant has sustained a psychological injury (disease injury) during the course of his employment with the Respondent as a result of the incident on 11 June 2019, the protracted Court and media process that followed, workplace trauma, unsubstantiated allegations the Applicant was subject to with respect to steroid use, lack of confidentiality and the investigation conducted into same”.
For completeness I note that the Amended Application did not attach any further documents in support but merely clarified the pleadings in relation to the alleged cause of the applicant’s claimed injury and any references to the applicant’s documentary evidence in support of the application will refer to the original application and its attachments.

The applicant also filed a further Application to Admit Late Documents dated 8 October 2024 (AALD1) attaching medical reports of Dr Abdal Khan dated 17 May 2023 and 14 August 2023.
As provided in the directions the respondent filed an Application to Admit Late Documents dated 8 November 2024 (AALD2) which included, inter alia, a third s 78 notice which accepted that the applicant had suffered a psychological injury in the form of “PTSD and Major Depressive Disorder on 11 June 2019” but denied any separate allegation of a different or distinct psychological injury.
The notice then specifically went on to state that:
“To the extent you allege injury that psychological injury was not caused by the incident of 11 June 2019:
-We do not agree that your injury arose out of or in the course of employment as required by section 4 of the Workers Compensation Act 1987
-We do not agree that employment was a substantial contributing factor to an injury as required by section 9A of the Workers Compensation Act 1987.
-We do not agree that any injury was a disease of gradual process, and therefore any provisions as to the deemed date of injury under section 15 of the Workers Compensation Act 1987 do not apply.
-We do not agree that injury ‘consists in’ the aggravation, acceleration, exacerbation or deterioration of a disease, and so the provisions as to the deemed date of injury in section 16 of the Workers Compensation Act 1987 do not apply.
-We do not agree that you are entitled to compensation because your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to transfer, demotion, discipline or dismissal, under section 11A(1) of the Workers Compensation Act 1987.
-We also do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.
-We do not agree that you are entitled to permanent impairment compensation because you do not have at least 15% WPI resulting from any injury caused by events exclusive of the 19 June 2019 injury pursuant to sections 66 and 67 of the Workers Compensation Act 1987.”
Clearly some of the issues raised in that further s 78 notice were irrelevant to the pleaded claim in the Amended Application and in essence the dispute was really about whether the applicant’s psychological condition was caused by a single event of injury 11 June 2019 at the time he also received physical injuries or whether the psychological condition was a disease injury caused by a series of events. In that regard I note that the respondent did not press the defence under s 11A of the 1987 Act at the conciliation/arbitration hearing.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant’s psychological condition was an injury within the meaning of s 4(a) or s 4(b)(i) or (ii) of the 1987 Act;

(b) what is the relevant date of injury,
(c) the extent of any whole person impairment resulting from the applicant’s psychological injury
(d) the quantum of any entitlement under s 67 of the 1987 Act.

The significance of the dispute is that if the applicant’s injury is an injury within the meaning of s 4(a) with a date of injury of 11 June 2019 he would only receive the greater of the lump sum compensation payable for the whole person impairment resulting from the physical injuries received on that date or the lump sum compensation payable for the whole of person impairment resulting from the psychological injury [s 65A(4) or the 1987 Act] whereas if the psychological injury is a disease injury within the meaning of s 4(b) with a different date of injury he would be entitled to receive lump sum compensation for the whole person impairments flowing from both the physical injuries and the psychological injury.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    respondent’s Reply and attached documents (Reply):
(c)    Amended Application;
(d)    applicant’s AALD1 dated 8 October 2024, and
(e)    respondent’s AALD2 dated 8 November 2024.
The documents attached to AALD1 and AALD2 were admitted without objection by either party and because I was of the view that same were relevant to the matters in dispute.

Oral evidence

No oral evidence was given at the conciliation/arbitration hearing.

FINDINGS AND REASONS

I have not provided a detailed summary of counsels’ submissions in the matter as a recording of the submissions is available, I have however paid careful attention to the submissions and will refer to same where relevant in these reasons.
Mr Hickey’s submissions were essentially to the effect that having regard to all the evidence in the case it is clear that the applicant presently suffers from a disease being a major depressive disorder with anxious distress and post-traumatic stress disorder as a consequence of the physical assault of 11 June 2019, the false allegations of sexual assault at work, the publicity surrounding the trial of the accused from the physical assault, the trauma of the cross examination during the trial of the accused, the disappointment of the outcome of the trial and sentencing, the allegations of drug misuse, the lack of confidentiality during the investigation of those allegations and the applicant’s perception of loss of reputation and respect from fellow officers.
Mr Hickey basically argued that no conclusion other than a finding that the applicant had suffered an injury in the nature of a disease as defined by s 4(b) of the 1987 Act was possible having regard to the evidence.
At the conclusion of his submissions Mr Hickey confirmed that the applicant’s case was that he suffered a disease injury within the meaning of s 4(b)(i) of the 1987 Act and was not relying on an allegation of injury under s 4(b)(ii).
Section 4 of the 1987 Act provides a definition of “injury” for the purposes of the 1987 Act in the following terms:
“injury”
(a)    means personal injury arising out of or in the course of employment,
(b)    includes
‘disease injury’, which means-
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)    does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Mr Gaitanis for the respondent submitted that contrary to the applicant’s case the evidence clearly supported a conclusion that the applicant is not suffering from a disease type injury within the meaning of s 4(b) of the 1987 Act.
Mr Gaitanis argued that looked at properly the evidence establishes that there is a single date of injury, namely 11 June 2019, and that as a consequence of that event the applicant suffered post-traumatic stress disorder which manifested itself in varying degrees of intensity thereafter. It was he submitted a case of genesis and subsequent revelation of the condition with the genesis being the event of 11 June 2019 and then the appearance of serious symptoms in 2022 being further revelation of the underlying disorder of post-traumatic stress disorder.
Mr Gaitanis described the factual situation in this case as analogous to that in the case of Lyons v Master Builders Association of New South Wales[21] where Neilson CCJ had held that where a worker suffered a frank incident to his knee the subsequent development of chondromalacia was the consequence of a personal injury within the meaning of s 4(a) of the 1987 Act and was not a disease injury.
[21] (2003) NSWCCR 422 (Lyons).
Mr Gaitanis relied upon the medical opinion of Dr Kirsty MacDonald who had provided a report and a number of supplementary reports as an independent medical examiner (IME) at the request of the respondent.
Mr Gaitanis submitted that the opinions of Dr MacDonald should be preferred over the medical opinions of the doctors relied upon by the applicant as Dr MacDonald was the only doctor who had a complete and accurate history of what had occurred. Relatedly he also submitted that the medical case of the applicant was deficient in that the doctors who had provided opinions in the applicant’s case did not have a complete, detailed history and that accordingly was of little weight and should not be relied upon. That submission was, of course, consistent with the reasoning of the court in Paric v John Holland Constructions Pty Ltd.[22]

MEDICAL EVIDENCE
[22] [1984] 2 NSWLR 505.

The first problem for Mr Gaitanis and the respondent in this case is that in my view the medical evidence of Dr MacDonald really does not support the proposition that the applicant suffered an injury within the meaning of s 4(a) of the 1987 Act on 11 June 2019 when he developed a post-traumatic stress disorder condition as a result of the physical assault he suffered that day.
Dr MacDonald has provided three reports at the request of the respondent dated 20 December 2022,[23] 17 March 2024[24] and 10 October 2024.[25]
[23] Reply pp 114-133.
[24] Reply pp 134-165.
[25] AALD2 pp 12-17.
In her first report dated 20 December 2022 Dr MacDonald diagnosed the applicant as suffering from an adjustment disorder with mixed anxiety and depressed mood. She related that condition as being the consequence of:
“(i) misinformation and delay regarding the test results;(ii) lack of confidentiality regarding his investigation within the police force; (iii) feeling unsupported as he was unable to dispute claims to colleagues (due to policies/procedures when an investigation is underway in the Police Force); and (iv) stress related to Court case (previous injury).”[26]
[26] Reply p 123.
Importantly in my view Dr MacDonald included in her report the following further comment:
“One of my differential diagnoses is posttraumatic stress disorder (PTSD). A symptom review was conducted regarding potential PTSD. However, the avoidance and intrusive symptoms were not present on this review. Rather, it seemed to be more of a stress, worry clinical picture related to the recent workplace events. I will always consider a potential diagnosis of PTSD in Mr Vella, however, appears even if it is present from previous injury, it is in remission.
I believe the most recent workplace issue has resulted in an adjustment disorder, as detailed above. This diagnosis fits with the timeline and precipitating picture better. I do not feel that PTSD (if previously present) is the main clinical issue here.”[27]
[27] Reply p 124.
Dr MacDonald in the report addressed a question posed to her which was in the following terms:
“When providing your opinion on the specific cause(s) of injury can you please discuss:
(i) Whether he reported any pre-existing condition. If so, whether the psychological condition is related to that pre-existing condition.
(A)For clarity, could you also give your opinion how his psychological injury was caused by pre-existing condition.”[28]
[28] Reply p 127.
Dr MacDonald responded to that query as follows:
“As I outlined above, it is possible that Mr Vella suffered from PTSD symptoms after his stabbing incident in 2019. However, even if he did meet the diagnostic threshold in the past, he certainly does not display these symptoms currently and they would not meet criteria as a pre-existing condition for which he was both suffering and receiving treatment prior to this incident. Therefore, for the purpose of this report, I do not believe that Mr Vella had a pre-existing psychological injury that was exacerbated by the recent events.”[29]
[29] Reply p 28.
Dr MacDonald’s second report dated 17 March 2024 followed an examination on 6 March 2024.
In that report Dr MacDonald set out a very detailed history that included inter alia significant psychological symptoms following the event of 11 June 2019.[30]
[30] Reply pp 140-143.
Dr MacDonald summarised her opinion as follows:
“Mr Vella is a 29-year-old man who has suffered symptoms of trauma and depression following his employment with the New South Wales Police Force. It appears Mr Vella developed depressive and some traumatic symptoms related to a stabbing and violent arrest he was subjected to in 2019. He was off work for 18 months and this caused a significant questioning of his identity due to his mental health symptoms and physical recovery. In 2022, there was a recurrence of his depressive symptoms and this was secondary to four factors:
the court case (related to the incident in 2019 it had been adjourned many times and he was required to give a victim impact statement in early 2023
(ii)alleged sexual assault of a female colleague
(iii)the resultant interpersonal difficulties with other colleagues at work, and
(iv)alleged steroid use and impacts on his confidentiality.
These four factors were the main precipitants to recurrence of his depressive symptoms.
These depressive symptoms continued into 2023 in the context of the victim impact statement and he had a worsening of his traumatic stress symptoms – including emergence of nightmares, intrusive memories, and shifts in his cognition. These were as a result of the stabbing injury in 2019.
The main symptoms Mr Vella presents with today are depression symptoms which are the result of the four major incidents in 2022 (as described above). Mr Vella is currently unable to work at all and requires assertive treatment to manage his condition.”[31]
[31] Reply pp 146-147.
Dr MacDonald went on in that report to record that:
“I believe Mr Vella is suffering from Major depressive disorder, recurrent episode, moderate severity and Post Traumatic Stress Disorder (PTSD).”[32]
[32] Reply p 148.
Dealing further with the issue of causation Dr MacDonald noted the following in response to a query that she specify the actual incidents that caused the injury:
“I believe that Mr Vella suffered symptoms of depression and some mild trauma symptoms from 2019 until 2020 in the context of the violent arrest in 2019. His symptoms reached remission for approximately two years, however, he had a significant relapse in the symptoms in 2022 in the context of the workplace issues described above. Therefore I believe his conditions commenced in 2019, achieved remission from 2020 until 2022 and then experienced a relapse of them in 2022 until currently.
The primary presenting complaint is his depressive illness, which has appeared as a result of the 4 factors (listed in the summary above). His PTSD illness appears to be the lesser issue on today’s review.”[33]
[33] Reply p 153.
Dr MacDonald was also asked to comment on the opinion of Dr Abdal W. Khan who had provided a qualified opinion at the request of the applicant.
Relevantly Dr MacDonald commented as follows:
“Overall, Dr Khan and I agree on the diagnosis of PTSD (secondary to the incident in 2019) and major depressive disorder. However I believe that the recurrence of Mr Vella’s depressive condition is primarily due to the workplace events (alleged sexual assault, interpersonal issues with work colleagues secondary to the assault and the investigation into steroid use).
These incidents appear to be the primary reason for his presentation, rather than his diagnosis of PTSD.”[34]
[34] Reply p 159.
Dr MacDonald was asked by the respondent to provide a supplementary report which is dated 10 October 2024 and appears at pages 12-17 of AALD2.
Dr MacDonald relevantly noted as follows in that report:
“By definition, PTSD must be caused by trauma [exposed to actual or threatened death, serious injury or sexual violence (criterion A)].
Delayed expression of symptoms is common in PTSD and does not change the overall trajectory or cause of the condition. Often, the acute stressors that might appear (in the context of other incidents) unmask symptoms of PTSD that might have been sub-threshold or at least more manageable by the individual. In the context of significant stressors, symptoms often worsen secondary to the individual’s usual coping mechanisms being overwhelmed. As previously stated in my reports, I believe Mr Vella had a recurrence of his condition in 2022 in the context of:
(i)the court case (related to the incident in 2019 it had been adjourned many times and he was required to give a victim impact statement in early 2023)
(ii)alleged sexual assault of a female colleague.
(iii)the resultant interpersonal difficulties with other colleagues at work, and
(iv)alleged steroid use and impacts on his confidentiality.”[35]
[35] AALD2 pp 14-15.
Dr MacDonald also stated:
“I believe Mr Vella’s PTSD and major depressive disorders were secondary to the assault on 11 June 2019. Therefore, these conditions are the same injury and caused by the arrest on 11 June 2019.
I believe that he had a recurrence of his condition in 2022 in the context of the acute stressors listed above.”[36]
[36] AALD2 p 15.
Dr MacDonald in her initial report diagnosed the applicant as suffering from an adjustment disorder with mixed anxiety and depressed mood. She specifically recorded that she considered a differential diagnosis of post traumatic stress disorder but the avoidance and intrusive symptoms were not present.
In her second report Dr MacDonald changed her diagnosis to one of Major depressive disorder, recurrent episode, moderate severity and Post Traumatic Stress Disorder.
In her final supplementary report Dr MacDonald referred to the applicant as suffering from PTSD and major depressive disorders which, as noted above she described as being secondary to the assault on 11 June 2019 but with a recurrence of his condition in 2022 in the context of the acute stressors in 2022.
Leaving aside some other aspects of Dr MacDonald’s opinion which I will discuss below it is my view that what is being described by Dr MacDonald in her reports is not what Mr Gaitanis argues is an opinion that the applicant suffered an injury with its genesis in the events of 2019 and a revelation in 2022.
What Dr MacDonald’s opinion as set out in her supplementary report of 10 October 2024 is analogous to the comments of Burke CCJ in Perry v Tanine Pty Ltd when considering a carpal tunnel syndrome where he noted:
“Carpal tunnel syndrome is a failure of an area of the body to cope with repetitive stress imposed upon it and reacts to that stress by developing swelling pain and loss of function as consequence. That seems to be to be classically a disease process.”[37]
[37] [1998] 16 NSWCCR 253.
Viewing her reports as a whole Dr MacDonald characterises the applicant’s condition as one that may have been initiated to some degree in the events of 11 June 2019 but had continued to develop as a consequence of the events of 2022 which development she has identified in her reports as making the applicant’s condition worse. What Dr MacDonald is describing in my view is a disease process where the events of 11 June 2019 and what has occurred in the course of the applicant’s subsequent employment has contributed to the development of the applicant’s psychological problems.

What Dr MacDonald describes is not the position dealt with by Neilson CCJ in Lyons where a frank incident initiated a disease process – in this matter Dr MacDonald is describing all of the events she has referenced in her reports as contributing to the development of the present conditions from which the applicant suffers – classically a disease process.
Mr Gaitanis referred to the decision of Judge Phillips in Australian Unity Home Care Service Pty Ltd v Kerr[38] in his submissions which referenced the decisions in Lyons v Master Builders Association, Rail Services Australia v Dimovski,[39] May v Military Rehabilitation and Compensation Commission[40] and Wyong Shire Council v Paterson[41] as setting out the differences between an injury simpliciter within the meaning of s 4(a) of the 1987 Act or a disease injury within the meaning of s 4(b) of the 1987 Act.
[38] [2024] NSWPICPD 56.
[39] [2004] NSWCA 267.
[40] [2015] FCAFC 93; 322 ALR 330.
[41] [2005] NSWCA 74.
It is important to note Judge Phillips’s statement at [65] where he stated:
“Whilst these are the principles, whether an injury falls within s 4(a) or s 4(b) is dependent upon the facts as found by the Member.”
Acting Deputy President Sweeney when dealing with an appeal concerning precisely the same issue as arises in this case, namely whether a worker sustained an injury simpliciter within the meaning of injury in s 4(a) or a disease injury within the meaning of s4(b) of the 1987 Act stated:
“Since Perry, the conditions referred to by Judge Burke, including epicondylitis, which result from repetitive occupational stress, have often been treated by the Personal Injury Commission and its statutory predecessors as disease injuries. However, such a finding is always dependent on the precise evidence in the case.” (emphasis added)[42]
[42] Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICPD 62 at [35].
As noted the opinion of Dr MacDonald as set out in her last supplementary report really does not in my view support an argument that the applicant’s psychological condition results from one injurious event on 11 June 2019 with all that occurred thereafter being the consequence of that one event. Dr MacDonald noted significant stressors in 2022 (which she identified) caused the applicant’s symptoms to worsen in 2022 which is in my view consistent with a disease process.
Looking at the totality of Dr MacDonald’s reports that conclusion is inescapable in my view.
In her report dated 17 March 2024 Dr MacDonald stated as follows:
“I believe that Mr Vella developed symptoms of depression and mild symptoms of trauma following the violent arrest in 2019. He was in remission of his symptoms, however, in the context of workplace issues in 2022 (court case, alleged sexual assault of colleague, interpersonal issues with other colleagues, and alleged steroid use), he had a significant relapse of his depressive symptoms. In the context of this depressive relapse, there has been a new diagnosis of posttraumatic stress disorder”.[43] (emphasis added)
[43] Reply pp 150-151.
The above quote from Dr MacDonald’s report of 17 March 2024 could not be a clearer statement from her that the events in 2022 had caused a progression and worsening of symptoms and had lead to a new diagnosis of post traumatic stress disorder which is entirely consistent with a disease process within the meaning of s 4(b) of the 1987 Act. That comment by Dr MacDonald is not consistent with a view that the incident on 11 June 2019 has having caused a psychological injury and that all that has happened thereafter is the progression of that injury.
The respondent, of course, does not bear the onus of proving that the applicant suffered an injury within the meaning of s 4(a) of the 1987 Act and it would be an error to approach the case on the basis that the respondent had failed to prove its case on the balance of probabilities – the applicant in this matter has the onus of proving on the balance of probabilities that the applicant suffered an injury within the meaning of s 4(b) being an injury in the nature of a disease or aggravation of a disease.
As noted earlier although the applicant’s case was pleaded relying on both s 4(b)(i) and s 4(b(ii) of the 1987 Act Mr Hickey confirmed at the conclusion of his submissions that the applicant was relying on s 4(b)(i) only to assert that the applicant had contracted a disease in the course of his employment to which the employment was the main contributing factor to the contraction of the disease.
In terms of medical evidence the applicant relies upon:
(a)    the qualified opinions of Dr Abdal Khan specialist psychiatrist as set out in a medical report dated 17 May 2023 and supplementary reports dated 14 August 2023, 14 December 2023 and 27 July 2024;
(b)    the opinions of Dr Abhishek Nagesh treating psychiatrist in reports dated 7 May 2020 and 27 July 2024;
(c)    the qualified opinion of Mariel Gadea psychologist as set out in her report dated 17 July 2024;
(d)    the opinion of Michelle McGee treating psychologist dated 17 June 2024;
(e)    the records of Dr Luke Johnson treating psychologist which include a report to Dr Benjamin Touma general practitioner and a report to the applicant’s former solicitors Brydens Lawyers dated 2 March 2023, and
(f)    the records of the applicant’s treating general practitioner.
In my view the evidence of Dr Nagesh as set out in his reports dated 7 May 2020 and 27 July 2024 is particularly helpful.
His first report dated 7 May 2020 follows an examination on 24 April 2020 and is addressed to the applicant’s treating general practitioner. The report notes that Dr Nagesh was reviewing the applicant for an opinion and management at the request of Dr Lance Holland-Keen the general practitioner. The report is clearly prepared for treatment purposes and not in support of any application for workers compensation or other benefits.
Dr Nagesh recorded the following history at the time of that assessment:
“Jacob is a 25-year-old male, who is living with his fiancée, who is working as a Police Officer. Jacob has been off work since 11 June 2019 after he was stabbed in the neck and arm, Jacob had been to arrest a person where he had to chase the person, and during his police duties he was stabbed, subsequent to this incident he was in hospital for three days and had a six hour surgery. Post discharge from hospital Jacob did develop some emotional reaction to the incident, where he did start to get flashbacks and nightmares. He was feeling a bit anxious to get back to work at that time. He also complained of feeling depressed initially for a brief period of time. His sleep was poor, as I mentioned he was having nightmares and flashbacks. He was referred to a Psychologist for therapy, which Jacob attended on a regular basis and had a significant improvement in his mental state.”[44]
[44] Application p 90.
Under the heading “Impression/diagnosis” Dr Nagesh stated:
“Currently Jacob Vella’s mental state remains stable. In my opinion he doesn’t suffer from any mental illness, he didn’t present with any signs of mental illness. He did experience some acute stress disorder symptoms post the stabbing incident at work, which is normal, and these symptoms have resolved now and Jacob doesn’t suffer from any mental illness at this stage. There was no evidence of any mood disorder, psychotic illness or PTSD.”[45]
[45] Application p 91.
Dr Nagesh did further note that
“Jacob currently doesn’t have the capacity for work however he should be ready to return to work in the next 2-3 months. This is because he still has some anxiety and sleep disturbance which he is working on by doing meditation and exercises. These symptoms should resolve in the nest 2-3 months and he should be able to return to duties in the next 2-3 months.”[46]
[46] Application p 91.
The report of Dr Nagesh dated 7 May 2020 is in my view very important in that it is-
(a)     the opinion of a treating doctor who is a specialist psychiatrist:
(b)    who examined and treated the applicant relatively close in time to the assault incident in June 2019:
(c)    who received a history of flashbacks, nightmares, anxiety and some depression after the assault, and
(d)    having received and considered the history and having conducted a consultation and examination expressed the view that the applicant was not suffering from post-traumatic stress disorder or any mood disorder, psychotic illness or any mental illness.
I can not see any reason to doubt Dr Nagesh’s assessment of the applicant’s condition as at the time of the examination on 24 April 2020 and indeed the subsequent trajectory of the applicant’s recovery and return to work is consistent with the opinion of Dr Nagesh.
Mr Gaitanis submitted that the medical opinions relied upon by the applicant were not based on a full and correct history and further that Dr MacDonald was the only doctor who had received a full picture of the applicant’s injury, subsequent history and treatment and accordingly her opinion should be preferred. I do not accept that submission.
I have reviewed Dr MacDonald’s various reports to see if she was ever provided with and considered the diagnosis and opinion of Dr Nagesh as set out in his report of 7 May 2020.
In my view the opinion of a treating psychiatrist specifically excluding a diagnosis of post- traumatic stress disorder, mood disorder or psychotic illness in April/May 2020 is an opinion that Dr MacDonald needed to consider in forming her opinion as to the nature and cause of the applicant’s psychological problems. The fact that she does not deal with Dr Nagesh’s opinion considerably adversely impacts the persuasiveness or her opinion and the weight I give it.
In his subsequent report dated 17 July 2024 Dr Nagesh confirmed firstly that he was again treating the applicant and then went on to state his opinion that the applicant did not suffer post traumatic stress disorder following the stabbing incident.[47]
[47] Application p 93.
Dr Nagesh’s report of 17 July 2024 goes on to record in some detail the events surrounding the applicant’s urine test, loss of confidentiality concerning same, being the subject of gossip and rumours, being placed on restricted duties and the public surrender in front of other officers of his gun, vest and baton and the applicant’s feelings of humiliation as a consequence.[48]
[48] Application pp 93-94.
Dr Nagesh confirmed a diagnosis of post traumatic stress disorder and major depressive disorder he related to the “bullying, harassment and lack of support from his superiors”.[49]
[49] Application p 94.
There is no doubt that Dr Nagesh has diagnosed conditions that were not formerly present and which were provoked by workplace events that had occurred years after the initial stabbing incident on 11 June 2019. Dr Nagesh identifies those conditions as related to the events that occurred in the course of the applicant’s employment in 2022.
Dr Luke Johnson specialist psychiatrist treated the applicant in 2023 when Mr Vella was referred to him with “emerging symptoms or worsening anxiety and depression”.[50]
[50] Application p 131.
Dr Johnson diagnosed the applicant as suffering from a Major Depressive Disorder which he related to stressors including:
“…an incident where he was stabbed in the neck in 2019 and the ongoing legal process, as well as allegations of illicit substance use and the associated investigation, with associated breaches of confidentiality”[51].
[51] Application p 131.
The report of Michelle McGee treating psychologist date 17 June 2024 which appears at pages 118-120 of the Application confirms that she first saw the applicant on 25 June 2019 and treated him through to 14 April 2020. She confirms in the report that at the time of her treatment the applicant did not meet the criteria for a diagnosis of post-traumatic stress disorder or any other mental illness at that stage.[52]
[52] Application p 120.
The opinion of Ms McGee is consistent with the diagnosis and opinion of Dr Nagesh at the same time.
Again I am unable to identify any reference to the report and opinion of Ms McGee in the medical reports of Dr MacDonald.
The absence of any consideration of, or comment by Dr MacDonald on the report of a treating psychologist (who saw the applicant from a date only two weeks after the assault on 11 June 2019 through to April 2020) where that psychologist states that the applicant was not suffering from post-traumatic stress disorder or any other mental disorder again adversely impacts on the persuasiveness and weight of Dr MacDonald’s opinions.
The applicant, as noted relies upon the qualified opinion of Dr Abdal Khan who has provided a number of reports.
In his first report dated 17 May 2023 Dr Khan diagnosed the applicant as suffering from a “major depressive disorder with anxious distress”.[53]
[53] AALD1 p 5.
Dr Khan expressed the view that the condition from which the applicant suffered was caused by:
“…the nature and conditions of his employment as a police officer with the New South Wales Police Force. In August 2022, Mr Vella had to endure a challenging court matter in relation to a previous incident where he was stabbed on 11 July(sic) 2019. His mental state started to deteriorate during this time with the emergence of symptoms of depression and anxiety. Mr Vella was then subjected to an investigation into an allegation that he had been using a prohibited substance. He felt that the unreasonable manner in which he was treated by his employer as well as the damage to his reputation caused by rumours spread about him in relation to this allegation led his already fragile mental state to deteriorate further. These aforementioned experiences have caused Mr Vella to develop the psychiatric condition of major depressive disorder with anxious distress,”[54].
[54] AALD1 pp 5-6.
Dr Khan saw the applicant in a further consultation on 14 August 2023 and provided a supplementary report dated 14 August 2023.
In his report of 14 August 2023 Dr Khan diagnosed the applicant as suffering Major depressive disorder with anxious distress and post traumatic stress disorder with delayed expression.[55]
[55] AALD1 p 14.
Dr Khan again described the cause of the conditions as being:
“…the nature and conditions of his employment as a police officer with the NSW Police Force. In August 2022, Mr Vella had to endure a challenging court matter in relation to a previous incident where he was stabbed on 11 July (sic) 2019. His mental state started to deteriorate during this time with the emergence of symptoms of trauma, depression and anxiety. Mr Vella was then subjected to an investigation into an allegation that he had been using a prohibited substance. He felt that the unreasonable manner in which he was treated by his employer as well as the damage to his reputation caused by rumours spread about him in relation to this allegation led his already fragile mental state to deteriorate further. These aforementioned experiences have caused Mr Vella to develop the psychiatric conditions of major depressive disorder with anxious distress and post traumatic stress disorder with delayed expression.”[56]
[56] AALD1 p 14.
Dr Khan saw the applicant for a third time on 14 December 2023 and provided a further supplementary report of the same date where Dr Khan confirmed his earlier diagnosis of major depressive disorder with anxious distress and post traumatic stress disorder with delayed expression.[57]
[57] Application p 82.
Dr Khan also confirmed his views in relation to causation of those conditions and assessed the applicant as suffering from a 22% whole person impairment as a consequence of the conditions.[58]
[58] Application pp 79-86.
Mr Gaitanis attacked the opinions of Dr Khan on the basis that the doctor had received an incorrect and incomplete history from the applicant which meant that little weight should be attached to his views on causation of the diagnosed conditions.
There is some force to the submissions of Mr Gaitanis in relation to the reliability of the history obtained by Dr Khan in that the applicant appears to have minimised the psychological impact of the assault on 11 June 2019.
The history taken by Dr Khan was to the effect that at the time of the assault in 2019 the applicant did not endure any pervasive symptoms and that his predominant struggles at that time related to the impact of his physical injuries.
As noted at [10] above the applicant was certified as physically fit for light duties work in October 2019 but remained totally unfit at that time and for some months after for psychological reasons and did not return to work until July 2020. That suggests significant ongoing psychological symptoms after the physical assault and that dealing with those issues would have been a very significant issue for some months post injury.
I feel however that the significance of that failure in history on the part of the applicant is comprehensively overcome by the fact that a treating psychiatrist and a treating psychologist both confirm that the applicant was not suffering post traumatic stress disorder or other mental illness as at April/May 2020.
Further there is no doubt that the applicant’s mental condition deteriorated in late 2022 with all the medical practitioners taking histories of the applicant being distressed by work or work related events occurring at that time being the event of the trial relating to the assault of 11 June 2019, the applicant’s cross examination during the trial, its outcome and the sentence imposed, the false accusation of sexual assault, the allegation of drug misuse, the testing procedure, the lack of confidentiality and public humiliation consequent upon the process of investigation of that complaint, the perceived reputational damage and the feeling of lack of support from the police force.
Drs Nagesh, Khan and Johnson all appear to be of the view that the diagnosed mental illnesses of major depression and post traumatic stress disorder stem from the incident of assault on 11 June 2019 and from the events in 2022 not just a single event of injury in June 2019.
I note that the medical records from the treating doctors are consistent with the claim by the applicant in his statement evidence that following his return to work he was able to perform his duties at a high standard and was not requiring any treatment for mental illness until the events in 2022.

STATEMENT EVIDENCE

The applicant attaches to the application a number of statements from lay witnesses the credibility of which came in for some attack by Mr Gaitanis on the basis that what was recorded was given by friends of the applicant and basically consisted of hearsay assertions of little weight.
I accept that some of the statements do contain material of little probative value such as
“I was speaking with my colleague and friend Joshua Panetta. Joshua told me that he had been approached by another colleague, Sergeant Jeffries, who had openly stated that there was an investigation being conducted into Jacob”[59] or
“I was aware that one officer in particular, who is of a higher rank than I, who I have chosen not to name, was repeatedly spreading rumours that Jacob was doping. I hear this from a number of other people but can’t remember exactly my sources of information were.”[60]
[59] Application p 56.
[60] Application p 63.
I also accept that in preparing his own statements the applicant has sought to minimise the significance of any psychological sequelae of the assault on 11 June 2019 and emphasise the significance of events in 2022.
Having regard to those caveats I do find that a number of important points arise from the statement evidence in the applicant’s case as follows:
(a)    the applicant returned to work in July 2020 and appears to have performed his duties at a high standard without evidence of psychological difficulty which is confirmed by Senior Sergeant Daniel Maher,[61] Senior Constable Saurez,[62] Senior Constable Cini,[63] and Sergeant Metin Karakus.[64]
(b)    That members of the police force became aware of the accusation of drug misuse by the applicant and the alleged results of the testing with the matter being openly discussed which is confirmed by the statement evidence of Senior Constable Suarez,[65] Senior Constable Mathew Cini,[66] Sergeant Metin Karakus[67]and David Tasman New.[68]
(c)    That the applicant was very mentally distressed and affected by the events of 2022 being the allegations of sexual assault, the trial of the accused in relation to the assault of 11 June 2019, the accusation of drug misuse, subsequent investigation of that allegation and the breach of confidentiality in relation to same and the perceived loss of reputation consequent upon those events which is confirmed by the statement evidence of Senior Sergeant Daniel Maher,[69] Senior Constable Victor Suarez,[70] Senior Constable Cini,[71] Senior Constable Metin Karakus,[72]Carlos Mekhail,[73]and David Tasman New.[74]
[61] Application pp 45-46.
[62] Application p 51.
[63] Application pp 59-60.
[64] Application p 66.
[65] Application pp 48-49,52-53.
[66] Application p 57.
[67] Application p 67.
[68] Application pp 74-75.
[69] Application p 47.
[70] Application pp 49,53,54.
[71] Application pp 60,61-62.
[72] Application p 64 and pp 67-69.
[73] Application pp71-72.
[74] Application p 75.

I note that it appears to be common ground on the part of both the applicant and respondent that the fact of the drug misuse allegation and its investigation should have remained confidential. I accept the evidence in the applicant’s case that the investigation did not remain confidential.
I note that the statement evidence in the applicant’s case is consistent with the medical evidence to the effect that the applicant was not suffering post-traumatic stress disorder or other mental illness when he returned to work in July 2020 after the stabbing assault on 11 June 2019.
The statement evidence in the applicant’s case is also consistent with the medical evidence of a significant and serious deterioration in the applicant’s mental condition following the enumerated events affecting the applicant from approximately July 2022 to November 2022.

FINDINGS

I note that there is no dispute in this case that the applicant suffered a psychological injury arising out of or in the course of his employment.
There is little dispute as to diagnosis – the applicant’s treating psychiatrist Dr Nagesh has diagnosed the applicant as suffering with post-traumatic stress disorder and a major depressive disorder, Dr Johnson another treating psychiatrist has diagnosed Major Depressive Disorder with emerging features of post-traumatic stress disorder, Dr Khan the applicant’s qualified psychiatrist has diagnosed the applicant as suffering from major depressive disorder with anxious distress and post traumatic stress disorder with delayed expression and Dr MacDonald the respondent’s qualified psychiatrist diagnosed major depressive disorder, recurrent episode moderate severity and post-traumatic stress disorder. Mariel Gadea the applicant’s qualified psychologist has diagnosed post-traumatic stress disorder, major depression disorder and panic disorder.
Having regard to all the evidence and the opinions of the medical specialists it is my view that on the balance of probabilities the diagnosis of major depressive disorder with post traumatic stress disorder is appropriate and is in line with the opinions of the treating specialists.
The only real issue in the case is whether the psychological injury of major depressive disorder and post-traumatic disorder is the consequence of a frank injury on 11 June 2019 as argued by the respondent or whether it is a disease injury within the meaning of s 4(b)(i) of the 1987 Act as argued by the applicant.
In my view the overwhelming evidence in the case is to the effect that the condition of major depressive disorder and post traumatic stress disorder is a disease contracted by the applicant in the course of his employment to which the employment was the main contributing factor.
I have no doubt that the events of 11 June 2019 contributed to the ultimate development of the conditions from which the applicant now suffers however the evidence clearly establishes on the balance of probabilities that as at April/May 2020 the applicant did not suffer from post-traumatic stress disorder or other mental illness.
The applicant returned to work in around July 2020 and appears to have worked without any evidence of mental distress or difficulty until around August/September 2022 when a series of events (which have been detailed many times in these reasons) contributed to the applicant developing a major depressive disorder and post-traumatic stress disorder.
I accept the opinions of Drs Nagesh, Khan and Johnson that the major depressive disorder and post-traumatic stress disorder resulted from the events of the assault on 11 June 2019 and from the events of 2022 in the course of the applicant’s employment.
There is not evidence of any external stressors that were responsible for the development of the applicant’s mental illnesses of major depressive disorder and post-traumatic stress disorder.
The process by which the applicant developed his illnesses involved a progression and development of symptoms in response to a series of stressful events and is in my view classically a disease process within the meaning of s 4(b) of the 1987 Act.
Given the lack of any evidence of any other stressors outside the applicant’s employment as having been responsible for the development of the applicant’s condition I find that on the balance of probabilities that the applicant’s employment was the main contributing factor to the development of the applicant’s disease being major depressive disorder and post-traumatic stress disorder.
As I have noted earlier it is my view that the opinion of Dr MacDonald properly considered really supports the view that the applicant’s condition is in the nature of a disease but to the extent that Dr MacDonald suggests that the applicant’s psychological injury is solely caused by an event of injury on 11 June 2019 with all that has happened thereafter as being the revelation of an underlying condition I reject that view and prefer the evidence of Drs Khan, Nagesh and Johnson and the psychologist Ms Gadea.
On the balance of probabilities the applicant has suffered an injury in the nature of a disease that was contracted in the course of his employment to which his employment was the main contributing factor to the contracting of the disease.
I note that the pleaded deemed date of injury is 7 November 2022 and that the respondent has raised no issue as to whether that is the correct deemed date in the event that I found the applicant had suffered an injury in the nature of a disease as I have done.
There will be an award in favour of the applicant.

SUMMARY

The applicant suffered a disease injury in the course of his employment to which the employment was the main contributing factor.
The disease injury is major depressive disorder with post-traumatic stress disorder.
The deemed date of injury is 7 November 2022.
Having regard to the findings above the matter is to be remitted to the President for referral to a Medical Assessor to assess the applicant’s whole person impairment.
Following the issue of a Medical Assessment Certificate the matter is to be relisted for a further preliminary conference to deal with the balance of the claim being the extent of the applicant’s entitlements under s 67 of the 1987 Act

[2024] NSWPIC 689

11 December 2024