Harrison v Bunnings Warehouse

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harrison v Bunnings Warehouse [2025] NSWPIC 152
APPLICANT:	Kayley Jane Harrison
RESPONDENT:	Bunnings Warehouse
MEMBER:	Karen Garner
DATE OF DECISION:	15 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for permanent impairment lump sum compensation pursuant to section 66 of the 1987 Act; accepted elbow injury and accepted secondary psychological injury; whether applicant sustained a primary psychological injury in the nature of a disease pursuant to section 4(b)(i) and/or section 4(b)(ii) of the 1987 Act; what is the date of injury; whether the applicant’s claim is precluded by operation of section 254(1) and/or section 261(1) of the 1998 Act; Held – applicant sustained a primary psychological injury in the course of her employment with the respondent pursuant to section 4(b)(i) of the 1987 Act; the date of the applicant’s primary psychological injury is 15 October 2023; applicant’s claim is not precluded by operation of section 254(1) of the 1998 Act; applicant is not precluded from recovery of compensation by the operation of sections 261(1) of the 1998 Act; matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury in the course of her employment with the respondent, in the nature of a disease, to which her employment was the main contributing factor, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant did not sustain a primary psychological injury in the course of her employment with the respondent, in the nature of the aggravation, acceleration, exacerbation or deterioration of any disease, to which her employment was the main contributing factor, pursuant to s 4(b)(ii) of the 1987 Act. 3. For the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, the date of the applicant’s primary psychological injury is 15 October 2023. 4. The applicant’s claim is not precluded by operation of s 254(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 5. The applicant is not precluded from recovery of compensation by the operation of s 261(1) of the 1998 Act. The Commission orders: 6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 15 October 2023 (deemed). Body parts: psychological. Method: whole person impairment. 7. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) applicant’s Application to Lodge Additional Documents (ALAD) and attached documents dated 14 February 2025, and (d) respondent’s ALAD and attached documents dated 5 March 2025. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Kayley Jane Harrison (the applicant) was employed by Bunnings Warehouse (the respondent) for approximately 25 years.
It is not in dispute that the applicant sustained:
(a) injury to her right elbow as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 21 July 2021 (the elbow injury), and
(b) a psychological condition, with a deemed date of injury of 21 July 2021, secondary to the elbow injury.
On 8 November 2023, the applicant served on the respondent’s insurer a claim for permanent impairment compensation (dated 6 November 2023) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for $66,930 in respect of 24% whole person impairment arising from psychological injury with a deemed date of injury of 21 July 2021 (the claim), together with a medical report of Dr Frank (Kai Tai) Chow dated
15 October 2023.
By notices dated 19 December 2023 and 12 July 2024, issued pursuant to s 78 of the 1987 Act, the insurer disputed liability for the claim on the grounds that:
(a) the applicant failed to provide notice of injury as required by ss 254 and 255 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b)    the applicant failed to provide notice of any claim for psychological injury as required by ss 260 and 261 of the 1998 Act;
(c)    the applicant did not sustain a psychological injury arising out of or in the course of his employment as defined in s 4 of the 1987 Act;
(d)    the applicant’s employment was not the main contributing factor to the contraction of any psychological or psychiatric disease or, alternatively, to the aggravation, acceleration, exacerbation or deterioration of a psychological or psychiatric disease as required by s 4(b) of the 1987 Act;
(e) the applicant does not suffer an impairment resulting from a psychological or psychiatric injury deemed to have been sustained on 21 July 2021 pursuant to s 66 of the 1987 Act, and
(f)    the applicant is prevented from recovering lump sum compensation pursuant to s 65A of the 1987 Act.
The applicant initiated proceedings in respect of the claim, by way of Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on
6 December 2024.
The respondent lodged a Reply to the ARD on 9 January 2025.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 11 March 2025, Mr Andrew Parker, counsel, appeared for the applicant, instructed by Nikolovski Lawyers. Mr Fraser Doak, counsel, appeared for the respondent, instructed by Hall & Wilcox Lawyers.
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.

ISSUES FOR DETERMINATION

At the conciliation/arbitration hearing, counsel agreed, on behalf of their respective clients that the applicant has a psychological condition, to which the applicant’s employment was the main contributing factor. A critical issue in dispute is whether it is a primary psychological condition or a secondary psychological condition, secondary to the elbow injury.
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury in the nature of a disease, arising out of or in the course of the employment and the employment was the main contributing factor to the injury, pursuant to s 4(b)(i) of the 1987 Act;
(b) whether the applicant sustained a primary psychological injury in the nature of the aggravation, acceleration, exacerbation or deterioration in the course of the employment of a disease, and the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, pursuant to s 4(b)(ii) of the 1987 Act;
(c) what is the date of injury for the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act;
(d) whether the claim is precluded by operation of s 254 of the 1998 Act;
(e) whether the claim is precluded by operation of s 261 of the 1998 Act, and
(f) the extent and quantification of the applicant’s entitlements to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s Application to Lodge Additional Documents (ALAD) and attached documents dated 14 February 2025, and
(d)    respondent’s ALAD and attached documents dated 5 March 2025.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Lay evidence

Applicant

The applicant gave the following evidence by way of two written statements:
(a)    as a result of her work for the respondent, the applicant sustained both a physical injury to her elbow and a psychological injury;
(b)    the applicant worked for the respondent for about 25 years, mostly in the paint department, which was always very busy. The applicant was ultimately promoted to the position of team leader of the paint department. The applicant’s duties predominantly involved customer service and was very physical and repetitive in nature;
(c)    during the period of COVID-19, the applicant experienced a dramatic increase in her workload and work pressures because the respondent’s paint department became significantly busier and customers became more demanding, impatient and irate. The paint department was understaffed and under resourced, and the applicant and other employees would often receive verbal abuse from customers over restrictions, shortages and the mask policy. In addition, the applicant’s other tasks and responsibilities outside of customer service also increased due to increased demand for stock. As the manager of the paint department, the applicant experienced that it was “left on me”. The applicant was required to come into work earlier than usual to clean and prepare for each 6.30am shift;
(d)    the applicant felt that she was working in a constant state of stress and she could not stop thinking about all the things that needed to be done once they closed the store. Sometimes, after the store was closed, the applicant would need to put away pallets of paint in addition to her other closing responsibilities;
(e)    the applicant was singled out by coordinator Christy and directed without any prior consultation to trial a shift which ended at 11.00pm every Tuesday. The applicant believed that working to 11.00pm would increase her exhaustion and cause her additional stress after an already long day. At no point after the trial period, did the coordinator check on the applicant;
(f)    the applicant often complained to senior management and other colleagues that the paint department was under-resourced, subject to unreasonable demands and an excessive workload and unsupported by management. Initially, no additional staff was provided by the respondent. Later, when additional staff was provided, they were not competent nor trained in the paint department and the applicant was required to train them and fix their mistakes in addition to carrying out her own responsibilities;
(g)    around July 2020, the applicant first experienced psychological symptoms of being overwhelmed, crying, difficulty sleeping and feeling anxiety on her way to work, irritable, less tolerant, sad and generally unwell. The applicant experienced anxiety and stress prior to coming to work as she expected that there would be a mess waiting for her;
(h)    the applicant often went home in tears due to overwhelming exhaustion and stress. She did not manage her symptoms healthily and began drinking to cope;
(i)    the applicant began feeling cranky and irritable at work and it got to a point where she walked out on a shift because she was so frustrated and overwhelmed with stress and anxiety. The applicant went home crying and her partner found her in the corner of a room. The applicant received a first and final warning for leaving her shift but management did not enquire of her wellbeing;
(j)    the applicant told her manager, Greg, that she was feeling overwhelmed. The respondent did not allow the applicant to take time off work and nor did it engage additional staff. The respondent failed to provide sufficient staffing, rotation and rest for permanent employees including the applicant;
(k)    as the applicant’s psychological condition worsened, on 21 October 2020, long before she sustained physical ailments, the applicant first consulted her general practitioner, Dr Nagaraj about feeling generally unwell, sadness and crying. The applicant reported that she was showing signs of depression or anxiety from as early as 2020 and that she felt overworked and a sense of abandonment. The applicant’s depression was directly related to the work pressures that she experienced, even before she suffered any physical ailment. Dr Nagaraj provided the applicant with medication to assist with her sleep. The applicant thought she could press on with her job because she thought that, after the COVID-19 pandemic subsided, the workplace would revert to being enjoyable;
(l)    the applicant developed pain in her right elbow as a result of the physical and strenuous nature of her work in the respondent’s paint department;
(m)     on 21 July 2021, the applicant finally consulted a doctor about her right elbow injury which she sustained as a result of her employment;
(n)    on about 10 August 2021, the applicant consulted a doctor about her foot pain which she sustained as a result of her employment;
(o)    on 21 July 2021, the applicant ceased to work due to her work injuries. The applicant was initially provided with medical certificates in relation to injury to her elbow, and then also her foot. The applicant believes that her doctor did not then record her psychological condition as a discrete injury because the doctor did not understand the significance and cause of her psychological condition, which became more obvious over time and when the psychologist and psychiatrist pointed it out;
(p)    in the beginning of 2022, the applicant was first offered psychological assistance when she was referred to a STEPP program to assist with her elbow restrictions. It was during her consultations with a psychologist as part of the STEPP program that the applicant realised that her psychological symptoms were due to unresolved feelings in respect of how she was treated during her employment with the respondent and the significant stress that she faced during the COVID-19 pandemic without any support;
(q)    when the applicant continued to have psychological symptoms, that was also included on the medical certificates and the applicant was referred for treatment to a psychologist, Ailsa Graham, and a psychiatrist, Dr Sriram Thazhathaveetil;
(r)    those treating practitioners explained to the applicant that her psychological condition, was a result of the work pressures that she had experiences rather than a result of her physical injury and the applicant has no doubt that is the case, and
(s)    the applicant continues to experience ongoing psychological symptoms which significantly affects her life.

Greg Sutton, respondent’s Complex Manager

Mr Sutton gave the following evidence by way of a written statement:
(a)    the applicant was a “good operator”, worked in a structured manner, set up various routines and carried them out;
(b)    during the period of the COVID-19 pandemic, he did not observe any change in the applicant’s behaviour and the applicant continued to carry out her routines as usual, operate the paint department in her usual efficient manner and manage the paint department effectively. He does not recall the applicant complaining that she was overwhelmed nor had difficulties managing the situation and he did not observe the applicant to be upset or in tears;
(c)    he agrees that during the COVID-19 pandemic the store was very busy and some customers were heightened and difficult to manage, and
(d)    during the COVID-19 pandemic, team members were not required to work additional shifts, full-time team members such as the applicant continued to be given 38 hours of work per week. The respondent did hire additional team members to cope with the demand and also closed the store earlier in order that team members could perform various tasks associated with the increased movement of stock and prepare for work the following day.

Christie Saurini, respondent’s Building Coordinator

Ms Saurini gave the following evidence by way of a written statement:
(a)    Ms Saurini worked in the applicant’s store until February 2021;
(b)    the applicant didn’t need to be micromanaged, didn’t need a lot of direction, seemed confident and competent in her work and was a good team member;
(c)    during the period of COVID-19, the workload was “a lot more intense”, everyone’s workload was busy and all staff had difficulties with customers who presented with an attitude of entitlement and frustration, although Ms Saurini does not recall the applicant raising any issue in that regard;
(d)    the applicant was not singled out to do more work than other team members although she is unaware whether the applicant did perform more work than other team members;
(e)    the finishing time of the latest shift changed and staff, including the applicant, were required to work to 11.00pm and staff were “understandably frustrated”. The applicant’s partner telephoned Ms Saurini regarding the change in shift times and said something to the effect that “You’d better watch out”;
(f)    Ms Saurini denies that the applicant was unsupported in her role, although she acknowledged that the applicant never requested additional support or advised that she was not coping in her role and she did not feel that the applicant required more attention or immediate attention, and
(g)    despite the existence of various policies and procedures, the applicant never raised any concerns, complaints nor reported any injury.

Germaine Claydon, respondent’s Home Coordinator and the applicant’s direct manager

Germaine Claydon gave the following evidence by way of a written statement:
(a)    the applicant worked 38 hours per week, working a range of shifts, with the earliest shift commencing at 6.30am and the latest shift finishing at 11.00pm, although in around April or May 2021 Ms Claydon brought the latest shift finishing time back to 9.00pm;
(b)    the paint team “pretty much look after themselves… and are self-managed and work out amongst themselves what needs to be done…”;
(c)    the applicant’s workload was steady and busy when deliveries come in;
(d)    the applicant was a “good worker”, she always “kept busy” and “her attitude and attendance were good”;
(e)    a record of a discussion that Christie Saurini, coordinator, had with the applicant on 18 October 2020 recorded that, on 15 October 2020, she received a telephone call from the applicant’s partner who stated that “if she kept giving [the applicant] night shifts there would be trouble”;
(f)    Ms Claydon cannot confirm nor deny that the applicant experienced difficulties with customers during the period of COVID-19;
(g)    Ms Claydon disagreed that the applicant was singled out to do more work than other team members. The applicant “was always on the go because that’s her personality. She’s just one of those people that’s always working”;
(h)    the paint team did work until 11.00pm one night each week and “everyone complained about the 11:00pm finishing time”, and
(i)    Ms Clayton has no knowledge that the applicant complained about her mental health, being unable to cope with her duties or about doing extra work, although she may have felt that she was doing more work than another employee.

Damien Beardsmore, respondent’s Paint’s Expert

Mr Beardsmore gave the following evidence by way of a written statement:
(a)    during the period of COVID-19, the respondent’s paint department was “really, really busy with customers” and “fast moving” and the respondent put on extra staff to help with the load, customers were “pretty good” although the “occasional customer…[was] short or frustrated”;
(b)    Mr Beardsmore does not recall the applicant complaining about work conditions;
(c)    the applicant’s workload and work expectations was the same as that of other team members;
(d)    during a trial period which lasted about two weeks, the respondent required team members to work until 11.00pm. The applicant was very upset and “in tears” about that requirement and it seemed to upset the applicant “more than anybody”, and
(e)    Mr Beardsmore has no knowledge of the applicant making any complaint regarding her employment or injury.

Record of discussion between Ms Saurini and the applicant dated 18 October 2020

A record of discussion stated that on 15 October 2020, Ms Saurini received a telephone call from the applicant’s partner who stated “if you keep giving [the applicant] shit there will be trouble”.

Clarity Workplace Solutions factual report

A Factual Investigation Report dated 4 March 2024 prepared by Clarity Workplace Solutions concluded that:
“Witnesses did not confirm the Claimant’s allegations in relation to her performing more work than other team members, or that she was bullied into working late shifts and this was a management directive across the store for a period of time during Covid-19, or that she was not supported at work.
Witnesses partially agreed with the Claimant’s allegations that there were more difficult customers during Covid-19, but they stated they are not aware of any incidents involving the Claimant and they did not recall her raising any particular issues about difficult customers.
Note: Damien Beardsmore stated that the hours for the afternoon shift were changed to finish at 11:00pm for a trial period in late 2020 that only lasted a few weeks. However, the Timecard records for the Worker indicate that she worked to 10:00 or 11:00pm once a week on most weeks from 12 January 2021 to 18 May 2021.
…
We did not identify any significant inconsistencies between the information provided by the Claimant and witnesses during our investigation”

Treating medical evidence

The following medical history is not in dispute and is evidenced by various medical evidence.
Clinical records of the Albion Park Rail Medical Centre (the Medical Centre) record an “Active Past History” of anxiety/depression on 3 December 2015 and anxiety/depression on
21 October 2020.
On 3 December 2015, a clinical record of the Medical Centre recorded a diagnosis of anxiety/depression and that the applicant had been on Escalitopram for approximately two months for anxiety and depressive symptoms in the context of a history that she was missing her family but had improved after commencing Escalitopram. The applicant was prescribed Escalitopram.
On 28 November 2016, a clinical record of the Medical Centre recorded that the applicant’s mood had been stable for the last two to three months. The applicant was prescribed Escalitopram.
On 21 October 2020, a clinical record of the Medical Centre recorded that the applicant had been stressed, anxious and depressed with poor sleep and focus and poor biological functions for a few months at least. The applicant was prescribed Escalitopram. The record stated that:
“… - the main trigger seems to be that at work, at bunnings, there is a late shift that lasts until 11pm - once a week.
she has been just told to do it and with no asking her or anybody else doing this shift
Next day she usually starts at 9 am
- this has been affecting her mental health and been more stressful/worse recently
- she herself started taking escitalopram she had from 4-5 years ago
- sleep is quite poor
- a long discussion about step forward
- a few days'off
start on escitalopram again at half tab mane
- a few mnights of temaze- SEs etc al discussed-short term use only
see back Monday
- she wil have a chatt to work about how this is affecting her mental health
may need acert”
On 26 October 2020, a clinical record of the Medical Centre recorded that the applicant was overall a bit better and that she would talk to her managers at work.
On 17 November 2020, a clinical record of the Medical Centre recorded that she was feeling well and that “Work has made some changes to the shifts and every one is rostered in to work and nit just her, she has done ashift [sic] and it is not as bad, has got some extra help too”. The applicant was prescribed Escalitopram.
On 22 February 2021, a clinical record of the Medical Centre recorded that on the last consultation the dosage of prescribed Escalitopram had been increased, and that the applicant had since been a lot more stable and happy. The applicant reported that her work was “ok” and “no stress” and that “[still] everyone is on the roster”. The applicant was prescribed Escalitopram.
On 27 May 2021, a clinical record of the Medical Centre recorded that the applicant reported that she was happy although stressed regarding her father’s health. The applicant was prescribed Escalitopram.
On 21 July 2021, a clinical record of the Medical Centre recorded that the applicant reported that she had experienced right elbow pain for approximately four to five weeks and that her work involved the repeated use of her hands and wrists.
On 10 August 2021, a clinical record of the Medical Centre recorded that the applicant reported that she experienced persistent right elbow pain. The applicant reported that the pain had gradually come on in the context of her work and that she had also experienced left foot pain for several weeks. Dr Murali Nagaraj completed a Certificate of Capacity.
On 16 August 2021, a clinical record of the Medical Centre recorded that the applicant reported continuing and worsening foot pain. The applicant was prescribed Escalitopram.
On 20 August 2021, a clinical record of the Medical Centre recorded that the applicant was diagnosed with plantar fasciitis and a small tear and was treated with a steroid injection.
On 30 August 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to elbow and foot pain.
On 2 September 2021, a clinical record of the Medical Centre recorded that Dr Nagaraj completed a Certificate of Capacity in relation to her left foot.
On 20 September 2021, a clinical record of the Medical Centre recorded that Dr Nagaraj sought insurer approval for treatment for ongoing pain of the applicant’s right elbow and left foot.
On 23 September 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 29 September 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 5 October 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 18 October 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 28 October 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 5 November 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management. The applicant was prescribed Escalitopram.
On 1 December 2021, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management and that the applicant was “nearly tearful” as a proposed injections had not been approved.
On 4 January 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management and Dr Murali Nagaraj referred the applicant to The Shellharbour Clinic for psychological treatment.
On 12 January 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 31 January 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management.
On 28 February 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management and anxiety/depression. The applicant was prescribed continued Escalitopram.
On 28 March 2022, a clinical record of the Medical Centre recorded that the applicant reported ongoing pain and that she “feels low and emotional with ongoing pains, mentally not able to handle it”. Dr Nagaraj recorded that the applicant had no capacity and requested an extension of WorkCover.
On 6 April 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management and WorkCover and that her mental health was the main barrier.
On 26 April 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to pain management and WorkCover.
On 24 May 2022, a clinical record of the Medical Centre recorded that the applicant attended in relation to a mental health diagnosis of exacerbation of anxiety/depression. Dr Nagaraj completed a request for extension of WorkCover. It noted that the applicant was on the maximum amount prescribed for Escalitopram and she was prescribed Sertraline instead.
On 27 May 2022, an Allied Health Recovery Request requested treatment for major depressive episode with a date of injury of “June 2021 (unknown)”.
On 6 June 2022, a clinical record of the Medical Centre recorded that the applicant’s mental health had improved although her pain was no different.
In about 3 August 2022, Dr Rowena Field, physiotherapist, requested approval for the applicant to undergo the Solutions Tools & Education for Persistent Pain (STEPP Program) to assist her in relation to her ongoing pain.
On numerous occasions between February 2022 and January 2023, Ailsa Graham, psychologist, of The Shellharbour Clinic, reported on the applicant’s progress with her psychological condition. On 1 September 2022, Ailsa Graham, psychologist, reported on the applicant’s progress with her psychological condition. Ms Graham noted that the applicant blamed the respondent for her injury because they ‘ignored’ her requests for help, pressured her to work extra shifts and did not provide additional staff supports during COVID-19.
On 18 May 2023, Dr Sriram Thazhathaveetil, the applicant’s treating psychiatrist, reported a diagnosis of major depression. Dr Thazhathaveetil expressed the opinion that, given the intensity of her depressive symptoms, the applicant was not suitable to work in a field that she was suitable qualified for by experience and training for the next six months.
Dr Thazhathaveetil stated that the applicant:
“… was working at Bunnings were [sic] she sustained a tennis elbow due to lifting weights. This occurred two years ago. Since then there has been a deterioration in her mental health.
Mental health background:
She had depression 7 years ago that remitted without any medication. Her mood was worsening due to work stress since COVID started. Since the injury, there has been a sharp decline in her mood.
Mechanism of injury:
·Tennis elbow limiting her functioning and causing significant pain
·The situation also creates uncertainty about future which also contributes…”
On 3 September 2023, Dr Murali Nagaraj, general practitioner, reported that the applicant continued to complain of severe, ongoing, disabling pain of her right elbow. Dr Nagaraj stated that the applicant also complained of anxiety, low mood, panic attacks, poor sleep, poor concentration and low energy levels and that she had cognitive and behavioural symptoms of depression and anxiety.
On 18 May 2023, Dr Sriram Thazhathaveetil, the applicant’s treating psychiatrist, reported a diagnosis of major depression. Dr Thazhathaveetil recorded a history that the applicant “had depression 7 years ago that remitted without any medication. Her mood was worsening due to work stress since COVID started. Since the injury, there has been a sharp decline in her mood”.
On 4 August 2024, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
On 31 August 2024, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
On 28 November 2023, Dr Thazhathaveetil reported a diagnosis of major depression.
Dr Thazhathaveetil reported that a telephone call to the applicant from her manager “triggered memories of past alleged bullying”. Dr Thazhathaveetil expressed the opinion that the applicant had lost permanent capacity to work in any role for which she is suitably qualified for by education, experience and training.
On 28 November 2024, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
On 24 February 2024, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
On 11 May 2024, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
On 22 August 2024, Tamsin Lewthwaite, the applicant’s treating psychologist, reported a diagnosis of recurrent, severe and major depressive disorder. Ms Lethwaite stated that it is evident that the applicant’s psychological injury is related to workplace events described by the applicant.
On 26 October 2024, Dr Thazhathaveetil reported that his diagnosis was major depressive disorder. Dr Thazhathaveetil expressed the opinion that the psychological injury started during the COVID-19 period due to increased workload and allegedly not having enough staff members to support the applicant. Dr Thazhathaveetil stated that the first reports of psychological symptoms started around 21 July 2020, and the applicant sought help from the general practitioner for her depressive symptoms in October 2020. Dr Thazhathaveetil expressed the opinion that the applicant’s employment was the main contributing factor to her psychological injury. Dr Thazhathaveetil stated that the applicant has lost full capacity to work.

Independent medical evidence

Dr Frank (Kai Tai) Chow, consultant psychiatrist, qualified by the applicant

In a report dated 15 October 2023, Dr Chow stated a diagnosis of major depressive disorder. Dr Chow expressed the opinion that the applicant’s major depressive disorder was a work related primary psychiatric injury due to maltreatment at work with excessive and unfair workload and lack of support.
In relation to the cause of the applicant’s psychological condition, Dr Chow stated:
“She said she worked full-time for Bunnings and she worked at the Shellharbour store as a senior member of the paint section.
During COVID there was increased workload and she was bullied into more workload and night shifts.
She was started on antidepressants in October 2022 due to the work stress.
Over time she did not cope with the workload and she was drinking more alcohol to cope.
Despite seeking help with management, there was no support given. Due to the workload she eventually injured her elbow and has been off work since.
She has been engaging in physical treatments but she has been told that while there is physical pathology the pain has been affected by her underlying work related psychiatric condition.”
Dr Chow reported that “When asked why she became depressed and anxious she said it is not because of her elbow pain, but she was overworked and burnout. She felt trapped with the excessive workload and there was no way out and help”.
In relation to pre-existing conditions, Dr Chow stated:
“Ms Harrison said she felt lost after moving from Queensland to Albion Park seven years ago, but once she adapted to the move she was fine. She was on an antidepressant for a few months. She has no other psychiatric history.”
Dr Chow assessed 24% whole person impairment in relation to the psychological injury.

Dr Naresh Verma, consultant psychiatrist and consultant occupational physician qualified by the insurer

In a report dated 4 April 2024, Dr Verma stated a diagnosis of major depressive disorder.
Dr Verma did not diagnose a primary psychological injury. Dr Verma expressed the opinion that the applicant’s major depressive disorder was a secondary psychological injury caused by ongoing chronic pain of the applicant’s elbow injury.
In relation to the cause of the applicant’s psychological condition, Dr Verma stated:
“… it appears that major depressive disorder has been caused by the elbow injury which causes significant ongoing pain with functional limitation. The increased work pressure as a result of a very heavy workload during COVID caused stress rather than a psychiatric disorder. The heavy workload was a systemic issue affecting all staff rather than just her. There was no specific evidence provided of bullying.
…
As she has not been at work for almost three years now I consider that workplace issues are no longer relevant. Therefore currently I consider the only causative factor which remains is her ongoing pain.
…
I consider that she experienced stress in the context of a very heavy workload during COVID. However I do not believe that the heavy workload resulted in the depressive disorder. I consider that the initial and ongoing causative event/factor for her major depressive disorder is her chronic pain.”
In relation to pre-existing mental health conditions, Dr Verma stated:
“Yes, there is mention of a past history of anxiety eight years ago. Her own psychiatrist mentioned depression at that time, which remitted without medication. Therefore based on the available information it would appear that she suffered an adjustment disorder with depressed and anxious mood at that time, which resolved. I consider she is psychologically vulnerable.
…
I do not consider that there was a pre-existing psychiatric disorder per se. She did not indicate any mental health symptoms prior to COVID and the elbow injury. However, I consider she is psychologically vulnerable…”

Dr John McMahon, psychologist, qualified by the insurer

In a report dated 9 August 2022, Dr McMahon stated a diagnosis of aggravation of pre-existing persistent depressive disorder caused by and secondary to pain and disability from her physical right elbow injury, possibly aggravated by opiate medication, with a differential diagnosis of an organic process. Dr McMahon noted that the applicant denied any previous symptoms, diagnosis or treatment for a mental disorder or condition, however a referral letter of Dr Nagarai dated 30 August 2021 stated that the applicant had a past history of “anxiety/depression” dated 3 December 2015 and that she was taking escalitopram (20mg)”.
In a report dated 18 January 2023, Dr McMahon noted that an MRI showed the absence of any intracranial pathology and confirmed a diagnosis of pre-existing persistent depressive disorder, possibly aggravated by opiate medication.
In a report dated 3 June 2024, Dr McMahon confirmed his diagnosis a secondary psychological injury of aggravation of persistent depressive disorder with major depressive episodes caused by pain and limitations of the applicant’s right elbow injury. Dr McMahon expressed the opinion that the applicant did not sustain a primary psychological injury, and stated:
“No, in my opinion there is not a primary psychological injury in that there was no primary stressor causing the depression apart from the pain. The depression was pre-existing and, when Ms. Harrison was having antidepressant therapy, her mood symptoms and concerns in the workplace resolved, for example the issue with working the late shift resolves as Ms. Harrison’s mood symptoms resolve. In my opinion, Ms. Harrison’s perception of events is mediated by her depressive symptoms and employment is not the primary cause of the depressive symptoms, rather they are secondary to the injury and the effects of treatment of the condition.”

SUBMISSIONS

Counsel’s submissions were recorded and have been considered in full. Both counsel also subsequently provided a list of authorities upon which they relied.

Applicant’s submissions

Mr Parker’s submissions on behalf of the applicant may be summarised as follows:
(a)    there is no dispute that the applicant has a psychological diagnosis as a result of her employment with the respondent;
(b) the applicant’s claim for primary psychological injury is being pressed as a disease injury pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act;
(c)    the Commission is required to determine whether or not the applicant sustained a primary psychological condition, and is not required to make any finding in relation to a secondary psychological condition;
(d)    the applicant does not press a case that she was subject to bullying and harassment in the traditional sense, s 11A of the 1987 Act is not relevant to these proceedings, and further, the reasonableness of the employer’s actions is not in issue;
(e)    in relation to s 65A of the 1987 Act, based on the authority of Attorney General’s Department v K,[1] the applicant is only required to prove that she sustained a psychological condition as a result of her perception of real events;
[1] [2020] NSWCCPD 76.
(f)    having regard to various lay and medical evidence to which Mr Parker referred, the Commission should be satisfied that: the applicant perceived that she had an excessive workload, particularly in the context of additional workload and difficulties with customers caused by COVID-19; the applicant’s perception was based on real events; and further, that the applicant consequently experienced stress and ultimately sustained a primary psychological injury to which her employment was the main contributing factor;
(g)    the applicant relies on the decision of Hamad v Q Catering Limited[2] in relation to incapacity caused by psychological injury;
[2] [2017] NSWWCCPD 6.
(h)    the applicant relies on Canon v The Health Snack People Pty Ltd[3] as authority that primary and secondary psychological conditions are not mutually exclusive;
[3] [2009] NSWWCCPD 32.
(i)    the applicant relies on Radford v Expression Regional Distribution Pty Ltd[4] at [163] to [165] to demonstrate that upon a finding that an applicant sustained a primary psychological condition, it is appropriate to refer the matter to a Medical Assessor to assess the degree of permanent impairment that results from that injury;
[4] [2017] NSWWCC49.
(j) sections 254 and 261 of the 1987 Act do not preclude the applicant’s entitlement to permanent impairment compensation because:
(i)Stone v Stannard[5] (which was applied in Gow v Patrick Stevedores)[6] is authority that the date of injury is the date of the claim;
[5] [2004] NSWC 277.
[6] [2002] NSWCC60.
(ii)the applicant received workers compensation in respect of injury to her elbow and secondary psychiatric injury;
(iii)the respondent will need to concede an earlier date of incapacity;
(iv)Visy Board Pty Ltd v Nguyen[7] is authority that the provision of the claim form constitutes both notice of injury (s 254) and notice of claim (s 261);
(v)accordingly, once the applicant initially notified the respondent of a psychological injury, it is for the respondent, not the applicant, to determine whether it is a primary or a secondary injury, and the applicant is not expected to know the exact nature and extent of her injury at the time of the initial notification. By way of analogy, any other interpretation would lead to the unsatisfactory situation of a worker who initially gives notice of an incorrect body part being denied compensation in circumstances where evidence supports a connection between the injury and injurious event, such as an upper back strain being barred from claiming compensation in the event that medical investigation subsequently revealed that the employee in fact sustained a lumbar disc injury;
(vi)in this case, depending on the date of injury, the applicant did likely tell her treating doctor and the respondent about her psychological condition within six months;
(vii)in disease claims such as this, the date of injury can only arise for the purposes of s 261 of the 1987 Act when the applicant realised that she had an injury;
(viii)the respondent was paying for treatment at least by 3 August 2022 and, that being the case, the respondent is taken to have accepted the injury;
(ix)it was incumbent on the respondent to determine if it was a primary or secondary psychological condition, not the applicant who advised that she had received medical treatment;
(x)the respondent has suffered no prejudice by an alleged deficiency in notice in the present circumstances where it is a technical legal issue;
(xi)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake or other reasonable cause because at least in mid-2022, the applicant reported psychological symptoms to her treating doctor who prepared a workcover certificate and recommended treatment, which the insurer assigned a claim number and paid for, and
(k)    accordingly, the Commission should find that the applicant sustained a primary psychological condition, with the date of injury being the date of the claim, specifically 12 December 2024. Further, the Commission should remit the matter to the President to be referred to a Medical Assessor for determination of whole person impairment.
[7] [2010] NSWWCCPD 101.

Respondent’s submissions

Mr Doak’s submissions on behalf of the respondent may be summarised as follows:
(a) in relation to s 254 of the 1998 Act, the relevant considerations are ignorance, mistake, absence from a state or other reasonable cause and, in the case of a claim made after three years after the date of injury, it must be established that there is serious and permanent disablement;
(b) in relation to s 261 of the 1998 Act, it is uncontroversial that the claim was made in November 2023,
(c)    Irvin v LA Logistics Pty Ltd[8] is authority that the applicant bears the onus to establish that she has satisfied the elements of s 261 of the 1998 Act;
[8] 2011 WCCPD 23.
(d) in this case, the applicant has not squarely addressed in her statement evidence the relevant considerations pursuant to ss 254 and 261 of the 1998 Act;
(e) the clinical entry on 21 October 2020 is particularly relevant to s 261 of the 1998 Act and the case generally, and evidences that, at that time, the applicant must have known of her psychological issues causally related to work and her potential right to make a workers compensation claim. However, the applicant has not squarely addressed that in her evidence;
(f) pursuant to s 261 of the 1998 Act, the claim must be made within six months of the relevant date of injury;
(g)    the relevant clinical record is 21 October 2020 records that the applicant was provided with a medical certificate. It falls within the understanding of incapacity for work because, whether the applicant used the certificate or not, it evidences that the applicant was given a medical certificate having complained of a mental health issue which the applicant reported was caused by her work. On that basis the applicant then ought to have objectively been aware of her entitlement to claim workers compensation in respect of that. The applicant has not dealt with that in her statements. Further, that demonstrates that the applicant had an incapacity as at 21 October 2020, irrespective of whether or not she used the medical certificate. Having regard to the provisions of ss 15 and 16, the respondent relies on Haddad v CEO Group[9] and submits that the date of injury is the date that the applicant first became entitled to make a claim for workers compensation being the date of the first incapacity, not the date on which the first made a claim. Having regard to the provisions of ss 261(6) of the 1998 Act, the date of injury is the date on which the applicant first became aware that she had received the injury, which was 21 October 2020 or some time earlier. The respondent also relies on Inghams Enterprises Pty Ltd v Thoroughgood[10] and Razmovski v NIB Health Funds Ltd;[11]
(h) the applicant has not provided any evidence nor explanation which addresses a circumstance or excuse in s 261(4);
(i)    further, the claim finally made in November 2023 was made outside the three-year period and the Commission is required to be satisfied that there was serious and permanent disablement, however the Commission cannot be so satisfied on the evidence in this case where there is a live issue regarding whether the applicant sustained a primary or secondary psychological injury;
(j)    having regard to various lay and medical evidence to which Mr Doak referred, the Commission should be satisfied that the applicant did not sustain a primary psychological injury, but rather, sustained a psychological injury as consequential and therefore secondary psychological injury which therefore not compensable, noting the chronology of the various medical evidence and that there is some conflict in the factual evidence;
(k)    the Commission should give little weight to the evidence of Dr Chow and the treating psychiatrist because the foundations for it are based on the incorrect assumption that the applicant’s symptoms continued from October 2020, however that is at odds with the clinical records;
(l)    the evidence of Dr Verma should be accepted and preferred. Dr Verma properly identified work as a stressor but it was just stress and did not result in a primary psychological injury;
(m)     in the context of the elbow injury and the absence of a claim until November 2023, the Commission should not be satisfied that applicant sustained a primary psychological injury;
(n) the Commission should not be satisfied that the applicant has satisfied the requirements of ss 254 and 261 of the 1998 Act, and
(o)    accordingly, the applicant has no entitlement to compensation for a primary psychological injury.
[9] [2024] NSWCA 135.
[10] [2013] NSWWCCPD 29.
[11] [2025] NSWPICPD 9.

Applicant’s submissions in reply

Mr Parker’s submissions on behalf of the applicant may be summarised as follows:
(a)    the evidence of Dr Chow should be accepted and preferred. There is no evidence that the applicant had an injury and recovered;
(b)    the applicant’s evidence is that she never recovered and it is supported by various recorded histories which evidence that the applicant was consistently obsessed with her perception that she was required to work excessively;
(c) sub-section 261(9) of the 1987 Act effectively provides that, for the purposes of ss 261(4)(a), a person is considered to have made a claim for compensation when the person makes any claim for compensation. On that basis, the claim for workers compensation was made at least as at 28 March 2022, it is just that the respondent thought that it was for a secondary psychological injury;
(d)    in any event, there is no doubt that by 3 August 2022, when the insurer was requested to approve the STEPP Program, the respondent was then fully aware that there was a claim for compensation in relation to psychological injury;
(e)    the respondent can not on one hand say that the claim for compensation is both, on the one hand, 21 October 2020, and other the other hand, three years later, you can’t have it both ways. So if the date of injury is back in 21 October 2020, then obviously the applicant has to win because that’s well before the elbow injury and she’s made the claim within time because on these work cover certificates, albeit relating to a different injury, the applicant has been complaining or the employer is told about psychological injuries. If, on the other hand, the date of injury is the date of the claim because the applicant doesn’t have work incapacity before that, then the claim is still within time. Hadad was very particular on the facts and can be distinguished from the present matter which involves a disease injury, and
(f)    the Commission should accept the evidence of Dr Chow and treating doctors who had the correct history. Dr Verma and Dr McMahon did not have a proper history.

FINDINGS AND REASONS

Did the applicant sustain a primary psychological injury in the nature of a disease, or an aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to s 4(b)(i) or s 4(b)(ii) of the 1987 Act?

The law

Section 66(1) provides:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.”
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In relation to psychological injury, s 65A of the 1987 Act states:
“65A   Special provisions for psychological and psychiatric injury
(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)    In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)    No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4)    If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5)    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.”
In AV v AW,[12] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[12] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[13] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[14]
[13] [1964] HCA 34; 110 CLR 626.
[14] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[15]
[15] Semlitch, at [635].
In Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor,[16] the New South Wales Court of Appeal set out a useful analysis of the application of s 4(b)(ii) of the 1987 Act (albeit prior to more recent amendments to the 1987 Act) generally and also specifically in the context of the natural progression of an underlying degenerative condition.
[16] [2008] NSWCA 151 at [38] to [54].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[17] (Kooragang).
[17] (1994) 35 NSWLR 452; 10 NSWCCR 796.
Although the High Court in Comcare v Martin[18] raised some concerns about the commonsense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the commonsense approach still has place in the application of the legislation to the present case.
[18] [2016] HCA 43, at [42].
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[19] Roche DP (as he then was), summarised the principles to be applied:[20]
[19] [2020] NSWCCPD 76.
[20] [2020] NSWCCPD 76, at [52].
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on a ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52]).”
And said:[21]
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”
[21] [2020] NSWCCPD 76, at [54].
The applicant has the onus of proof in establishing that there is an injury within the terms of
s 4 of the 1987 Act.
To discharge the onus of proof in relation to the alleged injury, I “must feel an actual persuasion of the existence of that fact”.[22]
[22] Department of Education & Training v Ireland [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].

The relevant factual events

The applicant’s credibility has not been challenged and no application was made for leave to cross-examine.
There is no witness evidence which directly addresses and challenges the applicant’s evidence in relation to her work duties.
Whilst there are some differences between the applicant’s evidence and the other lay evidence, overall there is a significant degree of consistency.
The evidence largely supports findings that, during the COVID-19 period: the respondent’s store where the applicant worked was generally busier than normal; customers were generally more difficult than normal; the applicant was required on occasion to work until 11.00pm one evening each week; the applicant continued to work and to perform duties required of her, and the applicant was required to train additional staff.
I accept that there is no lay evidence which corroborates the applicant’s evidence that she generally complained about excessive workload and lack of support. However, there is evidence which corroborates that the applicant complained about having to work until 11.00pm and that the applicant’s husband forcefully complained about her treatment in the workplace.
The applicant’s evidence is also consistent with the history that the applicant reported to her treating general practitioner in October and November 2020 and in February 2021.
Having regard to the evidence as a whole and for the reasons set out above, I do not consider that there is any compelling reason for me to not accept the credibility of the applicant’s evidence.
On that basis, I feel a sense of persuasion and I accept the applicant’s evidence as a truthful and honest account of the relevant factual events, particularly in relation to the nature of her work duties, the conditions of her workplace and her subjective experience of those events.

For the reasons set out above, I accept the applicant’s evidence as to the nature and conditions of her employment with the respondent.
Specifically, I accept that during the course of the applicant’s employment with the respondent, and particularly during the COVID-19 period, the applicant perceived that she had an excessive workload and a lack of support by the respondent, particularly in the context of additional workload and difficulties with customers caused by COVID-19, and further, the applicant’s perception was based on real events.

Mechanism of injury

In the present case, there is no dispute that the applicant has a psychological diagnosis as a result of her employment with the respondent. I am required to determine whether the applicant’s psychological condition is a primary psychological injury pursuant to s 4(b)(i) and/or 4(b)(ii) of the 1987 Act.
Dr Naresh Verma, psychiatrist, gave independent medical evidence qualified by the respondent. Dr Verma diagnosed major depressive order, caused by chronic pain secondary to the elbow injury. Dr Verma opined that the heavy workload and increased work pressure during the COVID-19 period caused stress rather than a psychiatric disorder.

Dr John McMahon, psychologist, gave independent medical evidence qualified by the respondent. Dr McMahon diagnosed aggravation of pre-existing persistent depressive disorder caused by and secondary to pain and disability from the elbow injury.
Dr Frank Chow, psychiatrist, gave independent medical evidence qualified by the applicant. Dr Chow diagnosed major depressive disorder, being a primary psychiatric injury due to maltreatment at work with excessive and unfair workload and lack of support. Dr Chow recorded a history that the applicant was started on antidepressant medication in October 2020 (also inconsistently and apparently inaccurately recorded by Dr Chow as October 2022),[23] due to workload difficulties and being required to work late night shifts. Dr Chow noted that the applicant denied that the elbow injury was the cause of her feeling depressed and anxious.
[23] Refer Dr Chow’s report dated 15 October 2023, pages 2 and 5.
In relation to whether the applicant had a pre-existing psychological condition, Dr Chow opined that the applicant did not have a pre-existing psychological condition at the time of the subject injury. Dr Chow stated that the applicant’s only psychological history was about
seven years ago, when the applicant had taken an antidepressant for a few months after moving interstate but she was fine once she adapted to the move. Dr Verma also opined that the applicant did not have a pre-existing psychological condition at the time of COVID-19 and the elbow injury, as an adjustment disorder with depressed and anxious mood that the applicant had some eight years prior, had resolved. In contrast, Dr McMahon opined that the applicant did have a pre-existing depressive psychological condition.
The applicant’s evidence is that her perception that she had an excessive workload and a lack of support by the respondent, particularly in the context of additional workload and difficulties with customers caused by COVID-19, caused her to experience psychological symptoms from around July 2020, and that she first consulted her general practitioner,
Dr Nagaraj, in that regard on 21 October 2020.
This is consistent with the clinical record of the applicant’s attendance on her treating general practitioner on 21 October 2020 which shows that the applicant was then prescribed Escalitopram in the context of a reported history of work stress including a requirement to work until 11.00pm affecting her mental health and that the applicant may need a medical certificate. Clinical records dated 26 October 2020, 17 November 2020 and
22 February 2021 also show that the applicant was then prescribed Escalitopram in the context of a further reported history regarding hours and conditions of work.
Those records clearly precede the reporting of the elbow injury on 21 July 2021.
I note that there do seem to be some inconsistencies in relation to the mechanism of injury reported by the applicant’s treating psychiatrist, Dr Sriram Thazhathaveetil.
On 18 May 2023, Dr Thazhathaveetil reported a diagnosis of major depression, with a mechanism of injury being the elbow injury, in the context of a history of depression seven years prior that had remitted, but worsening of the applicant’s mood since commencement of COVID-19 and a sharp decline in the applicant’s mood since she sustained the elbow injury.
On 28 November 2023, Dr Thazhathaveetil reported a diagnosis of major depression, in the context of a history that a telephone call to the applicant from her manager had “triggered memories of past alleged bullying”.
On 26 October 2024, Dr Thazhathaveetil reported a diagnosis of major depressive disorder and expressed the opinion that the psychological injury started during the COVID-19 period due to increased workload and allegedly not having enough staff members to support the applicant. Dr Thazhathaveetil stated that the first reports of psychological symptoms started around 21 July 2020, and the applicant sought help from the general practitioner for her depressive symptoms in October 2020. Dr Thazhathaveetil expressed the opinion that the applicant’s employment was the main contributing factor to her psychological injury.
I note that the references in Dr Thazhathaveetil’s report to “past alleged bullying” is inconsistent with the applicant’s claim, noting that the applicant does not allege workplace “bullying” in the traditional sense, and rather alleges that the injury occurred as a result of the nature and conditions of her work being excessive and unfair workload and lack of support.
Having carefully reviewed Dr Thazhathaveetil’s reports, I consider that he was nevertheless of the view that the applicant’s perception that she had an excessive and unfair workload and lack of support during the COVID-19 period was a critical element and causal factor in the development of the applicant’s psychological symptoms and condition.
Dr Thazhathaveetil’s evidence in that regard is largely consistent with the evidence of the applicant’s treating psychologists. In that regard, I note that on numerous occasions between February 2022 and January 2023, treating psychologist, Ailsa Graham, reported that the applicant blamed the respondent for her injury because they ‘ignored’ her requests for help, pressured her to work extra shifts and did not provide additional staff supports during COVID-19. Also, in August 2024, treating psychologist, Tamsin Lewthwaite, reported a diagnosis of recurrent, severe, major depressive disorder related to workplace events described by the applicant.
I note that the applicant was prescribed prescribed Escalitopram in late February 2021 in the context of a further reported history regarding hours and conditions of work. The applicant explained that her psychological symptoms continued after that time and that her treating general practitioner did not understand the ongoing significance of her psychological condition at the time she reported the elbow injury on 21 July 2021.
For the reasons set out above in relation to the general credibility of the applicant’s evidence, I accept the applicant’s evidence in relation to her subjective experience of the development of her psychological symptoms during the COVID-19 period and the ongoing nature of those symptoms at the time of the elbow injury and subsequently.
This is not a case where the evidence is clear cut. The medical evidence is somewhat problematic.
I do not accept the evidence of Dr Verma that the applicant’s perception of excessive workload, being required to work late and lack of support was no more than a source of stress and did not result in a primary psychological injury. From the treating medical evidence, it is clear that the applicant attended on her treating practitioner a number of times between October 2020 and late February 2021 and reported psychological symptoms in the context of that history and that she continued to be prescribed Escalitopram during that period. In the context of the evidence as a whole, I consider that it demonstrates that the reported history and psychological symptoms evidence the development of a psychological condition at that time.
Having analysed the evidence as a whole, I do not accept the respondent’s submission that the evidence of Dr Chow and the treating psychiatrist should be given little weight.
Having carefully considered the evidence as a whole and for the reasons given above, I prefer and accept the evidence of Dr Chow and the treating psychiatrist because, considering the evidence as a whole, I am satisfied that it provides a logical and likely explanation for the development of the applicant’s psychological condition in the context of the applicant’s medical history and my factual findings set out above.
Further, I do feel a sense of persuasion and I am satisfied on the balance of probabilities, that applicant sustained a primary psychological injury in the course of her employment with the respondent, in the nature of a disease, to which her employment was the main contributing factor, pursuant to s 4(b)(i) of the 1987 Act.
I note that both Dr Chow and Dr Verma were of the view that the applicant did not have a pre-existing psychological condition. I consider that their evidence in that regard is consistent with the treating medical records, which do not indicate any ongoing psychological condition immediately prior to the applicant reporting psychological symptoms in October 2020.
Having carefully considered the evidence as a whole and for the reasons given above, I do feel a sense of persuasion and I am satisfied on the balance of probabilities, that the applicant did not have a pre-existing psychological condition. On that basis, I find on the balance of probabilities, that the applicant did not sustain a primary psychological injury in the course of her employment with the respondent, in the nature of the aggravation, acceleration, exacerbation or deterioration of any disease, to which her employment was the main contributing factor, pursuant to s 4(b)(ii) of the 1987 Act.

What is the date of injury for the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act?

Sub-sections (1) and (4) of s 15 of the 1987 Act provide:
“15    Diseases of gradual process—employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
…
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
In Inghams Enterprises Pty Ltd v Thoroughgood,[24] Basten JA stated (in relation to s 16(1) of the 1987 Act, which is similar to s 15(1) of the 1987 Act in material terms):[25]
[24] [2014] NSWCA 166 (Thoroughgood).
[25] Thoroughgood, [46] – [51].
“46.   … the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.
47.    The basis on which the Deputy President rejected the finding of the arbitrator appears to have been encapsulated in the following passages:
‘69 As Mr Thoroughgood has not claimed weekly compensation, I infer that, like Mr Stone, he could not do so because he had no entitlement to that compensation, presumably because he suffered no economic loss as a result of his aggravation injury.
...
73 Just as no claim for weekly compensation was made in Stone, Mr Thoroughgood made no such claim. It follows that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006 ....’
48. If those passages imply that "incapacity" in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies "if the claim under consideration is for weekly compensation based on incapacity". If the claim is for another form of compensation, as the Deputy President correctly stated at [64], in the context set out at [42] above, ‘the relevant deemed date of injury was... the date of the incapacity for which compensation was claimed or entitled to be claimed.’
49.    To the extent that incapacity must be reflected in an entitlement to claim for economic loss, the conclusion that incapacity was not established appears to be inconsistent with the Deputy President's later conclusion that the claimant had an entitlement to claim (and did claim) compensation for therapeutic treatment. That depended upon there being an injury causing incapacity leading to economic loss. The injury complained of caused a relevant incapacity identified as the swelling, veins popping and pain in the legs. There may have been an issue as to whether that claim gave rise to a deemed date of injury as at 8 or 12 September, rather than 10 October (a point relied on by the respondent), in which case it would have been necessary to make a relatively minor amendment to the application in the Commission, but almost certainly one which could have caused no prejudice to the applicant.
50. On the other hand, the conclusion that incapacity was not established could have reflected the proposition that the claim for a lump sum for permanent impairment under s 66 was not in relation to the same incapacity as that for which the claim for medical or related treatment was made under s 60. However, that was not a point relied by the Deputy President; further, it would appear to be inconsistent with the need to establish the date of injury for the purpose of s 261(1) of the Workplace Injury Act, which is not dependent on the particular compensation claimed.
51. In relation to the concession that the claimant needed to establish ‘incapacity’, there was ambiguity as to the nature of the incapacity relied upon. In order to succeed against Inghams the worker had to establish that it was Inghams who last employed him in employment that substantially contributed to the aggravation of the condition for which he sought compensation under s 66. It is unlikely that he was conceding a need to establish an entitlement to claim weekly compensation, as that was not part of his claim.”
In Hadad v The GEO Group Australia Pty Ltd,[26] Griffiths AJA said:[27]
[26] [2024] NSWCA 135 (Haddad).
[27] Haddad, [69] – [74], [80], [81], [105].
“69. Both Acts also recognise that some, but not all, work-related injuries may result in a worker being incapacitated for work. This applies to both frank injuries and disease injuries. In the case of injuries of the latter kind, s 15(1) provides two alternative limbs which operate to deem a point in time when this kind of injury is taken to have happened. Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.
70.    Nothing in the text of s 15(1) or, indeed, elsewhere in either Act, suggests that the deeming provision operates simply by reference to how the worker’s claim for compensation is formulated. The fact that it is a claim for compensation is a critical aspect of the second limb of the deeming provision in s 15(1)(a)(ii) because it constitutes the deemed date of injury where that limb applies. But the text of s 15(1) does not make the content of that claim determinative in selecting which of the two limbs applies.
71.    The text of s 15 should be read and understood with an appreciation of its raison d’être. It is necessary to have a provision which deems the date of injury where the injury is one of gradual process because of the intrinsic difficulties which would otherwise arise in identifying a finite and single point in time when such an injury happened given that the disease may not be static. Those difficulties are unlikely to arise when a worker suffers either a one-off frank injury or death. The timing of those events will ordinarily be readily ascertained.
72. In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act (see at [39] above and as applied and understood in the cases referred to below, particularly Thoroughgood) and may be entitled to make a claim for compensation arising from that incapacity. One scenario is where the worker makes a claim for compensation which in its terms asserts or depends upon incapacity, as was the case here with the appellant’s initial claim dated 19 January 2021, when he sought weekly payments of compensation on the basis of an incapacity which he claimed dated from 20 January 2017. Another possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work. In the circumstances here, merely because the claim was then reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored.
73.    Another scenario, which is also reflected in the present case, is where the worker has made a claim for compensation under different legislation and it emerges either from that claim or in related proceedings that there is or was an incapacity.
74.    These scenarios are not exhaustive.
…
80.    As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81.    It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.
…
105. … It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
In Razmovski v NIB Health Funds Ltd [2025] NSWPICPD 9, Deputy President Snell discussed and applied Haddad and Thoroughgood in the context of that case.
It is clear from s 15(1) of the 1987 Act and the relevant authorities, that I am required to determine the date of injury of the applicant’s primary psychological injury, by determining whether the applicant’s primary psychological injury resulted in an incapacity and, if so, when that incapacity occurred. I am required to have regard to the particular facts, which includes the development of a primary psychological injury in the nature of a disease pursuant to s 4(b)(i) of the 1987 Act.
The complexity of the medical evidence in relation to the applicant’s various injuries and incapacities in this case, makes it difficult to ascertain when, if at all, the applicant had an incapacity caused by the primary psychological injury.
The treating medical evidence set out above details the history and nature of the applicant’s injuries and incapacity.
The treating general practitioner’s clinical record dated 21 October 2020 records that the applicant had psychological symptoms in the context of her being required to work a late shift, which is consistent with the primary psychological injury. The record indicates that the applicant “may need” a medical certificate. However, it does not clearly evidence that the applicant had an incapacity arising from a primary psychological injury at that time. Certainly, no medical certificate nor Certificate of Incapacity was issued at that time.

Indeed, it is clear from the evidence that the applicant did in fact continue to work from 21 October 2020 until she ceased work on 21 July 2021.
It is apparent from the medical evidence, and not in dispute, that the applicant did have an incapacity from 21 July 2021, which arose from the elbow injury. The applicant ceased work on that day and did not return to work.
It appears that the applicant was subsequently certified to have incapacity for work as a consequence of the elbow injury and, subsequently, also the accepted secondary psychological injury (related to pain caused by the elbow injury), which was deemed to have occurred on 21 July 2021.
However, there is no clear evidence that the applicant had an incapacity arising from a primary psychological injury at that time.
It was not until the applicant underwent psychological consultations as part of the STEPP chronic pain program commencing in about August 2022, that a treating psychologist identified that the applicant suffered psychological symptoms caused by work pressures during the COVID-19 period.
On 1 September 2022, Ailsa Graham, psychologist, reported on the applicant’s progress with her psychological condition. Ms Graham noted that the applicant blamed the respondent for her injury because they ‘ignored’ her requests for help, pressured her to work extra shifts and did not provide additional staff supports during COVID-19. Ms Graham reported that the applicant was ruminating excessively about the respondent being negligent in their duty of care towards her. Ms Graham did not then make any comment or finding in relation to whether the applicant had incapacity to work specifically in the context of such a primary psychological injury, although it is clear that Ms Graham prepared the report on the basis of the applicant having continuing incapacity to work.
I note that, at that time, there was medical opinion which indicated that the applicant had incapacity for work as a result of a secondary psychological injury which was secondary to pain caused by the elbow injury.
In his report dated 18 May 2023, Dr Sriram Thazhathaveetil, the applicant’s treating psychiatrist, reported a diagnosis of major depression. Dr Thazhathaveetil expressed the opinion that, given the intensity of her depressive symptoms, the applicant was not suitable to work in a field that she was suitable qualified for by experience and training for the next six months. Whilst Dr Thazhathaveetil then noted a background that the applicant’s mood had deteriorated due to work stress since COVID-19 commenced, Dr Thazhathaveetil then determined that the mechanism of the applicant’s psychological injury was “Tennis elbow limiting her functioning and causing significant pain… [and] uncertainty about future…”.
On 4 August 2024, and thereafter, Dr Thazhathaveetil reported a diagnosis of major depression and expressed the opinion that the applicant had lost permanent capacity to work in any role that she is suitably qualified for by education, experience and training.
Dr Thazhathaveetil did not then specifically identify that the applicant’s primary psychological injury was the cause of that permanent incapacity.
On 22 August 2024, Tamsin Lewthwaite, the applicant’s treating psychologist, reported a diagnosis of recurrent, severe, major depressive disorder. Ms Lethwaite stated that it is evident that the applicant’s psychological injury is related to workplace events described by the applicant.
The first time that treating medical evidence clearly identified incapacity specifically arising from the primary psychological injury was Dr Thazhathaveetil’s report dated
26 October 2024. Dr Thazhathaveetil then reported a diagnosis of major depressive disorder and expressed the opinion that the psychological injury started during the COVID-19 period due to increased workload and allegedly not having enough staff members to support the applicant. Dr Thazhathaveetil stated that the first reports of psychological symptoms started around 21 July 2020, and the applicant sought help from the general practitioner for her depressive symptoms in October 2020. Dr Thazhathaveetil expressed the opinion that the applicant’s employment was the main contributing factor to her psychological injury.
Dr Thazhathaveetil stated that the applicant has lost full capacity to work. Dr Thazhathaveetil did not specifically state when incapacity to work on that basis first arose.
However, prior to that, a report dated 15 October 2023 of Dr Chow, psychiatrist, provided independent medical evidence qualified by the applicant, to the effect that the applicant had incapacity for work, likely permanent, as a result of primary psychological injury. Dr Chow did not specifically state when incapacity to work on that basis first arose. For reasons stated above, I accept the evidence of Dr Chow.
Having regard to the clear evidence in Dr Chow’s report dated 15 October 2023, which I accept, and in the absence of any clear or compelling evidence that the applicant had incapacity for work as a result of the primary psychological injury prior to Dr Chow’s report dated 15 October 2023, I find that the applicant’s primary psychological injury resulted in an incapacity which occurred on 15 October 2023.
On that basis, having regard to the provisions of s 15(1) of the 1987 Act and the relevant authorities, I determine that the date of the applicant’s primary psychological injury is
15 October 2023. That is the date of injury for the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act.

Is the claim precluded by operation of s 254 of the 1998 Act?

Section 254 of the 1998 Act states:
“254   Notice of injury must be given to employer
(1)    Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)    The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)    Each of the following constitutes special circumstances—
(a)the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e)the employer has contravened section 231,
(f)the injury has been treated in a first aid room at the place of work,
(g)if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.
(4)    In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances—
(a)the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b)the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011,
(c)the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
As set out above, I have determined having regard to the provisions of s 15(1) of the 1987 Act and the relevant authorities, that the date of the applicant’s primary psychological injury is 15 October 2023.
On 8 November 2023, the applicant served on the respondent’s insurer a claim for permanent impairment compensation (dated 6 November 2023) pursuant to s 66 of the 1987 Act for $66,930 in respect of 24% whole person impairment arising from a primary psychological injury with a deemed date of injury of 21 July 2021, together with a medical report of Dr Chow dated 15 October 2023.
On that basis, I am satisfied that the applicant has complied with the requirements of s 254(1) of the 1998 Act, specifically that the applicant gave notice of the injury to the respondent as soon as possible after the injury happened (and noting that the applicant did not voluntarily leave the employment but was certified as having a work incapacity).
Accordingly, I find that the applicant’s claim is not precluded by operation of s 254(1) of the 1998 Act.
In the event of any error in my reasoning in that regard, I am alternatively satisfied that, by operation of s 254(2) of the 1998 Act, there are special circumstances which prevent the failure to give notice of injury as required by s 254(1) of the 1998 Act from being a bar to the recovery of compensation. In particular, I accept that special circumstances set out in s 254(3)(b) of the 1998 Act is made out on the basis that the applicant failed to give notice of injury occasioned by ignorance, mistake and reasonable cause. As I have stated above, the medical evidence in relation to the development of the primary psychological injury and incapacity arising from that injury is complex and it is further complicated by the factual overlay of a number of injuries and incapacities It is clear that the applicant did give notice of psychological injury and she made a claim for psychological injury which was accepted as a secondary psychological injury, secondary to pain from the elbow injury. It was not until she received psychological treatment under the STEPP pain management program that it became fully apparent that she had a primary psychological injury. As I have outlined above, it was not until some time later still, that it was specifically identified that the applicant had incapacity specifically as a result of that primary psychological injury. In the circumstances, I am satisfied on the balance of probability that the applicant’s failure to give notice as required was occasioned by ignorance and mistake. Further, I am satisfied that there is reasonable cause that notice of injury was not made at an earlier time and that the particular and somewhat unusual circumstances make it unjust for s 254(1) of the 1998 Act to preclude the applicant’s claim.

Is the claim precluded by operation of s 261 of the 1998 Act?

Section 261 of the 1998 Act states:
“261Time within which claim for compensation must be made
(1)Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
As set out above, I have determined having regard to the provisions of s 15(1) of the 1987 Act and the relevant authorities, that the date of the applicant’s primary psychological injury is 15 October 2023.
However, for the purposes of the operation of s 261 of the 1998 Act, s 261(6) provides that if an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is taken to have been received when the worker first became so aware.
Accordingly, for the purposes of the operation of s 261 of the 1998 Act, the date of injury will be the date that the applicant first became aware that she had received the injury.
The applicant’s evidence is that she reported psychological symptoms to her general practitioner on 21 October 2020 in the context of her feeling overworked and a sense of abandonment.
I note that the clinical record of the treating general practitioner in respect of that consultation, indicates that the applicant was then prescribed Escalitopram for such symptoms and records a history that that “the main trigger seems to be that at work, at bunnings, there is a late shift that lasts until 11pm – once a week… she has been just told to do it and with no asking her or anybody else doing this shift… this has been affecting her mental health and has been more stressful/worse recently”. The clinical report records that the applicant “may need acert”, which I take to mean Medical Certificate, but it does not indicate that the general practitioner, nor the applicant, identified any “injury” for the purposes of the 1987 Act.
Somewhat inconsistently, the applicant also states that it was not until her consultations with a psychologist as part of the STEPP pain management program in 2022 that she first realised that her psychological symptoms were due to unresolved feelings in respect of how she was treated during her employment with the respondent and the significant stress that she faced during the COVID-19 period without any support.
As noted above, on 1 September 2022, Ailsa Graham, psychologist, reported that the applicant blamed the respondent for her injury because they ‘ignored’ her requests for help, pressured her to work extra shifts and did not provide additional staff supports during COVID-19. Ms Graham reported that the applicant was ruminating excessively about the respondent being negligent in their duty of care towards her. It is apparent that the applicant was then made aware that she had sustained a primary psychological injury.
Whilst I have had some difficulty in reconciling the applicant’s evidence in this regard, on careful examination of the evidence, I am satisfied on the balance of probability that the date on which the applicant first became aware that she had sustained a primary psychological injury was on or about 1 September 2022 (through the report of Ailsa Graham, psychologist). On the balance of probability, I am satisfied that the applicant was not so aware prior to that time because the clinical record dated 21 October 2020 (and subsequent clinical reports) did not indicate that the general practitioner, nor the applicant, identified any “injury” for the purposes of the 1987 Act.
Accordingly, pursuant to s 261(6) of the 1998 Act, and for the purposes of s 261 of the 1998 Act, the primary psychological injury happened on 1 September 2022.
On that basis, in order to recover the compensation presently sought, ss 261(1) and (3) of the 1998 Act effectively require that the applicant must, no later than 1 March 2023 (being within six months after the primary psychological injury was sustained), have made “any claim for compensation in respect of the injury… concerned, even if the… claim did not relate to the particular compensation in question”.
On 8 November 2023, the applicant served on the respondent’s insurer a claim for permanent impairment compensation (dated 6 November 2023) pursuant to s 66 of the 1987 Act for $66,930 in respect of 24% whole person impairment arising from a primary psychological injury with a deemed date of injury of 21 July 2021, together with a medical report of Dr Chow dated 15 October 2023. The claim was clearly made outside of the six-month period required by s 261(1) of the 1998 Act.
There is no clear evidence of any other claim for compensation in respect of the primary psychological injury being made prior to 8 November 2023.
On that basis, there may be potential for s 261(1) to operate to preclude the applicant from recovery of compensation.
However, I also need to consider the operation of s 261(4) of the 1998 Act. In the context of the present claim, that effectively provides that failure to make the claim within the six-month period required by s 261(1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within three years after the injury happened, or
(b) the claim is not made within that three years but the claim is in respect of an injury resulting in the serious and permanent disablement of the applicant.
I note that the claim was made on 8 November 2023, which is clearly within three years after the primary psychological injury happened on 1 September 2022.
Further, I am satisfied that, the failure to make the claim within the time prescribed by s 261(1) of the 1998 Act was occasioned by ignorance, mistake and reasonable cause. As I have stated above, the medical evidence in relation to the development of the primary psychological injury and incapacity arising from that injury is complex. It is clear that the applicant did give notice of psychological injury and she made a claim for psychological injury which was accepted as a secondary psychological injury, secondary to pain from the elbow injury. It was not until she received psychological treatment under the STEPP pain management program that it became fully apparent that she had a primary psychological injury. As I have outlined above, it was not until some time later still, that it was specifically identified that the applicant had incapacity specifically as a result of that primary psychological injury. In the circumstances, I am satisfied on the balance of probability that the applicant’s failure to make the claim as required was occasioned by ignorance and mistake. Further, I am satisfied there is reasonable cause that the claim was not made at an earlier time and, that the particular and somewhat unusual circumstances make it unjust for s 261(1) of the 1998 Act to preclude the applicant’s claim.

Accordingly, I find that the exemption in s 261(4) of the 1998 Act is engaged and the applicant is not precluded from recovery of compensation by the operation of s 261(1) of the 1998 Act.

What is the extent and quantification of the applicant’s entitlements to payment of permanent impairment compensation, pursuant to s 66 of the 1987 Act?

There is a dispute in relation to assessment of whole person impairment. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of whole person impairment. The Medical Assessor should be provided with the following documents:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s ALAD and attached documents dated 14 February 2025, and
(d)    respondent’s ALAD and attached documents dated 5 March 2025.

SUMMARY

On that basis, I determine that:
(a) the applicant sustained a primary psychological injury in the course of her employment with the respondent, in the nature of a disease, to which her employment was the main contributing factor, pursuant to s 4(b)(i) of the 1987 Act;
(b) the applicant did not sustain a primary psychological injury in the course of her employment with the respondent, in the nature of the aggravation, acceleration, exacerbation or deterioration of any disease, to which her employment was the main contributing factor, pursuant to s 4(b)(ii) of the 1987 Act;
(c) for the purpose of assessment and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, the date of the applicant’s primary psychological injury is 15 October 2023;
(d) the applicant’s claim is not precluded by operation of s 254(1) of the 1998 Act, and
(e) the applicant is not precluded from recovery of compensation by the operation of s 261(1) of the 1998 Act.
On that basis, it is appropriate to make the following orders:
(a)    The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:        15 October 2023 (deemed).
Body parts:             psychological.
Method:                  whole person impairment.
(b)    The materials to be referred to the Medical Assessor are to include:
(i)ARD and attached documents;
(ii)Reply and attached documents;
(iii)applicant’s ALAD and attached documents dated 14 February 2025, and
(iv)respondent’s ALAD and attached documents dated 5 March 2025.

[2025] NSWPIC 152

15 April 2025