Harvey v BRB Modular Pty Ltd t/as Fleetwood

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harvey v BRB Modular Pty Ltd t/as Fleetwood [2025] NSWPIC 154
APPLICANT:	James Harvey
RESPONDENT:	BRB Modular Pty Ltd t/as Fleetwood
MEMBER:	John Turner
DATE OF DECISION:	16 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); sections 4, 11A(3), 15 and 16 of the 1987 Act; dispute as to injury; accepted psychological injury with accepted diagnosis of post-traumatic stress disorder (PTSD); dispute that applicant sustained pleaded injury of PTSD due to nature and conditions of employment; dispute as to whether notice given and claim made in accordance with sections 254 and 261 of the 1998 Act; Hancock v East Coast Timber Products Pty Ltd cited; Held – the applicant sustained a primary psychological injury for which PTSD has been diagnosed; due to the nature and conditions of employment with the respondent; sections 254 and/or 261 of the 1998 Act do not prevent the applicant from recovering compensation as notice of injury was given in accordance with section 254 and a claim for compensation made in accordance with section 261.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a primary psychological injury, for which post-traumatic stress disorder has been diagnosed, due to the nature and conditions of his employment with the respondent (including the incident on 21 January 2018) with a deemed date of injury of 21 January 2018. 2. Sections 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act 1998 do not prevent the applicant from recovering compensation as notice of injury was given in accordance with s 254 and a claim for compensation made in accordance with s 261. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 21 January 2018 (deemed) – disease. (b) Body systems / parts: primary psychological/psychiatric disorder. (c) Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents except for pages 99 to 107 of the attachments being a report of Dr Virk dated 11 April 2024; (b) Reply and attached documents except for pages 1 to 50 and 413 to 421 of the attached documents being the reports of Dr Graham Vickery dated 3 April 2019, 18 November 2022 and Dr Abdul Virk dated 11 April 2024; (c) documents attached to the Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 19 March 2025 except for page 11 of the attached documents being the screen shot of a Facebook page of Cody Patrick; (d) documents attached to the ALAD lodged on behalf of the respondent dated 19 March 2025 except for pages 1 to 9 of the attached documents being a report of Dr Graham Vickery dated 5 June 2020, and (e) this Certificate of Determination and Statement of Reasons. 5. Once the Medical Assessment Certificate has been issued the matter is to be listed before me for preliminary conference in respect to the claim for weekly compensation and the payment of any permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Hames Harvey (applicant) has brought proceedings in the Personal Injury Commission (Commission) against BRB Modular Pty Ltd t/as Fleetwood (respondent) alleging that he sustained a disease injury in the form of a primary post-traumatic stress disorder and social anxiety disorder on the deemed date of 21 January 2018 due to the “[t]oxic nature and conditions of employment” including an incident on 21 January 2018.
The applicant claims weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act) from 14 January 2023 and ongoing as well as compensation pursuant to s 66 of the 1987 Act for permanent impairment due to psychiatric and psychological disorders.
The respondent does not dispute that the applicant suffered a psychological injury with a diagnosis of post-traumatic stress disorder as a result of an incident at work on 21 January 2018 when the applicant was thrown by a foreman. At the time of the incident an altercation was occurring between two other persons in the workplace. The respondent does however dispute that the applicant has suffered injury in the form of a post-traumatic stress disorder as a result of the nature and conditions of his employment.

ISSUES FOR DETERMINATION

It was agreed that the issue of liability would be determined first with a referral to a Medical Assessor following which the matter would be re-listed to deal with the claims for compensation.
The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained injury in the form of post-traumatic stress disorder due to the nature and conditions of his employment as pleaded: ss 4 and 11A(3) of the 1987 Act;
(b) whether notice of the injury was given in time in accordance with the requirements of s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act);
(c) whether the claim was made within time in accordance with s 261 of the 1998 Act, and
(d) ss 15 and 16 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 25 March 2025. Mr Paul Stockley, counsel, instructed by Fern Lawyers, appeared for the applicant, who was present. Mr Fraser Doak, counsel, appeared for the respondent, instructed by HWL Ebsworth Lawyers. The proceedings were conducted via MS TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents except for pages 99 to 107 (report of Dr Virk dated 11 April 2024);
(b)    Reply and attached documents except for pages 1 to 50 and 413 to 421 of the attached documents (reports of Dr Graham Vickery dated 3 April 2019, 18 November 2022 and Dr Abdul Virk dated 11 April 2024);
(c)    documents attached to the Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 19 March 2025 except for page 11 of the attachments being the screen shot of a Facebook page of Cody Patrick which is excluded, and
(d)    documents attached to the ALAD lodged on behalf of the respondent dated 19 March 2025 except for pages 1 to 9 of the attached documents being a report of Dr Graham Vickery dated 5 June 2020.
The respondent did not press the admission of the screen shot of a Facebook page of Cody Patrick. The reports of Dr Virk and Dr Vickery were excluded as they offended regulation 44 of the Workers Compensation Regulations 2016.
The applicant objected to the admission of the report of Dr John Albert Roberts dated 17 March 2025. In the applicant’s submission the report was not foreshadowed at the preliminary conference and the applicant was prejudiced by being unable to have the report reviewed and commented upon by Dr Aman Suman. The applicant did not identify the particular portion of the report which required further comment from Dr Suman.
The respondent submitted that a further report from Dr Roberts was foreshadowed at the time of the preliminary conference and the fact that there were two reports instead of one was of no significance
I admitted the report into evidence and advised that I would give written reasons which I do now. The respondent at the time of the preliminary conference did advise that it would be seeking a further report from Dr Roberts. The fact that there are two reports instead of one is an infraction of what was foreshadowed but in my view a minor one. The applicant did not direct my attention to any particular portion or aspect of the report which required commenting upon by Dr Suman. I am of the view that the report does not cause the applicant any prejudice. Dr Roberts essentially just confirms his previous opinions. The report is the last in a series of reports from Dr Roberts and should be admitted into evidence. I accept that the weight to be given to the report will be an issue given the doctors extensive references to opinions contained in reports of Dr Virk and Dr Vickery which have been excluded.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Injury

The respondent accepts that the applicant suffers from a post-traumatic stress disorder as a result of an incident which occurred at work on 21 January 2018 when the applicant was thrown by a foreman. At the time of the incident an altercation was occurring between two other persons in the workplace.
The respondent however disputes that the applicant sustained injury as pleaded in the ARD. The applicant pleads that he sustained a disease injury, in the form of a primary post-traumatic stress disorder and social anxiety disorder, on the deemed date of 21 January 2018 due to the “[t]oxic nature and conditions of employment”. The applicant relies on the accepted incident which occurred on 21 January 2018 as part of the “[t]oxic nature and conditions of employment”.
The applicant relies on the opinion of Dr Aman Suman, psychiatrist, in support of his case. Dr Suman provided forensic medical reports to the applicant dated 16 September 2022, 24 May 2024 and 5 March 2025.
In the opinion of Dr Suman, the applicant provided a history indicative of him experiencing a mix of anxiety and depressive symptoms due to workplace stressors since 2016. In the opinion of Dr Suman the applicant’s mental health worsened as a result of being assaulted by a work colleague on 21 January 2018 and his presentation since then indicates that he is suffering from post-traumatic stress disorder.[1]
[1] ARD – p 118.
The opinion of Dr Suman is therefore that whilst the applicant was suffering from a mix of anxiety and depressive symptoms due to workplace stressors prior to the incident on 21 January 2018 it was not until that incident that he developed the post-traumatic stress disorder.
Whilst Dr Suman is of the opinion that the applicant did not develop the post-traumatic stress disorder prior to the incident on 21 January 2018 he is of the opinion that the applicant’s psychological injury is as a result of both workplace bullying and harassment as well as the incident on 21 January 2018.[2]
[2] ARD – p 92.
In the opinion of Dr Suman, the applicant experienced clinically significant anxiety and depressive symptoms since 2016, for which the applicant consulted mental health professionals and trialled psychotropic medication in 2017. In Dr Suman’s opinion the applicant’s presentation at that time fulfilled the criteria of an adjustment disorder with mixed anxiety and depressed mood. Whilst he was able to continue working, his mental health adversely affected his social and general functioning. However, it was only since the incident on 21 January 2018 that the applicant had experienced post-traumatic stress disorder symptoms, which added to his pre-existing mental health stressors with the applicant decompensating following the incident on 21 January 2018.[3]
[3] Applicant’s ALAD – p 8.
In the respondent’s submission Dr Suman does not explain how he reaches his opinion that there is a causal relationship between a diagnosis of post-traumatic stress disorder and the alleged bullying and harassment. In the respondent’s submission Dr Suman just asserts that the post-traumatic stress disorder has been caused by the alleged bullying and harassment as well as the incident on 21 January 2018 without providing any reasoning. The respondent submits that Dr Suman has not given proper and cogent reasons for his opinion, and I should reject the opinion as I could not be satisfied that a satisfactory basis has been provided for the opinion.[4]
[4] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
It is necessary to examine the basis, or lack thereof in the respondent’s submission, of Dr Suman’s opinion. Turning firstly to the evidence of the events running up to the incident on 21 January 2018 and the effects on the applicant’s mental health.
There are two statements by the applicant in evidence dated 4 August 2022 and 23 November 2024. Relevantly it is the applicant’s evidence that he commenced with the respondent in or around 2014 as a contractor before becoming full-time plasterer in 2016. He was supervised by Matthew Chaff and Rob Edwards who were his direct foreman at the respondent. That whilst in the course of his employment with the respondent on 14 April 2016, he fell off a ladder sustaining injury to his lower back and right shin. He sustained a further injury to his lower back on 27 March 2017 whilst carrying gyprock in the course of his employment.
It is the applicant’s evidence that his fall from the ladder on 14 April 2016 was investigated by Toni Smidt and Matthew Chaff who decided that the accident occurred because the applicant had not checked the legs of the ladder to make sure nothing was on them. The applicant complains that they blamed him for the accident. They created a new safe work method statement (SWMS) which the applicant had to sign. He did this as he felt he needed to keep his job however he did not see that it was his fault.
It is the applicant’s evidence that when he reported his back injury of 27 March 2017 he was asked “Are you serious?”
It is the applicant’s evidence that on his first day back at work after a two-week holiday in 2017 he signed in and attended a toolbox safety meeting. Whilst he clocked in and participated in the roll call, he forgot to sign the toolbox sheet. Whilst it is his understanding that other employees had also failed to sign the toolbox sheet, he was singled out for not completing this task. He was escorted to the conference room, isolated from the rest of the team and was made to attend a meeting with Tony Smith, his return-to-work officer, and Mr Chaff. The work safety officer, who was supposed to support the applicant during the process, was not present. The applicant felt anxious and insisted on the work safety officer being present, however, Mr Smith and Mr Chaff denied his request. It is the applicant’s evidence that he felt singled out and anxious about the incident and that when he expressed his concerns that he was being unfairly targeted, he was dismissed with the remark, “Don’t be so silly and get back to work.” This response left him feeling both dismissed and uncomfortable with the manner in which the situation had been handled.
It is the applicant’s evidence that he was made to report every hour and anything that he reported, was recorded. That he was assigned tasks that were not in line with the recommendations provided by his treating doctor in respect to his work related physical injuries. This made him feel as though he was being unfairly singled, caused him distress and to feel deeply hurt, anxious and overwhelmed.
It is the applicant’s evidence that Mr Chaff would instruct him to go to site to complete work one day and then tell him the next day that he was a liability and could not send him to site. He would tell the applicant that his work had been terrible and that he was going to decrease his pay. He would then send the applicant to site days later and the whole process would start again.
It is the applicant’s evidence that the allocated breaks did not allow adequate time for him to stretch for his physical work injuries and that he was called into the office and yelled at for saying so. The applicant felt targeted. He had requested for the Occupational Health and Safety (OH&S) representative to be present at the meeting because he felt unsafe being spoken to alone and was told that he was being an absolute joke. He was denied having this person as a support person.
It is the applicant’s evidence that in June 2017 he had written on his program that he needed more time to stretch and exercise so he was given 20 minutes before and after lunch to stretch which he did in the locker room. As he was coming out of the locker room Mr Chaff said in front of the other staff, “How was your wank today, did you get a good one in today.” Also, in June 2017 Ms Smidt had been taking photos of him at work. The applicant would say that he could not do heavy gauge steel flooring jobs, and he would be given the job and Ms Smidt would take photos of him doing the task and when asked what she was doing would walk away.
It is the applicant’s evidence that one morning in 2017 he arrived at work at 7.00am and as usual reported to the production manager, John Hibert. As Ms Smidt was not at work he checked in with Mr Hibert again at 8.00am. At approximately 9.00am Ms Smidt and Mr Hibert approached him to question why he had not reported to them every hour. It is the applicant’s evidence that he was taken aback, shocked and disheartened by the allegation.
It is the applicant’s evidence that on several occasions he needed to explain the work he had completed, and it was only after he outlined the tasks which he had performed that the threat of a written warning would be lifted.
It is the applicant’s evidence that in April 2017 Mr Chaff drove him to a doctor’s appointment. During the trip he told the applicant that his pay was going to be decreased and threatened to put him on a performance review because he was not completing jobs within the allocated time frames. The applicant believes he was doing better than other co-workers.
It is the applicant’s evidence that Mr Chaff would continually give him jobs that set him up to fail. He was told to put two screws which was a job for the “chippy”. He had to ask the “chippy” what screws needed to be used which negatively impacted on the timeframe in which the job was completed. The applicant was again threatened with a pay decrease and being placed on performance review.
It is the applicant’s evidence that there was an occasion when he was in a group of 5 people who left 5 minutes before a scheduled break to wash liquid nails from their hands. That he was the only one pulled aside from the group and Mr Chaff yelled at him and told him that he didn’t run the business. That he was taken to the boardroom and given a written warning. That he felt very stressed, discriminated against and bullied.
It is the applicant’s evidence that each day, upon arriving at work, he was spoken to in a harsh and discouraging manner which created in him a sense of hopelessness, and he struggled with thoughts of not wanting to continue with his life.
It is the applicant’s evidence that in 2017, a petrol can was left on a work vehicle by another employee for which the applicant was blamed. In another incident, he was working under the supervision of the senior storeman, serving as his second-in-charge. He was asked to provide tools to the plumbers; however, he was later accused of leaving the storeroom unattended.
It is the applicant’s evidence that in June 2017 Mr Chaff came into the physiotherapist room whilst the applicant was receiving treatment. That he had needles in him and his pants were pulled down. That Mr Chaff wanted to talk about strategies to minimise the applicant’s time off from work and his going to the physiotherapist. The applicant was embarrassed and felt it was inappropriate.

It is the applicant’s evidence that in July 2017 he received a call on his phone from his counsellor and asked Mr Chaff if he could take the call and was told he had to wait until his scheduled break even though others were on their phones. That he called his counsellor back during his break but could only have a 15 minute session instead of an hour.
It is the applicant’s evidence that in September 2017 he was approached in what he found to be an aggressive manner by Mr Chaff and Ms Smidt. “Abo Jim” had been graffitied on his toolbox. They informed the applicant that they considered the graffiti inappropriate and offensive. The applicant found it upsetting that, rather than being supported in addressing the vandalism he was instead being accused of it. The applicant was required to clean the toolbox. It is the applicant’s evidence that matters were made worse by Ms Smidt and Mr Chaff informing the applicant’s colleagues that he was accusing them of drawing on the toolbox. As a result, the applicant was confronted in an aggressive manner by some of his colleagues, where he was questioned and made to feel as though he had falsely accused them. It is the applicant’s evidence that he was threatened with being “beat up” multiple times.
It is the applicant’s evidence that the events at work left him feeling as though he was being subjected to severe bullying and harassment, unsafe, with an overwhelming sense of distress, panic, and anxiety. That he struggled to cope with the emotional burden and became severally paranoid, vulnerable and anxious over his safety at work which drove him into a deep state of panic.
It is the applicant’s evidence that on 21 January 2018 he heard some yelling. He thought that there was going to be a fight and that they needed to stop it. He walked around a corner to the yelling. There was some pushing going on, there were two aggressors and about 10 people jumped in to separate them. The applicant’s neck was grabbed by Rob Edwards (foreman) from behind and his body thrown to the ground. He recalls hitting his head. He went outside and Rob Edwards had another “go at him” and wanted to fight him. The applicant left. The applicant has not returned to work since.
The only factual evidence that the respondent has put on in response to the applicant’s evidence is a statement from Andrew Hurley dated 2 August 2022. Mr Hurley was employed by the respondent as the production manager at the time of the applicant’s employment.
It is the evidence of Mr Hurley that the applicant was counselled for work performance issues and breaches in company policy and/or procedures “quite a bit”, that Mr Hurley felt that the workplace was not an environment where there would have been bullying or trouble makers, that he did not receive or hear of any complaints by the applicant in relation to being bullied in the workplace and was not aware of the applicant being continually treated badly by Mr Chaff. The evidence of Mr Hurley does not, as was submitted by Mr Stockley on behalf of the applicant, engage with the applicant’s evidence in any meaningful way. Mr Hurley appears to have no direct knowledge of the events which the applicant complains.
There is no statement evidence from those persons allegedly involved in the incidents complained of by the applicant. In particular there is no statement evidence from Mr Chaff or Ms Smidt.
The applicant commenced seeing Tim Martin, counsellor and psychotherapist, in June 2017. Mr Martin reported to Dr Wang on 15 April 2018 that he had providing regular counselling sessions to Mr Harvey since June 2017 in relation to his work-related injuries.
On 31 October 2017 the applicant attended on his general practitioner (GP), Dr Yang Wang. The clinical note of the attendance records the reason for the contact as being “[d]epression”. Curiously the results of the examination are recorded as “nil signs of depressive mood” however the applicant was prescribed Lexapro.
The clinical note also records “b/g of depression and anxiety”. Whilst “b/g” is possibly an abbreviation for “background” what the doctor is referring to is unclear as the applicant had been attending counselling as previously noted since June 2017 and had previously attended on Dr Wang on 19 May 2015 at which time the clinical note of the attendance records “b/g of ?depression in the past, and never diag before.”
Whilst the clinical note of 31 October 2017 does not refer to the applicant’s work circumstances it is clear that the applicant was having difficulties from the report of Mr Martin of 15 April 2018. What is not clear from the report of Mr Martin was whether the applicant’s complaints related to psychological issues which had arisen as a result of his physical work injuries or due to the applicant’s complained of treatment in the workplace.
He applicant’s treating psychologist, Diana Golvers of Hunter Psychology, does in my view give some insight into the applicant’s complaints prior to the incident on 21 January. Ms Golvers reported to Aussie Injury Lawyers on 12 February 2022 that the applicant had attended 30 sessions of psychology, his first appointment being on 3 April 2018.
Ms Golvers reports that the applicant presented with increasing levels of anxiety and stress following a series of workplace incidents. Ms Golvers took a history of the physical injuries sustained in the fall from the ladder and whilst carrying the gyprock as well as the incident on 21 January 2018.
Whilst the timeline of events in the report is a little unclear at times Ms Golvers records that the applicant reported being threatened and intimidated not only by his foreman but also other staff and that he had been belittled and put down. That he had been micromanaged, being checked every 60 minutes and having to account and report the time he spent doing a task resulting in it being difficult for him to complete any activity, especially as he was rotated around different jobs every hour, although this was eventually altered to reporting every 21/2 hours. That the applicant reported feeling that he felt that “he had been set up to fail” in his return to work. That his experience with the respondent following his workplace injuries and the return-to-work period had been very traumatic for him and had lasting consequences for his mental state, self-confidence and identity, apart from his physical injuries.
Whilst Ms Golvers did not commence treating the applicant until more than two months after the incident on 21 January 2018 they evidence that the applicant was concerned about more than just the incident on 21 January 2018 and the clinical records of the attendance confirm that the applicant from the first session was complaining about more than just the incident on 21 January 2018.
For the above reasons I accept the applicant’s evidence about the events in the workplace prior to the incident on 21 January 2018. The applicant’s evidence is not challenged in any meaningful way. I am also of the view that the evidence of the applicant as well as the treating medical evidence supports that the applicant was having psychological difficulties as a result of the complained of incidents that were occurring in the workplace.
Dr Suman took a history that the applicant complained that no one at the respondent took responsibility for his injury in 2016 and that he was blamed for the fall, that he initially started feeling targeted by the foreman and later by other senior management. That over the next two years he found it increasingly difficult to work for the respondent.
That he started experiencing a mix of anxiety and depressive symptoms in the context of workplace stressors. That he initially started seeing a counsellor and was later referred to a psychologist. That the applicant reported that in around 2017, he was also reviewed by a psychiatrist and prescribed antidepressant treatment Zoloft. The applicant reported that he wanted to leave the job in 2017 however a colleague encouraged him to stay.
That the applicant reported that he was discriminated against and targeted at the workplace and that he did not feel safe or supported working there.
Dr Suman took a history of the incident on 21 January 2018 and that the applicant expressed the view that the incident of 21 January 2018 was the “last straw that broke the camel’s back.”
Whilst Dr Suman does not go into great detail in respect to the history of the events in the workplace prior to the incident on 21 January 2018 he does record the essential aspects of the applicant’s complaints which is that the applicant felt discriminated against, targeted, unsupported and unsafe in the workplace
In the opinion of Dr Suman, the workplace stressors of being targeted and bullied since 2016 led to psychological injury requiring input from a psychiatrist in 2017, including being commenced on antidepressant medication. In the opinion of Dr Suman, the applicant’s presentation in 2017 indicates that he was struggling with adjustment disorder with mixed anxiety and depression. He was fragile in his mental health, leading to him experiencing distress and panic.
I am of the view that the opinion of Dr Suman that the applicant was struggling psychologically prior to the incident on 21 January 2018 due to incidents in the workplace is consistent with both the applicant’s evidence and the medical evidence both of which Dr Suman relied on to form his opinion.
Mr Stockley submitted on behalf of the applicant that the geniuses of the nature and conditions allegation is the symptoms which the applicant was suffering prior to the incident on 21 January 2018 and the worsening of those symptoms as a result of the incident on 21 January 2018.
Dr Suman records that the applicant reported that he started experiencing nightmares about the incident where the foreman attacked him. He began experiencing poor sleep patterns and that “I was already sleeping poorly due to work stressors. The incident in January 2018 made it worse”. He started ruminating excessively about work issues in 2016. He reported, “I would get mixed flashbacks. I avoided going to work”. He reported to the doctor that he found it increasingly difficult to relax at home. That he would prefer to stay at home most of the time. “I felt unsafe leaving my place”.
In the submission of Mr Stockley, the applicant did not, within the jurisprudence of the workers compensation law, have a disease injury in 2017 when he was prescribed Lexapro but he did have some sort of identified psychological condition developing which got worse with the incident on 21 January 2018.
I accept this submission from the applicant. This is consistent with the evidence and the views that I have previously expressed. It is also not disputed that the applicant developed a post-traumatic stress disorder as a result of the incident on 21 January 2018.
In Mr Stockley’s submission the relevance of the history preceding the incident on 21 January 2018 is that if it is accepted that the applicant thought that he was being given a hard time by people at work prior to being injured on 21 January 2018 as a result of a physical altercation one can readily understand from a lay perspective why that incident would be more damaging and concerning to him. In the applicant’s submission the fact is that there were events before 21 January 2018 which contributed to the post-traumatic stress disorder. It is the opinion of Dr Suman that there is some contribution. It is the applicant’s submission that there was more than one cause.
Whilst I accept that from a lay perspective it would be understandable to conclude that the effect of the incident on 21 January 2018 was greater as a result of the previous events, however I accept the submission of Mr Doak that this would be a matter for expert medical evidence and no such evidence is before me.
I do however accept the second part of the applicant’s submission. As previously discussed, the evidence supports that the applicant was suffering psychologically due to his experiences in the workplace prior to the event on 21 January 2018. In the opinion of Dr Suman and consistent with the evidence the applicant’s condition worsened following the event on 21 January 2018 following which the applicant developed the accepted post-traumatic stress disorder. It is the opinion of Dr Suman that the injury sustained by the applicant is cumulative, that the incident on 21 January 2018 “added” to the already existing psychological condition. As Dr Suman states:
“…Mr Harvey has experienced clinically significant anxiety and depressive symptoms since 2016, leading to him consulting mental health professionals and trialling psychotropic medication in 2017. He was still able to continue working despite his mental health stressors. His presentation then fulfilled the criteria of adjustment disorder with mixed anxiety and depressed mood. While he was able to work, his mental health adversely affected his social and general functioning.
Mr Harvey’s presentation since January 2018 indicates he experienced PTSD symptoms, which added to his preexisting mental health stressors. He decompensated due to worsening mental health and could not return to work following the January 2018 workplace psychological stressors.”[5] [Emphasis added]
[5] Applicant’s ALAD – p 8.
The psychological difficulties which the applicant was suffering from prior to the incident on 21 January 2018 had not resolved at the time of the incident on 21 January 2018. The incident on 21 January 2018 simply “added” to the pre-existing condition. It is not Dr Suman’s opinion that the applicant suffered from post-traumatic stress disorder prior to the incident of 21 January 2018.
Dr Suman in his report of 16 September 2022 identified the 8 criteria for a diagnosis of post-traumatic stress disorder. In the respondent submission Dr Suman does not go through the criteria and explain how he reaches the view that there is a causal relationship between the diagnosed post-traumatic stress disorder and the events which the applicant complains of in his statement evidence.
It is true that Dr Suman does not when analysing the criteria directly attribute any of the criteria to the events pre-dating the incident on 21 January 2018. However, as previously discussed the applicant had reported to Dr Suman that he was already sleeping poorly due to work stressors prior to the incident in January 2018, that he started ruminating excessively about work issues in 2016, that he would get “mixed flashbacks”, that he avoided going to work, that he found it increasingly difficult to go to work, that he found it difficult to relax at home, that he preferred to stay at home most of the time and that he felt unsafe leaving his home. Many of these pre-existing symptoms fall within the various criteria for post-traumatic stress disorder.
For the above reasons I am of the view that there was a fair climate for the opinion which Dr Suman formed, and I accept the opinion of Dr Suman.
Dr John Albert Roberts, psychiatrist, provided multiple forensic reports to the respondent. The reports were of no assistance as Dr Roberts did not accept the diagnosis of post-traumatic stress disorder. As previously observed the diagnosis of post-traumatic stress disorder is accepted and not in dispute.

Notice and claim

The respondent submits that the applicant has not given notice of the injury in accordance with s 254 Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and not made a claim in accordance with s 261 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.”
Section 261 of the 1998 Act states:
“261 Time 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.”

I am of the view and find that the applicant did give notice of the injury and make a claim in accordance with ss 254 and 261. Sections 15(1)(a)(i) and 16(1)(a)(i) of the 1987 Act relevantly deem disease injuries to have happened at the time of the workers death or incapacity. In this case the injury is deemed to have happened on 21 January 2018 the date on which the applicant suffered incapacity. Injury is defined by s 4 of the 1987 Act to mean personal injury and includes a disease injury.
The respondent accepted that the applicant suffered a psychological injury with a diagnosis of post-traumatic stress disorder on 21 January 2018 and paid workers compensation benefits. The dispute which the respondent raised was as to the cause of the injury.

Sections 15 and 16 of the 1987 Act

No submissions were made by the parties in respect to ss 15 and 16 of the 1987 Act. I have commented above on deeming of the date of injury in accordance with ss 15(1)(a)(i) and 16(1)(a)(i). No submissions were made by the respondent that if the injury was sustained as pleaded that it was not a disease.

CONCLUSION

For the above reasons I find:
(a) that the applicant sustained a primary psychological injury for which post-traumatic stress disorder has been diagnosed due to the nature and conditions of employment with the respondent (including the incident on 21 January 2018) with a deemed date of injury of 21 January 2018, and
(b) that ss 254 and/or 261 of the 1998 Act do not prevent the applicant from recovering compensation as notice of injury was given in accordance with s 254 of the 1998 Act and a claim for compensation made in accordance with s 261 of the 1998.
As I have found that the applicant has sustained injury the applicant will be remitted to the President for referral to a Medical Assessor for assessment of impairment for primary psychological injury with a deemed date of injury of 21 January 2018.
Once a Medical Assessment Certificate has been issued the matter will be relisted before me in respect to the claim for weekly compensation and the payment of any permanent impairment compensation.

[2025] NSWPIC 154

16 April 2025