Hawat v FLH NSW Pty Ltd

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 October 2019. The applicant relied on the medico-legal report of Dr Richa Rastogi, dated 3 October 2023.
On 28 February 2024, the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The respondent disputed liability on the basis that that the permanent impairment results from a secondary psychological injury pursuant to s 65A(1) of the 1987 Act.
On 24 January 2025, the applicant lodged an Application to Resolve a Dispute (Application) in respect of a claim for lump sum compensation for the primary psychological injury.
On 13 February 2025, the respondent lodged a Reply.
On 23 April 2025, the applicant lodged an Application to Lodge Additional Documents.

ISSUES FOR DETERMINATION

The parties agreed that the following issue remains in dispute:
(a) whether the applicant sustained a “primary psychological injury” on 12 October 2019 that may give rise to a claim for lump sum compensation (ss 65A; 66 of the1987 Act).
There is no dispute that the applicant sustained a psychological injury within the meaning of s 4 of the 1987 Act. It is agreed that the matter is to be remitted to the President for referral to a Medical Assessor where a finding of a primary psychological injury is made.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 11 March 2025, the parties attended a preliminary conference.
On 29 April 2025, the parties attended a conciliation conference and arbitration hearing. Mr Craig Tanner, of counsel, appeared for the applicant instructed by Fern Lawyers. Mr Boris Necovski, of counsel, appeared for the respondent instructed by Turks Legal.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing which were recorded.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application, dated 24 January 2025, and attached documents (except the report of Dr Kumar, dated 5 May 2022, which is excluded by consent);
(b)    Reply to the Application, dated 13 February 2025, and attached documents;
(c)    Direction issued on 11 March 2025, and
(d)    Application to Lodge Additional Documents and attachments, lodged by the respondent, on 23 April 2025.
The above documents were admitted into the proceedings during the conciliation conference and arbitration hearing.

Applicant’s statements

In evidence are two statements from the applicant, dated 26 April 2022 and 24 January 2025.
In his initial statement, the applicant records that in October 2019 a colleague hit a piece of steel creating a loud sound next to his left ear. He immediately had static or ringing in that ear, which he found to be “extremely disturbing”. He states that this affects his sleep.
The applicant states that he has “developed extreme sensitivity to loud noises” such that he cannot work if there is such noise.
The applicant adds that the ringing persists and moved to his right ear by April 2020. He states that he also experienced psychological symptoms of “stress, anxiety and depression as a result of having to manage [his] injury”. He has tried various types of treatment including psychology, acupuncture and aromatherapy.
The applicant states that the “ringing in [his] ears has led to increased irritability, temper, lack of concentration, poor sleep, depression, and decreased enjoyment of life”.
The applicant states that despite his efforts he continues to experience disrupted sleep of about three to four hours “due to tinnitus”. He adds that loud noises exacerbate his symptoms and he is limited in the work that he able to undertake.
The applicant states that the “ongoing ringing has impacted drastically impacted [his] sleep” and that he struggles to fall asleep and very restless throughout his sleep. He states he wakes up tired and frustrated due to his lack of sleep.
The applicant adds that he continues to have “depressive thoughts and feelings of anxiety because of the workplace injury” he sustained to his ears.
In his supplementary statement, the applicant records that a history of the incident in October 2019. He states that:
“The sudden and unforeseen noise was both startling and deeply unsettling. I was immediately overcome with fear, as I believed something had fallen nearby and that I had narrowly escaped being struck. In that moment, I genuinely felt that my life was in imminent danger, and the intense shock made it exceedingly difficult to regain a sense of calm or composure.
The experience left me feeling profoundly disturbed and fearful, as the event instilled a lasting sense of unease that lingered well beyond the initial shock.”
The tinnitus in his left ear “exacerbated” his anxiety, especially on job sites, as the constant noise made it difficult to focus. He states that this would often trigger panic attacks.
The applicant states that since the incident he has experience “a significant and ongoing increase in [his] levels of anxiety, particularly in response to loud noises”. He states that this heightened his sensitivity and made him emotionally vulnerable, as any unexpected or sudden sounds tend to trigger intense feelings of distress.
The applicant adds that the “constant state of alertness and unease has had a profound impact” on his well-being affecting his ability to remain calm and composed in environments where noise levels are unpredictable.
The applicant states that he feels overwhelmed. He suffers from lack of sleep and is constantly plagued with nightmares of the accident. He states that the “fear is so palpable that it has made [him] socially reclusive and isolated.” He further adds that he has endured a “significant lack of sleep due to the persistent and distressing nightmares related to the accident.” These dreams are so vivid and terrifying that his sleep is continually disrupted and leaving him physically and emotionally drained. He adds that the intensity of the fear he experiences during these episodes is “so overwhelming that it has begun to take a considerable toll” on his mental health. As a result, he has become increasingly withdrawn, choosing to isolate himself socially in an attempt to avoid triggering situations or conversation that may bring up the traumatic event.
The applicant further states that:
“Although the root cause of my anxiety can be directly traced to the work-related injury I sustained, the psychological ramifications of this event have been so profound and far-reaching that they have led to an intense and enduring trauma. While I have made progress in recovering from the physical impairments associated with the injury, the psychological impact has proven to be far more complex and difficult to overcome.
The emotional toll of the experience has manifested in persistent feelings of severe anxiety, heightened paranoia, and profound distress, which have become constant companions in my daily life.”

Medical evidence

Clinical notes

In evidence are a series of clinical notes of the applicant’s treating general practitioner Dr Danny Tang and other practitioners in that practice.
On 28 October 2019, Dr Tang records a history of the work incident causing immediate ringing in his left ear which was still present at the time of the consultation.
On 2 November 2019, Dr Tang refers the applicant to a psychologist to assist in mental health.
On 20 November 2019, Dr Tang records that the applicant had increased aggression and not able to cope which made his tinnitus worse. He adds that the applicant is not happy and not able to see his family and he is sad and angry. He also records that the applicant is seeing a psychologist for cognitive behavioural therapy and that he is taking Valium to help him sleep. He adds that the applicant has been “depressed and upset for the past few weeks.”
On 25 November 2019, Dr Tang records that the applicant’s tinnitus is getting worse.
On 28 November 2019, Dr Tang records that the applicant was seen by Dr Pincock and Valium was increased. The applicant states he is “still not okay with people he has to take 6 Valium to put up with the noise he’s not able to cope with people around him.”
On 4 December 2019, Dr Tang records that the applicant’s tinnitus remained the same. The applicant has 6 hours of sleep some days and sometimes no sleep.
On 12 December 2019, Dr Tang records problems with the left ear and a need to see a psychologist. Dr Tang records that the applicant states he continues to not be able to sleep and he had stopped the medications and not able to sleep properly.
There are a series of entries between December 2019 and 2020, relating to tinnitus, sleep issues and medical treatment.
On 1 December 2020, Dr Tang records the applicant is waiting for new ear phones for his tinnitus. The applicant sleeps three to four hours every night depending on how bad the noise. The main barrier for his mental health is the lack of sleep.
On 3 February 2021, Dr Tang records that the applicant still not sleeping and having up to four hours only. He discussed Cannaboid Oil and Tetrahydrocannabinol medicinal options.
On 9 March 2021, Dr Tang records that the applicant continues to have persistent tinnitus and had been approved by the Therapeutic Goods Administration (TGA) for medicinal cannabis.
Between March 2021 and 2022, the applicant attends on his treating general practitioners on multiple occasions complaining of persisting tinnitus and poor sleep.
On 2 March 2022, Dr Tang records that the applicant was seen by a psychiatrist who stated he may need to be admitted to hospital. However, approval for hospitalisation was not granted until late June 2022 and he was awaiting an appointment with his psychiatrist for admission.
On 19 July 2022, Dr Tang records that he was waiting to see his psychologist and that he arranged Andrew Campbell, a counsellor, to call the applicant to offer interim services.
On 2 August 2022, Dr Tang records that the applicant is still seeing Mr Campbell every week.
On 30 August 2022, Dr Tang records that the applicant is not sleeping, having nightmares and not coping. He conducted a mental health review and found the applicant suffered major depressive disorder (severe) with anxious distress.
On 13 September 2022, Dr Tang records the applicant is still waiting for admission for the psychiatric hospital.
Between September 2022 and August 2023, the applicant attends on his treating general practitioners on multiple occasions complaining of tinnitus and poor sleep amongst other things.

Paula Sieradzki

In evidence is a report from Paula Sieradzki, registered psychologist, dated 18 February 2020. In the report, she records that she first met the applicant in February 2020 following the applicant’s exposure to loud noise and experiencing tinnitus.
Ms Sieradzki undertook an assessment interview and administered the Depression Anxiety and Stress Scale and the Tinnitus Reaction Questionnaire. The applicant scored within the extremely severe range against stress criteria and within moderate range against depression and anxiety criteria. The Questionnaire revealed that he was severely impacted by tinnitus.
Ms Sieradzki records a history of a 2018 knee injury and a 2019 injury to his hand, together with the 2019 incident leading to acoustic trauma and tinnitus. She records that the goal of counselling was to achieve habituation, to reduce the applicant’s tinnitus distress and improve his awareness of tinnitus. She discussed strategies for managing tinnitus distress and intrusion and hyperacusis.

Hugo Rodriguez

In evidence are several reports from Hugo Rodriguez, psychologist, dated 20 November 2019.
Mr Rodriguez records that the applicant reported constant ringing in his ears, and that he was overwhelmed by this which was causing him to feel very anxious and depressed. He arranged for the applicant to attend cognitive-behavioural-therapy.

Dr Pincock

In evidence is a report from Dr Tobias Pincock, ENT & Facial Plastic Surgeon, dated 26 November 2019. He records that the applicant’s tinnitus was causing the applicant significant anxiety and change in his effect. He was prescribed Diazepam to help with sleep.

Dr Ahmed

In evidence are several reports and clinical entries from Dr Tanveer Ahmed, the applicant’s treating psychiatrist.
In his report of 24 February 2022, Dr Ahmed records that given the applicant’s regular self-harm thought he suggested that he undertake a mood program at The Hills Clinic.
In his report of 20 November 2023, Dr Ahmed records that the applicant is self-medicating his anxiety and chronic pain with cannabis. He considers that the applicant would be a good candidate for medicinal cannabis given his difficulties with prescription medication and the combination of heightened anxiety, mood disturbance and chronic pain.
In his report undated, Dr Ahmed records that the applicant has depression, chronic pain, tinnitus, and “partial PTSD symptoms”. He records that the applicant no longer experiences the same extent of nightmares or flashbacks as before. He notes that the “partial symptoms of chronic PTSD in partial remission”. However, he notes that the applicant’s condition remains challenging and that he has decided to refer the applicant for evaluation and potential prescription of medicinal cannabis.
In a clinical entry of 18 November 2024, Dr Ahmed records the applicant attended for anxiety attacks. A presenting problem included “partial PTSD symptoms”.
In his report of 22 August 2024, Dr Ahmed records an active diagnosis of adjustment disorder with anxiety following workplace injury, insomnia, chronic pain, and tinnitus. Dr Ahmed also records that the applicant reported having nightmares related to the accident and waves of rage. He recommended that the applicant begin a trial of medicinal cannabis.
In his report of 16 December 2024, Dr Ahmed records that the applicant continues to experience anxiety and difficulties with sleep, with settling features of post-traumatic stress disorder caused by the work injury.
In a separate clinical entry, dated 13 January 2025, Dr Ahmed records that the applicant presented with “ongoing PTSD symptoms from a workplace accident in 2019.” He also records that the applicant reports ongoing difficulties with sleep, tinnitus, panic, and nightmares related to the accident. He adds that the applicant has shown slow improvement over time, but experiences marked anxiety, distress and avoidance behaviours.
In his report of 13 January 2025, Dr Ahmed records that the applicant is a long-term patient. He records that the applicant continues to have marked difficulties with sleep, tinnitus and panic. He also experiences nightmares of the original accident, including sounds.
Under the heading “Your diagnosis”, Dr Ahmed records that as well as the diagnosis of tinnitus the applicant satisfies the criteria for post-traumatic stress disorder. He records that the applicant:
“…somatises a great deal of his distress. However, I have elicited clear symptoms of him having re-experiencing events of the original incident, especially the explosive sound. He has also exhibited clear avoidance behaviours, heightened sense of threat, emotional numbing and panic attacks. This is especially relevant when he made attempts to engage in hospital-related therapies. As a result, in my opinion, he does satisfy the criteria for a Post-Traumatic Stress Disorder, and the nature of his accident was experienced by him as of a life-threatening nature.”
Dr Ahmed found that work was a substantial contributing factor to his psychological injury. He adds that the applicant’s symptoms are consistent with the nature of the injury, which “was an explosion that was potentially life-threatening and certainly threatened his broader psychological integrity. It is likely that an element of his tinnitus is a physical expression of his psychological symptoms.”
Dr Ahmed records that he disagrees with Dr Cassimatis, and considers the applicant meets the criteria for post-traumatic stress disorder. He records that he notes “this area is always contested, but I am traditionally someone who is reluctant to make this diagnosis as I believe the meaning has been diluted and too subjective.” He adds that the applicant’s condition is “slightly atypical” which was in-part linked to his cultural background but that it nevertheless satisfied the necessary criteria for a post-traumatic stress disorder diagnosis. Dr Ahmed states he agrees with Dr Rastogi.

Dr Harrison

In evidence is a report from Dr Henley Harrison, treating ear nose and throat specialist, dated 17 March 2022.
Dr Harrison records a history of the October 2019 incident, and persistent tinnitus as a result. He also records that the applicant had “developed extreme sensitivity to loud noises such that he cannot work if there is such noise”. He records that the applicant has not been able to continue to work due to his sensitivity to loud noise and lack of sleep due to his tinnitus. He notes that the applicant is getting about four hours of sleep per night.
Dr Harrison provides an opinion that the applicant suffers from acoustic trauma at work causing tinnitus and sensori-neural deafness. He further opines that the applicant has been unable to adjust to this and this has led to multiple other symptoms. He adds that there “is probably a very significant psychological overlay to this.” He latter states that Dr Ahmed would be more appropriate to provide an opinion with respect to the psychological aspects as they are outside his field of expertise.

Andrew Campbell

In evidence are the clinical notes of Andrew Campbell, the counsellor. It is undated but records the year 2023. However, Dr Tang’s clinical records indicate that the applicant was referred to Mr Campbell in July 2022 and was “still seeing” him in August 2022.
Under background, a history of the work accident is noted. The presenting concerns are recorded as “depressive symptoms, PTSD, isolation, fears of impaired relationships and employability.”
The entry for session 6 records that they delved into the applicant’s past experiences that “may contribute to his depressive symptoms and PTSD. We explored trauma-focused therapy as a possible approach to address these underlying issues.”

The Hills Clinic

The applicant was admitted to The Hills Clinic on 13 March 2023.
On 13 March 2023, a post-traumatic stress disorder checklist is completed. It provides a list of 20 problems and columns to identify the level of the response to the problems. The five levels of response range from “not at all” at the lowest, “quite a bit” at the second highest and “extremely” for the highest rating. The applicant recorded the majority of response in the “quite a bit” category with the balance (except one) in the “extremely” category. The problem of repeated, disturbing dreams of stressful experiences was rated extremely.
In the Day Program Care Plan, dated 20 March 2023, a facilitator completed a document recording a diagnosis of anxiety and identifying anxiety issues to be generalised and post-traumatic stress disorder.

Dr Rastogi

Dr Richa Rastogi, consultant psychiatrist qualified by the applicant provided a report dated 3 October 2023. Dr Rastogi records a history of the incident in October 2019 and the effects of tinnitus in his ear. She records that the applicant’s “speech was forthcoming and spontaneous”.
Dr Rastogi records that the applicant:
“…would get anxious being at job site and he would be debilitated by acute anxiety attacks. He became very irritable and had difficulty with sleep. He reported his sleep is interrupted by dreams of the accident and always living in a fight and flight state.
…
He is easily startled and cannot handle any noises. He has reoccurring dreams of being in the accident and wakes up with night sweats. The fear is debilitating and he has lost confidence being socially reclusive and isolated.
…
The tinnitus has emotionally drained him due to restlessness, distractibility, poor focus and attention and inability to do things. This is further amplified by post traumatic symptoms that result in fight and flight response, excessive irrational fears and sense of hopelessness and helplessness.”
Dr Rastogi notes that the applicant reported “anxious ruminations, excessive fears and panic symptoms with physical discomfort.” This progressed to depressed mood and other symptoms.
Dr Rastogi records the applicant’s current symptomatology, which includes intrusive dreams of the accident, insomnia, anxious ruminations, excessive sweating, socially isolative, and anhedonia.
Dr Rastogi provides a diagnosis of secondary adjustment disorder with anxious distress and separately a post traumatic stress disorder. Dr Rastogi records that the incident of October 2019 “was trauma resulting in onset of PTSD characterized by intrusive reoccurring images of the accident, startled responses, avoidance and cautious.” The applicant is described as being easily triggered and his anxiety is debilitating. Dr Rastogi adds that there is “emotional dysregulation, irritability and poor stress coping and there is amplification of PTSD and anxiety with tinnitus exacerbation.” She adds that the applicant has developed secondary adjustment disorder with themes of hopelessness.
Dr Rastogi considers that the incident in October 2019 was the “main substantial contributing factor to his PTSD and secondary adjustment disorder.”
Dr Rastogi records the applicant’s whole person impairment for a “Diagnosis” of “PTSD” with “co-morbidity” of “Secondary Adjustment Disorder with anxious distress”. She assesses the applicant at 17% total whole person impairment, but records a final whole person impairment figure of 19%.

Dr Cassimatis

Dr Nicholas Cassimatis, consultant psychiatrist qualified by the respondent provided two reports dated 10 October 2023 and 2 January 2024.
In his first report, Dr Cassimatis provides a history of the incident on 12 October 2019 and the applicant symptoms. Dr Cassimatis records that the applicant’s main problem was ringing in the ears and waking in a sweat. He records that at night the applicant could hear his heart beating and would put a fan on to mask the sound. The applicant described having hot and cold flushes, butterflies in his stomach and breathing problems when feeling anxious and despondent.
Dr Cassimatis also records that the applicant complained of poor sleep, awakening every three to four hours. He had poor appetite. He further records that the applicant “has a dream where he relieves the episode of trauma; that is, travelling along a stairwell in a narrow pathway he tries to wriggle away from what is about to happen. He then wakes up.”
Dr Cassimatis notes that the applicant was attending a psychiatrist who had prescribed a variety of medications, including medicinal cannabis but there was no improvement in the tinnitus or assisting him to accept the tinnitus.
Dr Cassimatis diagnoses the applicant with Adjustment Disorder with Anxiety, which is secondary to his physical illness of tinnitus. He did not recommend any further psychiatric treatment as there had not been any benefit in the past.
In his supplementary report, Dr Cassimatis records that the applicant had attended a counsellor every two weeks. He also records that the applicant ear, nose and throat therapy had ceased.
Dr Cassimatis records the applicant’s current symptoms as “depression, anxiety, ringing in the ears and dreams every night where he wakes up screaming.” He adds that the applicant said that the “consistent ringing of his ears caused him to have nightmares, such as a third person watching him coming down the stairs in the workplace, and being unable to stop what was to happen.” He further adds that the ringing in the ears remained a problem and he had a fear of falling asleep and waking up to experience the same difficulty.
Under the heading daily routine, Dr Cassimatis said that the applicant said that his problem at night was that there was no ambient noise and the tinnitus was horrendous. The applicant would awaken in silence with the intensity of the tinnitus.
Dr Cassimatis also records a history of a non-work injury knee injury in 2017/18 and a lacerated finger.
Dr Cassimatis records that there was “no evidence of hallucinations or delusion. He did not describe life-threatening conditions nor hypervigilance.” The applicant was distressed that the tinnitus was unrelenting.
In response to a specific question, to ask the applicant to explain the precise cause of the primary psychological complaint of post-traumatic stress disorder, Dr Cassimatis records that there was “no evidence of PTSD”. In response to a further question to obtain a history of all treatment taken in relation to the alleged primary psychological injury, Dr Cassimatis records that the applicant “did not mention PTSD during the consultation.”
Dr Cassimatis records that there “was no indication of unreliability, inconsistency or exaggeration. He was frustrated about his symptoms but was cooperative.”
In response to a specific question, to provide an opinion regarding any primary psychological injury, Dr Cassimatis records:
“I did not make a primary psychological diagnosis. His symptoms were primarily about the effects of the tinnitus and how the tinnitus had caused a very severe psychological reaction. It was not the injury itself but the tinnitus result from the injury.”
In response to another specific question, whether he considered Dr Rastogi had provided sufficient justification connecting the alleged post-traumatic stress disorder to the incident on 12 October 2019, Dr Cassimatis records:
“I do not believe that Dr Rastogi has sufficient justification in making the diagnosis of a Post-Traumatic Stress Disorder (PTSD) in that [the applicant] does not have a life-threatening condition from the trauma, nor described hypervigilance or intruding thoughts consistent with a trauma. His injury is coping with Tinnitus and preventing the Tinnitus above, and not the actual accident.”
In response to a further specific question, whether based on the reported circumstances of injury whether the diagnostic criteria for post-traumatic stress disorder had been fulfilled. Dr Cassimatis records:
“I do believe that Dr Rastogi has identified some of his symptoms to be present in a PTSD diagnosis. [The applicant] does not focus on the traumatic event as intrusive ideation, but does focus on the tinnitus as an ongoing disability.”

Total and Permanent Disability (TPD) claim

In evidence is an Attending Doctor’s Statement for Total and Permanent Disability form, completed by Dr Tang on 5 April 2023. It records two injuries with different dates, tinnitus on 28 October 2019 and major depressive disorder (severe) with anxious distress on 30 August 2022.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant confirmed the issue for determination was whether the applicant suffered a primary psychological injury as a result of the event on 12 October 2019.
The applicant refers to his second statement, where it records the constant state of alertness and unease has had a profound impact on his overall well-being affecting his ability to remain calm and composed in environments where noise levels are unpredictable. He also refers to the record of a lack of sleep and being plagued with nightmares. The applicant asserts that this is typical of a person suffering from post-traumatic stress disorder. He latter refers to the recuring dreams, which he describes are so vivid and terrifying that they disrupt his sleep leaving him physically and emotionally drained. As a result he is becoming increasingly withdrawn and choosing to self-isolate to attempt to avoid triggering situations. There is no challenge to this evidence and no basis to reach any conclusion that this evidence is unreliable.
The applicant then refers to the report of Dr Rastogi and Dr Ahmed, who reached forensic conclusions that accept the applicant’s account of his symptoms.
The applicant concedes that there is a delay between the traumatic incident on 12 October 2019 and evidence as to the applicant’s condition of post-traumatic stress disorder. The fact a person seeks treatment and discloses their traumatic symptoms years after the traumatic origin is not a basis to reject the relevant causal connection between the symptoms referred to subsequently and the traumatic incident.
There is a preponderance of expert opinion in favour of the applicant, provided by Dr Rastogi and Dr Ahmed. Dr Ahmed is the applicant’s treating psychiatrist and has had the benefit of regular examinations of the applicant, as distinct from a single examination customary in a medico-legal context.
The applicant refers to the clinical records. The applicant was admitted on 13 March 2023, and on that same day those responsible for the applicant attended to a post-traumatic stress disorder checklist. It provides 20 areas of investigation to identify whether a patient manifested symptoms of post-traumatic stress disorder. The majority of the responses recorded are at the level of “quite bit” with the balance fitting the “extreme category”. What is apparent from this document is that there is a multitude of factors which would be consistent with a diagnosis that the applicant has suffered post-traumatic stress disorder.
The applicant refers to a document headed Day Program Care Plan, which provides a diagnosis of anxiety. The document also records a list of relevant factors, and post-traumatic stress disorder is circled.
The applicant refers to a document which is undated, but it is noted it was received by the applicant’s solicitor on 3 July 2023. If the document was prepared in early July 2023, it was prepared following eleven psychological session indicating a period of treatment commencing well prior to 3 July 2023. Importantly, in the opening paragraph, there is a summary of the treatment and that PTSD is an element of the applicant’s condition. Further, session 6 notes record that post-traumatic stress disorder was the subject of objective investigation and that the psychologist explored trauma focused therapy as an approach to address underlying issues.
The applicant refers in detail to Dr Rastogi 2023 report, where she provides a diagnosis the secondary adjustment disorder and post-traumatic stress disorder. The applicant notes that Dr Rastogi records a history of injury and notes immediate onset of tinnitus. She then records that the applicant stated he would get anxious at job sites and he would be debilitated by acute anxiety attacks. He became very irritable and had difficulty with sleep, with dreams of the accident and waking with night sweats. The fear is debilitating and he has lost confidence being socially reclusive and isolated. These are matters which are consistent with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM5P) diagnosis of post-traumatic stress disorder and the post-traumatic stress disorder checklist prepared in March 2023.
The applicant then refers to the report of Dr Ahmed, dated 13 January 2025. He records a diagnosis of tinnitus and post-traumatic stress disorder. He notes that the applicant satisfies the criteria of post-traumatic stress disorder and the nature of the accident experienced was of a life threatening nature. He reached this conclusion in a clinical context as a treating specialist. Dr Ahmed explains why he disagrees with Dr Cassimatis and agrees with Dr Rastogi. He provides a considered conclusion as the treating psychiatrist.
The applicant refers to the opinion of Dr Cassimatis, which he asserts is wholly inadequate. The first report of October 2023 provides nothing in terms of the issue for determination. Under current symptoms he notes a history that the applicant complained of poor sleep and a dream where he relives the episode of trauma. He does not consider post-traumatic stress disorder and does not return to the evidence recorded of the dream. The report is inadequate and fails to address the injury the subject of the claim.
In his further report of January 2024, Dr Cassimatis records a history of symptoms including dreams of the traumatic event where he wakes every night. Dr Cassimatis provides an opinion on diagnosis but did not provide an analysis as to whether the applicant’s symptoms were consistent with post-traumatic stress disorder. Dr Cassimatis records that the applicant’s symptoms were primarily about the effects of the tinnitus, but that does not exclude symptoms which are distinct from the tinnitus and which explain the applicant’s recollection of the trauma and the other symptoms. The symptoms recorded by Dr Rastogi are ignored. Dr Cassimatis does not have a proper history or analysis of the symptoms. It is a wholly inadequate record.
Dr Cassimatis refers to Dr Rastogi’s opinion and says there is insufficient justification for a post-traumatic stress disorder diagnosis because the applicant does not have a life threatening condition from the trauma or have hypervigilance or intruding thoughts. The applicant asserts that a post-traumatic stress disorder does not require a life threatening condition. Dr Rastogi records the applicant’s hypervigilance. Dr Ahmed records intrusive thoughts consistent with the trauma. This was established when the post-traumatic stress disorder checklist was conducted.
There is a preponderance of expert opinion which favours the applicant. The conclusions of Dr Cassimatis should be regarded as unreliable. The applicant suffered a primary psychological injury as a result of the event of 12 October 2019.

Respondent’s submissions

The respondent submits that there is no evidence that says there has been a delayed onset of symptoms. There needs to be a doctor who says that there has been a delayed onset of symptoms, to give an evidentiary basis for a finding of a delayed onset of post-traumatic stress disorder symptoms.
The respondent contends that there are glaring defects in the applicant’s case. The respondent refers to the applicant’s statement evidence. The applicant in his own evidence clearly says that his symptoms occurred since the accident. It is five years, in January 2025, after the accident that the applicant gives an account that he genuinely felt that his life was in imminent danger. It is not provided earlier or in his 2022 statement. The applicant has waited until he brings the present proceedings to put on a supplementary statement to address the matters which may resemble a primary type of psychological injury five years after the event.
The respondent refers to the clinical notes of Dr Tang on 28 October 2019. The applicant did not report anything consistent with the evidence he gives in his supplementary statement. On 12 December 2019, it is recorded that the applicant stopped his medication as he was not able to sleep properly. The respondent submits that any reference to sleeping difficulties is related to the medication the applicant was taking. By 28 October 2019, the applicant was suffering from ringing in his ear and was unable to get up and walk due to it.
The respondent then refers to the report of Dr Harrison in 2022. Dr Harrison records a history which contains no reference to what is in the supplementary statement. Dr Harrison finds that the applicant had a work injury causing tinnitus and that the applicant has been unable to adjust leading to other symptoms and that there is a very significant psychological overlay.
There is nothing in the clinical notes which can be regarded as contemporaneous evidence which is consistent with the applicant’s statement. If the applicant had feared for his life or there was imminent danger to him one would expect him to have reported that but he did not.
The respondent refers to the report from Ms Paula Sieradzki, psychologist, on 19 February 2020. Ms Sieradzki says that the applicant found the tinnitus extremely distressing but makes no reference to anything that could resemble a history of a primary psychological condition. She records that the applicant had three injuries, in December 2018 which required an operation, June 2019 when he cut his hand and October 2019 when exposed to noise. These injuries have not been documented in the evidence and the applicant has not given evidence about these injuries which each are capable of causing a psychological condition.

The first time there is any record of post-traumatic stress disorder symptoms is in 2023.
The respondent refers to the report of Dr Rastogi and the history recorded. The history does not reflect the evidence given by the applicant in his supplementary statement.
What has occurred is that the applicant had this ringing in his left ear and was unable to cope with it and he sought treatment. He was medicated for reason he could not deal with the noise in his ear and the consequence of tinnitus.
The respondent refers to the questionnaire filled out by the applicant in 2023. The applicant could have had symptoms but that does not mean that the facts of the accident were such that they could result in a primary psychological injury. There needs to be an evidentiary basis for a finding that this is a primary psychological injury. This needs to result from some immediate concern for one’s livelihood or health. The applicant has not discharged his onus “at all until January this year, where he puts on the supplementary statement.” He has not told Dr Rastogi what had occurred in the terms put in the supplementary statement.
Dr Cassimatis unequivocally states that the applicant’s psychological injury is secondary to his physical injury. Dr Cassimatis is supported by the treating records. Dr Pincock records says that the tinnitus is causing the applicant significant anxiety and change in his effect. Dr Harrison draws a link between tinnitus and anxiety.
The applicant did not report any post-traumatic stress disorder or substantive psychological symptoms to his general practitioner or treaters in terms which he describes them in his supplementary statement January 2025. It is not until 2023 where the landscape shifts and the evidence changes. It was not documented or reported despite having numerous appointments. The applicant’s case is wholly deficient.
The respondent refers to Dr Tang’s evidence. On 28 November 2019, it is recorded that the applicant was seeing Dr Pincock and that he had taken six Valium tablets to put up with the noise. It does not say that he took the Valium to cope with post-traumatic stress disorder symptoms and it does not say that he reported these symptoms. Dr Tang is focusing on the tinnitus and the noise in the applicant’s ear.
The respondent then refers to the entry 1 December 2020, which records that the applicant’s condition is getting progressively worse and looking for headphones. There is no reference to post-traumatic stress disorder symptoms.
The respondent then refers to the report of Mr Rodriguez dated 20 November 2019. It is recorded that the applicant was overwhelmed by the constant ringing in his ears causing him to feel anxious and depressed. This is wholly related to his inability to cope with the ringing in the ear which is capable of causing a significant psychological overlay. This is the precise cause of the applicant’s symptoms and need for treatment.
The respondent concedes that Dr Tang’s notes refer to psychological treatment. However the psychological treatment was being provided by Mr Rodriguez, which included cognitive behaviour therapy (CBT), relation therapy and self-help strategies. It was focused on the tinnitus and symptoms caused by that condition.
There is nothing on the evidence at an early stage to support what the applicant states in his supplementary statement as resulting in a primary psychological injury.
It is only after Dr Pincock prescribed Diazepam, that Dr Ahmed starts referring to symptoms which might be consistent with a primary psychological injury. Dr Ahmed, in his report of August 2024, documents the approval for medical cannabis which may help with pain and sleep disturbance. In another report, undated, Dr Ahmed seemingly for the first time provides a diagnosis which includes partial symptoms of post-traumatic stress disorder. He notes that the applicant was self-medicating with cannabis, but the respondent submits after this point it is approved. There is no suggestion in Dr Ahmed’s reports that the applicant provided a history to him consistent with his supplementary statement. It is unclear on what basis Dr Ahmed arrives at the conclusion of post-traumatic stress disorder symptoms.
In February 2022, Dr Ahmed records that the applicant has suffered a work injury and now has severe tinnitus and had a psychiatric reaction in response. Dr Ahmed is saying that in 2022 the applicant had a psychiatric response to tinnitus.
The respondent refers to the applicant’s TPD claim for two dates of injury, one for major depressive disorder and one for tinnitus. The respondent then refers to the corresponding date in August 2022 in Dr Tang’s records. This is when Dr Tang makes an assessment as to whether the applicant suffers from major depressive disorder, but he does not take a history of what is the cause of the major depressive disorder.
It is unclear why the applicant’s condition becomes dramatically worse by August 2022. In November 2023, Dr Ahmed states that the applicant has a psychiatric response to tinnitus. Dr Ahmed was not concerned with post-traumatic stress disorder or anything similar at the time. The focus shifted from treating with Valium, dealing with the noise, to prescribing cannabis, to undertaking an evaluation of whether he suffers major depressive disorder. There is no link to the initial the date of injury and no explanation why this is being undertaken.
The respondent refers to Mr Campbell’s report of 2023. Mr Campbell was concerned with the applicant’s constant ringing in the ear and there is no mention of any symptoms which could be regarded as resulting in a primary psychological injury.
It is impossible to rationalise the applicant’s supplementary statement of January 2025, against the flow of the evidence. The only conclusion that can be arrived at is the evidence in the supplementary statement, in circumstances where it comes “such a long time after the initial accident and is not reported in any detail to any of the treaters for years on end can only fall in the category of a recent invention”.
The evidence does not support why there is a sudden change in the applicant’s symptoms almost three years after the accident, when he was receiving treatment for tinnitus, taking Valium and trying cannabis. The “unstructured unexplained change in the applicant’s presentation three years after the accident can only mean that you would have considerable considerable doubts about accepting the applicant’s evidence”.
The respondent contends that the applicant’s evidence cannot be accepted. What is contained in his supplementary statement is not in the history taken by Dr Rastogi. There has been a five year delay and real lack of reporting across the entirety of the evidence until January 2025.
None of the doctors have considered what the applicant has stated in his supplementary statement. The applicant had an opportunity to explain, give a history and he has not done so to anyone and this cannot be a basis on which to reject Dr Cassimatis’ evidence.
Dr Rastogi does not apportion between the primary and secondary condition, so it cannot be known on the basis of this evidence whether the applicant exceeds the threshold for a referral. No apportionment has been made, despite there being a differentiation between the post-traumatic stress disorder diagnosis and secondary adjustment disorder with anxious stress. It is the applicant has not discharged the onus that the matter is capable of referral.
The earliest evidence of the applicant suffering any type of post-traumatic stress disorder symptom is in the questionnaire. This is four years after the accident and prior to this there is no history provided about the applicant feeling as though he was in imminent danger.
The applicant did not sustain a primary psychological injury. The secondary psychological injury is not compensable and an award for the respondent should be entered.

Applicant’s submissions in reply

The applicant submits that Dr Rastogi records an assessment of impairment of 19%, which satisfies the threshold of 15%. If there was any legal basis on which the respondent could resist referral it would need to raise a dispute to that effect in the s 78 notice and it does not. The agreed issue for resolution is whether the applicant suffered a primary psychological injury.
The applicant contends that there is a fundamental misdirection by the respondent that on the basis that there are symptoms consistent with the secondary psychological injury there can be no primary psychological injury. There is no dispute that the applicant experienced distress as a result of the tinnitus. The focus of the treatment at the outset was on the effects of the tinnitus and the extent to which the applicant’s life was disrupted by that and the psychological symptoms that he was experiencing. The secondary psychological injury does not exclude the fact that there is a comorbid condition of post-traumatic stress disorder which simply had not been identified.
There are frequently incidents of late onset and diagnosis. There is no early diagnosis of post-traumatic stress disorder. However, the question is whether on the evidence there is a reliable diagnosis that is subsequently made. The early indication of post-traumatic stress disorder was on 13 March 2023 when the applicant completed a post-traumatic stress disorder checklist. That record of symptoms is consistent with a post-traumatic stress disorder condition. There is no alternative cause for those symptoms and no suggestion by Dr Cassimatis that those symptoms relate to some other event. The symptoms recorded in March 2023 during his hospitalization cannot be considered to have as the cause or origin a traumatic event other than the subject incident. The applicant should not be prejudiced because he is being treated by a general practitioner who has not picked up the fact that the overwhelming effect of the tinnitus and the secondary psychological injury was accompanied by a complex factor which Dr Rastogi diagnosed in October 2023 as post-traumatic stress disorder.
Dr Rastogi provided a diagnosis having regard to the history provided by the applicant. That history included familiar features of post-traumatic stress disorder and on that basis it was open for her to reach the conclusion on the primary psychological condition. Similarly, Dr Ahmed made a similar diagnosis having the benefit of considering the applicant’s condition.
The applicant refers to the respondent’s submission that his account of post-traumatic stress disorder is a recent invention. The respondent’s assertion that the applicant’s credit is to be impugned requires proper cross examination. It cannot be seriously suggested that when the post-traumatic stress disorder analysis was done in the Hills Clinic that it was done in that context of an invention. There is no proper basis for that kind of assertion to be made.
The respondent repeatedly submitted that the applicant had come up with his version of events five years after the injury, with a focus on the applicant’s supplementary statement in January 2025. This is not when the applicant’s post-traumatic stress disorder symptoms arose, it arose in March 2023 and the applicant’s case which is the subject of dispute was advanced on 30 October 2023. Dr Rastogi’s report of 3 October 2023 provides a diagnosis of post-traumatic stress disorder, which was subject of an assessment under which the subject claim was made. The suggestion that there was something contrived in January 2025 is unfounded.
Dr Harrison noted that the applicant developed extreme sensitivity to loud noise, such that he could not work if there was noise. This is consistent with post-traumatic stress disorder, a reaction to a stressor which is consistent with the trauma or traumatic circumstances in which injury was suffered.
Ms Sieradzki’s report of 18 February 2020 was at a time when the focus was on the tinnitus and psychological response.
The respondent referred to other injuries but these have no bearing on whether the applicant has post-traumatic stress disorder as a result of the trauma that caused the tinnitus.
The focus of the applicant’s attention and the predominant symptoms initially were in relation to the tinnitus. By March 2023, the applicant was found to satisfy the criteria of post-traumatic stress disorder. There is no alternative explanation for those symptoms, which were recorded by Dr Rastogi. The applicant’s supplementary statement does not diverge from the post-traumatic stress disorder symptoms recorded by Dr Rastogi.

FINDINGS AND REASONS

Relevant Law

Section 65A of the 1987 Act provides that an injured worker is only entitled to recover permanent impairment compensation for a primary psychological condition, and not a secondary psychological condition. Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
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.
…
(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.”
The language in s 65A is concerned with substantive rights and disentitling provisions which requires a determination of the Commission. The question of whether the applicant suffers a primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute, as defined in s 319 of the 1998 Act.[1]
[1] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, at [22] (per Campbell J); citing Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, at [109]-[111] (per Emmett JA, with Meagher and Ward JJA agreeing).
In RSL (QLD) War Veterans’ Homes Ltd v Watkins,[2] Deputy President Roche stated:
“The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]).”[3]
[2] [2013] NSWWCCPD 44.
[3] RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44, at [108] (per Roche DP).
The NSW workers compensation guidelines for the evaluation of permanent impairment, at [1.22], provides:
“A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in section Multiple impairments [paragraph 1.19], impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
The applicant bears the onus of proof, to establish his case on the balance of probabilities.[4] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[5] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw(1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[6]
[4] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, at [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[5] [2008] NSWCA 246.
[6] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, at [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

There is no dispute as to injury or that the applicant sustained a secondary psychological injury as a result of the accepted physical injury on 12 October 2019. However, the respondent disputes that the applicant also sustained a primary psychological injury for the purposes of s 65A of the 1987 Act.
A primary psychological injury and secondary psychological injury under s 65A of the 1987 Act are not mutually exclusive. Indeed, it is possible for a primary psychological injury to coincide and co-exist with a secondary psychological injury. The respondent did not contest the applicant’s submission that a secondary psychological injury does not exclude a finding of a comorbid condition of post-traumatic stress disorder.
The applicant conceded that there was a late onset and diagnosis of post-traumatic stress disorder. However, the applicant submitted that preponderance of evidence supports that he has symptoms of post-traumatic stress disorder as a result of the traumatic event and that this constitutes a primary psychological injury.
The respondent disputed the existence of a primary psychological injury. The respondent’s submissions were advanced on the following main bases:
(a)    there was a lack of contemporaneous reporting of symptoms of post-traumatic stress disorder to the physical injury in October 2019;
(b)    that the applicant first raised symptoms of a fear of imminent danger to life in his supplementary statement on 24 January 2025;
(c)    that the first record of post-traumatic stress disorder symptoms was in 2023;
(d)    that the histories recorded by the practitioners were not consistent with the applicant’s supplementary statement, and
(e)    that the applicant’s claim of primary psychological injury was a “recent invention”.
I accept the applicant’s submissions, and do not accept the respondent’s general submissions.

Report of symptoms and diagnosis of post-traumatic stress disorder

It is true that the diagnosis and report of symptoms of post-traumatic stress disorder are not contemporaneous to the applicant’s physical injury in October 2019, which resulted in severe tinnitus. However, there are symptoms recorded on the evidence as early as 2022 that support the applicant’s case of a primary psychological injury of post-traumatic stress disorder.
In this regard, firstly, symptoms of nightmares is initially recorded on 30 August 2022 by the applicant’s general practitioner. Although, I note that the cause of those symptoms is not explained. Secondly, Mr Campbell records symptoms of post-traumatic stress disorder in the clinical notes for session 6 (or 11) of counselling sessions in relation to the injury of October 2019. I infer that these sessions commenced mid-2022, having regard to Dr Tang’s records which indicate that the applicant was attending on Mr Campbell for weekly sessions from July 2022. Thirdly, symptoms of post-traumatic stress disorder were recorded in the post-traumatic stress disorder checklist completed in March 2023 while the applicant was undergoing treatment at The Hills Clinic (treatment which was sought in mid-2022 but not approved or available until March 2023). Lastly, I also note that the applicant is first diagnosed with post-traumatic stress disorder on 3 October 2023 by Dr Rastogi.

The lack of contemporaneous evidence of post-traumatic stress disorder symptoms on or about the date of injury, while relevant to the complete evidentiary picture, is largely of no consequence. In this regard, I am mindful of the need to treat medical records with caution.[7] I am also mindful that the true question is “whether the person was suffering symptoms, which properly diagnosed, constituted an illness”[8] and whether the traumatic event of October 2019 (traumatic event) caused that condition. Whether or not the applicant suffers a primary psychological injury properly diagnosed as post-traumatic stress disorder depends on an assessment of all of the evidence. The medical experts largely dealt with these questions and the applicant’s symptoms, and I will return to this later.
[7] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, at [35] (per Mason P).
[8] Patrech v State of New South Wales [2009] NSWCA 118, at [105]; RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44, at [118].
The respondent submitted that applicant stated that his symptoms (presumably of post-traumatic stress disorder) occurred since the accident but that it is only five years later in January 2025 that he gives an account that he genuinely felt that his life was in imminent danger. On this basis the respondent purported to contend that the applicant had sought to address matters which may resemble a primary psychological injury five years after the event and should have reported this symptom earlier. The respondent described this as a “recent invention”.
I accept that the applicant states in his supplementary statement in January 2025 that in the “moment” of the traumatic event he felt that his life was in “imminent danger”. I also accept that this particular or similar wording is not found elsewhere on the evidence, except for Dr Ahmed’s report of January 2025 which preceded the supplementary statement. Dr Ahmed found the applicant satisfied the criteria for post-traumatic stress disorder and the nature of the traumatic accident was of a “life-threatening nature”. However, there are reports of symptoms that may fall within the diagnostic criteria for post-traumatic stress disorder prior to the supplementary statement and as early as March 2023 or even late-2022 (as noted above at [164]). The respondent conceded symptoms occurred as early as March 2023. Further, it is not necessary for the applicant to identify as psychologically ill for the Commission to find there exists a primary psychological injury.[9] The true question as indicated above is whether the applicant is suffering symptoms, which properly diagnosed, constitute an illness.
[9] Patrech v State of New South Wales [2009] NSWCA 118, at [91].
Dr Rastogi provides a detailed and comprehensive analysis of the applicant’s physical injury and psychological injury. Contrary to the respondent’s submissions, that history is consistent with the applicant’s supplementary statement evidence. Dr Rastogi records that the applicant suffered acute anxiety attacks at job sites, anxious ruminations, interrupted sleep by reoccurring dreams of the accident, waking with night sweats, and living a fight and flight state. Dr Rastogi recorded that the applicant’s fear was debilitating and he had become socially reclusive and isolated. This history is consistent with the applicant’s supplementary statement, notwithstanding the fact it does not specifically record that the applicant felt his life was in imminent danger at the time of the traumatic event.
Dr Rastogi diagnosed the applicant with post-traumatic stress disorder due to the traumatic event, aware of the physical impact of that event and the secondary psychological reaction which she described as an adjustment disorder. Her explanation is well reasoned and sound. It is also consistent with report of post-traumatic stress disorder by Dr Ahmed and Mr Campbell.
Dr Ahmed, the applicant’s treating psychiatrist, records in February 2022 that the applicant is suffering a psychological response to the effects of tinnitus and sought to refer him to a mood program at The Hills Clinic. In an undated report (which is likely to have been prepared after February 2022 but prior to August 2024 when Dr Ahmed recommends the applicant begins a trial of medicinal cannabis, because this undated report notes that he referred the applicant for evaluation and potential prescription of medicinal cannabis), Dr Ahmed records partial symptoms of post-traumatic stress disorder. Dr Ahmed also states that the applicant’s symptoms of post-traumatic stress disorder were in partial remission noting he no longer experienced the same extent of nightmares or flashbacks as before. This suggests a history of symptoms of post-traumatic stress disorder before this report period, which is consistent with Mr Campbell’s evidence and the March 2023 Questionnaire.
By January 2025, Dr Ahmed records that the applicant’s post-traumatic stress disorder symptoms from the traumatic event remain ongoing and diagnoses post-traumatic stress disorder. He provides a balanced explanation for this diagnosis, noting the applicant had “elicited clear symptoms”. He explained that those symptoms included, re-experiencing events of the traumatic incident, especially the explosive sound, avoidance behaviours, heightened sense of threat, emotional numbing and panic attacks. He further explained that this was evident when the applicant made attempts to engage in the hospital-related therapies, which presumably relates to the applicant’s attendance at The Hills Clinic in March 2023.
Having treated the applicant since 2022 and examined him on several occasions, Dr Ahmed disagrees with Dr Cassimatis’ diagnosis. Dr Ahmed treated the diagnosis of post-traumatic stress disorder with caution. He explains he is usually reluctant to make such a diagnosis as the meaning had been diluted but was satisfied the applicant met the relevant criteria.
Dr Cassimatis records a history of the traumatic incident and psychological symptoms. Those symptoms include the applicant waking in sweats, feeling anxious and despondent, poor sleep, and reoccurring dreams of the episode of trauma where he wakes up screaming. The history of reoccurring nightmares or dreams is recorded in both of Dr Cassimatis’ reports. This history of general symptoms is also consistent with the history report to Dr Rastogi and Dr Ahmed, and recorded in the applicant’s supplementary statement.
Dr Cassimatis diagnoses the applicant with an Adjustment Disorder with Anxiety. It is only in his supplementary report that Dr Cassimatis considers the possibility of a post-traumatic stress disorder diagnosis, but finds consistent with his earlier report that the applicant’s psychological condition related to the distress or effects experienced from the tinnitus. Dr Cassimatis in his supplementary report found that there was no evidence of post-traumatic stress disorder. The only real explanation for this is because the applicant did not describe life-threatening conditions or hypervigilance or intruding thoughts. However, Dr Cassimatis fails to explain the significance of the applicant’s re-occurring dreams of the traumatic event or the other post-traumatic stress disorder symptoms he identified in the history recorded or the symptoms Dr Rastogi identified as relating to post-traumatic stress disorder. Indeed, Dr Cassimatis records that Dr Rastogi identified some of the applicant’s symptoms to be present in a post-traumatic stress disorder diagnosis but instead of explaining the significance of those symptoms stated the applicant does not focus on the traumatic event as intrusive ideation but the tinnitus as an ongoing disability. As the applicant submits, there is no attempt to address those symptoms, or explain its origin and his report is deficient.
I note that the applicant’s psychologist Mr Rodriguez in November 2019 states that the applicant was feeling overwhelmed by the ringing in his ears which caused him to feel anxious and depressed. However, this report was prepared at a time when the focus of the applicant’s symptoms was on the physical effects of the tinnitus and limited weight can be attached to it.
I acknowledge that Dr Harrison in 2022 refers to the applicant having a very significant psychological overlay, in his assessment of the physical injury of tinnitus. However, he properly defers this opinion to Dr Ahmed as psychological aspects are outside of his field of expertise.
I also acknowledge that Dr Pincock in 2019 draws a connection between the applicant’s tinnitus and anxiety but, like Dr Harrison, matters of psychology are outside his field of expertise and this opinion can be given little weight.
Contrary to the respondent submissions, the applicant reported having sustained past injuries to his knee and finger and this is reflected in the histories recorded to Dr Cassimatis and Ms Sieradzki. To the extent the respondent sought to argue these injuries or the absence of a recorded medical history of these injuries was relevant to the resolution of the present dispute was not made out.
I prefer the opinion of Dr Rastogi which provides a more careful explanation of the applicant’s symptoms, causes and diagnosis. Her report is supported by Dr Ahmed, Mr Campbell, the March 2023 Questionnaire and the applicant’s statement evidence. I prefer her opinion over Dr Cassimatis’ opinion.
The applicant has symptoms relevant to the diagnostic criteria for a diagnosis of post-traumatic stress disorder. While some of the applicant’s symptoms relate to his secondary psychological condition arising from the effects of the physical injury of tinnitus (and this is explained in the medical opinions) there are symptoms that relate to the consequence of exposure to the traumatic event. The applicant’s clinical symptoms include nightmares or recurrent dreams of the traumatic event, hypervigilance in an environment with sound, and avoidance behaviours. While there is some divergence in the description of the symptoms, they are largely consistently recorded by Dr Ahmed, Mr Campbell, Dr Rastogi, Dr Cassimatis, and the applicant’s supplementary statement and are supportive of a post-traumatic disorder diagnosis.

TPD claim

The applicant completed a form for a TPD claim in August 2022 in relation to the physical injury and a major depressive disorder with separate dates of injury. It is not known whether this claim was registered or whether the applicant received any benefit from it. The respondent has not clearly made out the relationship between the TPD claim, an alleged dramatic change in condition in August 2022, the dates of injury in the TPD claim and, the present claim and proceedings. To the extent the respondent sought to identify this as a piece of the puzzle affecting the applicant’s reliability as a witness of truth is simply not made out on the evidence or the submissions presented.

Reliability of the applicant

I do not accept there is an evidentiary basis to find the applicant is unreliable or his case is founded on a “recent creation”, as the respondent submits.
Firstly, as discussed above, his symptoms of post-traumatic stress disorder may not have been contemporaneous, but they have largely been consistently recorded at least from mid-2023 (and possibly from late-2022).
Secondly, the applicant cannot be critised for not identifying or reporting as psychologically ill with symptoms of post-traumatic stress disorder. Understandably the applicant and his treating practitioners were focused initially on his physical recovery and the effects of that injury on the applicant’s psyche.
Thirdly, the medico-legal experts each provide an assessment of the applicant’s credit on a background of recording symptoms which fit within the diagnostic criteria for post-traumatic stress disorder. Dr Rastogi said that the applicant’s speech was forthcoming and spontaneous. Dr Cassimatis records that there was no indication that the applicant was unreliable, inconsistent or exaggerated.
Fourthly, the medical evidence does not question the late onset or diagnosis or reporting of symptoms of post-traumatic stress disorder.
Lastly, having regard to the above reasons, it follows that the respondent’s purported submission that the applicant is not a witness of truth cannot be made out on the available evidence.

Totality of factors

It is not disputed that the applicant had severe tinnitus which affected both ears and that this impacted his life, and that he suffered a secondary psychological injury as a result of the physical effects. The early evidence significantly focuses on these injuries.
It is accepted that there are no early symptoms or diagnosis of post-traumatic stress disorder. However, whether or not there was a late onset or diagnosis of post-traumatic stress disorder is not determinative. It is not necessary that there is an explanation for the gap between the traumatic incident and first report of symptoms of post-traumatic stress disorder on or about late-2022 or March 2023. What is relevant is whether I am persuaded by the evidence that finds and supports a diagnosis of post-traumatic stress disorder.
Having regard to the totality of evidence, I am satisfied that the applicant had psychological symptoms as a result of the traumatic event which were properly diagnosed as post-traumatic stress disorder. The symptoms of post-traumatic stress disorder clearly relate to the traumatic event as opposed to the pain caused by the tinnitus. These symptoms persisted and continue to persist, alongside his physical symptoms and secondary psychological symptoms.

Threshold

To the extent the respondent seeks to agitate an argument that the applicant has not exceeded the threshold under s 65A(3) of the 1987 Act this has not been made out. Firstly, a medical expert, like a Medical Assessor, is to have no regard to any impairment resulting from a secondary psychological condition in the assessment of permanent impairment.[10] It is likely this is how Dr Rastogi approached the assessment of impairment, noting as he did the diagnosis was of “PTSD” with a co-morbidity of a secondary adjustment disorder with anxious distress. Secondly, as the applicant submits, in the absence of leave under s 289A of the 1998 Act the respondent is not permitted to raise an unnotified dispute which did not form part of the basis to decline liability. The respondent did not seek to make any application for leave. Thirdly, the scope of the dispute for resolution was confined to whether the applicant sustained a primary psychological injury and this was confirmed at the preliminary conference and conciliation conference and arbitration hearing. Lastly, Dr Rastogi’s assessment of permanent impairment exceeds the threshold under s 65A(3) of the 1987 Act.

SUMMARY
[10] NSW workers compensation guidelines for the evaluation of permanent impairment, at [1.22].

The applicant sustained a primary psychological injury in the course of his employment with the respondent on 12 October 2019. This primary psychological injury co-exists with his physical injury of tinnitus and the secondary psychological injury which has arisen from its effects.
The claim for lump sum compensation pursuant to s 66 of the 1987 Act is referred to the President for referral to a Medical Assessor in respect of the applicant’s primary psychological injury.

[2025] NSWPIC 251

4 June 2025