Elmasri v APEC Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elmasri v APEC Transport Pty Ltd [2025] NSWPIC 472
APPLICANT:	Ibrahim Elmasri
RESPONDENT:	APEC Transport Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	10 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation for accepted psychological injury; employer argued worker also suffered secondary psychological injury; analysis of expert evidence; South Western Sydney Area Health Service v Edmonds, Grasa v Roads and Maritime Services, and Summers v Sydney International Container Terminals Pty Limited t/as Hutchison Ports; Held – worker suffered a primary psychological injury and did not also suffer a secondary psychological injury; matter remitted for referral to Medical Assessor.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. I find that the applicant suffered a primary psychological injury on 7 August 2019. 2. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment: Body system: Psychological injury Date of injury: 7 August 2019 Method of assessment: Whole person impairment. 3. The documents to be sent to the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply; (c) APEC’s Application to Lodge Additional Documents dated 7 August 2025, and (d) a copy of this certificate of determination. A statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ibrahim Elmasri suffered an injury on 7 August 2019 when he was struck by a steel beam suspended from a crane while employed by APEC Transport Pty Ltd (APEC). He suffered physical injuries and a primary psychological injury in the form of post-traumatic stress disorder.
The issue for determination is whether he also suffered a secondary psychological injury. For the reasons which follow, I am not satisfied that he did.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 15 August 2025 when Mr Hickey of counsel appeared for Mr Elmasri and Mr Stiles of counsel appeared for APEC.
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 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

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply, and
(c)    APEC’s Application to Lodge Additional Documents dated 7 August 2025.
There was no oral evidence.
Mr Elmasri said in his statement dated 1 November 2023 that he suffered post-traumatic stress disorder as a result of a motor accident in 2015. He said that he recovered from that injury.
Mr Elmasri said that he was employed as a truck driver by APEC, a company which hires out machinery and equipment, including cranes which are affixed to the back of trucks. APEC also provides with staff to operate those cranes. On the day of the injury, Mr Elmasri and his co-worker drove from APEC’s depot in a truck mounted with a crane to a site where steel beams were loaded onto the truck. They then drove to a residential construction site where they removed the beams from the truck using the crane. Mr Elmasri initially operated the crane. When about half the beams had been unloaded, he and his co-worker swapped roles.
Mr Elmasri saw his co-worker standing on the back of the truck with hydraulic oil dripping onto him from one of the cylinders on the arm of the crane. Mr Elmasri feared the crane would collapse and he screamed to his co-worker to drop the load on the ground. He believes his co-worker pushed the wrong button because of oil in his eyes and instead of the load falling to the ground, it swung toward Mr Elmasri, flinging him backwards and causing him to strike the back of his head, his shoulders and the whole of his spine against a stack of steel beams.
Mr Elmasri felt pain in many parts of his body. He stood up and assisted his co-worker to lower the steel beams to the ground. Mr Elamasri rested at home that night. On the following day he saw his general practitioner, Dr Albadran, who referred him to Liverpool Hospital. Mr Elmasri was an inpatient for three days. When he returned home he continued to feel anxious and depressed, “thinking of the frightening accident and my injuries.” Mr Elmasri described his treatment.
At the end of the statement, he set out his continuing disabilities:
“a. Headaches
b. Stiff and painful neck
c. Chest pain
d. Neck pain travelling down the shoulders and arms
e. Feelings of pins and needles to the back of my neck and down my shoulders and arms to my fingers
f. Stiff and painful shoulders
g. Pain to mid back
h. Stiff and painful lower back
i. Lower back pain travelling down my legs to my feet
j. Feelings of pins and needles to my legs and feet
k. Stiff and painful knees
I. Difficulty with craning activities such as reading and watching television
m. Difficulty with raising arms above shoulder level
n. Difficulty with bending, lifting, pushing, pulling, crouching and turning
o. Difficulty with prolonged walking, sitting and standing
p. Difficulty with driving and sleeping
q. Difficulty with the sexual relationship
r. Difficulty with ascending and descending stairs
s. Difficulty with walking on uneven ground
t. Nervousness, anxiety, depression, panic attacks, impaired concentration, mood swings, feelings of helplessness, low self-esteem, insomnia, tiredness and irritability
u. Reduction of social and recreational activities.”

Liverpool Hospital

Mr Elmasri was admitted to Liverpool Hospital on 8 August 2019 under the care of the on call general surgical team with tenderness to his cervical spine, abdomen and lumbar spine and tingling in his legs and discharged on 10 August 2019.

Dr Albadran

Dr Albadran saw Mr Elmasri on 8 August 2019 and recommended he go to Liverpool Hospital. He saw Mr Elmasri on several occasions before preparing a referral to Ms Zaarour on 23 September 2019 saying:
“Thank you for seeing Mr Ibrahim Elmasri who is 23 yrs who involved in work place Injury on 07/08/2019 when the steel beam hit his lower abdomen, He was taken to Liverpool hospital , He has been feeling sad and depressed, agitated , not sleeping at night , developed panic attack every time he try to be behind the wheels. I appreciate your opinion in regard the need for counselling
has been feeling depressed and agitated
referred for Ct scan of lower spine and thoracic spine
not sleeping at night, given endep tablet.” [sic]
On 30 October 2019 Dr Albadan recorded that Mr Elmasri had anxiety, frequent nightmares, was not able to sleep and felt sad. On 12 November 2019 Dr Albadran recorded that “nightmares are bothering him, anxiety and panic when he jump behind wheels, it sound like PTSD."
On 7 January 2020, Dr Albadran wrote that Mr Elmasri needed a psychologist and on 7 March 2020 said, “has not seen psych yet but he asked me to see Ms Zaarour in Fairfield.” Dr Albadran’s notes for 17 March 2020 include the text of the referral he provided:
“had work related accident on 07/08/2019 when he was struck by a metal beam in abdomen area, thrown to ground, landed on back for few hours .He developed Lower back pain & Neck pain. he has been seeing physio for 3 month. He has been anxious, stress and tension. He feels like he panic every time he stay by him self, worry, and Insomnia . referred for Ms.zaarour for opinion in regard the need for counselling/ psychotherapy.” [sic]
On 6 June 2020 Dr Albadran recorded, “I’m worried about PTSD whether he will slip into it. He will need to see psychiatrist as well.”

Ms Zaarour

Despite the referral dated 23 September 2019, there is no evidence that Mr Elmasri saw Ms Zaarour before 30 April 2020. Ms Zaarour that Mr Elmasri had persistent feelings of sadness and irritability, and was anxious when passing work or jobsites, or when he sees a uniform. Her diagnosis was depression and anxiety, but she noted that Mr Elmasri was distressed, “rating his level of pain throughout the day, and assigning tasks to his level of pain.”
On 7 May 2020, Ms Zaarour diagnosed “post-traumatic stress disorder severe depression.” She noted that Mr Elmasri suffered chronic pain, angry, outbursts, financial hardship and stress, insomnia, nightmares, social withdrawal, and isolation and frustration that he cannot work. She said that he was struggling with flashbacks of the work incident. Her notes at subsequent consultations were consistent.
Ms Zaarour wrote to Dr Albadran on 11 June 2020. Her diagnosis was that Mr Elmasri was suffering from of post-traumatic stress disorder with depression with severe levels of anxiety and stress. She said that further time was needed to diagnose post-traumatic stress disorder. She said the therapy would be based on cognitive behavioural therapy principles to target, both physical and cognitive symptoms associated with depression and anxiety.
On 29 April 2021 Ms Zaarour prepared a progress report. She said:
“Symptoms of Depression and Anxiety experienced by Mr Elmnsri include feelings of excessive sadness, irritability, poor motivation, feelings of fatigue, sense of foreshortened future, early morning wake, social withdrawal, reduced interest in previously enjoyed activities, and changes in appetite and sleep. Othel' symptoms of Anxiety and Trauma experienced by Mr Elmasri include: excessive worry, restlessness, restless sleep, lapses in concentration and memory, angry outbursts, muscle tension, heightened startle response, reoccurring nightmares, anxiety attacks, and feelings of hopelessness,
Based on the assessment and ongoing consultations with Mr Elmasri, it is believed that Mr Elmasri’s psychological issues have been triggered and maintained by a workplace injury (07/08/2019) and subsequent physical and psychological injuries. The client has not been able to return to work, or normal pre-injury functioning since the accident.”
In a report dated 2 July 2021, Ms Zaarour confirmed the diagnosis of post-traumatic stress disorder with depression and severe symptoms of anxiety and stress. She noted that Mr Elmasri had chronic pain and that he appeared to be struggling with managing and controlling his mental health issues. His condition was not stabilised and he had not improved since the previous assessment. Ms Zaarour said that “therapy will also aim to help with the confront his fears, triggered by a workplace incident to enable the client to return to normal functioning.”

Dr Manohar

Dr Albadran referred Mr Elmasri to Dr Manohar, pain physician, and the first consultation took place on 25 May 2022. Dr Manohar noted Mr Elmasri’s complaints and recorded that he described “anxiety, PTSD and depression.” He organised a bone scan.
Dr Manohar requested a bone scan again on 18 January 2023.
On 1 February 2023 Dr Manohar recorded that Mr Elmasri suffered the most pain in his neck and low back. He requested a CT scan. On 15 February 2023 Dr Manohar said there were features of disc bulges at C3/4 and C4/5 and sought approval for cervical diagnostics to locate the pain generator. He saw Mr Elmasri again and made the same comments on 22 February 2023. Dr Manohar said he was still waiting for approval for the “precision treatment for the pain generator” on 8 March 2023 and that he proposed treating Mr Elmasri’s cervical spine before his lumbar spine.
On 1 April 2023, in a report which appears incomplete, Dr Manohar said that the “cervical diagnostics have revealed the pain generators” and sought approval for an “RF procedure at those levels.” He also sought approval for a pain management program.
On 19 April 2023 Mr Elmasri complained to Dr Manohar of knee pain. Dr Manohar sought approval for a genicular neural blockade of both knees and a pain management program to “address the features of nociplasticity and central sensitisation”. Dr Manohar saw Mr Elmasri again on 3 May 2023 and said he was still waiting for approval for treatment for Mr Elmasri’s knee pain. He was still waiting for that approval on 18 July 2023. By that date, Mr Elmasri had attended an initial assessment for a pain management program. Dr Manohar’s report dated 1 August 2023 was unfinished.
There are no further reports from Dr Manohar. He did not mention any psychological injury after the first report.

Dr Phillips

Dr Albadran referred Mr Elmasri to Dr Phillips. Dr Phillips saw Mr Elmasri for the first time on 20 February 2023. He said:
“Ibrahim presents with symptoms since the work related accident in 2019. He describes that he was hit by a metal beam during his work. Since then, he describes that his sleep is disturbed by nightmares, which happened on most nights. He also described having flashbacks. He startles easily. His appetite is disturbed but he has gained a lot of weight. He is intolerant to noise and light.
In addition, he reports low mood and lack of interest. The symptoms are also associated with lack of concentration and short-term memory disturbance. Furthermore, he describes having panic attacks during driving especially if he sees a truck or driving near one. He panics if he hear some noises e.g firework.
Ibrahim spends most of his time at home. He tends to isolate himself. He reports that he doesn't feel safe. He has lost most of his friends. He has stopped doing all his hobbies.
No evidence of pervasive low mood, psychosis, mania, OCD or other anxiety disorders was found during the assessment.
…
His medical condition is unremarkable. He is seeing a pain specialist and in the process of doing some investigations.
…
On examination, Ibrahim appears to be depressed and irritable. He spoke with a normal rate, tone and volume. His affect was reactive and appropriate. He described his mood as ‘low’. There was no evidence of formal thought disorder, delusions or current suicidal ideas. There are depressive ruminations, helplessness and hopelessness. There were no perceptual disorders detected during the assessment. His cognitive functions were intact.”
Dr Phillips diagnosed “PTSD with secondary depression and panic attacks with comorbid nicotine dependence.” He set out his treatment plan.
Dr Phillips prepared further reports concerning his treatment on 27 March 2023, 6 May 2023 and 4 September 2023. On the last occasion he noted that Mr Elmasri’s symptoms are improving with the use of medication.

Medico-legal reports

Dr Anderson reported to Mr Elmasri’s solicitors on 6 December 2023. He described Mr Elmasri’s’s background and previous motor accident and the circumstances of the injury. Dr Anderson wrote:
“His symptoms of a psychological nature have included irritability and anger, anxiety, depression, panic attacks including sweatiness, chest pain and dyspnoea. He has sometimes been able to operate a motor vehicle and sometimes not because of anxiety.
He complains of perpetual fatigue and being without energy, motivation or enjoyment.
He complains of nightmares which involve death and involve being chased. He wakes in a sweaty and anxious condition, short of breath. He hears his name called but there is nobody present. There is a black shadow.
He thinks about the accident on a regular basis almost daily and this is involuntary. He is reminded by crane trucks, by job sites and by the sound of trucks. Sometimes he is quite overwhelmed and just shuts himself away in his room. He has anxiety attacks at home but more frequently when out.
He complains that he thinks somebody is after him and he does not know what is real or false.
His symptoms have been present from an early stage after the accident and have continued to the present.”
Dr Anderson described Mr Elmasri’s presentation and thought he may have been over sedated. He said:
“He gave an account of a frightening accident and he said he apprehended death at the time of the accident. His subsequent history has included hyperarousal symptoms, avoidant symptoms and depressive symptoms as well as re-experiencing symptoms. His mood was depressive at the time of interview and his affect was depressed.”
Dr Anderson summarised the notes from Mr Elmasri’s general practitioner, noting that post-traumatic stress disorder was queried at an early stage. He considered Ms Zaarour’s notes, observing that she diagnosed post-traumatic stress disorder, severe depression and anxiety.
Dr Anderson said:
“Your client was injured in a frightening accident on 7 August 2019 at which time he apprehended the possibility of death.
Quite extensive investigation during a three-day hospital admission followed. He has continued to experience chronic pain and is in the care of a pain specialist.
Quite separately, he has experienced symptoms of Posttraumatic Stress Disorder from the time of the accident and has required treatment by a psychologist and a psychiatrist, and with psychotropic medications.
His symptoms are in the areas of re-experiencing symptoms, hyperarousal symptoms, avoidant symptoms, depressive symptoms.
His symptoms have not improved with treatment which continues. They have been associated with significant impairment.
A diagnosis of Chronic Posttraumatic Stress Disorder is made within the DSM-5 system of classification.”
Dr Anderson provided a second report of the same date in which he assessed 19% Whole Person Impairment (WPI) as a result of post-traumatic stress disorder.
Dr Bisht assessed Mr Elmasri at the request of APEC’s solicitors and reported on 21 May 2024. He reviewed material from Mr Elmasri’s treating practitioners. He said that Mr Elmasri described physical injuries and continued to suffer pain. Mr Elmasri also started to have persistent psychological symptoms from the time of the accident. He said:
“These symptoms included:
·Frequent recollections of traumatic workplace experiences and preoccupation with the physical injury.
·Hypervigilance about similar experiences in the future
·Feeling anxious/sad while having these recollections/preoccupations
·Lack of enjoyment in previously pleasurable activities.
·Difficulty sustaining concentration
·Initial and middle insomnia
·Lack of motivation towards socializing and self-care, as well as hobbies
·Feeling anxious in day-to-day situations, and being easily startled
·Persistent flat mood
·Irritability
·Increase in symptoms when there were reminders of the traumatic workplace experience.”
Dr Bisht took a detailed history and described the mental state examination at length. He then provided short answers to a series of questions. He said that his diagnosis was post-traumatic stress disorder and major depressive disorder. Asked if Mr Elmasri suffered a primary psychological condition, Dr Bisht said:
“The injury is a combination of a primary injury as a result of the subject incident and secondary to the worker’s physical injuries sustained in that incident.
The worker has continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment, I would conclude that the proportionate contribution of the two components is 50 percent each.”
When asked to provide his reasoning process as to whether any component of Mr Elmasri’s presentation was a secondary psychological condition resulting from the effects of a physical injury, Dr Bisht repeated the answer set out immediately above, without providing further reasoning.
Dr Bisht was asked to review Dr Anderson’s report and state if he agreed or disagreed. He said that he disagreed with a component of Dr Anderson’s assessment of permanent impairment then repeated the answer set out above. There is no additional reasoning in Dr Bisht’s report and no explanation of the apportionment of 50% to each of the components of the injury.

Dr Anderson was asked to consider Dr Bisht’s opinion and he prepared a further report on 11 October 2024. Dr Anderson said that he assessed only a primary psychological injury because he did not regard Mr Elmasri as suffering a secondary injury. Dr Anderson noted that the history Dr Bisht set out was very similar to that he obtained. He noted Dr Bisht’s apportionment and said:
“I comment that the existence of the physical injury does not imply that there is secondary psychological injury. There needs to be some evidence of a secondary psychological injury for that conclusion to be justified.
The history recorded in my report and in that of Dr Bisht is that the psychological symptoms came on from the day of the accident. This is typical of Posttraumatic Stress Disorder and not typical of a secondary psychological injury.
The claimant did not provide a history linking his physical injuries with his psychological symptoms.
The treating psychologist has provided records of treatment indicating specific treatment for primary psychological injury. In my opinion, your client is not suffering from impairment or symptoms resulting from secondary psychological injury.”
Dr Bisht prepared a further report dated 29 October 2024. He agreed with APEC’s solicitors’ assumption that post-traumatic stress disorder was the primary condition and major depressive disorder was the secondary psychological condition which arose out of the persisting chronic pain and restrictions. He said:
“Dr Anderson has stated in his supplementary report dated 11 October 2024, that the client didn't provide a history linking his physical injuries to his psychological symptoms. This may have been the case due to one or more of several reasons, including the tertiary gain element that is part of compensation claims, or lack of awareness of the connection between chronic pain and psychological symptoms
As far as research evidence goes though, many clinical studies have revealed that chronic pain, as a stress state, often induced depression and that up to 85% of patients with chronic pain are affected by severe depression. Examples of journal articles describing this association are -
Bair M. J., Robinson R. L., Katon W., Kroenke K. Depression and pain comorbidity: a literature review. Archives of Internal Medicine. 2003;163(20):2433-2445. doi: 10.1001/archinte.163.20.2433.
Williams L. S., Jones W. J., Shen J., Robinson R. L., Weinberger M., Kroenke K. Prevalence and impact of depression and pain in neurology outpatients. Journal of Neurology, Neurosurgery, and Psychiatry. 2003;74(11):1587-1589. doi: 10.1136/jnnp.74.11.1587.
Based on the clinical notes, the client has clearly been in substantial pain/restrictions since the subject workplace incident
Dr Anderson has stated that the treating psychologist has provided records of treatment indicating specific treatment for primary psychological injury. However, at the same time, the clinical psychologist and pain specialist have both repeatedly mentioned of the chronic pain the client has been experiencing.
Hence the impact of the chronic pain/restrictions on the client's psychological state needs to be considered -the physical injuries are therefore having a substantial impact on current psychological symptoms and associated functional/permanent impairment.”
Asked to provide further reasoning on the basis of the treating practitioners’ material as to why he considered Mr Elmasri also suffered a secondary psychological condition, Dr Bisht referred to “the answer in question 1.”
Dr Bisht was asked to provide a further report commenting on Dr Phillips’ reports and providing the journal articles to which he referred. Dr Bisht said that Dr Phillips’ reports did not cause him to alter his opinion in any way. He did not otherwise comment on those reports.
Dr Bisht was asked if he maintained that Mr Elmasri suffered both a primary and secondary psychological injury and asked to nominate “[w]hat evidence/material is before you that supports your opinion in this regard?” Dr Bisht said:
“I continue to maintain that the Applicant is suffering from both a primary psychological injury and a secondary psychological injury (resulting from the effects of the physical injury sustained).
Notably, the client has himself stated in his statement ‘I also continued to be anxious, depressed and having panic attacks thinking of the frightening accident and my injuries.’ Additionally, the client has described ongoing substantial physical injuries. The GP notes also allude to significant ongoing physical injuries.” (emphasis in original)
Dr Bisht was asked to provide copies of the articles to which he referred in his previous report. He said:
“I am unable to provide the full copies of the journal articles as I do not access to them currently. They can be accessed on the internet on a subscription basis.”

SUBMISSIONS

Mr Hickey said that the events described in Mr Elmasri’s statement were significant. The dispute was whether the injury resulted in a primary psychological injury only, as diagnosed by Dr Anderson, or whether Mr Elmasri suffered a primary and a secondary psychological injury as diagnosed by Dr Bisht.
Mr Hickey said that Dr Anderson’s primary diagnosis was of chronic post-traumatic stress disorder. though he referred to a secondary depressive condition, it was secondary to post-traumatic stress disorder. Dr Anderson reviewed the notes of Mr Elmasri’s general practitioner and psychologist, Ms Zaarour. Mr Hickey contrasted his opinion with that of Dr Bisht who relied on publications, which were not provided, to say that 85% of patients with chronic pain are affected by severe depression.
Mr Hickey said that the history that Mr Elmasri continued to be anxious and depressed and to suffer panic attacks was not inconsistent with all of the symptoms, thinking of the frightening accident and his injuries, was not inconsistent with a primary psychological injury of post-traumatic stress disorder.
Turning to Dr Phillips’ reports, Mr Hickey said that his reference to secondary depression was consequent on post-traumatic stress disorder rather than Mr Elmasri’s physical injuries.
Dr Manohar treated Mr Elmasri for chronic pain. Mr Hickey said that Dr Manohar embarked on a regime of investigations but not a lot was found as a result, which added weight to Dr Anderson’s opinion that Mr Elmasri suffered primary post-traumatic stress disorder and not a secondary response to pain.
Mr Hickey took me to Ms Zaarour’s notes and to the diagnosis of post-traumatic stress disorder and depression with severe levels of anxiety and stress. He summarised Dr Albadran’s notes and his descriptions of Mr Elmasri’s symptoms. Mr Hickey said that, in that factual setting, the better opinion was that of Dr Anderson who based his diagnosis on the very early history Mr Elmasri provided to his general practitioner. Referring to Wiki v Atlantis Relocations (NSW) Pty Ltd[1] Mr Hickey said that I would prefer the opinion of Dr Anderson.
[1] [2004] NSWCA 174, (2004) 60 NSWLR 127.
Mr Hickey said that the matter should be remitted for referral to a Medical Assessor for assessment of a primary psychological injury.
Mr Stiles said that any referral to a Medical Assessor should include a copy of my reasons so that the Medical Assessor approaches the matter consistent with my determination. He said that the dispute was not the diagnosis of primary psychological injury being post-traumatic stress disorder because both medico-legal experts came to the same conclusion. Rather, the question was whether Mr Elmasri also suffered a secondary psychological injury as a result of his physical injuries.
Mr Stiles said that Mr Elmasri’s physical injuries and symptoms were documented from the time of the incident. He said that the records of Ms Zaarour documented symptoms consistent with post-traumatic stress disorder but also chronic pain which impacted on his sleep and his emotions. Mr Stiles said that both Ms Zaarour and Dr Albadran documented things which were consistent to a secondary psychological condition such as stress associated with financial hardship, chronic pain, helplessness and hopelessness. He referred particularly to Ms Zaarour’s report of 29 April 2021 and her reference to Mr Elmasri’s difficulty adjusting to and accepting changes to his lifestyle as a result of the injury. Dr Albadan’s notes in 2021 reiterated Mr Elmasri’s complaints of pain. Dr Manohar’s reports confirmed those complaints and Mr Stiles said that they did not take the issue further.
Turning to Dr Phillips’ reports, Mr Stiles said that I should not infer that his references to a secondary condition were a reference to a condition secondary on post-traumatic stress disorder and that his reports did not advance Mr Elmasri’s case.
Mr Stiles also noted the list of symptoms at the end of Mr Elmasri’s statement, some of which were consistent with a secondary psychological injury as diagnosed by Dr Bisht. Mr Stiles said that I would prefer Dr Bisht’s opinion because Dr Anderson had not fully engaged with the material from Mr Elmasri’s treating practitioners.
Mr Stiles said it is often argued that there is a “low bar” to determine that a worker has suffered a consequential condition. He said that the same should apply when determining if there is a secondary psychological condition arising from accepted physical injuries.
I asked Mr Stiles how I should deal with Dr Bisht’s failure to provide the journal articles referred to. He said that the rules of evidence did not apply and that there was sufficient objective evidence in the clinical records to support Dr Bisht’s conclusions.
Mr Hickey did not make submissions in reply.

FINDINGS AND REASONS

Mr Elmasri’s statement does not appear to have been prepared specifically for the purpose of these proceedings. It is dated 1 November 2023 and describes the injury in some detail and its aftermath. It contains Mr Elmasri’s detailed work history and photographs of the work site. I am not aware if there are, or have been, proceedings in respect of the physical injuries. Mr Stiles stressed the limited reference to Mr Elmasri’s psychological injury in the list of symptoms and I agree that is so. However, the statement does say that Mr Elmasri continued to be anxious and depressed and had panic attacks “thinking of the frightening accident and my injuries.”
There is no dispute that Mr Elmasri suffered post-traumatic stress disorder and the words in his statement confirm that. APEC argues that Mr Elmasri also suffers a secondary psychological injury as a result of chronic pain. Essentially, APEC’s argument is that the depression and anxiety Mr Elmasri suffers are a result of that chronic pain.
There is no doubt that Mr Elmasri has been treated for pain as a result of multiple injuries and that he was referred to a pain management program by Dr Manohar. Dr Manohar referred to Mr Elmasri’s psychological injury in his first report only. There is no evidence about a pain management program beyond the reference to Mr Elmasri attending an assessment.
The resolution of this dispute is a medical question and turns on the expert evidence. While a worker’s statement will be relevant to consider with other material, the experts are required to take a detailed history to ground their opinions. Their reports must fulfil the requirements for expert evidence set out in (among other cases) South Western Sydney Area Health Service v Edmonds[2] (Edmonds) where McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[2] [2007] NSWCA 16 at [130]-[132].
The Commission and its predecessors in determining workers compensation disputes has been described as a specialised tribunal which may in some circumstances rely on its experience to draw inferences as to injury and causation. In Grasa v Roads and Maritime Services[3] Roche DP said:
“However, the circumstances in which the Commission’s members may rely on general knowledge acquired in their capacity as members of the Commission are quite limited and do not extend to determining issues of “injury” and “causation” in the absence of appropriate expert evidence (Combined Civil Pty Ltd v Rikaloski[2007] NSWWCCPD 181 at [32]). In Hevi Lift (PNG) Ltd v Etherington[2005] NSWCA 42; 2 DDCR 271(Hevi Lift), it was held that a judge of the Compensation Court was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, a specialist formed his opinion so as to conclude the Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; 52 NSWLR 705 test was satisfied.”
[3] [2013] NSWWCCPD 30 at [62].
In that case, an Arbitrator of the former Workers Compensation Commission was held to give erred in relying on her own knowledge to provide a definition of an adjustment disorder.
In Summers v Sydney International Container Terminals Pty Limited t/as Hutchison Ports[4] Phillips P said, referring to Hevi Lift and to Conargo Shire Council v Quor[5]:
“Whilst the Commission is a specialised tribunal and in some respects can be seen as having experience enabling it to ‘draw inferences from facts which an ordinary tribunal may not’, this expertise however can only be deployed to interpret or draw inferences from existing evidence, it cannot be used to create evidence.”
[4] [2021] NSWPICPD 35.
[5] [2007] NSWWCCPD 245.
While APEC did not suggest that I should rely on my role as a member of a specialised tribunal to determine the question of whether or not Mr Elmasri suffered a secondary psychological injury, the warning in those decisions is relevant when Dr Bisht’s report is considered carefully.
Dr Anderson considered that Mr Elmasri suffered a primary psychological injury, being post-traumatic stress disorder and attributed Mr Elmasri’s depressive symptoms to that condition. Dr Bisht differed in his first report but, after considering that opinion, Dr Anderson said that there must be evidence of a secondary psychological condition to justify the conclusion that there was such a condition and that the history Mr Elmasri provided did not link his symptoms to his physical injuries.
Dr Bisht set out a detailed history of Mr Elmasri’s injury and symptoms. His diagnosis was post-traumatic stress disorder and major depressive disorder. When he provided his opinion as to whether Mr Elmasri suffered a primary and/or a secondary psychological injury he set out the same words extracted at [36] above in answer to three separate questions. The inference APEC seeks that I draw is that the depressive condition is a result of the physical injury but Dr Bisht did not say so in his first report, when he made a statement rather than providing his reasoning.
Dr Bisht clarified that opinion in his second report and speculated in the passage set out at [40] the reasons why Mr Elmasri may not have linked his chronic pain and psychological symptoms. Dr Bisht referred to journal articles, that he later declined to provide, to support the proposition that “chronic pain, as a stress state, often induced depression” and that up to 85% of patients with chronic pain are affected by severe depression. When asked for his reasoning in respect of Mr Elmasri, Dr Bisht referred to his earlier answer. In his third report, Dr Bisht said that Mr Elmasri suffered from a secondary condition because of his statement that he continues to be anxious, depressed and having panic attacks “thinking of the frightening accident and my injuries.” He did not offer further explanation and did not refer to aspects of his own history taking.
In support of Dr Bisht’s opinion, APEC took me to the evidence about Mr Elmasri’s chronic pain.
There are a number of ways that the sentence on which Dr Bisht relied can be read. It could mean the injuries suffered in the frightening accident or the way the injuries have impacted on Mr Elmasri subsequently. Even if it is the latter, it does not necessarily follow that Mr Elmasri’s statement is evidence of a secondary psychological injury.
Dr Bisht’s statements are general and in the nature of a bare ipse dixit. He declined to provide his reasoning despite specific requests from APEC’s solicitors. While Mr Elmasri undoubtedly has been treated for chronic pain, it does not follow that every worker treated for that condition as well as a primary psychological injury will suffer a secondary injury. The Commission resolves disputes for workers who suffer both post-traumatic stress disorder and depression as a result of a primary injury and those who suffer a primary injury together depression as a result of chronic pain. Whether or not Mr Elmasri suffered a secondary psychological injury is a matter for expert evidence. Dr Anderson accepted that Mr Elmasri suffered a primary injury only comprising both post-traumatic stress disorder and depression and provided his reasoning.
I prefer Dr Anderson’s opinion. I find that Mr Elmasri suffered a primary psychological condition only.

ORDERS

I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment as a result of a psychological injury suffered on 7 August 2019.
The documents to be sent to the Medical Assessor are:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply;
(c)    APEC’s Application to Lodge Additional Documents dated 7 August 2025, and
(d)    A copy of this certificate of determination.

[2025] NSWPIC 472

10 September 2025