Boyd v Costco Wholesale Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Boyd v Costco Wholesale Australia Pty Ltd [2024] NSWPIC 668
APPLICANT:	Barbara Boyd
RESPONDENT:	Costco Wholesale Australia Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	3 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation for psychological injury; whether the Personal Injury Commission (Commission) had jurisdiction to hear the claim; regard to whether the time within which the claim had to be determined had expired before the applicant commenced proceedings in the Commission; section 281(2); obligation under section 264(1) on an employer who receives a claim or any other documentation in respect of a claim to forward it to the employer’s insurer; whether the claim had been properly made, where the Medical Assessor (MA) who assessed the applicant for permanent impairment as a result of injury had not used the wording in Part 8.1.1 of the Workers Compensation Guidelines (Guidelines) to certify that the applicant had reached maximum medical improvement; whether the applicant had sustained psychological injury arising out of or in the course of her employment with the respondent; the date of such injury, having regard to what the Court of Appeal decided in Haddad v The Geo Group Australia Pty Ltd (Haddad); detailed examination of the legislative provisions of the 1998 Act in respect of the making of a claim for permanent impairment compensation, Part 8.1.1 of the Guidelines, the report of the independent medical examiner whose report was submitted in support of the applicant’s claim for lump sum compensation, and the diagnosis of that examiner in respect of injury in comparison with the diagnosis of the independent medical examiner who reported on behalf of the employer; Held – the Commission had jurisdiction to hear the applicant’s claim; the applicant’s claim for lump sum compensation was properly made; the applicant sustained psychological injury arising out of or in the course of her employment with the respondent; the date of such injury was the date of incapacity in accordance with the finding of the Court of Appeal in Haddad; the matter remitted to the President for referral to a MA for assessment of whole person impairment as a result of psychological injury on the date of incapacity.
DETERMINATIONS MADE:	The Commission determines: 1. The Personal Injury Commission has jurisdiction to hear the applicant’s claim. 2. The applicant’s claim for lump sum compensation was properly made. 3. The applicant sustained psychological injury on 15 July 2021 arising out of or in the course of her employment with the respondent. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of psychological injury on 15 July 2021. 5. The documents to be referred to the Medical assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents lodged by the respondent on 14 November 2024 with the clinical records of Active Family Medical Centre as of 25 October 2024 attached.

STATEMENT OF REASONS

BACKGROUND

Barbara Boyd (the applicant/Ms Boyd) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of employment with Costco Wholesale Australia Pty Ltd (the respondent), deemed to have occurred on 11 March 2024.
On 28 February 2024 the applicant was independently medically examined by Dr Richa Rastogi, consultant psychiatrist, and the request of her solicitor. Dr Rastogi produced two reports of that date.[1] Dr Rastogi, who had seen the applicant previously on 15 March 2022,[2] and also on 16 May 2016,[3] diagnosed Ms Boyd as presenting with worsening of adjustment disorder with increase in anxiety triggered by financial losses, vocational losses, fear of physical deterioration with severity of pain, and inability to have appropriate treatment. The doctor described the mechanism of injury as:
“The causation has been persistent bullying, victimisation, accusations, alienation and exclusion by employees and lack of support by management following submitting statement against two employees on request of the management and being ostracised further for being the whistle blower. Her depresion [sic] and anxiety have worsened over time in setting of failure to receive adequate physical treatment , financial losses, voctaioanl uncertainty impeding on her ability to live independently and fear about future coping.”[4]
[1] Application to Resolve a Dispute (ARD) pp 41 and 46.
[2] ARD p 48, although it is noted the report is dated 1 March 2022.
[3] ARD p 61.
[4] ARD p 44.
The second report of 28 February 2024 listed the diagnosis as “Adjustment Disorder with anxious distress”, and contained an assessment of permanent impairment of 17% whole person impairment (WPI).
On 11 March 2024 the applicant’s solicitor forwarded to the respondent a letter of claim enclosing by way of service the independent medical “report” [sic, “reports”?] of Dr Rastogi dated 28 February 2024 and claiming on behalf of the applicant the sum of $44,250 compensation in respect of 17% WPI pursuant to s 66 of the 1987 Act. The final paragraph of that letter was as follows:
“We note that whilst you are obligated to provide a copy of this letter to your workers compensation insurer, a copy has been forwarded to Employers Mutual Limited who we understand to be the relevant insurer.”[5]
[5] ARD p 39.
On 11 March 2024 the applicant’s solicitor forwarded to Employers Mutual Limited (EML) a copy of the letter to the respondent of the same date, referred to in [4] above.[6] EML is not the relevant insurer of the respondent. GIO General Limited (GIO) is such insurer.
[6] ARD p 39.
On 1 August 2024 the applicant’s solicitor forwarded to “GIO Insurance” a letter referring to the applicant, containing a claim number and the reference to the applicant’s solicitor. The full text of the letter is as follows:
“We advise that we act on behalf of Barbara Boyd, and we enclose a copy of a letter, which we served to your insured, Costco Wholesale Australia Pty Ltd on 11 March 2024, together with a copy of the enclosures to that letter.
We look forward to hearing from you regarding the claims made by the letter.”[7]
[7] ARD p 40.
The applicant had been previously independently medically examined on 23 September 2021 via Telehealth by Dr Bernard Chivaurah, consultant psychiatrist, at the request of GIO. Dr Chivaurah produced a report dated 6 October 2021 containing a “DIAGNOSIS/IMPRESSION” of “Workplace conflict”.[8] When the doctor was asked for his medical opinion if the worker (the applicant) had a psychological or psychiatric disorder, and his reasoning behind that including a reference to “any DSMV” (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) disorder, he said:
“As discussed above, I could not find consistent evidence of a diagnosable psychiatric condition. There was no evidence of an ongoing psychotic disorder, major depressive disorder or specific anxiety disorder.
In my opinion, there is a lot of conflict at work between Ms Boyd and some of her colleagues as expressed in the accusations levelled against her the counter-accusations she has raised.”
[8] Reply p 6.
On 25 October 2021 GIO issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) addressed to Ms Boyd containing a denial of liability of her claim.[9] In that notice, GIO did not agree that Ms Boyd had received a psychological injury as required by s 11A(3) of the 1987 Act. In providing reasons for the decision, GIO referred to a Workers Compensation Certificate of Capacity (COC) dated 19 July 2021 in relation “…to an alleged ‘anxiety disorder’ due to bullying and harassment within the workplace”, with a listed date of injury of 15 July 2021, “…which coincided with the day you were issued with a suspension letter by your employer in light of serious allegations of misconduct against you.” The author of the s 78 notice also referred to the contents of the report of Dr Chivaurah dated 6 October 2021 referred to above.
[9] Reply p 15.
Based on the report of Dr Chivaurah, GIO disputed that the applicant suffered from a diagnosable psychiatric injury as required by ss 4 and 11A(3) of the 1987 Act. On that basis, liability was disputed.
This denial of liability was confirmed in a review notice under s 287A of the 1998 Act issued to the applicant on 16 November 2021 by icare workers insurance (icare).[10] In that notice, icare referred to a COC of Dr Akram Mossad dated 16 July 2021, containing a diagnosis of “anxiety disorder” as a result of bullying at work, with a date of injury of 15 July 2021. The contents of the report of Dr Chivaurah dated 6 October 2021 were referred to.
[10] Reply p 19.
The current proceedings were commenced with the lodgement of the ARD at the Personal Injury Commission (Commission) on 30 August 2024. The respondent lodged the Reply on 23 September 2024. Relevant attachments to the Reply are:
(a)     the report of Dr Chivaurah dated 6 October 2021;
(b) the s 78 notice dated 25 October 2021 issued by GIO;
(c)    the s 287A notice dated 16 November 2021 issued by icare, and
(d)    letter dated 5 September 2024 from the solicitor for the respondent to the solicitor for the applicant:
i.advising of an appointment on 22 October 2024 for the applicant to be examined by a medical practitioner, (which it appears that the applicant did not attend), and
ii.requesting further and better particulars.[11]
[11] Reply p 30.
The proceedings were the subject of a preliminary conference on 1 October 2024 and stood over for conciliation/arbitration to 20 November 2024. In Directions and Notations issued on 1 October 2024, the following Issues for Determination were noted:
“1. Whether the applicant’s claim for lump sum compensation is properly before the
Commission having regard to:
(a)the supply of particulars of the claim for lump sum compensation to the respondent on 1 August 2024, and
(b)whether such claim has been properly made, having regard to the absence of evidence that the applicant has achieved maximum medical improvement,
and subject to such determinations:
2. Whether the applicant has sustained a diagnosable psychiatric or psychological injury.”

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    issues listed in [12] above and, following on from issue [1] noted 1 October 2024,
(b)    whether the issue of a determination of the claim for lump sum compensation being made by GIO within two months of 1 August 2024 has “fallen away”, which is reliant upon on whether a valid claim for lump sum compensation was made at all, and
(c)    the correct date of injury, having regard to the decision of the Court of Appeal in Haddad v The Geo Group Australia Ltd.[12]
[12] [2024] NSWCA 135 (Haddad).

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 to arbitration hearing on 20 November 2024 following conciliation. Mr McManamey of counsel appeared for the applicant briefed by Ms Elmasri. The applicant attended separately. Mr Kreig, solicitor, appeared for the respondent briefed by a representative of GIO.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) lodged by the respondent on 14 November 2024 with the clinical records of Active Family Medical Centre as of 25 October 2024 attached.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they are as follows.

Applicant

The applicant notes that s 9(1) of the 1987 Act provides that a worker who has received an injury shall receive compensation from his employer in accordance with that Act. The liability for compensation is placed on the employer.
The applicant notes that the claim for lump sum compensation was made on 11 March 2024 on the employer. The applicant submits that there is nothing in the 1987 Act or the 1998 Act that requires a claim to be made on the insurer. Section 260 of the 1998 Act prescribes that a claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines (Guidelines), and s 264 of that Act requires an employer to do certain things, including passing a claim or any other documentation to its insurer within seven days after receiving the claim or documentation. There is no requirement to send it to the insurer.
The applicant notes that the claim on the employer made on 11 March 2023 was accompanied by a report of Dr Rastogi. Section 282(1) of the 1998 Act sets what are “relevant particulars about a claim”, and sub-s (3) provides that an insurer must raise any request for particulars about a claim within two weeks after the claimant provided particulars. This was not done in response to the letter of claim dated 11 March 2023. Even if one has regard to the letter sent to the GIO on 1 August 2024, the insurer did not raise any complaint about the sufficiency of the particulars with two weeks of that date, The applicant also submits that, under s 282, it is the employer, not the insurer that requires a claimant to submit himself or herself for examination by a medical practitioner.
The applicant submits that no complaint was forthcoming about whether a claim was properly made until the letter dated 5 September 2024 from the solicitor for the respondent to the applicant’s solicitors requesting further and better particulars and advising of an appointment to have the applicant medically examined.
The applicant submits that the letter of claim was accompanied by a report from Dr Rastogi which complied with the “Workers compensation guidelines”, containing requirements for insurers, workers, employers, and other stakeholders, dated 1 March 2021 (Guidelines). The applicant submits that the Guidelines do not require that an assessor’s report contain specific wording that maximum medical improvement (MMI) of a worker’s condition has been reached, but that this can be inferred form the report itself.
The applicant points to the substantive report of Dr Rastogi dated 28 February 2024 on p 5 of which (ARD p 45) the doctor expresses the opinion that the applicant remains unfit to work, suffers from entrenched depression, and has no capacity to work in the foreseeable future. The applicant notes the impairment report of Dr Rastogi dated 28 February 2024 in which Dr Rastogi sets out a diagnosis of Adjustment Disorder with anxious distress, and confirms that she has a permanent disability (ARD p 46).
The applicant submits that Part 8.1.1 of the Guidelines states that an assessor’s report must include “a statement about whether the condition has reached maximum medical improvement”, (emphasis in submissions). The applicant submits that in can be inferred form the reports of Dr Rastogi that Ms Boyd has reached MMI, and that the Doctor’s assessment must be viewed against a background that the condition has not improved in three years.
The applicant referred to the decision of Roche ADP in Warwick Hobart trading as Terry White Chemists v Pietrzak,[13] in support of her submission that strict compliance with the Guidelines was not required, and that minor defects in form or style did not mean that the guideline had not been complied with, and that the claim had been made.
[13] [2006] NSWWCCPD 315.
The applicant submits that, in this case, a minor defect in form or style does not mean that the applicant’s claim had not been made.
The applicant submits that if there has been a breach in the making of the claim, that does not mean that the Commission does not have jurisdiction to determine the dispute about the level of permanent impairment from which she suffers. The applicant submits that there is no dispute about the claim having made, this issue not having been raised until the Reply was lodged and served.
The applicant submits that even if, contrary to her submissions, the finding is that the claim for permanent impairment had to be made on the insurer, that was not done until 1 August 2024, and there was still no response thereto with the two week period required by s 282(3) of the 1998 Act.
The applicant relies on what was said by the Court of Appeal said in Tan v National Australia Bank Ltd[14] in respect of the ambit of s 289 of the 1998 Act to remove the jurisdiction of the Commission to exercise its statutory powers with respect to a dispute if the claim was not made in exact accordance with s 260 of the 1998 Act or guidelines.
[14] [2008] NSWCA 198 at [76]-[88] (Tan).
The applicant submits that in the current case, the most that could be said about the claim was that it is defective.
The applicant submits that the Commission in this case has jurisdiction to hear the dispute as to whether or not she has suffered an injury.
The applicant submits that, contrary to the respondent’s submission that she must show a diagnosable psychological condition, she must show whether or not she has suffered an injury. That is, is there a physiological effect? That does not mean physical symptoms but means, is there an interference with function?
In this regard the applicant referred to her statement dated 30 August 2024, and Dr Rastogi’s reports dated 16 May 2026,[15] 1 March 2022 (x2).[16] and 28 February 2024 (x2). These documents set out the continuing symptomatology from which the applicant suffers. That is also supported by the late material lodged by the respondent in the form of clinical notes of the Active Family Medical Centre.[17] In an entry dated 16 July 2021 Dr Moussad records complaints of anxiety symptoms, bullying at work, insomnia, palpitation, lack of concentration, counselling and referral to psychologist for further counselling. Reference to those symptoms appear subsequently throughout the clinical notes four years after the initial event. These symptoms are supported by the histories recorded by Dr Rastogi, and what is recorded in the COC attached to the ARD. The applicant cited a certificate dated 14 June 2022, a year after the event,[18] in which the general practitioner, Dr Moussad records a diagnosis of “Anxiety disorder”, and certifies no current capacity for any work from 13 June 2022 until 10 July 2022. This is a DSM diagnosis. The applicant experienced ongoing physiological effects and continuing trauma over that period.
[15] ARD p 61.
[16] ARD p 48.
[17] AALD 14 November 2024 p 46.
[18] ARD p 293.
The applicant submits that Dr Chivaurah, who examined her on 23 September 2021 and reported on 6 October 2021,[19] has the disadvantage that the doctor has not been able to take into account the long lasting continuing effects of this condition and the extent of the of symptomatology suffered for over a period of three years. The applicant submits that if the doctor had been made aware of that, his opinion would be quite different.
[19] Reply p 6.
In respect of the date of injury, the applicant submits that what was found by Griffiths AJA in Haddad, that the date of injury is the date from which a worker first suffered incapacity for work, should not be accepted. Whether the matter falls to be determined under s 15(4) or s 16(3) of the 1987 Act, the date of injury is the date on which the claim for lump sum compensation was made. The applicant submits that impairment creates injury, and that under the Guidelines there can be no impairment until MMI is reached and WPI assessed.

The applicant submits that this case falls to be decided in accordance with what was commented upon by Griffiths AJA in Haddad about the case of SAS Trustee Corporation v O’Keefe.[20] That is, there is an incapacity, and at a later time there is impairment. The applicant submits that such situation fits the facts in Alto Ford Pty Ltd v Antaw[21] and Stone v Stannard Brothers Launch Services Pty Ltd.[22] In this case, the applicant notes that she has another injury to her hand which seems to be incapacitating in any event. In Stone, Mr Stone had an entitlement to compensation in any event. However, in Stone as Handley JA and Hodgson JA pointed out (not referred to by Griffiths AJA in Haddad), that ultimately did not matter. Where there is a permanent impairment, it gives rise to its own considerations.
[20] [2011] NSWCA 326.
[21] [1999] NSWCA 234.
[22] [2004] NSWCA 326 (Stone).
The applicant does not dispute that she suffered an incapacity from July 2021, when she was paid for a small number of weeks. The applicant submits that, in accordance with what was found in Inghams Enterprises Pty Ltd v Thoroughgood,[23] the incapacity has to result in an entitlement to compensation, and there has been no determination as to what the incapacity was at that time, and whether it was a compensable incapacity. It is clear from Thoroughgood that an incapacity has to be one which gives a right to weekly compensation. That is not determined.
[23] [2014] NSWCA 166 (Thoroughgood).

Respondent

The respondent deals firstly with the applicant’s submissions about the distinction between an employer and an insurer, and the requirement that, while a claim must be made on an employer, there is nothing in the legislation that requires that same claim be made on an insurer.
The respondent does not cavil with that analysis of the provision, but that it is incorrect to submit that the time to determine the claim had run out when one looks as s 281 of the 1998 Act. There is no dispute that the claim was made on the employer on 11 March 2024, but there was a claim made on a different insurer, (EML), on the same date.[24] Nothing turns on that, according to the respondent, apart from an obvious inference the respondent asks the Commission to draw the inference that the applicant’s representative knew that EML was not the correct insurer on risk.
[24] Reply p 29.
The applicant’s submission is that the time to determine the claim ran out after two months from the date the claim was made on the employer on 11 March 2024, that is 11 May 2024. However s 281(2)(b) provides that a claim must be determined within two months after the claimant has provided to the insurer all relevant particulars about the claim. The respondent submits that all relevant particulars were not provided to the insurer until 1 August 2024,[25] meaning that the time within which the claim must have been determined did not expire until 1 October 2024. The respondent submits that the inference must be drawn that the reference to “insurer” in that subsection must be the correct insurer, and this must be considered in the context that the applicant knew that GIO was the correct insurer for this psychological injury claim.
[25] ARD p 40.
The respondent rejects the applicant’s submission that the time to determine the claim ran out on 11 May 2024, and submits that the time to determine the claim expired on 1 October 2024, being two months from when the particulars of the claim were provided to the correct insurer.
The respondent submits that the requirement highlighted by the applicant as to the obligation on an employer to who receives a claim, within seven days after receiving such claim, to forward it to the employer’s insurer[26] is not relevant to the issue as to when a claim must be determined.
[26] Section 264 (1) of the 1998 Act.
The Reply, lodged within the two month period from 1 August 2024, did raise an issue about MMI and did raise a dispute about whether the claim had been made properly.[27] This is acknowledged by the applicant.
[27] Reply p 1.
The respondent notes that pursuant to s 288(1) of the 1998 Act, only a claimant may refer a dispute a dispute about lump sum compensation to the Commission. The respondent also notes the conditions provided for in s 289(3) of such Act which must be complied with before a dispute about a claim for lump sum compensation can be referred for determination by the Commission. The respondent submits that the applicant commenced proceedings for lump sum compensation before 1 October 2024, which was the date by which the applicant’s claim was to be determined, that is two months after the relevant particulars about the claim were supplied to GIO on 1 August 2024.
The respondent refers to s 319 of the 1998 Act, acknowledging that the dispute between the applicant and respondent is a “medical dispute” as defined therein, but submits that          evidence to satisfy (f) and (g) of that definition is lacking, that is:
“(f)     whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”
The respondent refers to the decision of Deputy President Bill Roche in Woolworths Ltd v Stafford[28] on the issue of whether a valid claim for compensation has been made, and submits that, absent a valid claim, there can be no referral of the matter to a Medical Assessor for assessment.
[28] [2015] NSWWCCPD 36 (Stafford).
The respondent notes s 260(1) of the 1998 Act, providing that a claim must be made in accordance with the applicable requirements of the Guidelines, and to s 260(2)(d) which mandates that such Guidelines may make provision for the information that a claim is to contain.
The respondent submits that the applicant has not complied with Part 8.1.1 of the Guidelines in that the reports of Dr Rastogi do not contain a statement about whether the applicant’s condition has reached MMI. The respondent submits that whether the applicant has reached that state cannot be inferred from Dr Rastogi’s reports, noting that while the Doctor says that Ms Boyd is suffering from “worsening anxiety”, she does not say that the applicant’s condition is stable.
The respondent submits that Dr Rastogi does not say that the degree of permanent impairment is fully ascertainable. This is a different element of assessment of the medical dispute. The statement of Dr Rastogi that impairment is permanent is a different question as to whether the degree of permanent impairment is fully ascertainable.
The respondent acknowledges the decision of the Court of Appeal in Tan, which dealt with the question as to whether the Commission had jurisdiction to deal with a claim that had not been made properly. The respondent submits that a different issue faces the Commission in this case, that is, whether the claim is capable of being paid upon referral to the Commission.
The respondent submits that the current matter is similar to what was decided in cases such as Stafford, Sukkar v Adonis Electrics Pty Limited,[29] and Abou-Haider v Consolidated Wire Pty Ltd.[30] In those cases it was found that the applicant had not reached the required threshold to establish an entitlement and it was found that the Commission could not make a referral of a worker for assessment because there was no compensation payable in respect of the claim made.
[29] [2014] NSWCA 459 (Sukkar).
[30] [2010] NSWWCCPD 128.
In this case there is a claim that can’t be valid because it omits a very important part of what is required by the Guidelines and therefore it is a claim that is not capable of being referred for assessment and not capable of being paid. The three cases abovementioned were all determined after Tan.
In respect of the issue of injury itself, the respondent submits that it is misleading to talk of the physiological effect of a condition on a worker in the absence of a diagnosable psychological or psychiatric disorder. A simple description of symptoms is meaningless in the absence of such a diagnosis.
The respondent refers to the diagnosis of the treating general practitioner, Dr Moussad, in Certificates of Capacity of “anxiety disorder” and the report of Dr Moussad dated 2 November 2021[31] in which the doctor refers to Ms Boyd suffering from “severe anxiety symptoms and possible post traumatic stress disorder.”
[31] ARD p 270.
The respondent relies on the diagnosis of Dr Chivaurah in his report dated 6 October 2021 in which he records that he could not find consistent evidence of a diagnosable psychiatric condition.
In respect of the issue of date of injury, the respondent submits that, based on the Court of Appeal decision of Haddad, the date of injury is 15 July 2021, the date from which the applicant was incapacitated and was paid compensation. Dr Moussad has continued to certify Ms Boyd as incapacitated for work.

Applicant in response

The applicant submits that in respect of what Dr Moussad says in his report dated 2 November 2021, the possibility only of post-traumatic stress disorder is mentioned, together with severe anxiety symptoms. The definition of “psychological injury” in s 11A(3) of the 1987 Act is that of a psychological or psychiatric disorder, which extends to include the physiological effect of such a disorder on the nervous system. The is clear evidence that the applicant has been suffering from such effect for a long period of time.
In reply to the respondent’s submission that the question that MMI cannot be determined when a person’s condition is deteriorating, the applicant submits that this is contrary to a long line of medical appeal decisions. The question is “are they going to improve?”, not, “are they going to get worse?”
The applicant emphasises the obligation on the employer under s 281(1) of the 1998 Act to make a determination within the time required by the section in respect of the claim. There is no evidence of the respondent employer in this case forwarding the applicant’s claim on it to its insurer as provided for in s 264 of the 1998 Act. The applicant also emphasises the obligation placed on the person on whom the claim is made to take the action prescribed in s 289(3). In this case, it is the respondent.
The applicant distinguishes the situation in the current proceedings from that before the three cases, including Sukkar, relied on by the respondent, referred to in [52] above. In those cases, a claim could not be pursued because no compensation was payable in respect of the degree of permanent impairment claimed by the worker because it was below the relevant threshold. In the current matter a 17% WPI assessment would, if accepted, entitle the applicant to be paid compensation for permanent impairment.
In respect of the respondent’s submissions on Tan, the applicant submits that non-compliance with the Guidelines in that case did not deprive the Commission of jurisdiction to hear the matter. Similarly, apparent non-compliance with the Guidelines should not deprive the Commission to hear the current proceedings.

Respondent

As a final clarification of an earlier submission the respondent made, it emphasises that it is not suggesting that the claim for compensation should have been made on the insurer, rather that time for determination of the applicant’s claim should not run until the insurer had been supplied with relevant particulars of the claim.

FINDINGS AND REASONS

Legislation

The 1987 Act

Section 11A(3) provides:
“‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

The 1998 Act

Section 264(1) provides:
“(1) An employer (not being a self-insurer) who receives a claim or any other documentation in respect of a claim must, within 7 days after receiving the claim or documentation, forward it to the employer's insurer.”
Section 281 and notes thereto provide:
“(1)    The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by--
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2)     A claim must be so determined--
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
Note--: Section 283 makes failure to comply with this section an offence. Section 78 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.
(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.
(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.
(3)     An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.
(4)     If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted.
(5)     An employer is not required to determine a claim as provided by this section if--
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.
Note--: A claim forwarded to the insurer is taken to have been made on the insurer.
(6)     This section does not apply to a claim for work injury damages in respect of the death of a person, except as the Workers Compensation Guidelines may otherwise provide.”
Section 282(1) is not reproduced as there is no issue that the particulars of the applicant’s claim supplied to the respondent on 11 March 2024 and GIO on 1 August 2024 were not “relevant particulars about a claim” as described in that subsection.

Section 288 (1) provides:
“(1) Any party to a dispute about a claim may refer the dispute to the President for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.”
Section 289(3) and note thereto provide:
“(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note--: The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim”
Section 319 provides:
“In this Act--
‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Part 8: Lump sum compensation, of the Guidelines relevantly provides:
“8.1 Relevant particulars about a claim
Section 282(1) of the 1998 Act states that ‘the relevant particulars about a claim’ are full details that enable the insurer (as far as practicable) to make a proper assessment of the claimant’s entitlement. Section 282(1)(g) allows these Guidelines to specify any further relevant particulars about a claim.
8.1.1 For injuries received on or after 1 January 2002
The assessor’s report must include:
• a statement about whether the condition has reached maximum medical improvement
• an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment).”

Injury

The applicant commenced work with the respondent in 2012 and first saw Dr Rastogi on 16 May 2016 in respect of events at work from April 2014 to March 2016. There are two copies of a report of Dr Rastogi dated 16 May 2016 attached to the ARD, produced following the examination om 16 May 2016.[32] Ms Boyd does not discuss what occurred in her employment at that time in the two statements in evidence dated 30 August 2024 and 12 February 2022,[33] and the history of what occurred is taken from that recorded by Dr Rastogi. The applicant does not rely on whatever occurred at work at that time in support of her current claim. It is mentioned to put the opinion of Dr Rastogi in historical context.
[32] ARD pp 61 and 70.
[33] ARD pp 1 and 4.
On 16 May 2016 Dr Rastogi diagnosed the applicant as suffering from Generalised Anxiety Disorder which qualified for a DSM V diagnosis, and expressed the opinion that Ms Boyd’s employment with the respondent was a substantial contributing factor to her injury.
Dr Rastogi recorded that the applicant returned to work on modified duties, working five hours a day, five days a week, but had ongoing anxiety for which she needed ongoing treatment. The doctor said that restrictions needed to be in place at work for the applicant to function. She needed to be reintegrated back to her premorbid role with support and restrictions.
Dr Rastogi next saw the applicant on 15 March 2022 and produced the two reports dated 1 March 2022 [sic].[34] In the principal report of that date the doctor refers to the earlier work injury, noting that Ms Boyd was offered a normal position of offloading trucks in a full-time role in which she continued until 15 July 2021. She then initiated workers compensation for psychological injury associated with bullying, liability for which was denied in a s 78 notice. Dr Rastogi records in detail the history of the incidents relied upon in support of the applicant’s current claim.
[34] ARD pp 48 and 59.
Dr Rastogi notes that the applicant was on medication of Endep and Panadeine Forte, continued to see her psychologist monthly. The doctor also records the previous history of generalised anxiety disorder in 2016 following alleged bullying and harassment at Costco, and the resumption of work after a few weeks off. There is also a history of grief counselling and eight weeks off work following the death of her daughter in 2018, by suicide, and recovery enough to resume work and function in her job. There is also recorded the history of the suicide of Ms Boyd’s husband “…a few years ago…” from which she was able to move on.

Dr Rastogi diagnosed the applicant as suffering from adjustment disorder with anxious distress, a new episode with workplace bullying and harassment. When asked for an opinion on the causation of her psychological injury, Dr Rastogi said:
“Given the history, documentation and her statement as well as previous examination, I am of the opinion that her employment with Costco was a substantial contributing factor to her psychological injury. At the time of this episode she had made a recovery from her precious episode and was not on any treatment. She has suffered from a previous adjustment disorder associated with workplace bullying and sexual harassment but had resumed work in full capacity at the time of her injury and was not on any treatment reflecting she had recovered from the previous episode.”[35]
[35] ARD p 54.
Dr Rastogi was asked to review the report of Dr Chivaurah dated 6 October 2021, referred to above at [7]-[9], and said at [8]:
“I have reviewed the report of Dr Chivaurah and based on my own assessment as well as reviewing the other documentation , I maintain the opinion that your client is suffering from an adjustment disorder with anxious distress as a result of work related incidents.”
Noting that the applicant’s psychological condition pre-dated disciplinary action taken by the employer, Dr Rastogi was asked if she agreed that the applicant’s condition was wholly or predominantly caused by the bullying and harassment to which she was subjected, the doctor said at [9]:
“She was experiencing anxiety, insomnia, self-doubts with loss of confidence as well as became socially withdrawn since January 2021 following the cumulative incident of bullying, alienation and exclusion as well as being exposed to verbally abusive behaviours occurring over period of time. The disciplinary action was the last straw to negative events occurring since 2020 leading to psychological decline. Hence the bullying and harassment she was subjected to was the predominant cause of her psychological condition.”
In the supplementary report dated 1 March 2022 Dr Rastogi assessed the applicant as having sustained 15% WPI as a result of the diagnosed Adjustment Disorder with anxious distress which she said was a permanent disability.
In her report dated 28 February 2024 following re-examination on that day, Dr Rastogi reviewed the applicant’s progress since 15 March 2022 and diagnosed worsening of adjustment disorder with increase in anxiety triggered by financial losses, vocational losses, fear of physical deterioration with severity of pain, and inability to have appropriate physical treatment. She said of Ms Boyd:
“She feels trapped by acute anxiety, losing confidence and developing a sense of nihilism. She reports being discriminated and dismissed. Her resilience and motivation continue to deteriorate as her physical functioning is also deteriorating. She holds a poor prognosis now.”
In the supplementary report dated 28 February 2024 Dr Rastogi assessed the applicant as having sustained 17% WPI as a result of the diagnosed Adjustment Disorder with anxious distress which she said was a permanent disability, that is, the same diagnosis and opinion as to the permanency of the disability as expressed in 2022 with an increase in the degree of WPI.
The problems experienced by the applicant as recorded by Dr Rastogi are corroborated by what Ms Boyd says in her statement dated 30 August 2024.
The applicant’s treating general practitioner, Dr Moussad, issued a COC in respect of the applicant’s psychological condition covering the period from 16 July 2021 to 9 November 2021 which are in evidence.[36] In each of those certificates the doctor diagnoses “Anxiety disorder” as a result of bullying at work with a stated date of injury of 15 July 2021.
[36] ARD pp 275-309.
The clinical notes of Dr Moussad of the Active Family Medical Practice are in evidence and referred to above at [34]. These corroborate the presentation of the applicant to Dr Rastogi, and the diagnosis of Dr Moussad in the COC.
The respondent relies on the report of Dr Chivaurah dated 6 October 2021, produced following one Telehealth consultation with Ms Boyd on 23 September 2021. His diagnosis is set out in [7] above. The respondent submits that, given the proximity of that examination to the date on which the applicant ceased work on 15 July 2021, Dr Chivaurah’s diagnosis is likely to be more accurate, and should be accepted. I do not accept this submission. Dr Rastogi was in the best position to assess the applicant, having seen her on three occasions over the period from 2016. His finding as to injury as a result of occurrences in the workplace leading up to 15 July 2021 is supported by the symptoms recorded by Dr Moussad, and corroborated by the applicant’s own undisputed evidence.
Section 11A(3) of the 1987 Act defines psychological injury, which term extends to the physiological effect of such disorder on the nervous system. Such effects are amply demonstrated by the applicant’s evidence.
I find that the applicant has sustained a diagnosable psychological or psychiatric injury arising out of or in the course of her employment with the respondent, as required by s 4 of the 1987 Act.

Has the applicant reached MMI?

The respondent submits that the opinion of Dr Rastogi cannot be accepted on the issue of whether the applicant has reached MMI, because such is not stated in her report as required by Part 8.1.1 of the Guidelines set out at [71] above. The issue of whether apparent non-compliance with the Guidelines, and if that prevents the applicant’s claim from being properly made, will be discussed hereunder. However, it is first necessary to determine if Dr Rastogi’s opinion on the permanency of Ms Boyd’s disability as a result of the diagnosis of Adjustment Disorder with anxious distress means that her condition has reached MMI.
The respondent also points to items (f) and (g) in the definition of “medical dispute” in s 319 of the 1998 Act, that is, whether the impairment is permanent, and whether the degree of permanent impairment is fully ascertainable.
The applicant does not give details of the “long line of medical appeal decisions” referred to in [59] above. However, I accept the applicant’s submission that the question is “are they going to improve?”, not, “are they going to get worse?”
Dr Rastogi recorded the worsening of the applicant’s condition between 2022 and 2024, with an increase in the degree of assessed WPI. That is of itself evidence that MMI has been reached. In 2024 Dr Rastogi noted that the applicant continued to see her psychologist monthly, showed deterioration in resilience, motivation, and physical functioning, and held a poor prognosis. She assessed 15% WPI in 2022 and 17% WPI in 2024. The degree of permanent impairment was fully ascertainable by the doctor on those two occasions. It is fair to infer from Dr Rastogi’s assessment and prognosis that her impairment is permanent, and that the degree of permanent impairment was fully ascertainable on the two occasions of examination. The prognosis is poor.
I find that the applicant’s impairment is permanent and that the degree of impairment is fully ascertainable.

Compliance with the Guidelines

The respondent submits that Dr Rastogi should have included in her report(s) a statement, using the words in the Guidelines, that is a “statement about whether the condition has reached maximum medical improvement”. The respondent submits that the use of the word “must” in Part 8.1.1 mandates this. I do not agree. The applicant submits that the use if the word “about” in determining whether the condition has reached MMI is significant. I acknowledge this submission.
Dr Rastogi answers “Yes” to “Permanent impairment” (emphasis in original) in the tables in the two supplementary reports dated 1 March 2022 and 28 February 2024. When this answer is considered along with the diagnosis, deteriorating state of the applicant from 2022 to 2024, and the poor prognosis, I do not accept that Dr Rastogi was obliged to state in actual words that the applicant’s condition had reached MMI.
I find that Dr Rastogi finds that the applicant’s condition has reached MMI.

Apparent non-compliance with the Guidelines

The applicant submits that the most that could be said about her claim is that it was defective as a result of non-compliance with the Guidelines.
In the event that I am incorrect in the finding in [96] above, consideration should be given to what the Court of Appeal said in Tan when commenting on the predecessor to the (current) Guidelines.
At [76]-[79] of Tan, the Court (Basten JA, Bell JA and Young CJ in EQ) said:
“76    Despite the prescription of the statutory regime, the ambit of s 289 does not go so far as to remove the jurisdiction of the Commission to exercise its statutory powers with respect to a dispute if the claim was not made in exact accordance with s 260 of the WIM Act or guidelines such as the WorkCover Provisional Liability and Claims Guidelines dated December 2001 (the Guideline).
77     Mason P in Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244 at [39] said that:
‘... nowhere within s 289 does one find any clear toehold for an argument that... the Commission lacks ‘jurisdiction’ to exercise its statutory power with respect to a dispute if the disputed claim was not in accordance with the Guidelines. These provisions do not state that any or all failures to comply with the Guidelines might preclude the Commission from embarking on its task, in accordance with the statutory regime.’
78     It must be remembered too that s 354(1) of the WIM Act provides that:
‘(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.’
79     There is no requirement that notification of a claim needs to be articulated in the statutory language of an ‘injury’ ‘or an ‘aggravation’ Lack of strict compliance with s 260 and the Guidelines therefore does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.”
If there has been a defect in the way in which the applicant’s claim was made as a result of a failure of Dr Rastogi to include in her report that the applicant’s condition had reached MMI, I find that such defect does not prevent the applicant from bringing her case before the Commission.

Supply of particulars of the claim for lump sum compensation to the respondent/insurer

The correct insurer of the respondent in this matter for the purpose of the applicant’s claim is GIO.
The applicant was, or should have been, aware of this when all relevant particulars about the claim were provided to the respondent on 11 March 2024. This is apparent from [18] of Ms Boyd’s statement dated 12 August 2022,[37] the s 78 notice dated 25 October 2021, and s 287A review notice dated 16 November 2021.
[37] ARD p 5.
All relevant particulars of the applicant’s claim were supplied to GIO on 1 August 2021.
The respondent submits that, in accordance with s 281(2) of the 1998 Act the time for determination of the applicant’s claim did not expire until 1 October 2021. Therefore, pursuant to s 289(3), the applicant’s dispute about a claim for lump sum compensation cannot be referred for determination by the Commission.
The applicant however submits that s 289(3) requires that the person on whom the claim is made to take the actions referred to in (a)-(c) of that sub-section. That person in this case is the respondent on whom the claim was made on 11 March 2024. The applicant further submits that the liability to take such actions remained with the respondent as there is no evidence before the Commission that the respondent took the action it was obliged to take under s 264(1). That is, within seven days after receiving the applicant’s claim, forward it to its insurer.
The respondent submits that the applicant knew GIO was the correct insurer and did not make the claim on the insurer until 1 August 2021, therefore time for determination of the claim did not commence to run until that date.
As noted in [63] above, the respondent emphasises that it was not suggesting that the claim for compensation should have been made on the insurer, rather that time for determination of the applicant’s claim should not run until the insurer had been supplied with relevant particulars of the claim
In my view, the applicant’s submission in this regard should be accepted. Until the respondent employer notified GIO of the applicant’s claim, the obligation remained on it to determine the applicant’s claim. This is notwithstanding the applicant’s knowledge that GIO was the correct insurer. There is no evidence before the Commission that the respondent complied with its obligation under s 264(1) of the 1998 Act.
I find that in this case the time for determination of the applicant’s claim commenced to run with the service on the respondent of the applicant’s claim on 11 March 2021. The applicant was not therefore prevented from bringing her claim before the Commission.

Date of injury

For the reasons outlined in [36]-[38] above, the applicant submits that the date of injury should be the date that the claim was made, that is 11 March 2024. The respondent submits that the date of injury, in accordance with what the Court of Appeal decided in Haddad, must be 15 July 2021, representing the first date of incapacity in accordance with ss 15 and/or 16 of the 1987 Act.
Following Haddad, the issue of the correct date of injury for the purpose of a claim for lump sum compensation where there has been an earlier period of incapacity resulting from the same injury as that for which the lump sum compensation is claimed, has been the subject of decisions in the Commission. These are:
(a) Ellis v Dontarna Pty Ltd,[38] a decision of Principal Member Harris, and
(b) Razmovski v NIB Health Funds Ltd,[39] a decision of Member Isaksen.
[38] [2024] NSWPIC 513 (Ellis).
[39] [2024] NSWPIC 540 (Razmovski).
More recently, Mr McManamey appeared for the applicant worker before me in a case of Gray v United Disability Care Pty Ltd,[40] in which the same issue was raised.
[40] (2024) 22 November 2024 (unreported) (Gray).
In this case Mr McManamey sought to rely on the same arguments and submissions he made in Gray in support of his submission that the date of injury should be the date that the claim was made, 11 March 2024.
In both Ellis and Razumovsky the members of the Commission, consistent with what was decided by the Court of Appeal in Haddad, found that the date of injury for the lump sum claims in those cases was the date of first incapacity. In Gray, I made a determination on the date if injury consistent with the findings of the Court of Appeal in Haddad (Griffiths AJA, Kirk JA and Stern JA concurring), Principal Member Harris in Ellis, and Member Isaksen in Razmovski.
I repeat what Griffiths AJA said at [80]-[81] of Haddad, Griffiths AJA said:
“80. As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81. It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.”
In the current proceedings Dr Moussad first saw the applicant on 16 July 2021 for a stated date of injury of 15 July 2021. The applicant confirms at [45] of her statement dated 12 February 2022[41] that she had been off work since 15 July 2021. The applicant concedes incapacity from that date, with receipt of weekly benefits for a period thereafter. The applicant has been incapacitated for work since 15 July 2021.
[41] ARD p 11.
The applicant submits that pursuant to s 15(4) or s 16(3) of the 1987 Act, there is a separate date of injury when the claim for permanent impairment is lodged. For the reasons I gave in Gray, I do not accept this submission.
I find that the date of injury is 15 July 2021.

SUMMARY

The Commission has jurisdiction to hear the applicant’s claim.
The applicant’s claim for lump sum compensation was properly made.
The applicant sustained psychological injury on 15 July 2021 arising out of or in the course of her employment with the respondent.
The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of psychological injury on 15 July 2021.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    AALD lodged by the respondent on 14 November 2024 with the clinical records of Active Family Medical Centre as of 25 October 2024 attached.

[2024] NSWPIC 668

3 December 2024