Daghagheleh v Star Waterproofing Pty Ltd
[2025] NSWPIC 107
•24 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Daghagheleh v Star Waterproofing Pty Ltd [2025] NSWPIC 107 |
| APPLICANT: | Mahmoud Daghagheleh |
| RESPONDENT: | Star Waterproofing Pty Ltd |
| MEMBER: | Mitchell Strachan |
| DATE OF DECISION: | 24 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); primary psychological injury; one medical assessment; primary psychological injury and physical injury arising from same incident; separate assessment for threshold purpose; Tokich v Tokich Holdings Pty Ltd and Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD considered; Held – applicant sustained primary psychological injury; applicant entitled to referral to Medical Assessor for assessment of permanent impairment resulting from primary psychological injury not withstanding earlier assessment of physical injuries resulting from same incident. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a primary psychological injury in the course of his employment with the respondent on 25 February 2020. 2. The applicant also sustained a secondary psychological injury resulting from physical injuries sustained in the course of his employment with the respondent on 25 February 2020. 3. The prior determination of the applicant’s permanent impairment as a result of physical injuries sustained on 25 February 2020 does not prevent the referral of a medical dispute with respect to the extent of impairment resulting from primary psychological injury sustained on 25 February 2020 for threshold purposes. 4. The threshold dispute with respect to primary psychological injury is remitted to the President for referral to a Medical Assessor (MA) for determination of the permanent impairment arising from the following: Date of injury: 25 February 2020 5. The documents to be referred to the MA to assist with their assessment are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Form 7 – Application for Assessment by a Medical Assesor and attachments; (c) Form 7A – Response to application for medical assessment and attachments; (d) Application to Lodge Additional Documents filed by the applicant dated (e) Application to Lodge Additional Documents filed by the respondent dated A brief statement is attached setting out the Personal Injury Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant was employed by the respondent undertaking waterproofing work.
On 25 February 2020, in the course of his employment with the respondent, he was descending a ladder when the ladder lost its footing, and the ladder and the applicant fell approximately four meters to the ground.
As a result of the fall, it is accepted that the applicant sustained injuries to his lumbar spine, right upper extremity and post-surgical scarring. In 2022 the applicant commenced proceedings for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) with respect to these physical injuries.
The applicant was assessed by Medical Assessor McGroder who produced a Medical Assessment Certificate (MAC) with respect to the physical injuries dated 5 September 2022. A Certificate of Determination was issued on 11 October 2022 awarding lump sum compensation with respect to 12% whole person impairment, consistent with the MAC of Medical Assessor McGroder.
On 17 January 2025, the applicant commenced the current proceedings and filed a “Form 7 – Application for Assessment by a Medical Assessor” seeking referral of a psychological injury to a Medical Assessor for the purposes of a threshold dispute for a work injury damages claim in accordance with s 314 of the Work Place Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The respondent objects to the referral on two bases. Firstly, that the applicant does not suffer from a primary psychological condition and secondly, that s 322A of the 1998 Act prevents a further referral for assessment of permanent impairment where the applicant is already in receipt of a MAC with respect to injuries sustained in the incident on 25 February 2020.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury, and
(b) whether the applicant is prevented from proceeding with an Application for Assessment by a Medical Assessor for a threshold dispute with respect to a primary psychological injury in circumstances where he has already been received a Medical Assessment Certificate and received lump sum compensation the subject of a certificate of determination with respect to physical injuries resulting from the same incident.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference and arbitration hearing before me on
19 March 2025 in Sydney. Mr de Meyrick of counsel appeared for the applicant instructed by Mr Zygis of JP Law Solicitors. The applicant was in attendance and assisted by an Arabic language interpreter. The respondent was represented by Mr Stiles of counsel instructed by Ms Kaur of Turks Legal. A representative 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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Form 7 – Application for Assessment by a Medical Assesor and attachments;
(b) Form 7A – Response to application for medical assessment and attachments;
(c) Application to Lodge Additional Documents filed by the applicant dated 5 March 2025 and attachments, and
(d) Application to Lodge Additional Documents filed by the respondent dated 18 March 2025 and attachments.
I granted the parties leave to introduce their respective additional documents.
In the course of submissions, the parties agreed that the records of Essential Care Family Medical did not disclose any reported symptoms of post-traumatic stress disorder.
Oral evidence
Neither party sought to adduce any oral evidence or cross-examine any witness.
FINDINGS AND REASONS
The submissions of the parties were recorded and I have referred to them as necessary together with the relevant evidence referred to in submissions in my consideration of the issues in dispute.
Primary psychological injury
Section 65A(5) provides that:
“primary psychological injury’ means a psychological injury that is not a secondary psychological injury
…
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
That is if a psychological injury does not arise as a consequence of or secondary to a physical injury but rather as a result of an injurious event itself then it is a primary psychological injury.
Secondary psychological injury
As a preliminary issue, and mindful of what was said by Campbell J in State of New South Wales (NSW Department of Education) vKaur [2016] NSWSC 326 at [22] (which I applied in Shahin v Plaspro Enterprises Pty Ltd [2024] NSWPIC 898) I raised with counsel whether there was any dispute that the applicant was suffering a secondary psychological injury noting that a primary psychological injury and secondary psychological are not mutually exclusive and can co-exist. Counsel confirmed there was no dispute in this regard.
Consistent with both the opinion of the applicant’s psychologist, Mr Kasim Abaie, that the applicant is suffering from a pain disorder as a result of the work-related injury and that major and significant changes to his life have occurred after the injuries including relationship issues and anger management problems and the applicant’s statement evidence, I am satisfied that a component of the applicant’s psychological condition results from the effects of the physical injuries sustained on 25 February 2020 and is therefore a secondary psychological injury.
In finding a secondary psychological condition, I do not make any finding with respect to the extent of impairment resulting from the secondary psychological injury.
Primary psychological injury
The applicant alleges he sustained a primary psychological injury, being post-traumatic stress disorder, when he fell approximately four meters from a ladder in the course of his employment with the respondent on 25 February 2020.
The respondent does not dispute that the incident occurred and has accepted liability with respect to the physical injuries resulting from the fall. The respondent submits however that the applicant’s psychological condition is secondary to his physical injuries sustained on
25 February 2020.In his statement evidence dated 3 July 2024, the applicant discloses he experiences “nightmares where I dream about falling, and when I wake up, it feels like I am still falling”.
The applicant relied on the qualified opinion of Dr Way dated 5 March 2024. Dr Way took a history of the incident on 25 February 2020. He recorded that the applicant reported, since the fall he had suffered from “recurrent flashbacks of “the fall”, increased startle response to loud noises, and avoidance of the ladders, the worksite and any reminder of his accident.”
Dr Way expressed the opinion that the applicant presented with:
“chronic symptoms of anxiety and depression, as well as recurrent flashbacks and sleep disturbances with nightmare, since he had a life-threatening fall from a height at his workplace in February 2020. He has suffered from chronic pain in his right hand and lower back, causing restriction in movement…Is mental state examination revealed evidence of depressed mood with low self-esteem and restricted affect. Based on the reported clinical history and mental state examination, I have diagnosed him with chronic PTSD and Major Depression, in accordance with DSM-V.”
Dr Way further opined “PTSD and Major Depression are a direct result of the subject accident, and that the subject accident was the primary cause of his current psychological injures”.
The applicant’s psychological condition is discussed in a vocational and functional assessment report prepared by Injury Assess dated 12 March 2024. The report was prepared by Dr Horace Ting who holds a PhD in behavioural science but is not a medical doctor. The report was prepared based on his training as an occupational therapist. Dr Ting noted his mood was depressed and irritable. He sets out the functional difficulties resulting from his psychological condition.
Mr Abaie, the applicant’s treating psychologist, provided a report dated 8 December 2023. Mr Abaie had seen the applicant on about six occasions at the time of writing the report. He records that the applicant had not had any kind of severe mental illness before “the car accident”. Mr Abaie noted the applicant exhibited symptoms consistent with a diagnosis of major depressive disorder and post-traumatic stress disorder. He also noted a pain disorder. He noted symptoms of flashback memories of the incident and occasional nightmares (amount others).
The respondent relies on a report of Dr Pothala, psychiatrist, dated 14 March 2025. Dr Pothala took a history of the incident on 25 February 2025. He noted that as a result of the physical injuries he has developed chronic pain. Dr Pothala recorded:
“I have fear of leaving home”
“When I sleep, I cannot cover my face with a blanket due to fear”
“Most nights, when sun starts setting, he starts feeling anxious about the nighttime. At nights, every time he wakes up, he needs to change his t-shirts due to excessive sweating. He has nightmares about death and heights”
“He has developed a fear of heights, and he has a balcony but avoids sitting on the balcony. He remains anxious about steps and warns others if they are taking steps.”
Dr Pothala noted that there were records in the clinical notes of his general practitioner of consultations with respect to mental health issues prior to the injury dating back to 2012 and 2012 and an indication he was seeing his psychologist, Mr Abaie, prior to the work injury for depression. Dr Pothala noted that the general practitioner records did not indicate signs or symptoms suggestive of post-traumatic stress disorder after the workplace injury.
Dr Pothala considered the applicant presented with symptoms of major depressive disorder with anxious distress and a history of chronic pain, pain disorder and chronic opiate use.
Dr Pothala opined:
“From the available information, [the applicant] appears to have sustained an aggravation of his underlying depressive disorder secondary to the injury on
25 February 2020. I am unable to conclude that he sustained a primary psychological injury.”With respect to criticism of Dr Way by Dr Pothala that Dr Way did not have a complete history, the applicant submitted that Dr Way had been briefed with the records of his treating general practitioner and that while Dr Way records a history that the applicant denied prior mental health issues, Dr Way nevertheless, when assessing whole person impairment, made a deduction on account of pre-existing conditions in accordance with s 323 of the 1998 Act and was therefore cognisant of the pre-existing complaints.
The applicant accepted that the clinical records of his general practitioner disclosed attendances, prior to the incident on 25 February 2020, for depression but submitted there were not a large number of attendances.
The applicant submitted that Dr Pothala had taken a history of the applicant being fearful of stairs, panicky, not being able to sleep and avoiding sitting on his balcony which the applicant accepts are not the only symptoms recorded but they are symptoms consistent with post-traumatic stress disorder. The applicant submitted Dr Pothala concentrated on the past history of depression in reaching his conclusions.
The applicant submitted that the statement evidence together with the histories recorded in the two reports, was consistent with a finding of a primary psychological injury in the form of post-traumatic stress disorder. The applicant submitted that Dr Pothala concentrated on the applicant’s past history.
The applicant submitted that Dr Pothala reached his conclusion that the applicant suffered an aggravation of his depressive condition secondary to his physical injuries but having a pre-existing condition doesn’t preclude there being a post-traumatic stress disorder.
The applicant submitted that having regard to the history recorded by both doctors I would prefer the diagnostic opinion of Dr Way as being more persuasive and Dr Way is supported Mr Abaie who has spent time with the applicant and is well placed to express the opinions that he did.
The respondent submitted there was a history of treatment for mental health complaints dating back to 2012 and that this hasn’t been considered by Dr Way or Mr Abaie.
The respondent submitted that Mr Abaie’s report in 2023 is the first evidence of treatment for post-traumatic stress disorder type symptoms which is a significant time after the injury. The respondent is critical of the report in that it is not clear what history was taken or available to Mr Abaie to underpin the opinions he expresses.
The respondent submitted with respect to Dr Way’s opinion that the history taken of past issues is inconsistent with the medical records and criticises the report on the basis that the history is incomplete and inadequate. The respondent submitted that Dr Way does not really deal with the question of whether the injury is primary or secondary and it is not until the end of the report that he expresses his opinion that the applicant’s condition is a primary psychological injury. For these reasons, the respondent submits that the opinion of Dr Way should be given little weight. The respondent submitted that without the proper history the conclusion reached by Dr Way must be flawed.
The respondent submitted the vocational and functional assessment report of Dr Ting demonstrated symptoms consistent with a secondary psychological injury resulting from the physical injuries.
The respondent submitted that Dr Pothala took the better history and took clinical notes and medication into account and could not find a primary psychological injury. The respondent submitted I would accept the incident caused a secondary psychological injury.
The evidence with respect to whether the applicant sustained a primary psychological injury is limited. In so far as Dr Ting offers a diagnosis, I do not put any weight on any opinion expressed by him in that regard. I accept that he is qualified to assess functional difficulties but as an occupational therapist he does not have the demonstrated expertise with respect to psychological diagnosis.
Criticism has been made with respect to the opinions expressed by both Dr Pothala and Dr Way.
Dr Way’s opinion that “PTSD and Major Depression are a direct result of the subject accident, and that the subject accident was the primary cause of his current psychological injures” is somewhat circular and does not deal with any contribution to at least the diagnosis of major depression from any prior condition or the extent to which the applicant’s physical injuries are impacting on that diagnosis. I do not accept however, the respondent’s submission, that the limitations in the history taken by Dr Way of pre-existing depression places him at a substantial disadvantage in expressing his opinion that the applicant developed at least a post-traumatic stress disorder as a result of the fall on 25 February 2020. Dr Way had available to him the history provided by the applicant of the onset of
post-traumatic stress type symptoms following the incident as well as the report of Mr Abaie and sets out his rationale for reaching the diagnosis of chronic post-traumatic stress disorder in his report under the heading “Summary and Diagnosis”.Dr Pothala’s opinion that he is unable to conclude that the applicant sustained a primary psychological injury fails to engage with the opinion of Dr Way (which is was briefed with) or why the symptoms recorded by Dr Pothala which are similar to those recorded by Dr Way, do not meet the diagnostic criteria for post-traumatic stress disorder or how post-traumatic stress disorder, being a reaction to the fall, is not a primary psychological condition.
While the respondent was critical of Mr Abaie’s report on the basis that the past history was not disclosed, I accept that Mr Abaie had spent time with the applicant as his treatment psychologist and was well placed to record a history of his ongoing symptoms post injury.
The respondent submitted that the applicant’s attendance on Mr Abaie for treatment was delayed and I accept that is the case. I do not accept however that I can draw any inference from this delay. It could be explained by any number of reasons including the applicant’s primary concern being his recovery from the significant fall.
For the reasons set out above, I prefer the opinion of Dr Way, supported by Mr Abaie and the statement evidence of the applicant and find that in addition to a secondary psychological injury the applicant also sustained a primary psychological injury as a result of the incident on 25 February 2020.
Is the applicant entitled to referral to medical assessor
If I was to find in favour of the applicant with respect to the primary psychological injury issue, as I have done, the respondent submitted that s 322A of the 1998 Act operates to prevent a further referral to a Medical Assessor where the applicant is already in receipt of a MAC with respect to his physical injuries arising from the same incident.
The applicant submits that this is not the case and relies on an outline of submissions dated 3 March 2025 and supplemented by oral submissions.
It is helpful to set out the relevant legislative provisions.
Section 322A of the 1998 Act provides as follows:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of--
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member). “
Section 65A of the 1987 Act provides as follows:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note: If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note: If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) …”
The applicant’s primary submission is that he is not prevented from seeking an assessment of impairment of his primary psychological injury and relies on the construction of s 322A with respect to primary psychological injuries of Acting President Roche in Tokich v Tokich Holdings Pty Ltd [2015] NSWPCCPD 72 (Tokich).
The respondent submits that primacy must be given to the text of s 322A of the 1998 Act and relies on the construction of s 322A in a more recent decision of Deputy President Snell in Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD [2023] NSWPICPD 40 (Lazio).
The applicant did not contend that the construction preferred by Deputy President Snell was incorrect but that it could be distinguished on the facts in the present case as Lazio did not deal with a physical injury and primary psychological injury arising from the same frank incident.
In Tokich Acting President Roche considered a claim for permanent impairment compensation for a primary psychological injury in circumstances, similar to the present matter, where the injured worker had already claimed and been paid lump sum compensation with respect to physical injuries resulting from the same incident. Although in the present matter the applicant does not seek lump sum compensation but rather an assessment of permanent impairment resulting from the psychological injury for threshold purposes.
Relevantly, having considered the legislative framework, the Acting President said:
“[59] The combined effect of the above provisions is that multiple physical injuries (pathologies), and secondary psychological injuries, arising out of the one incident (injurious event) are to be treated as one injury (s 65(2)). They are assessed and compensated together as one injury. Under s 66(1A), a worker is only entitled to make one claim for permanent impairment compensation for the permanent impairment that has resulted from those injuries.
[60] However, different (“special”) provisions apply to a psychological/psychiatric injury or injuries that arise out of the same incident in which the worker has also suffered a physical injury or injuries. In that situation, the legislation expressly acknowledges that a primary psychological injury is a separate and distinct injury from a physical injury. The degree of permanent impairment that results from the psychological/psychiatric injury (or injuries) must be assessed separately from the physical injury (or injuries). In addition, a different threshold needs to be satisfied before any permanent impairment compensation is payable for a primary psychological injury (or injuries).
[61] It follows that, for the relevant provisions to work in harmony, when dealing with a primary psychological injury to which s 65A applies, the reference to “an injury” in s 66(1A) must distinguish between a primary psychological injury and a physical injury. In other words, a claim for permanent impairment compensation for the permanent impairment that has resulted from a physical injury or injuries arising out of one incident (that is, multiple pathologies from the one injurious event) is different from and separate to a claim for permanent impairment compensation for permanent impairment that has resulted from a primary psychological injury or injuries arising out of the same incident.
[62] Thus, Mr Tokich’s claim for permanent impairment compensation for the permanent impairment that resulted from his physical injuries, that is the injuries to his neck and back, was his one claim in respect of those injuries. As he made that claim after 19 June 2012, he is not entitled to make a second claim for such compensation for those injuries. However, as s 65A expressly acknowledges that his primary psychological injury is a separate and distinct injury, even though it arose out of the same incident, he is entitled to make one claim for permanent impairment compensation for permanent impairment that has resulted from that injury.
[63] The above interpretation is consistent with the text of the legislation, read in context, and with a purposive construction of the words used. Though there may well be some cases where a claimant’s physical injuries and primary psychological injuries can be assessed at or about the same time, there will be many cases, the present case being an example, where that is not so.
[64] In circumstances where s 65A expressly distinguishes between physical injuries and primary psychological injuries arising from the same incident, it would be illogical and contrary to commonsense to require claims for permanent impairment compensation for those injuries to be made at the same time. They are clearly different injuries and are treated differently in s 65A. They are not intended to be assessed “together” (s 65(2)) and cannot be treated as “one injury”, as is required for multiple physical injuries that arise from the one incident.
[65] It therefore follows that, in cases involving physical injuries and primary psychological injuries arising out of the same incident, the reference in s 66(1A) to “one claim” for permanent impairment compensation in respect of the permanent impairment that results from “an injury” is a reference to one claim for the physical injuries and one claim for the primary psychological injuries. As a result, Mr Tokich’s claim for permanent impairment compensation for his primary psychological injury is not a second claim, but is his one claim for that injury and the Arbitrator erred in finding to the contrary.
…
[69] Nothing in s 322A is inconsistent with this approach. That is because, like s 66(1A), sub-section (2) of s 322A makes it clear that the “one assessment” restriction applies to “the injury concerned” (emphasis added). Similarly, the restriction on the referral of a medical dispute about the degree of permanent impairment of a worker relates to “an injury” (s 322A(3)). Therefore, where, as in the present case, there is more than one injury, namely a primary psychological injury and a physical injury arising out of the same incident, there can be an assessment for each of those injuries. Any other interpretation would mean that a person in Mr Tokich’s position would not be entitled to have his primary psychological injury assessed because he had already had an assessment of his physical injuries. That is clearly not what the legislation intended.”
The respondent submits that the decision in Tokich is inconsistent with the with the more recent decision of Deputy President Snell in Lazio and in the circumstances the more recent decision should be preferred and followed.
The decision in Lazio dealt with a number of issues on appeal. Relevant to the respondent’s submissions in the current proceedings, the Deputy President considered the construction of s 322A of the 1988 Act but in the context of a different factual matrix. In those proceedings the injured worker was assessed with respect to impairment to his right knee and scarring based on a date of injury of 9 April 2010 and a MAC issued. In 2022 the applicant made a claim for weekly compensation and sought a further assessment of permanent impairment of both the originally claimed knee injury and a further cervical injury which the worker contended could be assessed together in accordance with s 322 of the 1998 Act.
The Deputy President considered an earlier decision in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 where President Keating considered the construction of s 322A and Tokich and then said Lazio at [164]):
“In my respectful opinion the construction by Keating P in Merchant, dealing with s 322A of the 1998 Act, is correct. The emphasis placed by his Honour on the word “any” in s 322A(2) highlights the emphatic language employed by the legislature in that sub-section. The words of the section do not suggest that there are exceptions to this prohibition. To read s 322A, in the way the worker submits, would involve a reading that conflicts with the plain, unlimited words of sub-s (1). His Honour’s reading of s 322A involves internal consistency within the section. I accept the employer’s submissions that the words in parentheses should be read as providing examples. They do not purport to be exhaustive. There are certain statutory exceptions to the prohibition in s 322A, for example medical appeals (ss 327 and 328 of the 1998 Act), referrals under s 329 of the 1998 Act, and Pt 2A of the 2016 Regulation. It is not argued that these have application in the current matter.”
While the Deputy President in Lazio reviewed the decision in Tokich he expressed no view on its correctness in circumstances where an applicant suffers both a primary and secondary psychological injury.
In Matheson v Baptistcare NSW & ACT [2025] NSWSC 213, when construing the statutory scheme although with respect to deductions under s 323 of the 1987 Act, Basten AJ said at [23]:
“Although s 323 does not distinguish between physical and psychological injuries, other parts of the Workers Compensation Acts do make such a distinction. For example, s 65A of the Workers Compensation Act, introduced in 2001, varied the threshold for lump sum compensation payments from 10% (which thereafter has only applied to physical injuries) to 15% for a primary psychological injury: s 65A(3). Secondly, s 65A introduced an obligation to disregard, in relation to psychological injuries, a “secondary psychological injury”. There is thus no a priori reason for assuming that a general provision such as s 323 of the Workplace Injury Act necessarily applies in the same way to each category of injuries.”
It is clear that s 65A sets out a different regime with respect to primary psychological injuries and adopting what was said by Basten AJ in Matheson I accept that it cannot be assumed that general provisions of the 1998 Act necessarily apply in the same way to physical injuries and primary psychological injuries.
Had the applicant been seeking a further assessment with respect to his physical injuries I would accept the respondent’s submissions with respect to the primacy that must be given to s 322A as set out by Deputy President Snell in however that is not the circumstances in the present proceedings.
As found by the Acting President in Tokich, “s 65A expressly acknowledges that his primary psychological injury is a separate and distinct injury, even though it arose out of the same incident”.
Where the physical injury and primary psychological injuries are separate and distinct injuries and there is a statutory requirement in s 65A for them to be treated as such, s 322A cannot operate in the manner submitted by the respondent.
Counsel for the applicant did not address on the application of s 263 of the 1998 Act which provides that all claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time however it was raised in written submissions within the documents attached the respondent’s response. The applicant however does not make a claim for lump sum compensation in the current proceedings but rather seeks referral for a threshold dispute. It is therefore not relevant to the current issue in dispute.
I consider that I am bound to follow the decision of the Acting President in Tokich in this regard. Based on the reasons given above, the applicant is entitled to have his primary psychological injury referred to a medical assessor for assessment of the degree of permanent impairment resulting from the incident on 25 February 2024.
Having made the findings I have with respect to the applicant’s entitlement to have the degree of permanent impairment resulting from his primary psychological injury assessed, it is not necessary for me to consider the applicant’s alternative submissions seeking a recission under s 57 of the Personal Injury Commission Act 2020 of the Certificate of Determination dated 11 October 2022 with respect to the award of lump sum compensation for the physical injuries.
I note however, as I raised with counsel during submissions, that such an exercise would be futile. The MAC relates to physical injuries only and it would not be possible, in my view, for the applicant to pursue an appeal or reconsideration of the MAC such that any appeal or reconsideration would lead to the inclusion of the primary psychological injury in any re-examination or reconsideration. Further, if I am wrong with respect to the construction of s 322A in the circumstances of the present case, it would not be open for the applicant to make an additional claim for lump sum compensation as occurred in Tokich.
SUMMARY
The applicant sustained a primary psychological injury in the course of his employment with the respondent on 25 February 2020.
The applicant also sustained a secondary psychological injury resulting from physical injuries sustained in the course of his employment with the respondent on 25 February 2020.
The prior determination of the applicant’s permanent impairment as a result of physical injuries sustained on 25 February 2020 does not prevent the referral of a medical dispute with respect to the extent of impairment resulting from primary psychological injury sustained on 25 February 2020 for threshold purposes.
The matter will be remitted to the President for referral to a Medical Assessor accordance with the attached Certificate of Determination.
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