Courtney v State of New South Wales (Northern NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Courtney v State of New South Wales (Northern NSW Local Health District) [2025] NSWPIC 155
APPLICANT:	Jennifer Shirley Courtney
RESPONDENT:	State of New South Wales (Northern NSW Local Health District)
MEMBER:	Mitchell Strachan
DATE OF DECISION:	17 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; exercise of discretion; Held – leave to amend to claim general order for medical expenses only; Patrick Stevedores Holdings Pty Ltd v Fogarty considered; Tan v National Australia Bank Ltd considered; consequential condition; Kumar v Royal Comfort Bedding Pty Ltd; Kooragang Cement Pty Ltd v Bates applied.
DETERMINATIONS MADE:	The Commission determines: 1. The claim with respect to carpal tunnel syndrome and the spinal condition are discontinued by the applicant. 2. The Application to Resolve a Dispute is amended to seek a general order for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 only. 3. As a result of the applicant’s accepted psychological injury, she has developed consequential epilepsy and a functional neurological disorder. 4. I make a general order for medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 5. In the event there remains a dispute with respect those expenses payable in accordance with order 3, the parties have leave to approach the Commission. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant suffers from an accepted primary psychological injury arising out of or in the course of her employment with the respondent up to 29 June 2022. This injury is accepted, and it is not necessary for me to make any findings with respect to causation and the circumstances leading up to the primary psychological injury.
The psychological condition resulting from employment has been described as an adjustment disorder by Dr Kumar.
Following the onset of the accepted psychological injury, the applicant developed seizures and was subsequently diagnosed with epilepsy and a functional neurological disorder. These conditions were not present prior to the work related injury and the applicant alleges that both conditions developed as a result of the accepted psychological injury.
This is the issue which requires determination by the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant is entitled to medical expenses with respect to a functional neurological disorder and/or consequential epilepsy said to have developed consequential to her accepted psychological injury.
The claim with respect to carpal tunnel syndrome and spinal condition were discontinued by the applicant during the conciliation conference.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 26 March 2025 by video conference. The applicant attended, represented by Mr T Hickey of counsel instructed by Mr Langler. Mr J Hart of counsel appeared for the respondent, instructed by
Ms Chaplin. Mr Rocteur of the respondent’s insurer was also in attendance.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents dated 20 March 2025 which included a schedule of expenses. The parties also helpfully provided a working copy of the schedule in Microsoft excel format. However, following resolution of an interlocutory issue it was not necessary to consider the individual expenses.

Oral evidence

There was no application to adduce oral evidence or cross-examine any witnesses.

FINDINGS AND REASONS

The Commission has an obligation to provide a brief statement of reasons for the findings reached.

Interlocutory issue – application to amend

The applicant made an application to amend the claim to make a general claim for medical expenses replacing an extensively particularised claim.
I granted leave for the amendment and gave brief oral reasons for doing so. Due to time constraints, I indicated I would provide further written reasons with the determination of the substantive issues in dispute. I now provide those additional reasons.
The application to amend was opposed by the respondent on two grounds. Firstly, that the amendment would disturb the jurisdiction of the Commission to determine the dispute and secondly with respect to more general principles on the exercise of the discretion to grant leave.
With respect to jurisdiction, the respondent submitted that the circumstances of the present case could be distinguished from Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76 has there has been no withdrawal of the dispute.
The respondent submitted that a claim is made under s 279 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for medical expenses compensation and not for injury and that a dispute notice was issued on that basis.
I do not accept that submission. While the compensation sought was for medical expenses to be paid, the claim was for medical expenses with respect to that condition.
The dispute notice dated 26 January 2023 and those that follow it make it clear that the respondent disputes that the expenses are not necessary as a result of the accepted psychological injury.
On 11 September 2023, the respondent’s insurer issued a notice pursuant to s 287A of the 1998 Act where the insurer indicated they did not agree that the applicant was entitled to medical or related treatment for her claimed consequential condition on the basis the treatment is not reasonably necessary as a result of an injury in accordance with ss 59 and 60 of the 1987 Act.
The notice concluded that following review of medical reports provided by the applicant there was no evidence supporting the link between the consequential conditions and the applicant’s employment and accepted injury.
This notice succinctly sets out the real issue in dispute. It is not that the applicant shouldn’t have been treated for the conditions. It is that the condition is not a consequence of the accepted injury.
This is the issue that would remain in dispute for determination with the amended claim. The Commission’s jurisdiction is not disturbed. I also note the wide jurisdiction to determine issues in dispute, subject to affording the parties procedural fairness.[1]
[1] See Tan v National Australia Bank Ltd [2008] NSWCA 198.
The issue of jurisdiction does not weight against the exercise of discretion to grant the applicant leave to amend the claim.
Turning now to the application of general principles. The respondent submits that the claim particularised in the Application to Resolve a Dispute included a schedule of 469 specific items. I accept that the respondent has gone to significant effort in responding to those 469 items including the preparation of a spreadsheet setting out the status of each item. It is also clear that some of those items are not supported, at this time, by a receipt or relate to conditions which the applicant has now discontinued. The applicant could have provided the Commission with invoices for each item but has not done so. The respondent submits there would be little utility in not resolving the entirety of the dispute between the parties.
I appreciate this submission and the significant work undertaken by the respondent in trying to ascertain the scope of the claim made against it and it is a significant factor to be weighed in whether discretion ought be exercised in the applicant’s favour.
The claim with respect to the consequential condition was first declined by the respondent’s insurer on 26 January 2023. Since that time the applicant has continued to receive treatment at the direction of her treatment providers. The schedule of expenses includes more than 460 items.
Section 3(c) of the Personal Injury Commission Act 2020 provides that the Commission is to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The process of identifying which expenses properly relate to an accepted claim within the confines of s 60 of the Workers Compensation Act 1987 (the 1987 Act) is, at first instance, the role of the respondent’s insurer. Where there is a specific dispute with respect to an expense, a dispute notice can be issued and proceedings brought in this Commission for determination of that dispute.
That this hasn’t occurred to any significant degree (less for the significant work of the respondent’s solicitor following the commencement of these proceedings) is to a large degree because the parties did not see, as evidenced from the correspondence between them, that the real issue in dispute was the individual expenses but rather whether those expenses were treating a condition or conditions which resulted from the accepted injury.
To require the Commission to consider and determine liability with respect to more than 460 separate claims for medical expenses, where the principal issue in dispute is whether the applicant’s conditions are consequential upon her accepted psychological injury would be inconsistent with the objects of the Act.
It was for these reasons that I granted leave at the arbitration hearing for the applicant to amend the claim to make only a general order for s 60 expenses.

Does the diagnosed epilepsy and functional neurological condition result from accepted psychological injury?

The applicant now brings an amended claim seeking a general order for medical expenses with respect to two different consequential conditions, firstly epilepsy and secondly a functional neurological disorder. Liability with respect to both consequential conditions is denied by the respondent. The applicant carries the onus in establishing the consequential conditions result from her accepted psychological injury.
Where the applicant is asserting that the conditions are consequential conditions, it is not necessary for the applicant to establish that she suffered an injury in accordance with s 4 of the 1987 Act.[2] What the applicant must establish, is that the consequential condition “results from” the accepted psychological injury; this analysis requires a common sense evaluation of the causal chain.[3]
[2] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35].
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 per Kirby P (as he was then) at [463]-[464].
For the reasons set out below, I am satisfied that the applicant’s epilepsy and functional neurological disorder result from her accepted psychological injury.
The applicant relies on her own statement evidence of 9 and 22 August 2022 and more relevantly to the present issues, 11 September 2024. The statement evidence sets out the background to the development of the accepted primary psychological injury and the subsequent development of physical neurological symptoms including seizures which commenced when she was in Thailand with her husband, having taken the trip on advice from her treatment providers to assist with the psychological condition.
The various treating reports from the applicant’s treating neurologist, Dr Sebastian, to her general practitioner, sets out the investigative process undertaken and the basis for the diagnosis of both true epileptic seizures as well as seizures which are a symptom of a functional neurological disorder. As I understand the medical evidence, the epileptic seizures are a physiological neurological phenomenon whereas the functional neurological disorder is the manifestation of physical symptoms resulting from the psychological condition (without direct physiological explanation).
The respondent did not submit that these were not conditions that the applicant suffered from but rather that the conditions did not result from the accepted psychological injury which is appropriate given there is no real contest on the evidence before the Commission.
Having regard, in particular to the various reports of Dr Sebastian, together with the opinions of Dr O’Sullivan and Dr Granot, I am satisfied that the applicant is suffering from both true epilepsy and a functional neurological disorder.
The real issue of contest between the parties is whether these conditions result from, in the sense explained by Kirby P (as he was then) in Kooragang Cement, the accepted psychological injury.
There is a body of expert medical evidence before the Commission from treating and qualified expert neurologists who seek to explain the relationship between the accepted psychological injury and the subsequent development of epilepsy and the functional neurological disorder. I am assisted by the opinions of both Dr O’Sullivan, qualified by the applicant and Dr Granot, qualified by the respondent who have both engaged deeply with the applicant’s history and the available medical knowledge in considering the onset of the alleged consequential conditions.
It is evident from the applicant’s statement evidence and the available treating records that prior to the development of the applicant’s accepted psychological condition and the associated workplace stressors the applicant had not sought treatment with respect to either of the conditions.
The respondent defends the claim on the following basis. The respondent submits, and I accept, that the applicant has a complex medical history. Further, the respondent submits that there are various stressors that play into the development of the conditions, and it is necessary to analyse each seizure for the associated stress. The respondent referred to clinical notes from Clarence Medical Centre covering a period between 11 April 2022 and
6 October 2022 detailing various possible stressors, both current and historical. The respondent submitted that at each time there has been a seizure there have been other stressors and I would not be satisfied that the work-related stress made a material contribution.
While I accept there were other stressors in the applicant’s life at the time of the onset of the epilepsy and functional neurological disorder, Dr Kumar, psychiatrist, qualified by the respondent, is clear that it was the work issues that led to the adjustment disorder, and he does not diagnose any other conditions. On this basis, I am satisfied that the work-related psychological symptoms were of a magnitude sufficient to warrant a psychological diagnosis and that while there were other competing stressors in the applicant’s life that may have exacerbated the underlying condition, the underlying condition remained.
The basis for the respondent’s submission that it is necessary to analyse each individual seizure for the relevant stressor is found in the reports of Dr Granot dated 4 December 2023 and 29 January 2024 where he expresses the opinion that stress has historically been described by patients as a frequent trigger for seizures (that is individual seizures) rather than the onset of the condition itself. The difficulty with the respondent’s submission however is that Dr Granot further explains that in prior studies it was difficult to separate out confounders such as sleep deprivation however, in the case of the applicant “the confounders themselves (sleep deprivation in particular) are likely as a result of the stressor (work stress) so it seems more likely than not that the work stress was a definite initial trigger for seizures”. Dr Granot then refers the issue of ongoing stress to a psychiatrist for opinion. He concludes later in his report “on balance of probabilities, it is more likely than note that the workers epilepsy was initially triggered by…her psychological injury”.
In a supplementary report of 29 January 2024 Dr Granot clarifies that stress is not causally related to epilepsy per se, it is likely a genetic disorder, but rather stress is a trigger or exacerbating factor, to the seizures themselves.
Dr O’Sullivan, neurologist, qualified by the applicant, is of the opinion the applicant suffers from epilepsy and a functional neurological disorder and that this resulted from her work situation and expresses the following opinion, “with regard to epilepsy, the question mark is always raised as to whether such a condition can be attributable to stress. I am prepared to accept, as Dr Granot mentions in his report, that recent studies to indicate that stress may be a factor in the development of a patient’s epilepsy”.
Dr Kumar, psychiatrist, assessed the applicant on 6 March 2023. From the applicant’s statement evidence and the records of Dr Sebastien, it appears from about May 2023 the seizures have been controlled by medication. That is to say that Dr Kumar’s assessment occurred during a period when seizure activity was going. At that time, Dr Kumar expressed the opinion that the applicant’s employment was the main contributing factor for her mental health symptoms. It is clear that Dr Kumar was aware of other stressors as he states “I did not consider the non-work related factors such as becoming homeless due to floods. There is no sufficient evidence that this alone could have contributed to her significant anxiety that she is experiencing currently…Her stress at work has been longstanding and continuous”. This further supports the finding made about at 43 above that the underlying work condition remained.
On this basis, even if it was necessary to consider each individual seizure and related stressor I am satisfied that the work related injury made a material contribution.
However, I am satisfied that the opinions of Dr Granot and Dr O’Sullivan establish a causative connection between the accepted psychological injury and the onset of the epileptic condition. Firstly from a temporal analysis, the epilepsy, if it was present, was not symptomatic, nor required treatment, prior to the accepted psychological injury. Secondly, I accept the very considered opinion of Dr Granot that the sleep depravation caused by the work related stress was a cofounding factor in the onset of the epilepsy. This is further supported by Dr O’Sullivan and Dr Sebastien who support the causal connection.
With respect to the functional neurological disorder, Dr Granot considered that it could plausibly be trigged by the new occurrence of seizures however did not express a concluded opinion in his substantive report.
Dr O’Sullivan is clear in his opinion that the functional neurological disorder appears to have developed as a result of work although I am not assisted by any reasoning for this opinion.
The respondent submitted that I should exercise caution with respect to the report of Dr Eric Davey, general practitioner and his qualifications to express the opinions that he has.
Dr Davey’s opinion sits within a body of specialised medical opinion, including that of
Dr Sebastian as the treating specialist. I consider that the general practitioner is uniquely placed to consider the complex expert opinions and to distil it in such a way that it is comprehensible to the applicant and the Commission. It is indeed the daily role of a doctor in general practice.
Dr Davey explained that a functional neurological disorder is a failure of the neurological system to cope with an overload of stress and that physical impairments emerge as the neurological system becomes effectively “jammed” and this manifests in symptoms such as falls, tremors and weakness. This explanation of a complex medical condition is indeed helpful.

Dr Davey is of the opinion that this, in the context of the work stress, provides the explanation for the onset of the functional neurological condition. This is further supported by Dr Sebastian as the treating neurologist.
I am satisfied that the opinions of Dr Davey and Dr Sebastian and to a lessor degree (although not at all contradictory) Dr Granot and Dr Sebastian outline the relevant causative connection between accepted psychological injury and the functional neurological condition.

SUMMARY

As a result of the applicant’s accepted psychological injury, she has developed consequential epilepsy and a consequential functional neurological disorder.
I make the orders set out in the accompanying Certificate of Determination.

[2025] NSWPIC 155

17 April 2025