Guy v Western Precast Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Guy v Western Precast Pty Ltd [2024] NSWPIC 461
APPLICANT:	Jordan Guy
RESPONDENT:	Western Precast Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	22 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; undisputed claim for primary psychological injury as a result of bullying and harassment while on restricted duties following physical injury; respondent contended that finding for psychological injury should also be made; Held – applicant did not sustain secondary psychological injury; matter referred for medical assessment for primary psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has not suffered a secondary psychological injury within the meaning of s 65A of the Workers Compensation Act 1987. 2. Matter remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 13 August 2019 - personal injury. Body systems/parts: psychological/psychiatric disorder. Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Jordan Guy (the applicant), claimed lump sum compensation for primary psychology injury in respect of injury on 13 August 2019 in the course of his employment with Western Precast Pty Ltd (the respondent).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
At the hearing of this matter on 31 July 2024, the applicant was represented by Mr J McEnaney of counsel, instructed by Ms Huang, solicitor, and the respondent by Mr B Jones, of counsel, instructed by Ms Tippett, solicitor.

EVIDENCE

Documentary 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, and
(b) Reply and attached documents.
An Application to Admit Late Documents dated 29 July 2024, and attached documents, was not admitted.

Oral evidence

There was no oral evidence.

Dr Kumagaya

Dr Kumagaya, consultant psychiatrist, provided reports to the applicant’s solicitors dated
24 August 2023.
In his substantive report dated 24 August 2023, Dr Kumagaya recorded a history of injury to the applicant’s right ankle on 21 December 2018 and of subsequent treatment, and return to work on restricted duties. He noted that the applicant said that he was warned regarding the chance of re-injury should such medical restrictions not be observed.
Dr Kumagaya noted that upon commencement of return to work, the applicant described repeated and frequent situations where he was required to work in contravention of his medical restrictions and how he was pressured by his employer into such work duties. Dr Kumagaya recorded that when the applicant raised his concerns about the suitability of his work duties he was verbally belittled and humiliated and had his employment threatened.
Dr Kumugaya recorded that the applicant described how such exposure to constant pressure from his employer to work in contravention of his certified medical capacity as well as the frequent pattern of comments and threats to employment resulted in emergence of depressive and anxious symptoms in and around March 2019.
Dr Kumagaya diagnosed major depressive disorder with anxious distress. Dr Kumagaya stated that the applicant’s “…psychiatric condition, major depressive disorder with anxious distress, is a primary psychological injury, sustained as a result of his employment with Mulgrave Precast Pty Ltd”. He stated that the applicant “…has sustained the disease, major depressive disorder with anxious distress. Mr Guy's employment with Mulgrave Precast Pty Ltd has caused the disease process.” He was of the opinion that the applicant’s employment with the respondent was a substantial contributing factor to the development of that disease process.
When asked to consider whether “our client's psychiatric condition to be due to the perceived bullying and harassment which he was subjected to in the course of his employment with Mulgrave Precast Pty Ltd and/or secondary to his right ankle injury sustained on 25 March 2019 (deemed)”, Dr Kumagaya stated:
“Mr Guy's psychiatric condition. major depressive disorder with anxious distress, is a primary psychological injury, resultant from his experiences of constant pressure from his employer to work in contravention of his certified medical capacity, in addition to his experiences of frequent belittling and humiliation from his colleagues, and threats to his employment. Mr Guy's physical injuries and their resultant functional impairments serve as a potent reminder of the workplace circumstances that precipitated Mr Guy's psychological injury, and in this way, contribute to its perpetuation.”
In his supplementary report of 24 August 2023, when asked to consider “any impairment arising from our client's secondary psychological injury (if found) which we advise is non-compensable for permanent impairment”, Dr Kumagaya stated:
“Mr Guy's physical injury to his right ankle, and consequential injuries to his knees bilaterally, serve as potent reminders of the workplace circumstances that precipitated his workplace psychological injury, and contribute to its perpetuation. Hence, a 10% deduction has been apportioned to Mr Guy's whole person impairment to account for the role of his physical injuries on his primary psychological injury.”
In the same supplementary report, in his assessment of permanent impairment,
Dr Kumagaya deducted 2% for “adjustment for pre-existing impairment (%WPI)”.

Dr Malik

Dr Malik, psychiatrist, provided a report to the respondent’s solicitors dated 2 January 2024.
Dr Malik recorded a history similar to that recorded by Dr Kumagaya above. Dr Malik recorded that the applicant:
“…tells me the decline in his mental health was soon after he joined the employer, he tells me he was bullied by the manager Martin, he tells me he was made to feel 'shit', he tells me after he physically injured himself the comments got nastier', he tells me comments around his manhood, manager would call him 'weak' and 'pussy', he tells me he was constantly targeted.
Mr Guy tells in December 2018 he injured his right ankle; he tells me he took some time off and then returned to work in light duties in February 2019. He in tells me after he got injured, he had restrictions, he tells me manager wouldn't accept that, he bullied him into doing work which was beyond his capacity, he tells me his manager was threatening him, he would say that if Mr Guy will not do what has been told then Mr Guy would lose his job, he tells me he was told to toughen up, he tells me he was in pain and was limping but manager had no empathy, was scared to lose his job so was working and was trying to push through.
Mr Guy tells me he re-injured himself in March 2019, he tells me he continued to work.
Mr Guy tells me due to above mentioned stressors his mental health started to decline, he tells me he was feeling low, he tells me he started to lose sleep and was not eating well, he tells me he lost weight, he tells me then he started to have suicidal thoughts, he tells me he had less motivation and he lost his drive, self-hygiene went down, started having nightmares.”
Dr Malik diagnosed major depressive disorder with anxious distress. He also noted some prior psychological symptoms at about the ages of 14 to 16 without treatment and the applicant subsequently improved.
Dr Malik also noted that the applicant told him that “…in terms of pain, there are good days and bad days, gait is altered, cannot do activities he used to do, knee has also started to ache, he tells me day to day pain frustrates him.”
Dr Malik was of the opinion that the current psychological injury was an aggravation of pre-existing psychological symptoms and this aggravation was caused by workplace stressors as he had explained in his assessment.
Dr Malik also stated:
“When he joined the employer, his mental health was stable, it was a combination of workplace stressors that lead to a decline in his mental health, and he developed gradually worsening symptoms to a point that these symptoms caused significant distress and impairment hence his injury.
Please see detailed assessment done which explains the circumstances of his current psychological injury.”
In assessing the degree of whole permanent impairment, Dr Malik was asked to “deduct from your assessment any whole person impairment attributable to secondary psychological injury”. He assessed 5% whole person impairment, and stated “less impairment for chronic pain (if any)…1%”.
In response to the question “…if you believe any proportion of the Applicant's impairment or loss of function is due to ‘any pre-existing injury, condition or abnormality’, could you please specifically state your opinion as to such proportion in percentage terms…”, he stated that “I have applied 1/10th deduction for physical injury and chronic pain”.

Applicant’s statements

The applicant provided statements dated 22 July 2021 and 26 April 2024. The latter statement did not refer to matters relevant to the matter for determination here.
In his statement dated 22 July 2021, the applicant said that after the injury to his ankle on
21 December 2018, he returned to work on 18 February 2019. He stated:
“For my first week back at work it was apparent that my Team Leader Martin Holt was not going to allow me to follow my specialist's instructions and had me jumping on and off of stands that held sheets of Steel Reinforcing Mesh on top of them. I had reminded Martin that I was not allowed to perform this task as the surface was uneven and he would reply with variations of the following:
(a) ‘They're firing heaps of people around here and if you don't do what you're told they'll sack you.’
(b) ‘Toughen up, you'll be fine.’
(c) ‘Quit being a pussy’.”
The applicant stated that he had further injury to his ankle on 25 March 2019, following which he took time off work and then returned to work on 29 March 2019. The applicant said that on his return to work Martin “dismissed my doctor's orders as he ordered me onto uneven surfaces every day”. The applicant said “I would not complain or tell anyone about the pain that I was in as Martin would belittle me and I felt that others would do the same.” The applicant recounted after a further incident on 16 April 2019 he tried to report the incident and was ignored by his supervisor.

Reasons

Section 65A of the 1987 Act relevantly provides:
“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%.
…
(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.
…
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
There was no dispute that the applicant sustained physical injury to his right ankle on
21 December 2018. There was no dispute that the applicant sustained primary psychological injury, said to have happened on 13 August 2019, as a result of bullying and harassment in the course of his employment following his return to restricted duties. The Application did not rely upon that physical injury.
The respondent contended that, in order to properly assess permanent impairment, the Commission should find there was a secondary psychological injury resulting from physical injury on 21 December 2018.
The matter was conducted on the basis that the respondent, which was in the position of asserting secondary psychological injury, bore the onus of proof. The applicant, in effect disputed secondary injury and the meaning and effect of the authorities and decisions relied upon by the respondent.
Secondary psychological injury is “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.[1]
[1] S 65A(5) of the Workers Compensation Act1987.
It was submitted by the respondent that the opinion of Dr Kumagaya was that there was a secondary psychological injury, and that this injury was to some extent supported by the opinion of Dr Malik. The respondent relied upon that opinion, particularly his opinion noted at paragraphs 10 and 11 above. The applicant submitted that there is a distinct injury caused primarily and only by the bullying and harassment in the course of employment and it is irrelevant that there was a physical injury extant at the material time. The applicant submitted that the clearer and more obvious reading of what was written by Dr Kumagaya was that the applicant was being reminded that he was bullied and harassed.
I do not accept the respondent’s submissions. In my view, Dr Kumagaya did not take a history of psychological symptoms or sequelae following from the physical injury. Reading his report as a whole, Dr Kumagaya recorded a history of workplace stressors relating to the undisputed primary psychological injury, but there was no history relating the same or other symptoms to the physical injury, as noted above.
The “potent reminders”, of the physical injury and consequential physical conditions described by Dr Kumagaya, in my view were of the causative circumstances of the applicant’s undisputed primary psychological injury, and that reminder was not expressed to be causative. Dr Kumagaya was of the opinion that the applicant’s psychiatric condition was a primary psychological injury that was sustained as a result of employment with the respondent, as outlined elsewhere in his report in relation to a description in general terms of bullying and harassment following the applicant’s return to work. There was no other psychological condition diagnosed. In this context Dr Kumagaya stated that the physical injury contributed to the perpetuation of the workplace psychological injury, being the primary psychological injury. He did not say that the physical injury aggravated or exacerbated the primary psychological injury. In my view, absent any other relevant history or comment as to causation, “perpetuation” falls short of a sufficient causal link or nexus between the physical injury and the primary psychological injury.
It might be observed that first, Dr Kumagaya was providing an opinion following a question put to him which included reference to psychological condition secondary to the physical injury, and second, that he made a 10% deduction to the assessed permanent impairment in response to a question as to a secondary condition.
As to the first observation, in my view Dr Kumagaya did not respond directly to the question of a secondary psychological injury or condition, he instead referred the effects of the physical injury, which were not specified, back to a reliving of the circumstances from which the primary psychological injury arose, and to a “perpetuation” of the primary psychological injury. He did not diagnose or describe a secondary psychological condition or injury, nor did he describe how such a condition might contribute to the symptoms or psychological state of the applicant, which were otherwise solely attributed to the primary psychological injury. I have discussed above the “perpetuation” and the “potent reminders”. This is not a criticism of Dr Kumagaya, as it has been observed that the apportionment of impairment in respect of psychological injury is “extraordinarily artificial”.[2]
[2] Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234 at [57].
As to the second, the Dr Kumagaya referred to the “role” of the physical injury on his primary psychological injury. This role was the “potent reminder” in the “perpetuation” of the primary psychological injury that has been discussed above. I do not accept that this “role” is sufficient causal nexus for a secondary psychological injury, which in any event was not diagnosed or described.
The opinion of Dr Malik was said by the respondent to expressed in somewhat looser language, but was still consistent with, or supportive of, the opinion of Dr Kumagaya regarding a secondary psychological condition. I do not accept this submission.
Dr Malik stated only that he deducted 10% for “physical injury and chronic pain”. He did not explain whether and how this was in respect of a secondary psychological injury, rather he was responding to a question as to any proportion of the impairment that was due to any pre-existing injury, condition or abnormality. He did not diagnose a secondary psychological injury. Dr Malik diagnosed the current injury as an aggravation of pre-existing psychological symptoms, but he did not explain what the pre-existing psychological symptoms were, nor did he explain how any pre-existing symptoms were related to the physical injury or the chronic pain. I do not accept that the opinion of Dr Malik establishes or supports a finding of secondary psychological injury.
In my view, adopting a common sense view of causation,[3] the respondent has not established there was a psychological injury that was a consequence of, or secondary to, a physical injury. In this regard, I have considered that the applicant sustained physical injury on 21 December 2018, thereafter he was off work, then resumed work on restricted duties on 18 February 2019, and from that time he was bullied and harassed in respect of those restricted duties, and he commenced to sustain psychological symptoms in March 2019. I have not accepted that the opinions of Dr Kumagaya or Dr Malik have established there was a secondary psychological injury.
[3] Kooragang Cement Pty Ltd v Bates [1994] NSWCA 452.
If I am found to be wrong in the above analysis, then it is necessary to consider the respondent’s submissions in relation to various decisions said to support its position that there should be a finding of secondary psychological injury and that s 65A of the 1987 Act applies.

The respondent in summary submitted that the secondary psychological injury was consequent to the physical injury, although the primary psychological injury was part of the chain of events precipitated by that original physical injury.
It was submitted by the respondent that in circumstances where there is evidence of a secondary psychological injury, then pursuant to s 65A(1) of the 1987 Act, it is for the Commission to determine whether there was a secondary psychological injury, and a Medical Assessor cannot assess secondary psychological injury without that determination. The respondent submitted that the decision of Davis v Pizza Pan Equity Group Pty Ltd[4] (Davis) was applicable, and that decision in turn relied upon the decision of State of New South Wales (NSW Department of Education) v Kaur[5] (Kaur). The respondent referred to decisions such as Needham v Wollongong City Council[6] (Needham) in support, applying Bindah v Carter Holt Harvey Woodproducts Australia Pty Lt[7]d (Bindah), as well as Klement v Bull ‘N’ Bush Nurseries Pty Ltd[8] (Klement), which was said to provide a useful summary of principles that were submitted to arise from the decision of Skates v Hills Industries Ltd (Skates).[9]
[4] [2024] NSWPICMP 188.
[5] [2016] NSWSC 346.
[6] [2024] NSWSC 575.
[7] (2014) 13 DDCR 156; [2014] NSWCA 264.
[8] [2024] NSWSC 466.
[9] [2021] NSWCA 142.
It was submitted by the respondent that these decisions, while concerned with the conferral of jurisdiction on a Medical Assessor, reinforce the need for the Commission to make a finding about secondary psychological injury. It was submitted that in dealing with a secondary psychological injury consequent to a physical injury, for the purpose of assessing this primary psychological injury, the 1987 Act mandates that no regard is to be had to that impairment or symptoms, but because of how the division of work in the Commission operates, the jurisdiction of the Medical Assessor to consider that issue is only enlivened upon a finding that there was a secondary psychological injury. It was submitted that this is a mandatory step that must be undertaken by the Commission.
The respondent submitted that, while the medical dispute that is being referred is the assessment of whole person impairment with reference to primary psychological injury, it is not possible to properly assess that impairment unless I also find that there is a secondary psychological injury and the impairment or symptoms arising from that secondary psychological injury is or are then disregarded.
The applicant submitted that I could decide that the decision in Davis was incorrectly decided on this point, or that I need not follow that decision. It was submitted that, while the applicant did not cavil with the broad proposition that it is a matter for the Commission to determine whether an injury is a secondary or primary psychological injury, what is being pursued by the respondent in this case is a determination where there is no dispute that there is a primary psychological injury.
It was submitted by the applicant that, in circumstances where the primary psychological injury arose from bullying and harassment, the fact that there was a physical injury extant at the time is an irrelevant consideration. It was submitted that the effect of the respondent’s approach was to impose or to constrain a Medical Assessor to consider a secondary injury for the purpose of deduction.
It was submitted by the applicant that where there is an undisputed question about primary psychological injury and the question of the degree of permanent impairment both for the purpose of s 65(a)(2) and s 323, adopting the same language, is conferred entirely on the Medical Assessor. It was submitted that is consistent with all of the decisions relied upon by the respondent, save for Davis. The decision of Haroun v Rail Corporation New South Wales[10], followed in or with later decisions including Shankar v Ceva Logistics (Australia) Pty Limited[11] (Shankar), the latter vindicated or recapitulated in Transdev NSW South Pty Ltd v Twining (Twining)[12], and to some degree Skates, confirmed the clear bifurcation of power with respect to a claim for permanent impairment compensation.
[10] [2008] NSWCA 192
[11] [2021] NSWPICPD 18
[12] [2024] NSWPICPD 12
It was submitted by the applicant that the only matter over which I had jurisdiction here is whether there is a medical dispute within the meaning of s 319 of the 1998 Act, as the respondent had assessed the degree of permanent impairment below that which would entitle the applicant to compensation, and the matter thus should be referred to a Medical Assessor.
It was submitted by the applicant that where there was no dispute as to primary psychological injury, that by finding secondary psychological injury not arising from the circumstances of the primary psychological injury, that is from bullying and harassment, the respondent was asking the Commission to find that some component of the total impairment must arise from the secondary injury. It was submitted that this is contrary to the decision in Shankar, and that decision, together with the reasoning in Skates, was further considered in Twining. The effect of this reasoning is that a Member of the Commission does not have jurisdiction to determine that the degree of permanent impairment was zero, or in this case some other component of that total impairment.
The first issue arising from these submissions, is whether s 65A(2) requires a determination in this case. The respondent submitted it does as the medical opinion evidence supports a finding of secondary psychological injury, and the decisions referred to indicate that this is required. The applicant submitted it does not, in summary because there is an undisputed primary psychological injury arising from circumstances separate to the physical injury, and therefore the determination as to a secondary psychological injury is not required, and indeed it is contrary to the decisions cited.
The parties were given the opportunity to consider the decision of Cannon v The Healthy Snack People Pty Ltd[13] (Cannon). The respondent submitted this decisions sits comfortably with proposition put by the respondent, that is there is a physical injury which results in permanent impairment that is assessed, and there is also a primary psychological injury that is in some way related to that physical injury but separate in the sense that it is a primary psychological injury, but there is still a secondary psychological injury resulting from the physical injury, and in these circumstances the mechanism to resolve that issue and to properly assess whole person impairment is for the finding of secondary psychological injury to be made by me and to refer for assessment the primary psychological injury.
[13] [2009] NSWWCCPD 32.
I note that this submission was made in the context of the respondent’s earlier submission noted above, that is that the secondary psychological injury was consequent to the physical injury, although the primary psychological injury was part of the chain of events precipitated by that original physical injury.
The decision in Cannon concerned an undisputed back injury, following which the worker performed suitable duties for a period and she alleged that while she was on suitable duties she sustained psychological injury as a result of bullying and harassment. Among the issues that were considered was the respondent’s argument that “but for” the physical injury the worker would not have been on suitable duties and the events said to have caused the psychological injury would not have occurred. Referring to Bennett v Minister of Community Welfare,[14] it was stated in Cannon that:
“...to say that a psychological injury that results from harassment while on suitable duties would not have happened "but for" the physical injury is to ignore the fact that the harassment (if it occurred) is an event that is "extraneous or extrinsic"…to the original back injury. It is not part of the "series of events" that have followed from the back injury and is not part of the causal chain[15].
…if a worker on suitable duties, because of a work related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed on suitable duties and, as a result of an "extraneous or extrinsic" event, such as harassment or bullying while on those duties, develops a psychological injury.”[16]
[14] (1992) 176 CLR 408 at 428, per McHugh J.
[15] [101].
[16] [103].
In this matter the primary psychological injury, including the bullying and harassment which was causative of that injury, is undisputed, whereas in Cannon that was not the case, as it seemed to be argued in that matter that s 65A in effect was a complete bar to a recovery of lump sum compensation.
The respondent in this matter has sought to rely on s 65A seemingly in a more limited sense of a deduction, or non-inclusion of impairment from secondary psychological injury, by seeking to link the primary psychological injury as being part of the chain of events precipitated by, or more vaguely, being in some way related to, the physical injury.
I note that even in this apparently limited exclusion of symptoms or impairment, a Medical Assessor may assess part or all of the total impairment as being the result of a secondary psychological injury, which is effectively then the same as, or similar to, the argument raised by the respondent in Cannon.
This argument is in my opinion contrary to the reasoning in Cannon. In my view, the undisputed primary psychological injury in this matter is not part of the chain of events that have followed from the physical injury. It is not somehow related in a causal sense to the physical injury. I am not satisfied on a commonsense basis that the series of events from the physical injury referred to by the respondent provided a causative explanation of the primary psychological injury.[17]
[17] Kooragang at 462.
In my view, the chain of causation between physical injury and primary psychological injury was broken by the undisputed bullying and harassment that the applicant suffered while working on restricted duties. I do not accept the respondent’s submissions in this regard. In my opinion, there is no relationship in the relevant causal sense between the primary psychological injury and what was asserted to be secondary psychological injury. The secondary psychological injury did not result from the bullying and harassment. It could only result from the physical injury. This is not a case of potential “double recovery” of lump sum compensation as noted in Cannon.
Turning then to the decision of Davis, the applicant’s initial submission, that I could regard Davis as being incorrect, was not developed. It is not necessary for me to consider whether that decision was correct, insofar as that decision was argued in this case. First, a decision of an Appeal Panel is not a determination of the Commission, it is a decision regarding one of the limited grounds of appeal against a medical assessment[18] that are set out in s 327(3) of the 1998 Act, in that case (c) and (d). Second, it was not controversial in the submissions of the parties that in the circumstances of Davis it is a matter for the Commission to determine whether there was a secondary psychological injury. It is not necessary for me to decide that point. What was controversial was whether the reasoning of Davis, relying as it did on the obiter reasoning of Kaur, should apply in the current case. This also requires some consideration of the decision in Kaur, to which I now turn briefly.
[18] Section 328 of the 1998 Act.
In Kaur, the worker suffered psychological injury due to the nature and conditions of her employment over a period of time leading up to a “nominated” date of injury of
15 February 2011. The relevant issue in that case was whether the meaning of s 65A included the psychological consequences or symptoms of physical injury that was not work related for the purpose of determining a secondary psychological injury, in circumstances where there had been no determination that there had been a secondary psychological injury. It was held that it did not, as it was not an injury within the meaning of s 4. In obiter it was said that the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine, not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act, which was said to follow from the decision of Bindah.
However, in my view the decision in Kaur was expressed in the context of finding that the meaning of s 65A did not extend to a physical injury that was not work related. The obiter part of that decision was expressed as being not necessary to decide that matter, as the limit of the extent of s 65A that was found in that case did not require decision on the obiter point, although that point was made lest the matter go on appeal.
In my view, the decision in Kaur was not a decision as to the extent of s 65A generally, and the obiter point noted above should be seen as being located within a consideration of the matter at hand, that is a physical injury that was not work related, in which it was argued that the approved medical specialist had not engaged with the employer’s medical evidence as to secondary psychological injury, and had not made an assessment in that regard when it was open to him to do so. The obiter part of that decision may have been expressed in general terms, but it does not follow that it should apply in all cases where there may be evidence of secondary psychological injury. It was expressed after a determination of the dispositive issue in the context of the above argument, notwithstanding the reference to Bindah. I do not accept the respondent’s submissions in this regard, that is that a finding of secondary psychological injury is necessary for a proper assessment of the degree of permanent impairment resulting from the primary psychological injury. It seems to me Kaur is supportive of the approach that I have adopted in this matter.
It follows that I do not accept the respondent’s submission that Davis supports the proposition that a finding of secondary psychological injury is necessary for a proper assessment of the degree of permanent impairment resulting from the primary psychological injury in this matter.
Davis may also be distinguished on its facts. That case dealt with two different psychological injury diagnoses with the same symptoms, one diagnosis being a primary psychological injury, and the other being secondary injury resulting from pain and physical injury, both as a result of the same incident, an electrocution. In the present case, there are two separate causes of injury, one in respect of physical injury, and the other with respect to later bullying and harassment, as I have discussed above. I do not accept the respondent’s submissions as to the applicability of Davis in this matter.
There were also submissions in relation to s 319, that is the nature or extent of the medical dispute. The applicant put forward the argument that the only medical dispute that I need to deal with is the claim for primary psychological injury, which the respondent has disputed only as to the degree of permanent impairment. The respondent submitted that the medical dispute extended to the dispute as to secondary psychological injury, based upon the report of Dr Kumagaya and the correspondence from the respondent raising this issue, that was attached to the Reply. As I have not accepted the respondent’s submissions in respect of secondary psychological injury, in my view the medical dispute must be only in respect of the assessment of the degree of permanent impairment resulting from the primary psychological injury, with any s 323 consideration being a matter for the Medical Assessor.
These submissions also referred to Skates, summarized in Klement, as to the principles relating to the nature of the dispute, and the role of the Medical Assessor. This was not put directly into controversy by the applicant, although it was submitted that the decision of Shankar, supported in the decision of Twining, should be considered when it is asserted that the Commission is effectively being asked to make a determination that there must be some part of total permanent impairment that results from secondary psychological injury.
In Twining, it was stated:[19]
“…There are a number of observations to be made about Skates:
(a) There is, with respect to those who may hold a contrary view, no ratio decidendi in Skates addressing the construction of s 319.
(b) The ‘dispute’ or ‘question’ for the purpose of s 319 is between the worker and the insurer, not between the medical referees. The medical assessor forms his own assessment of the degree of impairment, it is not the function of the medical assessor to resolve the disagreement if any between the medical referees qualified by the parties. Agreement or disagreement is irrelevant to the engagement of s 319.
(c) Leeming JA discussed s 319 in detail but the other members of the Court did not. Importantly, the majority of the Court did not express agreement with his Honour’s comments and therefore there is no considered dicta of the Court.
(d) That discussion concerned itself with the subject matter(s) necessary to engage s 319. Leeming JA did not express any view as to the content of the dispute within the defined subject matters.
(e) The Court was not concerned with the content of the ‘dispute’ required to engage s 319 as there was no doubt that s 319(c) among other possibilities was engaged.
(f) Section 319 is not engaged by assessment of body parts. As explained by Basten JA at [32] and [33], ‘[i]dentification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.’ But as demonstrated by McCallum JA in her Honour’s dissent at [81], ‘the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist.” Leeming JA likewise did not limit s 319 to parts of the body, rather he said: “It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury.’
(g) That the Court was not intending to provide a decision on the construction of s 319 is furthermore clear from the fact that no member of the Court addressed the concluding words in the chapeau ‘or a question’ about any of the subject matters…”
[19] [149].
Applying the reasoning in Twining, in my view the decision in Skates is not applicable in relation to the respondent’s s 319 and medical assessment referral submissions in this matter. I do not accept the respondent’s submission that in order to avoid the error identified in Skates, that the claim was wider than the body part referred, that is appropriate to make a finding about a secondary psychological injury.
The decision in Twining also supported the decision in Shankar, which was also relied upon by the applicant in this matter. It was submitted that the now persuasive proposition that 0% impaired body part can be referred for medical assessment is on the basis that the parties’ medical opinion is not determinative of the dispute. This, in my view, is correct. It was submitted by the applicant that the respondent, in seeking a finding of secondary psychological injury, is in effect seeking that I find some part of the total impairment must be from the secondary injury. That is, as I understand this submission, following Shankar it is not permissible to constrain a medical dispute by accepting that relevant medical opinion is determinative, and in this case the constraint sought to be imposed is from a putative psychological injury secondary to a physical injury that is causally unrelated to the medical dispute in question. I accept the applicant’s submission in this regard.

The approach by both Dr Kumagaya and Dr Malik to expressing their opinions in relation to pre-existing or secondary symptoms or conditions was characterized as mistaken by the applicant. Both doctors, in my view, appeared to express their opinions in relation to a deduction pursuant to s 323. This is, in addition to the analysis with respect to their opinions given above, reason to not accept an actual persuasion[20] as to the evidentiary foundation for the respondent’s submissions.
[20] Nguyen v Cosmopolitan Homes [2008] NSWCA 246

[2024] NSWPIC 461

22 August 2024