Hawat v FLH NSW Pty Ltd - [2025] NSWPIC 251

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hawat v FLH NSW Pty Ltd [2025] NSWPIC 251
APPLICANT:	Khalid Hawat
RESPONDENT:	FLH NSW Pty Limited
MEMBER:	Kathryn Camp
DATE OF DECISION:	4 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 66 and 65A; claim for lump sum compensation for a primary psychological injury; accepted physical injury of severe tinnitus and secondary psychological injury; late onset of symptoms and diagnosis of post-traumatic stress disorder (PTSD); Patrech v State of New South Wales, and RSL (QLD) War Veterans’ Homes Ltd v Watkins considered and applied; Held – applicant sustained a primary psychological injury in the course of his employment with the respondent; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment pursuant to section 66.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury in the course of his employment with the respondent on 12 October 2019. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 12 October 2019 – disease (b) Body systems / parts: (i) Psychological injury (primary) (c) Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute, dated 24 January 2025 (excluding the report of Dr Kumar dated 5 May 2022), and attached documents; (b) Reply to Application to Resolve a Dispute, dated 13 February 2025, and attached documents; (c) Direction dated 11 March 2025; (d) Application to Lodge Additional Documents and attachments, lodged by the respondent on 23 April 2025, and (e) A copy of this Certificate of Determination – Consent Orders. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for lump sum compensation, in respect of an accepted psychological injury deemed to have occurred on 12 October 2019. It is accepted that the applicant, Khalid Hawat, sustained a secondary psychological injury in the course of his employment with the respondent, FLH NSW Pty Limited. However, the respondent disputes that the applicant sustained a primary psychological injury and contends he has no entitlement to lump sum compensation under s 65A of the Workers Compensation Act 1987 (1987 Act). For the reasons that follow, the applicant’s claim for compensation is successful.

BACKGROUND

On 12 October 2019, the applicant suffered a physical injury in the nature of tinnitus as a result of a work colleague striking a steel jack with a hammer close to his left ear. The applicant now has issues in both ears and as a result of the physical effects a secondary psychological injury.
On 30 October 2023, the applicant made a claim for lump sum compensation in respect of 19% whole person impairment in respect of a primary psychological injury on 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 251
Decision Date: 4 June 2025

CaseChat Overview and Summary

Hawat v FLH NSW Pty Ltd involves a claim for lump sum compensation for a primary psychological injury in the context of workers compensation. The applicant, Hawat, was employed by FLH NSW Pty Ltd and sustained a physical injury in the form of severe tinnitus, along with a secondary psychological injury. The case was heard in the NSW Civil and Administrative Tribunal (NCAT). The primary issue before the tribunal was whether Hawat's psychological injury was a primary one, which would entitle him to compensation under the Workers Compensation Act 1987. The tribunal had to consider the late onset of symptoms and the subsequent diagnosis of post-traumatic stress disorder (PTSD).

The tribunal examined the definitions and legislative provisions relevant to primary psychological injuries, including sections 66 and 65A of the Workers Compensation Act. It considered the decisions in Patrech v State of New South Wales and RSL (QLD) War Veterans’ Homes Ltd v Watkins, which provided guidance on the nature and recognition of primary psychological injuries. The tribunal determined that Hawat's PTSD was a primary psychological injury that arose from the traumatic event that caused his physical injury, and was not merely a reaction to that event. The late onset of symptoms did not preclude the injury from being classified as primary, as long as it was a direct consequence of the event.

Consequently, the tribunal held that Hawat had sustained a primary psychological injury in the course of his employment. The matter was remitted to the President for referral to a Medical Assessor to assess the whole person impairment pursuant to section 66 of the Workers Compensation Act. The tribunal did not decide on the quantum of the compensation but established the legal basis for Hawat's entitlement to a lump sum compensation for his primary psychological injury.

Orders