Bunnings Group Limited v Harrison
[2025] NSWPICPD 74
•21 October 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Bunnings Group Limited v Harrison [2025] NSWPICPD 74 |
APPELLANT: | Bunnings Group Limited |
RESPONDENT: | Kayley Jane Harrison |
INSURER: | Wesfarmers Retail Holdings Pty Ltd |
FILE NUMBER: | A1-W29565/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 21 October 2025 |
ORDERS MADE ON APPEAL: | 1. The name of the appellant (the respondent below) is amended wherever it appears to “Bunnings Group Limited”. 2. Leave to appeal the interlocutory decision dated 15 April 2025 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 3. Determination [3] of the Member’s Certificate of Determination dated 15 April 2025 is amended to read: “3. For the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, the date of the applicant’s primary psychological injury is 6 April 2022.” 4. Order [6] of the Member’s Certificate of Determination is amended to read: “6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 April 2022 (deemed). Body parts: psychological. Method: whole person impairment.” 5. The Member’s Certificate of Determination is otherwise confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – approach to be taken in considering alleged errors of fact – State of New South Wales v Culhana [2025] NSWCA 157 applied – s 15 of the Workers Compensation Act 1987 – deemed date of injury – Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 applied – s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – s 261(6) of the 1998 Act – awareness of injury not relevant when awareness of injury pre-dates the deemed date of injury – s 261(4) of the 1998 Act – whether delay in making the claim for compensation was occasioned by ignorance, mistake or other reasonable cause |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Ainsworth, solicitor | |
| Hall & Wilcox Lawyers | |
| Respondent: | |
| Mr A Parker, counsel | |
| Nikolovski Lawyers | |
DECISION UNDER APPEAL: | Harrison v Bunnings Warehouse [2025] NSWPIC 152 |
MEMBER: | Ms K Garner |
DATE OF MEMBER’S DECISION: | 15 April 2025 |
INTRODUCTION AND BACKGROUND
Ms Kayley Harrison (the respondent) (the applicant below) commenced proceedings in the Personal Injury Commission (the Commission) claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychological injury alleged to have been a “disease” injury in accordance with s 4(b)(i) of the 1987 Act, with a deemed date of injury pleaded as 21 July 2021. The date the respondent claimed compensation for her primary psychological injury was 8 November 2023.
The appellant disputed the respondent’s entitlement to compensation on the basis that:
(a) the respondent did not sustain a psychological injury arising out of or in the course of her employment in accordance with s 4 of the 1987 Act;
(b) the respondent’s employment was not a substantial contributing factor to any psychological or psychiatric disease injury or the aggravation, acceleration, exacerbation or deterioration of the disease as required by s 4(b)(i) and (ii) of the 1987 Act;
(c) the respondent did not suffer from a permanent impairment;
(d) the respondent’s psychological condition was secondary to her physical injury and not a primary psychological injury, and
(e) the respondent failed to provide notice of her injury and make a claim for compensation within the time frames set out in s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The dispute proceeded to conciliation and arbitration. The issues identified as remaining in dispute were:
(a) whether the respondent sustained a primary psychological injury in the nature of a disease, arising out of or in the course of the employment and whether the employment was the main contributing factor to the injury;
(b) whether the respondent sustained a primary psychological injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease in the course of the employment, and whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease;
(c) the identification of the date of injury for the purpose of assessment and quantification of the respondent’s entitlement to payment of permanent impairment compensation;
(d) whether the claim was precluded by operation of s 254 of the 1998 Act;
(e) whether the claim was precluded by operation of s 261 of the 1998 Act, and
(f) the extent and quantification of the respondent’s entitlements to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act.
The Member determined that:
(a) the respondent suffered a primary psychological injury in the form of a disease;
(b) the respondent’s employment was the main contributing factor to the disease;
(c) the injury was not an aggravation of a disease;
(d) for the purpose of the assessment and quantification of the respondent’s entitlement, the date of the primary psychological injury was 15 October 2023, and
(e) the respondent’s claim and entitlement to compensation was not precluded by operation of ss 254(1) and 261(1) of the 1998 Act.
The appellant appealed the Member’s decision, asserting that the Member erred in fact, law or discretion in her findings that:
(a) the deemed date of injury was 15 October 2023;
(b) the time that the respondent first became aware that she had received an injury was 1 September 2022 (s 261(6) of the 1998 Act);
(c) the failure to give notice of injury and make a claim for compensation was occasioned by ignorance, mistake or other reasonable cause (s 261(4) of the 1998 Act), and
(d) the operation of s 261 to preclude compensation would result in an injustice.
The respondent lodged a Notice of Opposition to the appeal and also a Notice of Contention in the event that the Member was found to be in error, asserting that the Member’s conclusions were correct, but for different reasons.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents and written submissions.
After the appeal was lodged, the New South Wales Court of Appeal (Bell CJ, Leeming, Kirk, McHugh and Free JJA) issued a decision in State of New South Wales v Culhana[1] in which prior authorities dealing with the function of a Presidential Member in determining errors of fact pursuant to s 352(5) of the 1998 Act were considered. The Court determined that the approach taken in those previous authorities (such as Workers Compensation Nominal Insurer v Hill,[2] Northern New South Wales Local Health Network v Heggie,[3] and particularly Raulston v Toll Pty Ltd),[4] was wrong.
[1] [2025] NSWCA 157 (Culhana).
[2] [2020] NSWCA 54.
[3] [2013] NSWCA 255 (Heggie).
[4] [2011] NSWWCCPD 25 (Raulston).
The parties to this appeal were provided with the opportunity to lodge further submissions in respect of the effect, if any, of that decision on this appeal. The appellant lodged its submissions on 6 August 2025, and the respondent lodged her submissions on 13 August 2025.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, including the submission that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The appellant asserts that the Member’s decision was not interlocutory in nature. The respondent submits that it is an interlocutory decision because the proceedings have not been finalised, but she does not object to leave to appeal being granted.
Subsection 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined.
The proceedings remain on foot and the respondent’s claim for lump sum compensation is yet to be determined. The decision, therefore, does not truly finally determine the rights of the parties.[5] It is thus an interlocutory decision.
[5] Licul v Corney [1976] HCA 6; P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87.
If leave is not granted, the matter will require assessment by a Medical Assessor. A Medical Assessment Certificate and subsequently a Certificate of Determination will be issued, before the appellant can appeal the decision. This would involve significant delay in the resolution of the proceedings, and, if the appeal was successful, the expenses and other resources utilised in conducting a medical assessment would have been wasted. I therefore grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the interlocutory decision.
The name of the appellant
The name of the appellant was identified as “Bunnings Warehouse”. The appellant advises that the correct description of the appellant is “Bunnings Group Limited”. I therefore amend the name of the appellant (the respondent below) wherever it appears to “Bunnings Group Limited”.
THE EVIDENCE
The respondent’s statements
The respondent provided a statement dated 20 March 2024.[6] She advised that she suffered work related physical injuries as a result of the repetitive nature of her work with the appellant and also suffered a psychological injury. She said that she began to experience psychological problems in about August 2020 when she became restless and irritable and would go home after work and cry. She added that the onset of physical injuries was in about August 2021.
[6] Application to Resolve a Dispute (ARD), pp 1–8.
The respondent described her work duties as a team leader in the appellant’s paint section, which was a busy department, especially during the COVID-19 period. She said that she was subject to the directions of her managers in respect of budgets, staffing and stock acquisition, but that most of the time she was providing customer service and advice, tinting paint and stocking shelves with various stock items, including 20 litre cans of paint.
The respondent indicated that during the COVID-19 period, most businesses were closed but the appellant remained open. She advised that customers suddenly went into a do-it-yourself frenzy because they wanted to do work around the home while they were in lockdown. She said that during that period, the appellant tripled its profits. The respondent indicated that the department was so busy that her workload and the pressure under which she worked dramatically increased, but management did not make any additional staff available, and it fell upon her to get the work done. She said that she made complaints to management about the lack of staff and the excessive workload, but management was unresponsive.
The respondent stated that she first experienced psychological symptoms in about July 2020, manifesting in feelings of being overwhelmed, crying at home and difficulty sleeping, as well as feelings of anxiety when she was on her way to work. She said that she became irritable and intolerant to her family, felt sad and felt as though she was failing in her duties. The respondent said that she advised her manager “Greg” that she was feeling overwhelmed. The respondent indicated that despite her difficulties she continued to work. She said she began to experience physical symptoms in her right elbow and then developed pain in her feet.
The respondent stated that she complained about her right elbow to her general practitioner on 21 July 2021 and ceased work on that day, with Certificates of Capacity issued by her doctor in respect of her right elbow and feet and the general practitioner later added her psychological issues. She added that she had complained to her general practitioner about her psychological state on 21 October 2020, which was long before the onset of her physical issues.
The respondent advised that her doctor referred her to Ms Ailsa Graham, psychologist, and Dr Sriram Thazhathaveetil, psychiatrist, and said that those practitioners explained to her that her psychological condition was due to work pressures and was not a consequence of her physical complaints.
The respondent described in detail the physical requirements of her work in the paint section and the development of her physical symptoms. She listed her ongoing psychological symptoms and the effect of her symptoms on her activities of daily living.
The respondent provided a supplementary statement dated 14 February 2025.[7] She gave details of the shift and staffing arrangements and the typical working day prior to the onset of the COVID-19 epidemic. She confirmed her evidence provided in the previous statement as to the significant increase in workload, the difficult customers and the lack of sufficient support during the COVID-19 period, and described the onset of symptoms of anxiety and depression.
[7] Respondent’s Application to Lodge Additional Documents (ALAD) dated 17 February, pp 4–8.
The respondent asserted that she did not receive any assistance from the appellant in respect of her psychological symptoms. She stated that she consulted Dr Murali Nagaraj, general practitioner, in respect of her psychological symptoms on 21 October 2020, who prescribed medication to assist with her sleep. She said that she persisted at work until she ceased because of her physical (elbow) injury.
The respondent indicated that she was referred to the STEPP pain management program and during her sessions with the psychologist, she realised that her psychological symptoms were a result of her feelings about how she was treated by the appellant and the significant stress she was under during the COVID-19 period. She said that she was then referred to Dr Thazhathaveetil.
The respondent stated that she had been showing signs of depression and anxiety from as early as 2020, well before her physical injuries. She said that at that time she felt overworked and had a sense of abandonment, which she reported to her doctor in October 2020.
The respondent observed that the appellant appeared to say that it was not aware of her psychological injury. She referred to Certificates of Capacity that were provided, which she said did not indicate that her psychological injury was an injury in itself. She attributed that omission to her doctor not understanding the significance of her psychological condition, which worsened over time. She added that the significance and the cause of the psychological injury was not obvious until she was advised by her psychologist and psychiatrist.
The medical evidence
Dr Murali Nagaraj, general practitioner
Dr Nagaraj’s clinical records were in evidence. On 21 October 2020, the respondent consulted Dr Nagaraj and complained of being stressed, anxious and depressed and experiencing poor sleep over the previous few months. Dr Nagaraj recorded that the main trigger appeared to be the introduction of a late shift once per week when the respondent was required to work until 11 pm and then start her shift the following day at 9 am. Dr Nagaraj prescribed medication and recommended the respondent take time off work. He recorded that the respondent indicated that she would speak to her manager about how her mental health was being impacted. He noted that the respondent may need a medical certificate.[8]
[8] Reply, p 90.
The respondent attended Dr Nagaraj for review on 26 October 2020. The respondent reported that she was feeling a little better and advised Dr Nagaraj that she would talk to her managers at work.[9]
[9] Reply, p 91.
The respondent consulted Dr Nagaraj again on 17 November 2020. Dr Nagaraj noted:
“Feeling very well.
Work has made some changes to the shifts and every one is rostered in to work and [not] just her. she has done a shift and it is not as bad. has got some extra help too
- no neck pains or headaches she used to get
at times has taken 1.5 tabs
- adv to stick to one tab
- euthymic
smiling a lot. spontaneous.
continue on one for at least 3/12 and then rev
sooner sos
Reason for visit:
Anxiety/Depression
Actions:
Dose of Escitalopram 20mg Tablet changed from ½ In the morning with meals to 1 Tablet In the morning with meals. Prescription printed: Escitalopram 20mg Tablet 1 Tablet In the morning with meals.”[10]
[10] Reply, p 91.
On 22 February 2021, the respondent reported to Dr Nagaraj that she wished to continue on Escitalopram (an antidepressant), work was “ok” and she was not under stress.[11]
[11] Reply p 91.
The respondent continued to consult Dr Nagaraj throughout 2021 and up to 31 January 2022 in respect of the onset of right elbow pain and pain in her feet. During that period, Dr Nagaraj prescribed Escitalopram at three monthly intervals on 27 May 2021, 16 August 2021 and 5 November 2021, and then again on 28 February 2022. Referral for pain management was discussed.[12]
[12] Reply, pp 92–100.
On 6 April 2022, Dr Nagaraj recorded that the respondent’s mental health was the main barrier to the respondent returning to work.[13] On 24 May 2022 Dr Nagaraj noted that:
“– MH diagnosis of exacerbation of anxiety and depression added - long chat about antidepressants - is on max escitalopram”.[14]
[13] Reply, p 101.
[14] Reply, p 102.
Ms Ailsa Graham, psychologist
The respondent first consulted Ms Graham on 20 February 2022 for psychological assistance. Ms Graham recorded a history of the respondent’s right elbow pain, which developed due to the increase in work pressure in 2020 during the COVID-19 period which she said was “disabling and affecting her mental health adversely”. Ms Graham noted that the respondent ceased work on 12 August 2021 because of the right arm/elbow pain. Ms Graham did not provide a history of psychological stressors in the workplace.[15]
[15] ARD, pp 112–113.
Ms Graham lodged an Allied Health Recovery Request dated 27 May 2022 bearing the workers compensation claim number 2022200540 and describing the respondent’s psychological condition as a “Major depressive episode.” She noted that the respondent’s level of depression and anxiety was extremely severe.[16]
[16] ARD, pp 67–71.
On 1 September 2022, Ms Graham recorded that the respondent blamed the appellant for her injury because her requests for help were ignored, she was pressured to work extra shifts, and the appellant did not provide additional staff support during COVID-19.[17]
[17] ARD, pp 84–85.
Dr Sriram Thazhathaveetil, psychiatrist
Dr Thazhathaveetil reported to Dr Nagaraj on 18 May 2023.[18] He took a history of the respondent having an elbow injury in the course of her employment with the appellant and suffering a deterioration of her mental health since then. He noted a prior history of depression seven years ago, which remitted without medication. He recorded that the respondent’s mood worsened as a result of work stress during the COVID-19 period and her mental health declined after her elbow injury.
[18] ARD, pp 37–38.
Dr Thazhathaveetil diagnosed the respondent’s symptoms as major depression. He described the respondent’s ongoing symptoms of depression and anxiety and considered that the respondent was not fit for work in employment for which she was qualified in terms of experience and training for the following six months.
On 28 November 2023, Dr Thazhathaveetil reported to Dr Nagaraj following a review of the respondent. He noted that the respondent was feeling anxious about receiving calls from her manager which she did not answer because they triggered memories of past bullying. He briefly noted the respondent’s symptoms and confirmed a diagnosis of major depression.[19]
[19] ARD, pp 151–152.
Dr Thazhathaveetil provided a report dated 26 October 2024 directed to, and at the request of the respondent’s legal representative.[20] He confirmed the diagnosis of major depressive disorder. He indicated that the respondent’s psychological injury commenced during the COVID-19 period and it was a result of increased workload and insufficient staff. He described her ongoing symptoms and said that the onset of symptoms commenced from 21 July 2020, and she consulted her general practitioner about those symptoms again in October 2020. He considered that the respondent’s employment was the main contributing factor to her injury.
[20] ARD, pp 61–62.
Ms Tamsin Lewthwaite, psychologist
Ms Lewthwaite wrote a report dated 22 August 2024 at the request of the respondent’s legal representatives directed to “To Whom It May Concern”.[21] She provided a diagnosis of recurrent severe major depressive disorder and generalised anxiety disorder. She confirmed that the respondent first attended her on 7 August 2023 and complained of ongoing psychological distress and anxiety which was closely connected to her experiences in the workplace. She indicated that the respondent’s wellbeing had been impacted by chronic pain, anxiety, depression and social isolation, with anxiety in public places, feelings of failure and difficulty completing tasks.
[21] ARD, pp 63–65.
Ms Lewthwaite was of the view that the respondent’s psychological injury was related to the events in the respondent’s workplace and impacted the respondent’s self-care, social functioning, and concentration. She advised that the respondent’s capacity for work was significantly impaired.
Dr John McMahon, psychologist
Dr McMahon was asked to assess the respondent on behalf of the appellant. He provided a report dated 9 August 2022.[22] He took a detailed history of the respondent’s right elbow injury and the treatment provided to her in respect of that injury, including that the respondent was referred to a pain specialist and that the respondent complained of constant pain in the elbow. He noted the respondent’s ongoing symptoms.
[22] Reply to Application to Resolve a Dispute (reply), pp 60–69.
Dr McMahon diagnosed the respondent as suffering from an aggravation of a persistent depressive disorder secondary to the pain associated with her elbow injury and aggravated by opiate medications which developed into a major depressive disorder secondary to the pain. In his opinion, the respondent was unfit for work because of her depressive condition.
On 3 June 2024, Dr McMahon provided an additional report in which he addressed further questions posed by the appellant.[23] He confirmed that the persistent depressive disorder with major depressive episodes was a “secondary psychological injury”, consequent upon her pain.
[23] Reply, pp 72–73.
Dr Naresh Verma, psychiatrist and occupational physician
Dr Verma assessed the respondent on 4 April 2024 and provided a report at the request of the appellant.[24] He recorded a history that the respondent’s mental health issues occurred at the time of the onset COVID-19 epidemic, and her initial concern was that she might contract the virus but she was also concerned in the context of the increased demand for purchasing paint. He said that she complained of increased pressure at work, increased hours, shortage of sufficient staff numbers and increased sales three to four times greater than the usual number so she was required to load and unload large additional quantities of stock on and off the pallets. Dr Verma noted that the respondent developed right arm symptoms and ceased work a few months later. He further noted that the respondent attributed her mental health issues to the stress associated with COVID-19, and being overworked with no assistance.
[24] Reply, pp 47–59.
Dr Verma recorded the respondent’s ongoing symptoms and treatment. He referred to the respondent having experienced anxiety eight years previously in relation to having to move house from Brisbane to Wollongong, which resolved when she recommenced work.
Dr Verma reiterated the history that the respondent’s mental health issues commenced during the COVID-19 period when she was extremely busy and overloaded at work without any support. He considered that she suffered from a major depressive disorder. He reviewed the referral by Dr Nagaraj to Ms Natali Lazaroski, psychologist, in which Dr Nagaraj solely referred to the respondent’s right elbow pain as the cause of the respondent’s mental health issues. He reviewed the report of Ms Felicity Slevin dated 10 August 2022, which also referred only to the right elbow pain as the source of the respondent’s mental health issues. He further noted that in the initial report of Dr Thazhathaveetil dated 18 May 2023, Dr Thazhathaveetil reported a sharp decline in the respondent’s mental health following the right elbow injury. Dr Verma also reviewed the letter of instruction from the respondent’s legal representatives to Dr Thazhathaveetil.
Dr Verma formed the view that:
“Based on all the available information including the history provided in the referral and her subjective account, it appears that major depressive disorder has been caused by the elbow injury which causes significant ongoing pain with functional limitation. The increased work pressure as a result of a very heavy workload during COVID caused stress rather than a psychiatric disorder. The heavy workload was a systemic issue affecting all staff rather than just her. There was no specific evidence provided of bullying.”[25]
[25] Reply, p 55.
Dr Verma said that he did not diagnose a primary psychological injury, and the respondent had not reached maximum medical improvement, so that an assessment of the respondent’s whole person impairment was not applicable.
Dr Frank (Kai Tai) Chow, psychiatrist
The respondent’s legal representatives arranged for the respondent to be medically examined by Dr Chow, an independent medical examiner, on 11 September 2023. Dr Chow provided a report dated 15 October 2023,[26] in which he assessed the respondent as having 24% whole person impairment as a result of a primary psychological injury.
[26] ARD, pp 26–32.
Dr Chow noted the history of the respondent’s increased heavy workload during the COVID‑19 period, including the lack of support staff and extended late night hours, abusive customers and the onset of symptoms in her elbow resulting from her work duties. Dr Chow took the history of continuing anxiety and depressive symptoms persisting after the respondent ceased work, recurrent nightmares, poor sleep, dreams of self-harm, significant weight loss and social isolation.
Dr Chow took a history of a previous onset of psychological symptoms requiring antidepressant medication some seven years beforehand, which remitted after a few months. He advised that antidepressant medication was prescribed in October 2022 because of the stressful events at work. He diagnosed the respondent as suffering from a major depressive disorder that resulted from excessive and unfair workload and lack of support. He considered that she was totally unfit for work.
THE LEGISLATION
Section 15(1) of the 1987 Act relevantly provides:
“15 Diseases of gradual process—employer liable, date of injury etc (cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 254 of the 1998 Act requires an injured worker to give notice of injury to the employer, (relevantly) as follows:
“254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
…”.
Section 261 of the 1998 Act provides time limits in which a claim for workers compensation is to be made. Relevantly, the section provides:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) …
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) …
(8) …
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
THE MEMBER’S REASONS
The Member identified the issues requiring determination and the applicable provisions in the legislation. She confirmed that no application for cross-examination was made and there was no oral evidence given. She summarised the respondent’s evidence and the statements made by the various other employees of the appellant, as well as the factual investigation report provided by Clarity Workplace Solutions dated 4 March 2024. She further summarised the clinical records provided by Albion Park Rail Medical Centre recorded by Dr Murali Nagaraj. She noted the evidence provided by the treating practitioners and the medico-legal experts, Dr Chow, Dr Verma and Dr McMahon.
The Member recorded a summary of the submissions made by the parties.
The Member turned to the question of whether the respondent suffered a primary psychological injury in the nature of a disease, or an aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to s 4(b)(i) or s 4(b)(ii) of the 1987 Act. She reproduced s 66(1), s 4, and s 65A of the 1987 Act and reviewed various authorities as to the test of “main contributing factor”,[27] the expression “aggravation, acceleration, exacerbation or deterioration of a disease”,[28] and what is required in order to establish a causal chain of connection between the employment and the injury.[29] The Member was satisfied that the respondent suffered a disease injury in the form of a primary psychological injury pursuant to s 4(b)(i) of the 1987 Act as a result of the additional workload and her perceived lack of support. As there is no challenge in this appeal to those findings it is not necessary to review the Member’s reasons for reaching those conclusions.
[27] AV v AW [2020] NSWWCCPD 9.
[28] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; Cook v Midpart Pty Ltd trading as McDonalds Forster [2008] NSWCA 151.
[29] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Comcare v Martin [2016] HCA 43; Attorney General’s Department v K [2010] NSWWCCPD 76.
The Member proceeded to determine the question of fixing a date of injury in accordance with s 15 of the 1987 Act. She reproduced the relevant provisions in that section and quoted passages from the Court of Appeal authorities of Inghams Enterprises Pty Ltd v Thoroughgood[30] and Haddad v The GEO Group Australia Pty Ltd,[31] noting that Snell DP applied those authorities in Razmovski v NIB Health Funds Ltd.[32] She observed that on the basis of those authorities, she was required to determine whether the respondent’s primary psychological injury resulted in incapacity and if so, the date of the occurrence of that incapacity and, in doing so, she was required to give regard to the particular facts of this case. She remarked on the complexity of the medical evidence in respect of the respondent’s various injuries and the incapacity flowing from those injuries.
[30] [2014] NSWCA 166 (Thoroughgood).
[31] [2024] NSWCA 135 (Haddad).
[32] [2025] NSWPICPD 9.
The Member referred to the entry in the treating doctor’s records dated 21 October 2020 in which it was noted that the respondent was experiencing psychological symptoms as a result of work pressure. She observed that that entry was consistent with the respondent having a primary psychological injury, but did not provide clear evidence of an incapacity at that time. She said no medical certificate or Certificate of Capacity was issued then, and it was evident that the respondent continued to work until 21 July 2021, when she had an incapacity for work referable to the elbow injury, and that was the date upon which she last worked. The Member noted that after that date, the respondent was certified as having an incapacity for work because of the elbow injury and subsequently because of psychological symptoms, which had been accepted by the appellant as a secondary psychological condition caused by the pain associated with her elbow injury.
The Member said that the first record of the respondent having psychological symptoms referable to the work pressures was in about August 2022, when the respondent underwent psychological treatment in the STEPP pain management program, and the psychologist recorded that the respondent suffered psychological symptoms caused by pressures at work during the COVID-19 period. The Member said that on 1 September 2022, Ms Graham recorded details of pressure at work and lack of support, about which the respondent was ruminating excessively, but Ms Graham did not comment upon the respondent’s capacity for work. The Member said that, at that time, there was medical evidence that the respondent had an incapacity for work because of a secondary psychological condition resulting from the elbow injury, rather than a primary psychological injury.
The Member referred to the report of Dr Thazhathaveetil dated 18 May 2023, who reported that the respondent was not fit for work for which she was suitably qualified and that, although he recorded a deterioration in the respondent’s mood due to stress at work during the COVID-19 period, he concluded that the respondent’s psychological symptoms emanated from the pain attributable to the elbow injury. The Member noted that from 4 August 2024, Dr Thazhathaveetil diagnosed the respondent as suffering from a major depression and the respondent was permanently incapacitated for work, but did not clearly identify that the primary psychological injury was the cause of that incapacity.
The Member observed that Ms Lewthwaite reported on 22 August 2024 that the respondent suffered from severe major depression related to the work pressures complained of by the respondent.
The Member said that the first clear evidence from a treatment provider of incapacity arising from a primary psychological injury was in the report of Dr Thazhathaveetil dated 26 October 2024, where Dr Thazhathaveetil attributed the major depressive disorder to the work pressures during COVID-19 with an onset of symptoms on about 21 July 2020. The Member noted that Dr Thazhathaveetil recorded that the respondent sought medical assistance for her depressive disorder from her general practitioner in October 2020 and that the respondent had no capacity for work, but did not offer a view of when the incapacity for work first arose.
The Member observed, however, that Dr Chow, who was qualified by the respondent to provide an independent opinion, reported on 15 October 2023 that the respondent had an incapacity for work as a result of a primary psychological injury. She said that Dr Chow did not identify the date upon which the incapacity arose. The Member considered that, on the basis of that evidence, and in the circumstances where there was no compelling evidence of incapacity for work resulting from the primary psychological injury prior to Dr Chow’s report, the respondent’s incapacity for work occurred on 15 October 2023. The Member determined in accordance with s 15(1) of the 1987 Act that the date of the primary psychological injury was 15 October 2023.
The Member turned to the question of whether the respondent’s claim for compensation was precluded by s 254 of the 1998 Act because of a failure by the respondent to give notice of her primary psychological injury. The Member noted that on 8 November 2023, the respondent served on the appellant a claim for permanent impairment pursuant to s 66 of the 1987 Act in respect of a primary psychological injury, citing a deemed date of 21 July 2021 and attaching the report of Dr Chow dated 15 October 2023. The Member said that, on the basis of that evidence, she was satisfied that the respondent had complied with s 254(1) of the 1998 Act by giving notice of her injury as soon as possible after the injury and before she had voluntarily left the appellant’s employ. The Member concluded that the respondent was not precluded from claiming compensation by s 254(1) of the 1998 Act.
The Member said that if that conclusion was erroneous, in any event she was satisfied that special circumstances existed in accordance with subss 254(2) and 254(3)(b) of the 1998 Act. She formed the view that the respondent’s failure to give notice of her injury was occasioned by ignorance, mistake or other reasonable cause. The Member observed that the respondent did give notice of a psychological injury which was accepted by the appellant as a secondary condition caused by pain arising from her elbow. The Member said that it was not until the respondent attended for pain management under the STEPP program that it became readily apparent that she suffered a primary psychological injury, and that it was some time later that an incapacity for work as a result of that injury became evident.
The Member concluded that she was satisfied that the respondent’s failure to give notice was occasioned by ignorance and mistake and that she was further satisfied that there was a reasonable cause for the respondent not having given notice at an earlier time. She added that the “somewhat unusual circumstances make it unjust for s 254(1) of the 1998 Act to preclude the [respondent’s] claim.”[33]
[33] Harrison v Bunnings Warehouse [2025] NSWPIC 152 (reasons), [154].
The Member proceeded to determine whether the respondent was precluded from claiming compensation because of the operation of s 261 of the 1998 Act. She referred to the earlier finding that the deemed date of injury pursuant to s 15(1) was 15 October 2023. She added that s 261(6) of the 1998 Act provided that, for the purpose of s 261, if an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is taken to have been received when the worker first became aware of the injury.
The Member noted that the respondent first reported her symptoms to her general practitioner on 21 October 2020 and complained of feeling overworked and unsupported at work. The Member further noted that, at that consultation, the general practitioner prescribed antidepressants and recorded that the main trigger for the symptoms was the directive to work until 11 pm, that there had been more stress recently and that the respondent may need a medical certificate.
The Member referred to the respondent’s evidence that she first realised her psychological symptoms were attributable to the stressors and pressure at work during the COVID-19 period when she attended the STEPP pain management program in 2022. The Member pointed to the evidence of Ms Graham recorded on 1 September 2022, that the respondent attributed her symptoms to the way she was treated at work and the respondent was ruminating excessively about the work issues. The Member observed that it was apparent that the respondent at that time was made aware of her primary psychological injury. The Member accordingly made a finding that, pursuant to s 261(6) of the 1998 Act, and for the purposes of s 261 of the 1998 Act, the primary psychological injury occurred on 1 September 2022.
The Member turned to consider ss 261(1) and 261(3) of the 1998 Act. She noted that in accordance with those sections, if the injury occurred on 1 September 2022, then the respondent was required to make a claim for compensation for the injury by 1 March 2023, that being six months from the date of injury. The Member said that the first claim for compensation for that injury was made on 8 November 2023 which meant that the respondent was precluded from claiming compensation unless she satisfied s 261(4) of the 1998 Act. She said that pursuant to s 261(4), a failure to make a claim within six months is not a bar to recovery of compensation if the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and the claim is made within three years after the injury happened.
The Member observed that as the date of injury was 1 September 2022 and the claim for compensation was made on 8 November 2023, the claim was clearly made within three years. The Member concluded that she was satisfied that the failure to make the claim was occasioned by ignorance, mistake, and other reasonable cause. The Member referred to the complexity of the medical evidence in respect of the primary psychological injury and incapacity arising from that injury, and the evidence that the respondent had made a claim for her psychological condition that was accepted by the appellant as a secondary condition. The Member said that it was not until the respondent commenced the STEPP pain management program that it became apparent that the respondent had a primary psychological injury and some time later an incapacity for work attributable to the primary psychological injury was identified.
The Member concluded that:
“I am satisfied on the balance of probability that the [respondent’s] failure to make the claim as required was occasioned by ignorance and mistake. Further, I am satisfied there is reasonable cause that the claim was not made at an earlier time and, that the particular and somewhat unusual circumstances make it unjust for s 261(1) of the 1998 Act to preclude the [respondent’s] claim.
Accordingly, I find that the exemption in s 261(4) of the 1998 Act is engaged and the [respondent] is not precluded from recovery of compensation by the operation of s 261(1) of the 1998 Act.”[34]
[34] Reasons, [171]–[172].
The Certificate of Determination issued on 15 April 2025 records:
“The Commission determines:
1. The [respondent] sustained a primary psychological injury in the course of her employment with the [appellant], in the nature of a disease, to which her employment was the main contributing factor, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act).
2. The [respondent] did not sustain a primary psychological injury in the course of her employment with the [appellant], in the nature of the aggravation, acceleration, exacerbation or deterioration of any disease, to which her employment was the main contributing factor, pursuant to s 4(b)(ii) of the 1987 Act.
3. For the purpose of assessment and quantification of the [respondent’s] entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, the date of the [respondent’s] primary psychological injury is 15 October 2023.
4. The [respondent’s] claim is not precluded by operation of s 254(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
5. The [respondent] is not precluded from recovery of compensation by the operation of s 261(1) of the 1998 Act.
The Commission orders:
6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 15 October 2023 (deemed).
Body parts: psychological.
Method: whole person impairment.
7. The materials to be referred to the Medical Assessor are to include:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) [respondent’s] Application to Lodge Additional Documents (ALAD) and attached documents dated 14 February 2025, and
(d) [appellant’s] ALAD and attached documents dated 5 March 2025.”
GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal, alleging that the Member erred in fact, law and/or discretion in finding that:
(a) Ground A: the deemed date of injury was 15 October 2023 for the purposes of section 15 of the 1987 Act;
(b) Ground B: the respondent first became aware that she had received an injury on 1 September 2022 for the purposes of section 261(6) of the 1998 Act;
(c) Ground C: the respondent’s failure to give notice of her injury, or make a claim in relation to it, within time was due to ignorance and mistake for the purposes of section 261(4) of the 1998 Act, and
(d) Ground D: the operation of section 261 of the 1998 Act would be ‘unjust’.
SUBMISSIONS
The appellant’s submissions
As to Ground A
The appellant refers to the Member’s conclusions that the respondent suffered a disease injury to which her employment was the main contributing factor resulting from the respondent’s perception that she was given an excessive workload and was not provided with sufficient support, particularly during the COVID-19 period. The appellant says that the Member applied s 15 of the 1987 Act, which meant that the respondent had suffered a disease of gradual process. The appellant submits that the Member did not provide any reasoning as to what that process was, but on the basis of her factual finding that the relevant disease was contracted by gradual process during the COVID-19 pandemic, the process contemplated by the Member appears to have been a series of traumatic events.
The appellant refers to Haddad and submits that the Member was required to consider when the respondent’s first incapacity occurred, which it says was the right approach. The appellant contends, however, that the Member then accepted that date to be 15 October 2023, which was the date Dr Chow completed his medical report. The appellant asserts that the correct date should have been 11 September 2023, when Dr Chow actually examined the respondent and formed his view in relation to the respondent’s incapacity.
The appellant points out that the history recorded by Dr Chow was that the respondent experienced workload difficulties including dealing with difficult customers with no assistance from her managers, causing her to become emotional and ultimately ceasing work. The appellant further points out that Dr Chow did not consider that the respondent became depressed or anxious because of her physical injury, but rather was overworked and burnt out. The appellant refers to Dr Chow’s observation that the respondent “remains” totally unfit for work, which the appellant says must mean that the respondent was unfit for work prior to the examination on 11 September 2023. The appellant adds that Dr Chow in fact provided a date of injury of 21 July 2021. The appellant asserts that, if the Member was reliant upon the opinion of Dr Chow in respect of the first date of incapacity, that date must be 21 July 2021. The appellant further points to the respondent’s own evidence that she first began to experience psychological symptoms in about July 2020, and that she considered that her incapacity from 21 July 2021 was at least partly attributable to a primary psychological condition.
The appellant indicates that the evidence discloses that the respondent was certified as having incapacity for work due to a secondary psychological condition for a period of time prior to making a claim for a primary psychological injury. The appellant refers to the evidence provided by Dr McMahon on 9 August 2022, where Dr McMahon noted that the respondent was not fit for work due to her depressive symptoms. The appellant asserts that, in the context of the Member determining that the respondent did not suffer from a secondary psychological condition, the Member erred by failing to take into account that evidence of the respondent’s incapacity.
The appellant refers to the Member having afforded weight to the clinical record of Dr Nagaraj dated 21 October 2020, in which it was noted that the respondent had taken a “few days” off and potentially needed a certificate. The appellant asserts that the Member failed to address that evidence and failed to consider whether it constituted evidence of incapacity, which, if it did, must be the first date of incapacity arising from the injury.
The appellant concludes that, in respect of fixing a deemed date of injury, it is illogical that a disease contracted in the course of employment in 2020 would not have caused any incapacity until September or October 2023, which was more than two years after the respondent ceased work. The appellant cites Haddad as authority to say that the question of incapacity is a question of fact, which is to be determined on the basis of the evidence. The appellant submits that the Member erred in law by approaching the issue on the basis that expert opinion as to incapacity was required instead of conducting an assessment of the facts. The appellant contends that the facts establish that the respondent’s incapacity must have commenced in July 2021.
As to Ground B
The appellant refers to the Member’s finding in respect of s 261(6) of the 1998 Act that the respondent first became aware of her injury on 1 September 2022, which was the date of a discussion between the respondent and her psychologist, Ms Graham. The appellant says that Ms Graham recorded that the respondent was dreaming about work and complained that the appellant ignored her requests for help when she was working under pressure. The appellant again refers to the note recorded by Dr Nagaraj on 21 October 2020 in respect of the respondent’s mental health and her complaints about stress at work. The appellant asserts that this clinical record more clearly demonstrates the respondent’s awareness of injury than the report of Ms Graham.
The appellant submits that the Member found that the respondent’s awareness of her injury arose two years after she experienced dreams about the workplace stressors, yet the respondent clearly attributed her mental health problems to her employment with the appellant on 21 October 2020. The appellant refers to the complaint made by the respondent to Dr Nagaraj about staffing issues and the notation that the respondent had commenced using antidepressant medication, that she was to take time off work and intended to raise with the appellant the effect of her shift work on her mental health. The appellant submits that that evidence clearly establishes that the respondent was aware of her injury at that time, and that, while the respondent may have remembered it some time later, that might be relevant to the question of whether the respondent had a “reasonable excuse”, but it could not be relevant to the question of when the respondent became aware of her injury.
The appellant indicates that the respondent said in her statement that she experienced psychological symptoms from July 2020, and she considered that those symptoms were attributable to “heightened pressures” at work.
The appellant asserts that at the latest, the respondent was aware of her injury from July 2020 when she reported her problems to her general practitioner, and submits that it is illogical to place reliance on the entry made on 21 October 2020 as the date the disease was contracted, but then make a finding that the respondent was not aware of her injury at that time. The appellant submits that the Member thus erred in fact and in the exercise of her discretion.
As to Ground C
The appellant refers to the Member’s finding in respect of s 261 that the respondent’s failure to make a claim was occasioned by ignorance or mistake. The appellant asserts that there was no evidence that the respondent’s failure to make a claim was a result of ignorance or that she had made a mistake. The appellant submits that the respondent’s own evidence was that she considered that she had suffered a psychological injury as a consequence of her employment from the time she first experienced symptoms in mid-2020 and that her treatment providers had explained to her the nature of that injury. The appellant adds that the respondent did not claim to have been ignorant of her right to claim compensation and did not suggest that she made a mistake in respect of her claim and did not make submissions to that effect.
The appellant asserts that, in the absence of any reasonable excuse for making a claim being put forward by the respondent and in the absence of any other evidence of reasonable excuse, the Member erred in finding that the failure to make the claim within the prescribed time was due to ignorance or mistake.
As to Ground D
The appellant refers to the Member’s conclusion that it would be unjust for the respondent to be excluded from claiming compensation and submits that s 261 is a statutory bar to the recovery of compensation and does not provide for any discretion on the part of the Member to take into account the interests of justice. The appellant asserts that, to the extent that the Member took that matter into account, she was not permitted to do so and thus erred at law.
The respondent’s submissions
As to Ground A
The respondent submits that the Member was correct to find a deemed date of injury of 15 October 2023, consistent with the approach taken in Thoroughgood and Haddad.
The respondent points out that the Member noted the complex nature of the task of ascertaining when (if at all) the respondent suffered an incapacity referrable to a primary psychological injury and provided a detailed summary of the conflicting opinions in relation to the respondent’s primary psychological injury, and its cause. The respondent says that the conflict was brought about by the interplay between the respondent’s accepted right elbow injury, her secondary psychological condition and her primary psychological condition when the respondent ceased work in July 2021.
The respondent submits that the Member adopted the date of Dr Chow’s report as it was the first date upon which the respondent’s incapacity was attributed to the primary psychological injury. The respondent submits that was an evaluative exercise that could only be disturbed pursuant to the principles enunciated in House v King.[35]
[35] [1936] HCA 40 (House v King).
The respondent asserts that this ground of appeal should be rejected because:
(a) the term “incapacity” as it appears in s 15(1)(a)(i) of the 1987 Act is dependent upon there being a satisfaction that there is an entitlement to claim economic loss, consistent with Haddad and Thoroughgood, and a psychological symptom does not always amount to an incapacity;
(b) the Member determined that the medical evidence from the treating practitioners, including that of Dr Nagaraj, did not deal with the extent or cause of the respondent’s incapacity from 21 October 2020, noting that the respondent did in fact work after that date;
(c) it was not until Dr Chow’s report was available that an incapacity resulting from a primary psychological condition that established an entitlement to claim for economic loss was positively identified;
(d) the Member did not consider that the question of fact posed by s 15(1)(a)(i) required expert medical opinion and in fact provided a reasoned pathway showing how the treating medical evidence was unhelpful in determining when the respondent’s incapacity resulting from her primary psychological condition arose;
(e) it was in that context that the Member formed the view that Dr Chow’s report was the most reliable evidence;
(f) the inference that Dr McMahon’s report dated 9 August 2022 established an incapacity arising from a primary psychological condition could not be drawn because Dr McMahon’s opinion was that the psychological condition was secondary to the physical injury, and
(g) contrary to the appellant’s submission that the Member failed to address the medical records of Dr Nagaraj and Dr McMahon’s report, the Member clearly addressed that evidence.[36]
[36] Reasons, [20]–[65]; [74]–[76]; [134]–[135].
The respondent submits that for all of those reasons, the Member was entitled to conclude as she did and the evaluative exercise perfumed by her cannot be impugned merely because opinions may differ, citing Raulston.
As to Grounds B, C and D
The respondent submits that these grounds assert error on the part of the Member in relation to the application of s 261 of the 1998 Act and involve the issues of when the respondent first became aware of having suffered a primary psychological injury, and whether any failure to make a claim was occasioned by ignorance, mistake or other reasonable cause and considerations of injustice.
The respondent contends that she does not concede that the Member erred in determining that, for the purposes of s 261(6), she did not become aware of her primary psychological injury until 1 September 2022. She expresses reliance on her Notice of Contention filed in this appeal and submits that s 261(6) does not apply in this case because it only applies where the awareness of injury occurs after the injury was “received.”
The respondent refers to the Member’s determination that the date of injury in accordance with s 15(1)(a)(i) was 15 October 2023, and submits, for the purpose of s 261, the focus had to be from that date and whether the claim was made within six months of that date. The respondent cites Gow v Patrick Stevedores[37] as authority to say that in those circumstances, there was no requirement to give consideration to the factors in s 261(4) because the claim was made on 8 November 2023 which was within the requisite six months.
[37] [2002] NSWCC 60 (Gow).
The respondent submits that, even if s 261(6) was found to be relevant and the respondent’s claim made on 8 November 2023 was out of time, the Member correctly applied s 261(4) of the 1998 Act.
The respondent refers to the appellant’s complaint in relation to “ignorance” and “mistake” and asserts that the complaint concentrates only on the absence of evidence to support those matters. The respondent contends that she did demonstrate evidence of “ignorance” and “mistake.”
The respondent adds that the appellant’s complaint is factually wrong and wrong at law. The respondent indicates that s 261(4) has wider application than that put forward by the appellant because any “other reasonable cause” provides an additional opportunity to overcome a delay in making a claim for compensation. The respondent refers to the Member’s finding that this case involved complexity in the medical evidence and there was confusion in relation to the appellant having decided that the respondent suffered from a secondary psychological condition. The respondent points out that the Member also found that the nature of the respondent’s condition was clarified when the respondent commenced the pain management program and that the Member considered that an unjust outcome would result if the respondent was precluded from receiving compensation. The respondent contends that these were all valid reasons that justified the delay being excused. The respondent adds that each of the Member’s findings were capable of amounting to ignorance, mistake and other reasonable cause and merely urging that a different conclusion should be reached was not sufficient, citing Northern NSW Local Health Network v Heggie.
The appellant’s submissions in reply
The appellant points to its grounds of appeal and asserts that the respondent has failed to address each of the errors of fact, law and discretion identified by it in the appeal. The appellant asserts that the respondent has misinterpreted the appeal and has construed it as an attempt to substitute an alternate interpretation of the evidence to that of the Member’s assessment. The appellant contends that, on a proper reading of its submissions, the respondent’s allegation has no basis.
The appellant refers to the respondent’s submissions that the appellant has not identified any foundation for the assertion that the Member failed to consider the evidence of Dr Nagaraj and Dr McMahon and that the Member did not require that s 15 (1)(a)(i) be addressed by expert evidence. The appellant submits that the Member determined that there was a primary rather than a secondary psychological injury and so evidence of incapacity as a result of a psychological injury, however opined, must be accepted by the Member as being evidence of incapacity as a result of a primary psychological injury.
The appellant refers to the respondent’s assertion that there was evidence of ignorance and mistake and submits that the respondent does not point to any such evidence, nor address that evidence.
The appellant further refers to the respondent’s submission that the inclusion of “other reasonable cause” provides for further excuses under s 261(4). The appellant submits that the word “or” before “other reasonable cause” means that it is in the alternative, and is thus, a separate basis upon which to determine that there was not a bar to recovery of compensation. The appellant contends that the Member did not rely on “other reasonable cause” but determined the matter on the basis of “ignorance” and “mistake”.
The submissions in respect of the effect of Culhana
The appellant’s submissions
The appellant refers to paragraph [91] of the decision in Culhana where Leeming JA said:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
The appellant indicates that the Court emphasised the breadth of the phrases “any error of fact, law or discretion” and “the correction of such error” found in s 352(5) of the 1998 Act.
The appellant submits that in accordance with Culhana, the arbitration was conducted on the basis of the papers and the Member had no advantage in her consideration of the evidence over that the Presidential Member would have. The appellant adds that in the consideration of this appeal and given the broad definition of “any error”, the Presidential Member will be satisfied that the errors identified by the appellant have been made out and will reach a different conclusion to that of the Member below on questions of fact and discretion and will also correct the identified errors of law.
The appellant refers to the respondent’s submissions in which she relied upon House v King, Heggie and Raulston and asserts that that approach was expressly rejected by the Court in Culhana. The appellant further refers to the respondent’s request that, in the event error is found, the matter should be “sent back for re-determination” and asserts that that would be contrary to Culhana, in that the Presidential Member “should give effect to reaching any different conclusion”.[38]
[38] Appellant’s submissions dated 6 August 2025, [3(d)].
The respondent’s submissions
The respondent concedes that the Court of Appeal in Culhana expressly rejected the approach taken in Raulston and says that she withdraws that submission. The respondent submits, however, that Culhana does not alter the position that error must be established and that Culhana says that if a Presidential Member formed the opinion that the Member below erred in a material way, and a different inference was preferred by the Presidential Member, the Presidential Member should intervene.
The respondent submits that Culhana supports the proposition that deference should be afforded to the position of the decision-maker below in circumstances where the decision-maker below had some advantage, such as from seeing a witness give oral evidence. The respondent asserts that Culhana does not alter the result in this case and Culhana and s 352 of the 1998 Act are not engaged because the Member’s findings were correct and there were no other inferences open for the Presidential Member to prefer.
The respondent asserts that the appellant has misunderstood the effect of Culhana and contends that there remains the requirement that error has to be established in order to disturb the Member’s decision, and it is not enough that the Member’s finding was open to her.
The respondent refers to the appellant’s submission that sending the matter back for re-determination was contrary to Culhana. The respondent submits that the appellant does not identify where in Culhana the Court made that finding and such a finding would be inconsistent with s 352 of the 1998 Act. The respondent asserts that Culhana affects the manner in which matters will be presented because the parties will need to give specific thought as to whether oral evidence is required. The respondent describes how this case would proceed in the event that error is established on the appeal.
The respondent contends that, if the appeal succeeds, then the matter should be remitted for a re-hearing so that the respondent could be given the opportunity to give oral evidence and/or cross-examine the appellant’s witnesses. The respondent says that she otherwise relies upon her substantive submissions already made.
The respondent’s Notice of Contention
The respondent indicates that the Notice of Contention is only pressed if the appellant’s appeal is successful. Given my conclusion reached in respect of the appeal, it is not necessary to deal with the respondent’s Notice of Contention.
THE RELIEF SOUGHT
The appellant seeks to have the appealed allowed and an award made in its favour. The respondent submits that the appeal should be dismissed, or, in the alternative, the Notice of Contention should be upheld. The respondent adds that, in the event that any of the appellant’s grounds of appeal are made out, then the matter should be remitted for re‑determination.
CONSIDERATION
Ground A: error of fact, law and/or discretion in finding that the deemed date of injury was 15 October 2023 for the purposes of section 15 of the 1987 Act
There is no challenge to the Member’s determination that the respondent suffered an injury in the form of a disease of gradual process in accordance with s 4(b)(i) of the 1987 Act. Section 15(1) of the 1987 Act provides that, in disease cases, the worker’s date of injury is deemed to be either the date of the worker’s death, or the date of the worker’s incapacity, or where there is no incapacity, the date upon which the worker makes the claim. The Member determined that the date of injury was 15 October 2023, which was the date upon which Dr Chow issued his report and provided an opinion as to the respondent’s incapacity resulting from her primary psychological condition.
Both the appellant and the Member referred to the recent decision of the Court of Appeal in Haddad in which the Court (Kirk JA, Stern JA and Griffiths AJA) made the following very relevant observations as to establishing the date of injury in a disease case:
“Putting to one side a claim relating to death, the operation of the two limbs of the deeming provision in ss 15 and 16 turns on whether or not there is an incapacity resulting from the injury..”[39]
“In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act. … [A] possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work.”[40]
“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.[41]
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”[42]
[39] Haddad, [50].
[40] Haddad, [72].
[41] Haddad, [80].
[42] Haddad, [105].
Where the disease does not result in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity, which is a question of fact, to be determined by the relevant evidence.[43] In determining whether the Member erred in concluding that the date of injury was 15 October 2023, I must follow the approach set out in Culhana. That is, the proper approach to take in respect of s 352(5) of the 1998 Act and the identification of error in the fact-finding process is that set out in Warren v Coombes[44] and Fox v Percy[45] and that it is not sufficient for an appeal to be dismissed because it was “open” to the Member to reach that conclusion. Thus, where the relevant fact is an inference to be drawn from the established facts, a Presidential Member is required to determine the correct outcome in respect of the relevant issue, while giving due allowance for any advantage the Member at first instance may have had.
[43] Haddad, [69].
[44] [1979] HCA 9 (Warren v Coombes).
[45] [2003] HCA 22 (Fox v Percy).
In the present case, there was no oral evidence given and the dispute was decided on the basis of the submissions of the parties at arbitration. In those circumstances, I do not consider that the Member had any advantage over a Presidential Member in terms of evaluating the evidence of the witnesses and reaching factual conclusions. I therefore need to determine whether the Member’s finding of the deemed date of injury was correct.
The appellant asserts that the date identified by the Member was wrong and the correct deemed date should have at least been 11 September 2023, which was the date that Dr Chow’s examination of the respondent took place. I note that if that date is accepted, then the date upon which the claim was made, which was 8 November 2023, was within the six months period provided for in s 261(1) and the defence mounted by the appellant that the claim was not made within the prescribed time falls away.
In the alternative the appellant refers to Dr Chow’s evidence that the respondent “remains” unfit for work and submits that Dr Chow in fact provided a date of injury of 21 July 2021, which was the date the respondent herself indicated was the date of incapacity that was attributable to her primary psychological injury (as well as her physical injury). The appellant submits that that date should be accepted.
Dr Chow took the history that the respondent last worked on 21 July 2021. He did not opine as to whether the incapacity from that date was referable to the respondent’s psychological condition or her physical injury or both. He noted the date of injury as 21 July 2021. It is unclear why he recorded that date and it may have been information taken from the respondent’s legal representative’s letter of instruction. It was not explained by Dr Chow and in any event, he did not offer that date as a date of incapacity for the psychological condition.
The appellant suggests that it is relevant that the respondent acknowledged that she experienced psychological symptoms in July 2020. In a disease case where the respondent worked on until July 2021, the experience of those symptoms at that time is not determinative of the date of injury.
The appellant submits that the Member erred by approaching the issue on the basis that expert opinion as to incapacity was required instead of conducting an assessment of the facts. The question of whether a worker has an incapacity is a factual determination and can be determined on the basis of lay evidence in certain circumstances but in this case, the respondent herself does not identify an incapacity arising from her psychological condition at the time she ceased work on 21 July 2021 and no other evidence points to the date of incapacity other than the medical evidence. The Member was not in error in taking that approach.
The respondent submits that the Member was correct to adopt the date of Dr Chow’s report as the date of incapacity as it was the first date upon which the respondent’s incapacity was attributed to the primary psychological injury. The respondent further submits that the inference that Dr McMahon’s report dated 9 August 2022 established an incapacity arising from a primary psychological condition could not be drawn because Dr McMahon’s opinion was that the psychological condition was secondary to the physical injury.
The appellant refers to the evidence of Dr McMahon provided in his report dated 9 August 2022 that the respondent was unfit for work because of her psychological condition and asserts that the Member did not take that evidence into account because Dr McMahon considered that the condition was secondary to the physical injury. I accept the submission by the appellant that the Member ought to have taken that evidence into account because it was evidence of incapacity flowing from the respondent’s psychological condition, which had been diagnosed by Dr McMahon as secondary to the physical injury but was found by the Member to be a primary psychological injury. The Member determined that the respondent’s psychological condition was a primary injury and not consequent upon the elbow injury.
Approaching the issue on the basis of the principles enunciated in Culhana, I am of the view that the evidence of Dr McMahon is sufficient evidence of an incapacity resulting from the respondent’s psychological injury, as was the earlier evidence provided by Dr Nagaraj recorded in the clinical notes on 6 April 2022 that the main barrier to the respondent returning to work was the respondent’s “MH”, which I infer is a reference to the respondent’s mental health.
It is evident that the Member erred in determining that the date of injury was 15 October 2023. In my view, the evidence from Dr Nagaraj dated 6 April 2022 is sufficient to show that the respondent had an incapacity flowing from her psychological injury on that date. If I am wrong by inferring that “MH” is a reference to Mental Health, I am also of the view that despite Dr McMahon considering that the respondent’s psychological condition was secondary to the physical injuries, his evidence that the respondent had an incapacity flowing from the psychological condition is sufficient to establish that by 9 August 2022, the respondent had an incapacity within the meaning of s 15(1) of the 1987 Act. Whether it was the first or second of those dates, it will not affect the outcome in this case because both fall within the requisite three years within which to make the claim, which was made on 8 November 2023. In the context of the Member’s finding that the psychological condition was a primary psychological injury and not secondary to the physical injury, the incapacity was a result of her primary psychological injury. Thus, the date of injury for the purpose of the respondent’s claim pursuant to s 66 is 6 April 2022.
Ground B: error of fact, law and/or discretion in finding that the respondent first became aware that she had received an injury on 1 September 2022 for the purposes of section 261(6) of the 1998 Act
This ground of appeal is awkwardly expressed, but I take it that the appellant asserts that the Member erred in determining that it was on 1 September 2022 that the respondent became aware of her primary psychological injury.
A determination of when the respondent first became aware that she had suffered an injury is also a factual determination and the principles set out in Culhana apply.
The concept of “awareness” was discussed in Unilever Australia Ltd v Petrevska.[46] In that authority, Tobias AJA observed:
“Awareness in s 261(6) requires the worker to be aware or to have knowledge of the fact that he or she has received the injury and that that injury arose out of or in the course of their employment. There are therefore two matters of which the worker must have actual knowledge.
Frank injuries do not cause a problem. The ones that do are those of gradual onset such as gradual loss of hearing (as distinct from instantaneous loss due, for instance, to an explosion next to one’s ear) and injuries such as mesothelioma or, possibly, a psychiatric injury depending upon its symptoms.
Knowledge of symptoms is insufficient as the sub-section requires awareness of the injury and its cause as matters of fact.
…
Of course, each case must depend upon its own facts and, in particular, on the type of injury alleged to have been received by the worker. What is clear is that in the case of injuries of gradual onset more than a mere belief or a suspicion is necessary for there to be relevant awareness. Mere awareness of symptoms is generally insufficient in such cases.”[47]
[46] [2013] NSWCA 373 (Petrevska).
[47] Petrevska, [41]–[44].
The Member in the present case found that the respondent was not aware of her primary psychological injury until 1 September 2022.
Section 261(6) of the 1998 Act provides that “If an injured worker first becomes aware that he or she has received an injury after the injury was received …”. I accept, as the respondent submits, that s 261(6) applies where the awareness of injury occurs “after the injury was received.” If the Member’s finding in respect of the date of injury 15 October 2023 was correct, then the respondent’s submission that s 261(6) would not apply would be dispositive of this ground.
I have determined under Ground A that the Member’s finding in relation to the deemed date of injury was incorrect and that the deemed date of injury was 6 April 2022, when the respondent attended Dr Nagaraj and complained of issues in the workplace and Dr Nagaraj noted that the respondent’s mental health was impacting her capacity to work.
The appellant asserts that the respondent first became aware of her injury in the consultation with Dr Nagaraj on 21 October 2020. On that date, the respondent complained to Dr Nagaraj of psychological symptoms and attributed those symptoms to her employment. I accept that that was the date upon which the respondent became aware of her injury and attributed her symptoms to her employment.
Because subs 261(6) provides for circumstances where the worker first became aware of her injury “after the injury was received”, then the awareness asserted by the appellant pre-dates the deemed date of injury and the subsection does not apply in this case. In any event, even if I am wrong in relation to the date of 21 October 2020, the respondent was aware at the consultation with Dr Nagaraj on 6 April 2022 that her symptoms were referable to her employment, which is the deemed date of her injury and once again, the awareness did not come after the date of injury.
For those reasons, the Member’s finding that the respondent became aware of her injury on 1 September 2022 was erroneous but in any event the finding is otiose. Section 261(1) does not apply because the respondent was aware of her injury before the deemed date of injury.
Ground C: error of fact, law and/or discretion in finding the respondent’s failure to give notice of her injury, or make a claim in relation to it, within time was due to ignorance and mistake for the purposes of section 261(4) of the 1998 Act
The “ignorance” and “mistake” referred to in s 261 is ignorance of a requirement to make a claim, not ignorance or mistake about the requirement to report an injury. The requirement to give notice of an injury is set out in s 254 of the 1998 Act, which is not the subject of a ground in this appeal.
The appellant submits that there was no evidence to support the Member’s finding that the respondent’s failure to make a claim was a result of ignorance or that she had made a mistake and there was an absence of evidence of any other reasonable cause.
The appellant asserts that the respondent did not say that she was ignorant of her rights to claim compensation or that the failure to make a claim was as a result of a mistake.
In this case, the respondent lodged a claim for payment of her psychological treatment on an unspecified date, likely to have been as early as 2022. The claim was met by the appellant. On 27 May 2022, Ms Graham made an Allied Health Recovery Request. The appellant indicated in its declinature notice issued pursuant to s 78 of the 1998 Act dated 19 December 2023 that:
“You alleged a consequential psychological condition resulting from the right elbow injuries deemed to have been sustained on 21 July 2021. Liability for the consequential psychological condition was conceded under claim number 2022200540.”[48]
[48] Reply, p 4.
That claim number was the same claim number recorded by Ms Graham in her health request and was a different claim number to that provided for the physical injury (2024206433). It is abundantly clear that the respondent made a claim for payment of her treatment expenses associated with her major depression and anxiety at some stage before 27 May 2022. On one view, that evidence may be indicative that the respondent made a claim for compensation within the time prescribed by s 261, however, that was not argued at arbitration, and it is not permissible for me to take that into consideration.
It is apparent that the appellant mistakenly attributed the respondent’s psychological condition to a consequence of the physical injury. It is not at all surprising that the respondent did not make a claim for a primary psychological injury until her claim pursuant to s 66 of the 1987 Act crystallised. Up until then, her treatment expenses and weekly payments had been met by the appellant. The failure to make a claim for compensation in respect of the primary psychological injury was occasioned by the appellant’s mistaken belief that the condition was secondary to the respondent’s physical injury.
The respondent points out that s 261(4) is not limited to “ignorance” or “mistake.”
The respondent submits that the Member’s finding that this case involved a consideration of the complexity in the medical evidence and the confusion in relation to the appellant having accepted the claim on the basis that it was a secondary psychological condition were valid reasons for excusing the delay. The respondent says that the Member also found that the nature of the respondent’s condition was clarified when the respondent commenced the pain management program. The respondent contends that these were all valid reasons for the Member’s conclusion that there was a reasonable cause for delay in making a claim for a primary psychological condition.
I accept the respondent’s submission. There was indeed confusion in relation to the causation of the respondent’s condition and a complexity in the medical opinions that contributed to the confusion.
The Member was not in error to conclude that the respondent’s claim was not barred by operation of s 261 because s 261(4) provided a reasonable cause for the delay in making the claim. This ground of appeal fails.
Ground D: error of fact, law and/or discretion in finding that the operation of section 261 of the 1998 Act would be ‘unjust’
The appellant asserts that s 261 is a statutory bar and does not allow for discretion on the part of the Member. The appellant says that the Member was not permitted to conclude that it would be unjust to preclude the respondent from compensation.
The appellant concedes that the word “or” used in s 261(4), which provides that it is not a bar to recovery of compensation where the failure was occasioned by ignorance, mistake, or other reasonable cause is disjunctive. It is sufficient therefore to establish one of those conditions. The term “other reasonable cause” is not limited or defined.
As indicated in Ground C of the appeal, the appellant, mistakenly as it transpires, attributed the respondent’s psychological condition to a consequence of the physical injury. The respondent’s treatment expenses for her psychological condition were met by the appellant up to and beyond the declinature notice issued in December 2023 responding to her lump sum claim. In those circumstances, it is not surprising that the respondent acquiesced to being compensated on the basis that her psychological injury was secondary to her elbow injury. That, in my view, supports the Member’s conclusion that the delay in making the claim was occasioned by “ignorance.”
The circumstance in which the appellant accepted the claim is sufficient to satisfy the requirement that the delay was occasioned by (primarily the appellant’s) “mistake”.
As conceded by the appellant, the word “or” in the phrase “or other reasonable cause” is disjunctive. The evidence as to the above circumstances is sufficient evidence to support the Member’s conclusion that the delay in making the claim was occasioned by ignorance and mistake. Even if those conclusions were wrong, which they were not, it was sufficient for the Member to determine “other reasonable cause” in favour of the respondent. She considered that the result would be unjust if the respondent was precluded from claiming compensation because of the circumstances surrounding her claim in respect of her psychological condition. Thus, the “other reasonable cause” was the unusual circumstances surrounding the claim that the respondent did make, for which she was compensated and for which the respondent was not accountable. In the context of the appellant having not identified any prejudice to it if the claim was accepted, that cause for the delay, if it was not considered reasonable, would indeed work a demonstrable injustice on the respondent.
It follows that the Member did not err in determining that there were reasonable causes for the respondent’s delay in making her claim for a primary psychological injury in accordance with s 261(4) of the 1998 Act.
The Notice of Contention
I have concluded below that the respondent is not barred from claiming compensation in respect of her primary psychological injury. It is therefore not necessary to consider the respondent’s Notice of Contention.
CONCLUSION
For the reason set out in [158] above, I decline to determine the respondent’s Notice of Contenion. The Member erred in determining that the deemed date of the respondent’s primary psychological injury for the purpose of s 15 of the 1987 Act was 15 October 2023. For the reasons set out in my consideration of Ground A of the appeal, the deemed date of injury pursuant to s 15 of the 1987 Act is 6 April 2022.
In my consideration of Ground B, I determined that the date the respondent became aware of her injury, as provided for in s 261(6) of the 1998 Act, preceded the date of when she “received” her injury, therefore a consideration of when the respondent became aware of her injury was not relevant. I note that the Member did not make any determination or orders in her Certificate of Determination in respect of s 261(6).
For the reasons set out under Ground C and D of the appeal, the Member did not err in determining that there were reasonable causes for the respondent’s delay in making her claim for a primary psychological injury as provided for in s 261(4) of the 1998 Act.
Section 261(4) of the 1998 Act provides that:
“(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened …”.
The respondent’s deemed date of injury is 6 April 2022. The respondent did not make her claim within the six months prescribed by s 261(1) of the 1998 Act. The respondent made her claim for a primary psychological injury on 8 November 2023, which was within three years of her injury and there was a reasonable cause for the respondent’s delay in making the claim.
The respondent is therefore not barred from claiming compensation in respect of her primary psychological injury.
DECISION
Determination [3] of the Member’s Certificate of Determination dated 15 April 2025 is amended to read:
“3. For the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, the date of the applicant’s primary psychological injury is 6 April 2022.”
Order 6 of the Member’s Certificate of Determination is amended to read:
“6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 6 April 2022 (deemed).
Body parts: psychological.
Method: whole person impairment.”
The Member’s Certificate of Determination is otherwise confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
21 October 2025
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