Brown v Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v Toll Transport Pty Ltd [2025] NSWPIC 346
APPLICANT:	Nathan Brown
RESPONDENT:	Toll Transport Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	17 July 2025
DATE OF AMENDMENT:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 4(b)(ii); primary psychological injury being an aggravation of secondary psychological condition resulting from earlier physical injury; whether primary psychological injury ongoing; incapacity; whether applicant has current work capacity with respect to accepted injury to right eye and secondary psychological condition; Held – the applicant sustained a primary psychological injury however the effects of that injury had ceased; as the effects of the injury had ceased prior to the commencement of the claim for weekly compensation no award is made with respect to this injury; the applicant has no current work capacity with respect to the accepted injury to their right eye and consequential psychological condition; the respondent to pay the applicant weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury however the effects of that injury had ceased by 2 April 2024. As the effects of the injury had ceased prior to the commencement of the claim for weekly compensation no award is made with respect to weekly compensation with respect to this injury. 2. The applicant has no current work capacity with respect to the accepted injury to his right eye and consequential psychological condition. 3. The respondent to pay the applicant weekly compensation as follows: (a) at the rate of $2,523 per week from 20 January 2025 to 30 March 2025, and (b) at the rate of $2,569.60 per week from 1 April 2025 to date and continuing. 4. The parties have liberty to apply within 14 days should further orders be necessary with respect to the payment of weekly compensation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained an injury to his right eye on 11 October 2022 when he rubbed his eye with his hand that had been contaminated with ammonium nitrate. As a result of this injury, the applicant also suffers from a secondary psychological condition. Liability with respect to both injuries is accepted however the extent of incapacity resulting from those injuries is in dispute in these proceedings, the respondent having made a work capacity decision reducing his weekly entitlement to nil.
Additionally, the applicant alleges that following his return to work with the respondent he developed a separate primary psychological injury resulting from what he perceived as bullying behaviour towards him by colleagues and that he had a separate incapacity as a result of that injury. Liability for the separate primary psychological injury is disputed by the respondent.

ISSUES FOR DETERMINATION

The applicant is seeking weekly compensation from 20 January 2025 under s 37 of the Workers Compensation Act 1987 (the 1987 Act).
The parties agree that the applicant’s indexed pre-injury average weekly earnings (PIAWE) for the relevant periods is as follows:
(a) From 20 January 2025 to 30 March 2025:
(i)PIAWE - $3,230, and
(ii)Maximum statutory rate - $2,523.
(b) From 1 April 2025
(i)PIAWE - $3,240, and
(ii)Maximum statutory rate - $2,569.60.
The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a primary psychological injury;
(b)    whether any incapacity results from any primary psychological injury (if found);
(c)    whether the effects of the injury to the applicant’s eye and a secondary psychological injury are ongoing, and
(d)    whether any incapacity results from the primary injury to the applicant’s eye and secondary psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing before me on
16 June 2025 by MS Teams. The applicant was in attendance represented by Mr Robison of counsel instructed by Mr Santone. The respondent was represented by Mr Davis of counsel instructed by Ms Bauer. Mr Clarke of the self-insured respondent was also in attendance.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional documents dated 12 June 2025 filed by the applicant;
(d)    Application to Lodge Additional documents dated 11 June 2025 filed by the respondent (subject to exclusions set out below), and
(e)    Application to Lodge Additional Documents dated 20 June 2025 filed by the applicant (providing complete copy of incomplete report in early material).
With respect to the respondent’s Application to Lodge Additional Documents dated
11 June 2025 it was agreed that pages 116 to 180 of the attachments were not pressed and accordingly they are not introduced into the proceedings. Otherwise the balance of the additional documents are introduced into the proceedings.

FINDINGS AND REASONS

Did the applicant sustained a primary psychological injury?

The applicant submits that the interactions he had with his co-workers upon return to work caused him a primary psychological injury independent of the accepted injury to his eye.
The applicant submits that the low mood or adjustment disorder has not been aggravated but was rather caused by his employment with the respondent although the injury is pleaded as an aggravation injury in the alternative.
The respondent submits that the psychological symptoms complained of by the applicant result from the accepted injury to his eye and are thus secondary and that the applicant has not established a separate primary psychological injury.
The applicant accepts that he carries on onus in establishing injury. In the Application to Resolve a Dispute the injury is pleaded first as a disease injury and in the alternative an aggravation et al[1] of a disease condition.
[1] Where I have referred to aggravation et al this should be taken to be a reference to “aggravation, acceleration, exacerbation or deterioration”.
In order to establish a disease injury, in accordance with s 4(b) of the 1987 Act, the applicant must establish that he contracted the disease in the course of his employment and that the employment was the main contributing factor to contracting the disease.
In order to establish an aggravation et al of a disease, in accordance with s 4(b)(ii) of the 1987 Act, the applicant must establish the aggravation et al occurring in the course of employment and that the aggravation et al was the main contributing factor to the aggravation et al.
Aggravation et al was considered in detail in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. If employment contributes to a worsening of symptoms this will be an aggravation even if only temporary and even where there is no worsening of the underlying medical condition.
As it was in contest between the parties during the arbitration hearing it is necessary to deal briefly with the factual background to the pleaded primary psychological injury.
The applicant states that he returned to work in mid-December 2022 however had ongoing difficulties and was then placed on suitable duties within the respondent’s yard.
The applicant states that when he was on suitable duties other employees were making fun of him and his injury. They were trying to have a laugh and he took it personally. He was made to feel embarrassed and still thinks about it a lot. This became worse in October 2023 when others found out that he was not going back to driving. He still had to wear goggles and other employees would pick on him and call him “Goggles” and ask if he needed a seeing eye dog. He did not want to be the butt of jokes, and it made him feel worthless.
The applicant states that while he was finding it tough coping with the effects of the eye injury he was keen to work and thought he was getting back on track but the abuse he suffered at work because of his injury was devastating. It rocked his confidence and the comments made him feel worthless and an outsider.
In a statement of 2 April 20204, Ms Bennett, who describes herself as an office all-rounder, states that the applicant had mentioned that he was called “Goggles” but that he wasn’t going to make a big deal out of it, although she is not in the yard and has limited interaction with the drivers.
In a statement of 6 March 2024, Patrick Martin, a training advisor with the respondent stated that he had never witnessed anyone making fun of the applicant when he returned on suitable duties. He states that the applicant instigated the name “Googles” himself as his previous nickname had been “Giggles”. Mr Martin denies he bullied the applicant when he returned to work.
Having regard to the statement evidence of the applicant, Ms Bennett and Mr Martin I am satisfied that upon his return to work on suitable duties the applicant was called “Googles” by coworkers. That is this is a real event which occurred in the workplace. While the respondent submitted that this is something that was instigated by the applicant this is largely immaterial. It is not necessary for me to find that the applicant was subjected to bullying behaviour in an objective sense. It is the applicant’s perception of those events which is important.
It is only the applicant who is able to give evidence as to his subjective reaction to these events. He states that he left embarrassed and worthless and that he lost his confidence. This is supported by contemporaneous clinical records from treating psychologists which I have considered further below.
The applicant gives evidence that he had previously been diagnosed with post-traumatic stress disorder but at the time of his injury this condition was stable. He gives evidence that he had no previous diagnosis of low mood or adjustment disorder.
The applicant states that his medication Venlafaxine was increased from 75mg to 150mg when he began experiencing suicidal thoughts following his workplace injury.
The applicant relies on the qualified opinions of Dr Peter Whetton, psychiatrist, dated
15 January 2025 and 25 March 2025. Dr Whetton noted that the applicant ceased work in January 2024. At that time he was frustrated, upset and distressed by ‘everyone picking on me’. He was sleeping poorly and unable to turn his mind off what was happening at work.
Dr Whetton took a detailed history including with respect to psychological trauma prior to employment with the respondent, the initial eye injury and the interpersonal conflict the applicant experienced upon his return to work following the eye injury.
Dr Whetton considered the applicant presented with significant psychiatric symptoms conceptualised as a chronic adjustment disorder with anxiety and depression and with somatic preoccupation. He noted the background history of complex trauma.
Dr Whetton expressed the opinion that the eye injury and the ramifications from it (being the reported bullying and harassment) have been a substantial contributing factor to his injury. That is the psychological injury is due to the bullying as well as the primary eye injury and its consequences.
The respondent relies on the qualified opinion of A/Professor Davies dated 22 April 2024 and two subsequent reports dated 26 May 2025 and 6 June 2025.
A/Professor Davies considered the applicant was suffering from a “complicating secondary depression, which is a direct result of the continuing disability resulting from his corneal injury”. He noted that psychiatric conditions are the result of the interconnectedness of a series of factors and not just one. He noted that the applicant did not emphasise the bullying allegations. He noted, from a hypothetical perspective, that if there had been teasing and bullying “I would have regarded this as an aggravating factor, not as a separate illness”.
The applicant has undergone considerable psychological treatment both before and following the injury to his eye, initially with Dr Katrina Burchell and then additionally with Alix Bilton. He was treating concurrently by both psychologists.
When the applicant saw Dr Burchell on 10 February 2023 she noted that he was working in the yard and finding the workers compensation process frustrating but rated his mood as 7/10 which he was happy with.
However, when he saw Dr Burchell on 26 April 2023 he reported that the respondent had been supportive but his colleagues had not “contributing to a ‘toxic’ environment”. He rated his mood as 6-7/10.
On 7 July 2023 the applicant reported to Dr Burchell that he “continued to find that his colleagues are unsupportive and judge him for this”. He also reported other issues related to his eye injury and pre-existing issues unrelated to his employment. Dr Burchell described his mood as flat.
On 16 August 2023 the applicant reported to Dr Burchell “he is still receiving poor treatment and comments from some unsupportive colleagues”.
On 17 November 2023 the applicant reported to Dr Burchell that,
“most colleagues continue to give him a hard time or ignore him. Finds it very difficult that people at work appear to not believe him about his injury and don’t understand the impact it is having on him. These experiences at work are adding additional stress and impacting significantly on his MH [mental health].”
On 8 December 2023 Dr Burchell records that he is now restricted to driving 15 minutes and work is 29 minutes away. He can’t do much at work due to the ongoing eye issues and this has been very stressful for him. Sleep has been difficult as he worries about the impact on his future and stressed by finances. He knows he needs to be more active but it is hard with physical restrictions.
In an initial consultation with Alix Bilton on 12 January 2024 its recorded “Gets called names at work – goggles, people tell him hes putting it on”. “it eats me up”. In the same consultation however there are significant records of other difficulties in the applicant’s life which are a direct result of the injury to his eye and ongoing pain.
When the applicant next saw Dr Burchell on 2 February 2024 it was noted that he was not working. He had had a recent driving test and all his licences were suspended. He discussed financial worries.
When the applicant saw Alix Bilton on 13 February 2024 its recorded:
“reported some very bad days; very low mood due to pain, dizziness, very poor sleep due to racing mind, social withdrawal to avoid discussing injury and others talking about their problems (finds this very distressing), struggling with not driving and loss of independence along with work identity, has been selling items due to reduced income and wife has taken on more work. Uncertainty about capacity for work, financial strain.”
On 8 March 2023 Dr Burchell recorded that the applicant was finding his pain hard to manage. He felt “not believed again by WC” regarding pain levels. He had poor sleep and felt lost unable to do activities he did prior.
The records of Alix Bilton contain an email dated 2 May 2024 containing the applicant’s thoughts after attending an assessment with a neuro ophthalmologist who the applicant states couldn’t find a basis for his ongoing symptoms. The email indicates concern with how to deal with people thinking he is making it up, providing for his family in the context of having lost his job and the impact this has on his family.
Having regard to the reports of Dr Whetton and A/Prof Davies together with the records of
Dr Burchell and Alix Bilton it is evident that the significant injury to his eye has had a substantial impact on his day to day life, ability to undertake previously enjoyable activities and to provide for his family into the future. There is no dispute that these impacts have led to the development of a secondary psychological condition although there isn’t agreement as to whether it is an adjustment disorder or depressive condition.
For the reasons set out above I am also satisfied that on his return to work the applicant experienced a degree of perceived interpersonal conflict which he has characterised as bullying. It is evident from the records of Dr Burchell and Alix Bilton that this was a predominate concern for him from mid to late 2023 and early 2024 and led to a worsening of his psychological symptoms at that time. That is the applicant suffered an aggravation in the sense discussed in Federal Broom. This is not an aggravation secondary to the physical effects of the eye injury but the applicant’s perception of external events following his return to work. These events arise entirely out of the applicant’s employment with the respondent and his employment was the main contributing factor to the aggravation.
For these reasons I find that the applicant sustained an aggravation injury within the meaning of s 4(b)(ii) of the 1987 Act, the injury being a primary psychological aggravation injury.

Does any incapacity results from any primary psychological injury and is it continuing

The applicant ceased work when suitable duties were withdrawn by the respondent and these stressors of the interpersonal conflict were no longer present from that time. When the applicant saw Alix Bilton on 13 February 2024 his complaints and symptoms were related again to the secondary effects of the eye injury rather than the interpersonal workplace conflict. This is consistent with the applicant’s presentation when he was examined by
Dr Davies on 2 April 2024 where he regarded the applicant as suffering from a complicating secondary depression “which is a direct result of continuing disability resulting from his corneal injury”.
I note the opinion of Dr Whetton. However Dr Whetton has not considered the contemporaneous records nor attempted to disentangle the impacts of the secondary condition and the primary aggravation injury.
On this basis, I find that by 2 April 2024 the effects of the primary aggravation injury had ceased superseded by the increasing psychological impact of the secondary psychological condition resulting from the physical effects of his eye injury.
The Application to Resolve a Dispute only pleads a claim for weekly compensation from
1 January 2025. However the applicant submitted he may have further entitlements depending on the findings made with respect to the primary psychological injury and that this could be resolved between the parties “administratively”.
As I have found that the effects of the primary psychological injury had ceased prior to the period from which weekly compensation is claimed in the pleadings I make no award with respect to weekly compensation for the primary psychological injury.

Whether the effects of a primary injury to the applicant’s eye and a secondary psychological injury are ongoing and applicant’s entitlement to weekly compensation

On 18 November 2024 the respondent issued a work capacity decision, the effect of which reduced the applicant’s entitlement to weekly compensation with respect to these accepted injuries to nil. This decision was maintained on review.
The respondent made a decision that:
(a)    the applicant had capacity to work 8.5 hours per day, five days per week. This was said to be based on a functional and vocational assessment completed by the Workers Health Centre om 5 December 2023 and 11 January 2024 and agreed to by Dr Harry Stern (ophthalmic surgeon) and A/Prof Davies;
(b)    the role of Motor Vehicle Parts Interpreter and sales assistant were identified as suitable employed, and
(c)    it was assessed the applicant could earn between $1,064 and $3,230 per week in this suitable employment.

The applicant states that in May 2024 he was diagnosed with post-traumatic neuropathic corneal pain. The applicant continues to use eye drops and ointment and has been told further treatment options are limited. Vision from his left eye is variable. He still has blurred vision and he still gets a burning sensation in his left eye and dryness.
In terms of capacity, Dr Wechlser in a report of 15 August 2023 reported that the applicant’s dry eye syndrome had resulted in accumulation of mucous on the tear film resulting in variable vision which makes him unfit to drive a truck.
Dr Stern reported on 2 October 2024 that the applicant had glare problems since the injury, pain and eye strain, irritation, intermittent blurry vision and a migraine twice weekly. He is able to watch television for 10 to 15 minutes per day, use a computer for five minutes per day and a smartphone for one hour per day. He did not consider the examination of the left eye supported his history of very marked photophobia.
In terms of capacity for employment, Dr Stern considered he would need to wear protective safety glasses and not work in dusty conditions. He considered he would work as a truck driver (building up hours over time). He also considered the applicant could undertake office duties for two or more hours per day with suitable small rests. He accepted that motor vehicle parts and sales assistant were good vocational options.
From a physical perspective the applicant, as he confirmed during the arbitration hearing, remains without a licence.
It is evident from the medical evidence including that of Dr Stern and Dr Hollenbach that the extent of the applicant’s ongoing complaints with respect to the eye are not explained by clinical evidence and objective testing however he continues to subjective report a sensitivity to light, dry eye, discomfort, difficulty with peripheral vision and intermittent blurred vision.
I noted before the parties during the arbitration hearing which was conducted by video conference and lasted more than three hours, that the applicant was wearing dark sunglasses as he had done during the preliminary conference. This was consistent with his reported photosensitivity and difficulty in using a computer screen over a prologued time.
The respondent has also put before the Commission a large volume of surveillance material. In this material the applicant is also consistently wearing dark sunglasses.
I accept the applicant’s evidence with respect to his ongoing subjective complaints, particularly with respect to photosensitivity and this is supported both by the surveillance material and my observations during the preliminary conference and arbitration hearing.
For the reasons which I come to below, I have not made findings with respect to whether motor vehicle parts interpreter or sales assistant are suitable employment options for the applicant however I would have concerns given his need to wear dark sunglasses in him being suitable for any kind of customer facing role and consider that his capacity with respect to his physical injury to his eye is significantly reduced. This is consistent with the opinion of Dr Manca that there are not realistic alternative work options for the applicant.
From a psychological perspective, the applicant states that he is continuing to experience suicidal thoughts which have recently gotten worse. He feels constant disassociation. He experiences panic attacks two to three times per week which can be brought on by unwanted phone calls or going out. He struggles to be independent. He has difficulty with sleep suffering from insomnia.
Dr Davies expressed the view that there were no psychological barriers to the applicant returning to his pre-injury duties.
The applicant’s general practitioner had certified him fit for suitable duties up to 3 May 2024 however since that time he has been certificated as totally unfit for any employment. This is important as Dr Armoury had accepted the roles identified in the vocational and functional assessment in early 2024 but his assessment of the applicant’s capacity had changed when a certificate of capacity was issued by him on 3 May 2024 and the applicant has been certified totally unfit for any employment through until dated 7 January 2024 which covers a period through to 7 April 2024.
The 3 May 2024 attendance explains the downgrade in capacity noting mood has significantly worsened, primarily due to pain. This change in mental state is discussed above with reference to the email with Alix Biton on 2 May 2024.
Dr Davies saw the applicant on 2 April 2024, one month prior to his worsening condition being recorded by his general practitioner. As such, I do not consider Dr Davies is in a position to provide an opinion as to the applicant’s capacity for employment in January 2025.
When considering whether the applicant has a current capacity for employment it is necessary to consider the totality of his incapacities, that is both the physical injury to his eye and the secondary psychological condition. While I considered that his capacity as a result of his physical injury is significantly reduced, I am not satisfied that the applicant has a current capacity for employment with respect to his psychological condition. I have made this finding having regard to the evidence of:
(a)    Dr Armoury, as the general practitioner with an ongoing relationship with the applicant, and who has continued to certify him as unfit from May 2024;
(b)    Dr Burchell, as the applicant’s long term treating psychologist, who noted as at
5 December 2024 ongoing self-harm;
(c)    Alix Bilton who noted on 27 September 2024 that there has been no meaningful change and on 19 September 2024 noted a discussion on level of functioning and the need to focus on doing things around his pain but that barriers were more physical than motivational, and
(d)    Dr Whetton who considered the applicant to be totally unfit for work noting that with his unstable mental state the applicant was for practical purposes unemployable.
I have not placed weight on the opinion of Dr Davies who examined the applicant prior to his significant deterioration in May 2024.
Having found that the applicant has no current work capacity, it is not necessary to consider the balance of the work capacity decision and there will be an award in favour of the applicant for weekly compensation from 20 January 2025 to date and continuing.
Eighty per cent of the agreed PIAWE is greater than the prescribed maximum statutory rate and therefore the applicant will be entitled to the maximum statutory rate.

SUMMARY

For the reasons set out above, I make the orders as set out in the attached certificate of determination.

[2025] NSWPIC 346

17 July 2025