Case

Which case won?

casea
The case for the nurse
  • I suffer from PTSD which developed over time due to the nature and conditions of my work between 2011 and 31 January 2019.
  • During the course of my employment, I was exposed to numerous traumatic incidents, including vitriolic outbursts and verbal and physical assaults by violent, drug-affected patients and mental health patients.
  • During almost every shift, patients would become angry, abusive, aggressive and violent, because without a doctor present, I was not able to prescribe the opiates and benzodiazepines they wanted. Going to work under such conditions caused me to become anxious and agitated.
  • One day I watched a highly agitated patient smash a glass door. I also saw other nurses being chased by highly agitated patients and having to lock themselves in the drug room to escape.
  • I complained to my manager about the disturbing incidents and lodged several incident reports.
  • My GP has testified that in 2013 I experienced irritable bowel syndrome, interrelated with stress, including work stress. I was referred for psychological treatment and prescribed antidepressant medication.
  • The incident with LF around 2015 caused me to feel extremely upset, agitated and fearful, both for my own safety and for the safety of the other patients in the waiting room.
  • In 2019, I had just started seeing my psychologist to address the impact of the various work-related events, when I was triggered by seeing LF’s name on the patient handover sheet.
  • My psychological injury clearly developed over time due to the nature and conditions of my employment from 2011 to 31 January 2019. I am therefore entitled to compensation for PTSD.
caseb
The case for the employer
  • The nurse’s PTSD did not develop over time due to the nature and conditions of her employment between 2011 and 31 January 2019.
  • As the nurse’s manager has testified, at times patients became verbally aggressive, but that was to be expected in an emergency department. Although the nurse lodged several incident reports, her manager has testified that she continued to work normally and never complained about experiencing work-related stress, notwithstanding that she had opportunities to do so.
  • There is no contemporaneous evidence of psychiatric symptomatology as a result of the alleged traumatic events since 2011. The treating evidence and independent medical evidence all support a finding that the only work-related events which were causative of the nurse’s psychological condition were the events involving the patient LF in 2015 and the events on 31 January 2019. There is no evidence which establishes a causal connection between the nurse’s emerging psychological symptoms and other incidents at work. As the nurse is alleging a psychological injury in the nature of a disease of gradual onset, this is insufficient to prove her case.
  • As our independent medical expert has testified, the nurse’s employment was not the main contributing factor to her PTSD. Her personal life stressors were. The incident in January 2019 simply aggravated a pre-existing psychological condition. In August 2007, a date which predates the nurse’s employment by four years, she was referred for psychological treatment. The referring doctor noted that the nurse described feeling increasingly teary and stressed for the past year. A mental health care plan stated that she had “generalised anxiety”.
  • Since the nurse’s PTSD did not develop over time due to the nature and conditions of her employment from 2011 to 31 January 2019, she is not entitled to compensation.

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Expert commentary on the court's decision

“As an employee, it is crucial to report stressful incidents at work and to seek medical help for any symptoms. This creates a paper trail that can support future claims if needed.”
Commission rules in favour of nurse

In Schouten v State of New South Wales (Northern NSW Local Health District) [2023] NSWPIC 565, the Personal Injury Commission found in favour of my client, the nurse Juliette Schouten.

The commission accepted that Ms Schouten’s PTSD had developed over time due to the nature and conditions of her work from 2011 to 31 January 2019.

Two categories of injury under Workers Compensation Act

Under the NSW Workers Compensation Act 1987 there are two main categories of injury.

The first category is a “personal injury”, often referred to as a “frank injury”. This is a one-off incident or accident characterised by a sudden change, for example a printer who injures their hand by getting it caught in the printing press.

The second category is a “disease injury” or “disease of gradual process”, which means that the injury develops over time, for example an executive assistant who develops repetitive strain injury after repeated use of a computer keyboard.

Depending on the facts, PTSD may fall into either category.

Our client’s claim before the commission asserted that the PTSD was a “disease injury”.

Standard of causation for disease injury higher than for personal injury

Establishing causation for a disease injury is more difficult than for a personal injury.

This is because under section 4(a) and 4(b)(i) of the Act, an injury is defined as a “personal injury arising out of or in the course of employment” or as a “disease injury… 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”.

Causation turns on employee’s perception

In summarising the principles to be applied to determining causation, the commission noted that employers must take employees as they find them. The law does not require that an employee’s perception of events is one that passes a test based on an objective measure of reasonableness.

This is referred to as an “egg-shell psyche” principle.

Regarding Ms Schouten’s perception, the commission said that:

…considering the evidence as a whole, I accept on the balance of probabilities that, over the period between 2011 and 31 January 2019, the applicant experienced numerous real events at work which included aggressive, violent and unsafe patient behaviour and a particular incident of abusive, aggressive and unsafe behaviour by patient LF in 2015. Further, I accept that the applicant perceived those events as creating an offensive and hostile working environment.

Commission rejects employer’s arguments

The commission rejected the argument of the employer, Northern NSW Local Health District, that there was no contemporaneous evidence of psychiatric symptomatology as a result of the alleged traumatic events.

The commission said: “To the contrary, I accept that the treating medical evidence did demonstrate a clear causal relationship between the diagnosis of post-traumatic stress disorder and the nature and conditions of the applicant’s work prior to the events of 31 January 2019.”

The commission also rejected Northern NSW Local Health District’s argument that Ms Schouten’s PTSD was only causally related to the two specific incidents involving LF in 2015 and on 31 January 2019.

The commission dismissed the opinion of Northern NSW Local Health District’s independent expert that Ms Schouten had a pre-existing non-work-related psychological condition.

Importance of reporting and documenting incidents

This case highlights the complexity of psychological injuries in the workplace, especially in high-stress professions like nursing.

Ongoing exposure to stressful or traumatic events at work can build up over time and potentially lead to compensable psychological injuries.

As an employee, it is crucial to report stressful incidents at work and to seek medical help for any symptoms. This creates a paper trail that can support future claims if needed.

Employers in high-stress fields should implement robust systems to support staff mental health and to manage potentially traumatic incidents. Regular check-ins and debriefings could help identify problems before they escalate.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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