Dang v Chanrol Pty Ltd ATF the Wai Lam Chim Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dang v Chanrol Pty Ltd ATF The Wai Lam Chim Family Trust [2022] NSWPIC 732
APPLICANT:	Giang Dang
RESPONDENT:	Chanrol Pty Limited ATF The Wai Lam Chim Family Trust
Member:	Paul Sweeney
DATE OF DECISION:	20 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Factual dispute as to whether worker suffered a primary psychological injury as a result of a modest physical injury; worker had long previous history of chronic pain and depression; employer argued that absence of complaint of psychological symptoms in clinical record for more than a year after the injury negated causal nexus between injury and psychological condition; that the worker’s medical case did not explain how a modest physical injury could give rise to post traumatic stress disorder; Mason v Demasi considered; Held – absence of complaint in clinical record did not necessarily negate causal nexus in a case of psychological injury; worker’s treating medical evidence preferred to that of Dr Vickery; finding that the worker suffered a primary psychological injury in the context of pre-existing conditions of chronic pain and depression; primary psychological injury referred to Medical Assessor.
determinations made:	1. The applicant suffered a primary psychological condition as a result of injury arising out of and in the course of his employment on 18 February 2019. 2. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of the above injury. 3. The Medical Assessor to have access to the Application, the Reply, the Application to Admit Late Documents and the documents attached to each and a copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Giang Dang (the applicant) has a long history of spinal problems, chronic pain, and depression. He did not work between 2011 and November 2018. In that month, he commenced work for Chanrol Pty Limited (the respondent) as a process worker.
On 18 February 2019, he was operating a machine which produced boxes when a belt became detached from a pulley. When he attempted to place the belt back on the pulley, his left hand was drawn into the machine and caught between the pulley and the belt.
Although almost four years has elapsed since the injury, the applicant has not returned to work. He complains of a wide array of physical and psychological symptoms. The onset of many of these symptoms predate the injury of 18 February 2019.
By these proceedings the applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). He alleges that he suffered a primary psychological injury on 18 February 2019 namely post-traumatic stress disorder.
The respondent accepts that the applicant suffered physical injuries, at least, to his left hand in the subject accident. It disputes, however that the applicant suffers post-traumatic stress disorder. On the basis of the report of Dr Vickery, a psychiatrist, it contends that the applicant either suffers a somatoform disorder or, alternatively, is malingering.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

When this matter came on for conciliation and arbitration in the Commission on 7 December 2022, Mr Parker, of counsel, appeared for the applicant and Mr Doak, of counsel, appeared for the respondent. I was informed by counsel that the parties were unable to resolve the threshold issue of whether the applicant suffered a primary psychological injury as a result of the incident on 18 February 2019.
I am satisfied that the parties to the dispute had ample opportunity to resolve the matter at the preliminary conference and during the conciliation conference but were unable to fashion a mutually satisfactory agreement.
As the claim is solely for permanent impairment compensation, the jurisdiction of the Commission is limited to liability issues. In this case the parties accepted that it was limited to whether the applicant suffered injury, the nature of the injury, and whether the employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act: see Jaffarie v Quality Castings Pty Limited.[1]
[1] [2014] NSWWCCPD 79.
Whether an injury, including a psychological injury, is transient or permanent, whether it caused all or part of an impairment, or whether a deduction should be made for a previous or subsequent condition are matters solely within the prerogative of a Medical Assessor.

EVIDENCE

The following documents were in evidence in the matter:
(a)    Application to Resolve a Dispute and the documents attached;
(b)    Reply and the documents attached;
(c)    An Application to Admit Late Documents dated 1 December 2022 which contained the records of the applicant’s treating psychiatrist, Dr Law.
There was no objection to any of the material referred to above at the arbitration hearing There was no application to adduce further written or oral evidence.
Prior to dealing with the submissions of the parties, it is convenient to set out compendiously the evidence of the applicant and of the qualified psychiatrists, Dr Anderson in the applicant’s case and Dr Vickery in the respondent’s case. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved the dispute.

The applicant

The applicant’s evidence is contained in two signed statements which are dated 2 July 2021 and 31 August 2022. By his initial statement the applicant addressed his work history prior to the subject injury. He says that he worked for Submit Printing between 2004 and 2011. However, he was unable to work again until he commenced work with the respondent as a process worker in 2018.
The applicant states that he experienced the onset of pain in his back and neck in 2012 which “recovered in about 2017”. He continues:
“Due to the condition of my neck and back, I began developing the symptoms of depression in around 2015.
In 2017, I was referred to have treatment as an outpatient at the mental health ambulatory care entrance of the Liverpool Hospital where I attended one consultation only and was prescribed Mirtazapine. However, I only took a couple of tablets as I got better.
In 2018, my depression reoccurred and Dr James Ly referred me to Dr S K Law, psychiatrist, in Lidcombe. Dr Law prescribed me with Stelazine 5mg.”
The applicant says that he recovered from his depression and was able to commence work with the respondent, where he performed arduous work, in November 2018.
The applicant then describes the incident in which he says his left thumb became “crushed between the pulley and the belt”. He continues:
“I pulled my left arm immediately in a forceful way from the belt to try and free myself when I felt severe pain to my neck, my thumb, left elbow and shoulder. I managed to free my hand away from the machine and my hand and thumb were heavily bleeding and deformed.
As soon as I saw the blood to my hand and thumb and the way it was deformed, I was immediately shocked and scared about what had happened and immediately started thinking that I would be disabled with this forever.”
The applicant says that he told a workmate who only knew a few Cantonese words about the injury to his “neck, left shoulder, left elbow and left thumb”. He says that there was “miscommunication” as to what injuries he sustained as he was “in panic mode and so was my friend Lee”.
The applicant recounts that he was taken to the Blacktown Medical Centre where he was prescribed painkilling medication. On 20 February 2019, he consulted Dr Ly. He states that:
“During this time, I was having persistent pain to my neck however I did not report this to my doctor as I thought the pain to my neck would go away.”
The applicant recounts that Dr Ly referred him to a rheumatologist, Dr Liew. He says that he was taking a lot of painkillers and developed gastro-intestinal symptoms for which he saw a colorectal surgeon. He states that he has trouble sleeping because of this condition. He also returned to see Dr Law, his psychiatrist in July 2021.
The applicant sets out in considerable detail the symptoms which he suffered at the time of the statement. Relevantly, they include sleep deprivation, anxiety, irritability, a short temper, nightmares and flashbacks.
He states that in November 2019, he changed general practitioners, consulting Dr Lim of Workers Doctors as he was “unhappy with Dr Ly’s services as he was not paying much attention to my injuries”. It appears, however, that he continued to see Dr Ly.
The applicant records that, in keeping with the usual practice of Dr Lim, he was referred to a psychiatrist, Dr Kumagaya, an orthopaedic surgeon, Dr Soo, and a neurosurgeon, Dr Peter Khong. He states that he has not been able to return to work since the injury. He states he will “randomly throw things around” when he is angry. He will “randomly scream” to alleviate his pain. He is constantly consumed with negative thoughts and, while he suffers from insomnia, rarely leaves his bed.
By a supplementary statement the applicant reiterates that by 2018 he had recovered from his earlier psychological condition. He denies having gambled since 2012. He disputes the history and opinion of Dr Vickery. He says that he became “scared and anxious” when he saw blood following the injury as he thought his thumb was “about to get severed”.
The applicant recounts that following the injury his mental health began to decline. He reiterates that he has experienced nightmares and is only able to sleep two to three hours each night. He reiterates that he is dependent on his wife for prompting in relation to personal hygiene and all the household activities. He states that his wife “has to do everything for me and I am dependent on her”. Despite this, he does not eat regular meals but subsists on “fast food and snacks”.

Dr Anderson

Dr Anderson, psychiatrist, saw the applicant at the request of his solicitor by Skype on 21 April 2022. He recorded that he found it difficult to obtain an accurate history of the applicant’s pre-injury health, the mechanism of the accident and the “precise timeline” for the onset of his present psychological condition. Accordingly, he relied on the clinical records of the applicant’s general practitioner with which he was briefed.
Dr Anderson observed the applicant to carry out “gross wringing movements with his arms” during the consultation. He repeatedly stood up and sat down and finished the consultation sitting on the floor. He appeared to be agitated. Dr Anderson recorded the following history:
“He affirmed the intrusive symptoms of post-traumatic stress disorder and he affirmed the arousal symptoms. He was also quite avoidant of being in places reminiscent of his injury and this had extended to avoidance at being out of home. He did not leave home without his wife. He affirms that he feared further injury and he also indicated he feared other people would injure him. This appeared to be a persecutory idea or psychotic feature beyond the usual purview of a post-traumatic stress disorder.”
After reviewing the medical evidence, including the notes of Dr Ly and the report of Dr Law dated 18 October 2021, Dr Anderson concluded that they demonstrated a pre-accident history of depression and chronic pain. He noted that Dr Ly had prescribed Stelazine in the pre-accident period. He continued:
“The conclusion I make is that your client had some psychotic symptoms leading to the prescription of anti-psychotic medication in that period, as well as depressive symptoms leading to the prescription of anti-depressant medication in that period. Nevertheless, he was working and functioning in an apparently reasonable fashion.”
Dr Anderson concluded that the applicant suffered from post-traumatic stress disorder. He thought the prognosis was for continuation as the applicant’s symptoms had not improved despite the intervention of three psychiatrists and two psychologists. He thought that he was unfit for all work and assessed permanent impairment at 25% WPI.

Dr Graham Vickery

Dr Vickery saw the applicant by telehealth at the request of the respondent on 11 July 2022. He also recorded in considerable detail the notes of Dr Ly and information from the report of Dr Law of 18 October 2021. He recorded that the applicant was housebound, “often alone in my room” and afraid that someone was going to kill him.
Dr Vickery recorded that the applicant had injured his thumb and elbow in the injury on 18 February 2019. Subsequently, pain developed:
“in both of my hands and now it’s in both of my shoulders and arms and across the top of my back and it is there all the time and it is like a knife piercing into me.”
While the applicant had undertaken physiotherapy and acupuncture, he reported that his pain was increasing rather than improving. Dr Vickery also recorded that the applicant spends time in his room fearing that someone would kill him. He also had thoughts of self-harm. Finally, despite psychiatric treatment over the last three years his condition had not improved.
Dr Vickery expressed the opinion that there was “exaggeration in relation to the severity of the incident and his injuries”. He thought that he either was suffering from somatoform chronic pain disorder or was malingering. He noted that there was a pre-existing history of chronic pain and major depressive disorder. In asserting that a process of a depressive disorder should not be made he referred to the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association which he says:
“states quite clearly that ‘the stress related disturbance does not meet the criteria for another mental disorder’ which excludes making a diagnosis of adjustment disorder when the criteria are met for Somatoform Chronic Pain Disorder.”
Dr Vickery stated that he had not made a diagnosis of post-traumatic stress disorder “as there was no trauma-related psychopathology”. He stated that before a diagnosis of post-traumatic stress disordercould be made, the applicant should be assessed by psychometric testing to “reliably validate any diagnosis of post-traumatic stress disorder and clarifying any other related psychopathology”. He concluded that there was no apparent basis for any “physical or psychiatric injury due to the incident”.
In respect of treatment, he thought that the applicant’s current treatment had been ineffective and was reinforcing illness behaviour and had not resulted in any recovery.

SUBMISSIONS

As the submissions of counsel are recorded I do not propose to reiterate each of their arguments in these short reasons. I will attempt to address their primary contentions in resolving the issues in dispute.
I note, however, that Mr Doak submitted that the evidence of the applicant was unreliable in the sense that it was not an “accurate” account of the development of his symptoms. An analysis of the medical records of Dr Ly, of 20 February 2019 was not consistent with the onset of a post-traumatic stress disorder following the injury. The medical record should be preferred to the applicant’s account.
The applicant’s psychiatric condition which included a suggestion of psychotic behaviour undermined the reliability of his account. He stated that this approach was not inconsistent with the caution against over-reliance on clinical notes in Mason v Demasi[2] and other cases. He referred to Stanshall v The Urban Fringe Kings Langley Pty Limited[3] for the purpose of making a distinction between reliability and credit.
[2] [2009] NSWCA 227.
[3] (NSW PICPD 2021).
Mr Doak also argued that, as the applicant’s medical witnesses relied upon the evidence of the wife, their opinions should be viewed with considerable caution. There was no statement evidence from the applicant’s wife.
The nature of the injury disclosed by the clinical notes of Dr Ly and the subsequent lack of complaint of psychological illness undermined the opinions of the psychiatrists in the applicant’s case. There was no fair climate for their opinion that the applicant suffered post-traumatic stress disorder as a result of the injury. These specialists failed to adequately explain why a minor injury could give rise to a psychological condition which did not manifest itself for a long time after the injury.
Mr Parker submitted that there were reasons peculiar to the case why the Mason principle should be applied to the clinical record. The applicant spoke limited English. He had suffered significant physical injuries in the incident. It was not evident from the record that the applicant’s general practitioner had probed for a psychological illness in the post injury period.
There was, therefore, no good reason to reject the written evidence of the applicant. His initial statement, which referred to symptomatology consistent with post-traumatic stress disorder, was signed before a dispute arose with the respondent as to whether he suffered a primary psychological injury. His evidence that his physical and psychological condition improved prior to the injury and dramatically worsened after it was consistent with the notes of Dr Ly.
While Dr Vickery described the injury on 18 February 2019 as minor, the applicant states that his perception was of an extremely frightening event. He describes his perception of the injury in his written evidence. He also describes the concept of nightmares of the incident which are only consistent with a primary psychological injury. It was not plausible to attribute this symptom to a secondary psychological condition resulting from chronic pain.
Mr Parker submitted that it was unnecessary for the applicant to prove post-traumatic stress disorderto obtain a referral. It was only necessary for him to establish a primary psychological injury. Even if the Commission determined that the applicant suffered a somatoform disorder, it should refer the question of whole person impairment to a Medical Assessor to determine whether it gave rise to whole person impairment.

DISCUSSION AND FINDINGS

While Both Dr Anderson and Dr Vickery refer liberally to the notes of Dr Ly, the applicant’s general practitioner, the account of his pre-injury health in the evidence is incomplete. While the applicant apparently ceased work in 2011 and developed an incapacitating illness in 2012, the medical record does not commence until 10 April 2015 when Dr Ly recorded the history of:
“chronic depression
Chronic neck-lower back pain
Hypertension
Pain L calf-left foot referred”
At that consultation, Dr Ly referred the applicant to Dr Simon McKechnie, a neurosurgeon. However, it is not known whether the applicant saw that specialist. It is clear, however, that the applicant’s symptoms did not abate.
On 14 August 2015, the applicant complained of chronic low back pain, bilateral sciatica, and numbness in both arms and hands. Thereafter, there are consistent references to back and neck pain in the clinical record for which Dr Ly prescribed acupuncture, exercise, and swimming.
While the references to depression in the clinical record are sparse it is invariably described as “chronic”. On Thursday 25 January 2018, Dr Ly noted that the applicant was awaiting an appointment with Dr Law noting that he had suffered “chronic depression & anxiety for yrs”.
On 18 February 2020, Dr Low recorded that the applicant had lacerated his left thumb. The left thumb was sutured and the applicant was certified as unfit for work for one day. Dr Low saw the applicant again on 20 and 22 February 2019. He recorded that the applicant’s wound was “healing well” and that he could resume work on the following Monday.
On 25 February 2019, Dr Ly recorded a full history of the injury on 18 February 2019. It was as follows:
“While replacing a belt that came off the machine, Mr Dang’s left thumb was accidentally jammed in the machine and got cut by it. He quickly pulled his left thumb out of the machine. As a result, Mr Dang sustained a laceration to his left thumb as well as severe pain to his left thumb and left elbow.”

The reasons for the consultation were said to be:
“laceration left thumb
Soft tissue injury L thumb
Soft tissue injury L elbow”
The patient applicant was certified unfit for work.
When the applicant continued to complain of left hand and elbow pain resulting from the injury of 18 February 2019, he was referred to Dr Liew, a rheumatologist. Throughout 2019, he continued to complain to Dr Ly of intermittent neck and back pain and chronic pain in his left foot and knee. However, the record is primarily concerned with complaints of left hand and elbow pain.
On 30 October 2019, Dr Ly recorded that the applicant was “still the same”. He suffered from “chronic pain” which was “essentially unchanged”.
On 26 June 2020, Dr Ly recorded that the applicant was:
“often feeling low, sad sometimes coming down in tears
Frequent hot tantrum, swearing at wife
Feeling hopeless, depressed due to chronic pain
Easily becoming upset with extreme anger & aggressiveness; has threatened to kill wife (while angry) a few times in past
Jason referred to psychologist, Amy Ng, for counselling.”
On 17 July 2020, Dr Ly recorded that the applicant had chronic pain in his neck, shoulders and lower back. On 31 July 2020, the applicant was referred to Dr Yeoh, a psychiatrist. Despite these referrals, the applicant was apparently unhappy with the treatment that Dr Ly provided and on 2 December 2019 consulted Dr Lim at the Workers Doctors at Parramatta.
Dr Lim, who only recorded a brief history, diagnosed injuries to the applicant’s cervical spine, left shoulder, left elbow and left thumb. He also recorded that the applicant suffered “chronic pain with psychosocial barriers”. He referred the applicant for physiotherapy and psychological treatment. He also referred him to an orthopaedic surgeon, and in due course, a psychiatrist. Despite extensive treatment over the last several years the applicant’s condition has not improved.
By a medical certificate dated 7 February 2020, Dr Benjamin Dickson certified the applicant as unfit for work as a result of the injury on 18 February 2019. He noted that a factor affecting recovery was “severe pain”.
On 27 October 2020, Dr Kumagaya consulted with the applicant. He recorded that the applicant reported the onset of post-traumatic stress disorder “subsequent to his workplace accident”. The symptoms of post-traumatic stress disorder included:
“intrusive and distressing memories and dreams of the accident, psychological distress and exposure to external clues that resembled the accident, avoidant symptoms and need of alterations in cognitions and mood.”
Dr Kumagaya reported that the applicant suffered a prior psychological condition being “a mild depressive syndrome diagnosed by his general practitioner”.
On 28 September 2021, the applicant saw Dr Mai, a general practitioner of Canley Vale who referred him to Dr Thomas Luong, a psychiatrist, at Cabramatta. Although Dr Luong has seen the applicant on, at least, two occasions and the prescribed psychotropic medication no report was tendered from him.
During the arbitration hearing there was discussion as to the use that could be made of the extensive medical record in this case. Mr Parker referred to Mason where Basten JA at [2] set out the reasons why a clinical record of a health professional should be treated with circumspection.
Among the reasons the judge gave was that the health professionals who took the history had not been cross-examined and that the purpose of a medical record “differed from the forensic exercise” undertaken in legal proceedings. A medical record was likely to be a summary rather than a verbatim recording. The need for caution in considering the clinical record was also at the heart of the decisions of the Court of appeal in Daniel Gerald Fitzgibbon v Waterways Authority & Ors[4] and Davis v The Council of the City of Wagga Wagga.[5]
[4] [2003] NSWCA 284 (3 December 2003).
[5] [2004] NSWCA 34 (26 February2004).
On the other hand, the presence or absence of a relevantly contemporaneous complaint of symptoms in a document or medical record has generally been regarded as an important measure of the occurrence and nature of injury : see for example, the approach of the trial judge recorded in Azzopardi v Tasman UEB Industries Limited.[6] The greater the interval between the incident and the first report of symptoms, the more difficult it is to be confident of a causal nexus.
[6] (1985) 4 NSWLR 139.
A lengthy delay between an incident and the report of symptoms allegedly associated with it may cast some doubt on the reliability of a worker’s evidence. Obviously, it is necessary to consider this aspect of the case in the context of all of the evidence. However, I have some doubt as to whether this approach is as valid in a case of psychological injury as it may be in a case of physical injury. Whether psychological symptoms are elicited following an incident depends to a large extent on the questions posed by the doctor compiling the clinical record at consultation. It cannot be assumed that a patient will volunteer a comprehensive history of psychological symptoms if they are not the subject of interrogation.
Then, it is common experience that symptoms of post-traumatic stress disorder do not always come on contemporaneously with the incident which engenders the condition. They may develop gradually over a long period of time. Nonetheless, the absence of a reporting of the symptoms of post-traumatic stress disorder in the period following the incident remains an area of concern.
From a lay perspective there are two others. First, the incident does not appear sufficiently “traumatic” to have caused post-traumatic stress disorder. That, of course, is the view of Dr Vickery. Dr Rimmer, the respondent’s qualified orthopaedic surgeon, also thought that the injuries were minor. Importantly, it was also the impression recorded by Dr Low, who saw the applicant in the days following the injury, and recorded that he was fit for work within a week of its occurrence.
Secondly, the applicant undoubtedly has a condition of chronic pain which has existed since 2012. While there may have been some alleviation of the condition in the period when the applicant returned to work in October 2018, there has clearly been a recrudescence of it following the injury. He also has a long history of depression which on his account is related to the chronic pain.
Dr Anderson assumes that after many years of suffering from chronic pain and depression, the applicant recovered in the months in the months before the injury, returned to work, and was living a reasonably normal life. The incident of 18 February 2020 caused a post-traumatic stress disorder that is capable of explaining the extraordinarily isolated lifestyle that the applicant lives or his bizarre presentation at examination. The latter was replicated during the short periods that I saw the applicant audio-visually during the preliminary conference and the arbitration hearing.
I have considerable doubt as to whether Dr Anderson’s assumption is correct. It is largely dependent on the evidence of the applicant and the history provided by his wife, who did not give evidence, at medical examinations. In my opinion, the evidence is consistent with the existence of a continuation of the applicant’s pre-injury state of chronic pain and associated depression the present. Several medical practitioners have recorded that the applicant suffers from “chronic pain with psychosocial barriers”. It seems likely that there is a psychotic dimension to the depression. However, in my opinion there are two aspects of the applicant’s medical case that are persuasive on the issue of whether the applicant sustained a primary psychological injury.
First, there is the evidence of Ms Ng, the treating psychologist to whom the applicant was referred by Dr Ly. Ms Ng was the first post injury health professional in the field of psychology/ psychiatry whose report is before the Commission. She first saw the applicant on 30 June 2020. She recorded a history of the applicant still having “distressing dreams of the accident”. She also recorded that the applicant had a long history of chronic medical conditions. She recorded the following diagnostic impressions:
“1.     Severe major depressive disorder – chronic and recurrent.
2.     PTSD from past work injury.
3.     Chronic pain syndrome.”
While that analysis is that of a psychologist rather than a psychiatrist, it appears to give due weight to the factors involved in the applicant’s illness.
Secondly, there is the opinion of Dr Law, a psychiatrist who treated the applicant before and after the 2019 injury. Unfortunately, he records that he lost his notes in respect of his prior treatment. By a report of 18 October 2021, addressed to Dr Ly, Dr Law recorded the following:
“He has suffered from on and off depressive symptoms since around 2015.
He has suffered from symptoms of post-traumatic stress disorder (PTSD) after he has been involved in a work-related incident on 18 February 2019, such symptoms were probably moderately severe for 18 months following the time of the work accident and such symptoms are now only of mild moderate degree in the past year.”
Dr Law also recorded that the applicant gave him a copy of a medical report from Dr Jessica Lightburn, dated 22 September 2017, which stated, inter alia,:
“He suffered from an episode of major depression, in relation to his suffering from multiple pain symptoms in 2017”.
The report of Dr Lightburn was not put into evidence.
Complaints consistent with a primary psychological condition recorded in the reports of Ms Ng and Dr Law are consistent with the applicant’s initial statement. It is difficult to cast them aside as unreliable. While an attack was made on the accuracy of the applicant’s evidence, it was not suggested at the arbitration hearing that he was consciously manufacturing evidence in support of his claim for a primary psychological injury. Certainly, I would be reluctant to reach that conclusion in the absence of cross-examination.
On the issue of whether the applicant suffers a primary psychological injury, I prefer the opinions of these treating medical practitioners to the opinion of Dr Vickery. I accept that the applicant suffered a primary psychological condition as a result of the injury of 18 February 2019, which manifested itself in nightmares and intrusive thoughts of the injury in the following years. In my opinion, that condition was either superimposed on or coexisted with a chronic pain condition and depression. Plainly both of these conditions existed prior to the injury.
Dr Vickery argues that the injury of 18 February 2019 was innocuous and incapable of giving rise to post-traumatic stress disorder. It is probably unnecessary, as Mr Parker argued, for the Commission to determine whether the applicant suffers from a specific psychological condition as a result of the injury. The only prerequisite for referral of the matter to an MA is a finding of primary psychological injury. I note that three psychiatrists and Ms Ng accept that the incident of 18 February 2019 was capable of giving rise to a primary psychological condition. I prefer these opinions on that issue the opinion of Dr Vickery.
Assessed objectively, the incident of February 2019 and its sequelae may appear trivial but the case law instructs that it’s the applicant’s perception of these matters that is critical in determining injury.
Dr Vickery also argues that the applicant suffers from a somatoform disorder. There is some force in this argument. Other doctors refer to chronic pain disorder. It is difficult to know whether there is any underlying physical basis for this condition. While it is strictly not an issue I have to determine, I am reasonably confident that any residual physical symptoms or symptoms of chronic pain experienced by the applicant do not result from the subject accident. In the circumstances, the most appropriate course is to utilise the terminology of “chronic pain” used throughout the treating notes. If a MA feels it necessary to classify the disorder that course of action is clearly open to him.
Accordingly, I propose to find that the applicant suffered a primary psychological condition as a result of the injury in 2019. That condition was superimposed on other medical conditions as stated in the above reasons. It is for a MA to determine whether the primary psychological condition continues and whether, in the context of the other medical conditions, it gives rise to permanent impairment.

[2022] NSWPIC 732

20 December 2022