State of New South Wales (Hunter New England Local Health District) v Bramble [2025] NSWPICPD 57

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Key takeaways

Deputy President Wood upheld a Member’s decision that a worker sustained a compensable psychological injury. In the Deputy President’s opinion, the Member was correct in finding that the Personal Injury Commission (PIC) was not prevented from determining injury despite a diagnosis of ‘malingering’.

Brief facts

The worker, a dental assistant, brought proceedings in the PIC for a psychological injury allegedly arising from an incident on 4 July 2023, during which she was abused and threatened by a patient. Her treatment providers diagnosed post-traumatic stress disorder (PTSD). The insurer arranged for the worker to undergo psychometric testing in the form of a Minnesota Multiphase Personality Inventory (MMPI-2), conducted by psychologist Dr Paul Phillips.

Based on the results, Dr Phillips concluded the worker was ‘malingering’ or faking her injury. Consequentially, the insurer disputed that a psychological injury had occurred.

The dispute proceeded to arbitration before Member Toohey. After weighing the evidence, including the malingering diagnosis, the Member found that the worker had suffered a psychological injury as a result of the incident.

The insurer appealed the Member’s decision.

Judgment

The insurer contended the Member had erred by failing to accept the psychometric assessment and by preferring the evidence of the worker’s treatment providers.

The insurer relied on the view, widely accepted within the psychiatric community, that the diagnostic process cannot proceed once malingering is identified. Since the Member accepted the validity of the psychometric testing (which indicated malingering), the insurer argued he was prevented from finding in favour of the worker on injury.

DP Wood rejected this argument, finding no error in the Member’s approach. DP Wood considered that on each occasion, it is a matter for the court or tribunal to determine the weight to be given to the evidence before it.

Accordingly, she considered that a decision maker could not be constrained by the rules adopted by a third party when assessing the evidence before them. In this case, the Member could not be constrained by the psychiatric community, or a particular psychiatric body’s view that the diagnostic process has to cease once malingering is established.

Implications

The PIC is not bound by the rules or framework of third parties when evaluating evidence. It is for the Member to determine the weight to be given to each piece of evidence, and the Member is not limited in that process by the rules of others. This decision serves as a helpful reminder that while expert opinion is critical to a fair and proper determination of rights, the PIC is not bound by the rules of those expert communities.