Hill v The A2 Milk Company (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hill v The A2 Milk Company (Australia) Pty Ltd [2025] NSWPIC 460
APPLICANT:	Graham Hill
RESPONDENT:	The A2 Milk Company (Australia) Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	5 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; allegation of a primary psychological injury disputed; applicant has an accepted physical injury and secondary psychological condition for which he is receiving weekly benefits on the basis of no current work capacity (total incapacity); dispute about date of injury; dispute about lateness of notice of injury and claim for compensation; evidence weighed in the balance and applicant found to have suffered a primary psychological injury; not precluded from recovery because of “lateness” because deemed date of injury of the primary psychological injury so found is the date of incapacity as a result of the primary psychological injury; Held – award for the applicant on the basis of no current work capacity (total incapacity); reduced under section 46 by the amounts paid or being paid by the respondent for weekly compensation on the basis of no current work capacity (total incapacity) for the accepted physical injury and secondary psychological condition.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant as a result of primary psychological injury deemed to have occurred on 12 September 2024 at the rate of $1,282.33 from 12 September 2024 to 12 December 2024 and thereafter at the rate of $1,079.86 per week as indexed from 13 December 2024 to date and continuing. 2. Under s 46 of the Workers Compensation Act 1987 the weekly compensation payable to the applicant is reduced by the amounts already paid or being paid by the respondent to the applicant for weekly compensation as a result of total incapacity in respect of the accepted physical injury and secondary psychological condition. 3. The respondent pay the applicant’s section 60 expenses as a result of primary psychological injury on production of accounts, receipts and/or Medicare Notice of Charge. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), Mr Graham Hill (the applicant), as amended, seeks weekly compensation and compensation for medical expenses as a result of allegation of a primary psychological injury in the course of or arising out of his employment as a machine operator.
The respondent is The A2 Milk Company (Australia) Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

The applicant was employed by the respondent as a machine operator since about
6 January 2020.
On 5 March 2022 he suffered an injury to his right shoulder. There is no dispute about liability for his physical injury on 5 March 2022. Furthermore, the respondent concedes that the applicant suffered a secondary psychological condition as a result of his physical injury. The applicant has not worked for the respondent since 8 August 2022 and it is common ground that he has had since that time no capacity for employment by reason of his accepted physical injuries and secondary psychological condition.
It is common ground that the applicant is in receipt of weekly payments of compensation on the basis of having no current work capacity (total incapacity) as a result of his accepted injury on 5 March 2022 (physical injury and secondary psychological injury).
The applicant brings a claim for weekly compensation based on a claim of total incapacity (or no current work capacity) as a result of an allegation of a primary psychological injury.
The allegation of a primary psychological injury is disputed.
In the event the applicant is found to have suffered a primary psychological injury, there is dispute between the parties as the deemed date of injury. The applicant says it is
12 September 2024 when the applicant was first certified as incapacitated as a result of his primary psychological injury and the respondent says it is 8 August 2022 being the date the applicant last worked because he was incapacitated.
In the event the applicant is found to have suffered a primary psychological injury, the respondent disputes that compensation is payable by reason of the notice and claim provisions and says that it is out of time. Determination of the date of injury is relevant to the determination of whether the notice and claim provisions are invoked and/or breached.
In the event the applicant is found to have suffered a primary psychological injury and the notice and claim provisions are found not to preclude the recovery of compensation, the applicant claims compensation on the basis of no current capacity for work as a result of the primary psychological injury.
There is no dispute that the applicant, if found to have a primary psychological injury, has no current capacity for work as a result.
The dispute arises because the respondent says that the applicant is already in receipt of weekly benefits based on having no current capacity for work (as a result of the accepted physical injury and secondary psychological condition) and the applicant cannot receive dual benefits under the legislation. The respondent says that the onus is on the applicant to prove that he has separate and distinct incapacities flowing from his injuries (the accepted psychical injury and secondary psychological condition) and the primary psychological injury (if so found) and he has not done so, and his claim must fail.
The applicant says the respondent failed to raise this as a ground of dispute in the dispute notices and they were given the opportunity to make an application under s 289A of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) for leave to rely on a ground of dispute previously notified and the respondent failed to make any such application.
The respondent says that it was not necessary for them to have notified this as a dispute because there was a pre-eminent dispute about liability for the alleged primary psychological injury which was notified and s 46 is a discretionary provision that is only invoked once the determination on liability for injury and to pay compensation is made. Further, and in any event, the onus of proof is on the applicant in making an application to weekly compensation in circumstances where he is already being paid weekly compensation on the basis of total incapacity to prove, to the requisite standard, that his is suffering separate and distinct incapacities. Moreover, the applicant cannot receive more weekly compensation than he is entitled to under the legislation, that is, he cannot be doubly compensated.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Personal Injury Commission (Commission) by consent and considered in making this determination:
For the applicant:
(a)    Application to Resolve a Dispute (Application) and attached documents, and
(b)    the Application to Lodge Additional Documents (ALAD) and all documents attached filed by the applicant on 7 May 2025.
For the respondent:
(a)    Reply and attached documents, and
(b)    the ALAD and all documents attached filed by the respondent on
28 March 2025 and 8 April 2025.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek leave to cross-examine the applicant. Neither counsel made any application in respect of cross-examination of the witnesses who provided statements in each parties’ case.

FINDINGS AND REASONS

The applicant was employed by the respondent as a machine operator since about
6 January 2020.
On 5 March 2022 he suffered an injury to his right shoulder. There is no dispute about liability for his physical injury on 5 March 2022. Furthermore, the respondent concedes that the applicant suffered a secondary psychological condition as a result of his physical injury. The applicant has not worked for the respondent since 8 August 2022 and it is common ground that he has had since that time no capacity for employment by reason of his accepted physical injuries and secondary psychological condition.
It is common ground that the applicant is in receipt of weekly payments of compensation on the basis of having no current work capacity (total incapacity) as a result of his accepted injury on 5 March 2022 (physical injury and secondary psychological injury).
The applicant brings a claim for weekly compensation based on a claim of total incapacity (or no current work capacity) as a result of an allegation of a primary psychological injury.
The allegation of a primary psychological injury is disputed.
In the event the applicant is found to have suffered a primary psychological injury, there is dispute between the parties as the deemed date of injury. The applicant says it is
12 September 2024 when the applicant was first certified as incapacitated as a result of his primary psychological injury and the respondent says it is 8 August 2022 being the date the applicant last worked because he was incapacitated.
In the event the applicant is found to have suffered a primary psychological injury, the respondent disputes that compensation is payable by reason of the notice and claim provisions and says that it is out of time. Determination of the date of injury is relevant to the determination of whether the notice and claim provisions are invoked and/or breached.
In the event the applicant is found to have suffered a primary psychological injury and the notice and claim provisions are found not to preclude the recovery of compensation, the applicant claims compensation on the basis of no current capacity for work as a result of the primary psychological injury.
There is no dispute that the applicant, if found to have a primary psychological injury, has no current capacity for work as a result.
The dispute arises because the respondent says that the applicant is already in receipt of weekly benefits based on having no current capacity for work (as a result of the accepted physical injury and secondary psychological condition) and the applicant should not receive dual benefits under the legislation. The respondent says that the onus is on the applicant to prove that he has separate and distinct incapacities flowing from his injuries (the accepted psychical injury and secondary psychological condition) and the primary psychological injury (if so found) and he has not done so, and his claim must fail. Furthermore and in any event the discretion should be exercised under s 46 of the 1987 Act to reduce any award found payable by the amounts already being paid to the applicant on the basis of having no current capacity for work (total incapacity) as a result of his accepted physical injuries and secondary psychological condition.
The applicant says the respondent failed to raise this as a ground of dispute in the dispute notices and they were given the opportunity to make an application under s 289A of the 1998 Act for leave to rely on a ground of dispute previously notified and the respondent failed to make any such application.
The respondent says that it was not necessary for them to have notified this as a dispute because there was a pre-eminent dispute about liability for the alleged primary psychological injury which was notified and a s 46 is a discretionary provision that is only invoked once the determination on liability for injury and to pay compensation is made. Further, and in any event, the onus of proof is on the applicant in making an application to weekly compensation in circumstances where he is already being paid weekly compensation to prove, to the requisite standard, that his is suffering separate and distinct incapacities. Moreover, the applicant should not receive more weekly compensation than he is entitled to under the legislation, that is, he should not be doubly compensated.
This case must be decided on the evidence and in accordance with the law.
The relevant legislation includes ss 4, 9A, 15, 16, 33, 34, 36, 37, 46, and 60 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act—
‘injury’ —
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…’
9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
[Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.]
15    Diseases of gradual process—employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)
16 Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2)
33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
[Note: Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.]
34 Maximum weekly compensation amount
(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.
(1) The ‘maximum weekly compensation amount’ is $1,838.70.
(2) If the amount mentioned in subsection (1)—
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.
(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
46 Reduction of weekly payments to prevent dual benefits
(cf former s 13)
(1)     The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2)     Any such order shall have effect according to its tenor.
(3)     This section does not affect the operation of section 49 or 50.
60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)     If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The relevant legislation also includes ss 78, 254, 261, and 289A of the 1998 Act as follows:
“78 Insurer to give notice of decisions
(1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2) Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3)The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.
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.
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.
289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

Turning then to the first question for determination: whether the applicant has suffered, in the course of or arising out of his employment, a primary psychological injury.
The applicant’s case on injury was “pleaded” in the application relying on a deemed date of injury of 8 August 2022 as follows:
“The applicant suffers from a psychiatric injury (disease injury) sustained during the course of employment with the Respondent. This is in context whereby the applicant experienced invalidation and inadequate support during his vocational tenure with the respondent. The applicant noted various occupational health and safety concerns and despite raising them to senior colleagues and management, his concerns were consistently dismissed. The applicant was also assigned tasks that were to be performed by multiple people. The applicant’s employment was the main cause of his psychological deterioration.
In the alternative, it is pleaded that the applicant sustained a disease injury that has been aggravated, accelerated, exacerbated or deteriorated during the course of his employment.”
The respondent concedes that the applicant suffered a secondary psychological condition as a result of his physical injury at work on 5 March 2022. However, the respondent submitted that the applicant’s case of having suffered a primary psychological injury should not be accepted because the applicant bears the onus of proof and there is no explanation of how the applicant’s complaints in September 2024, two years after his employment with the respondent ceased, amounts to a primary psychological injury arising out of or in the course of his employment with the respondent.
The respondent concedes that the allegation of a primary psychological injury is a separate injury. If a primary psychological injury is so found the respondent concedes it is a separate injury to the accepted physical injury and secondary psychological condition but does not concede that any primary psychological injury, if so found, has resulted in separate and distinct incapacities for the purposes of entitlement to weekly compensation, and says that the applicant has not proven his case in that regard.
The applicant submitted in respect of his primary case as follows (emphasis in original and footnotes omitted):
“
1.     The applicant claims weekly compensation and treatment expenses in respect of a psychological injury.
2.     The applicant says in his statement (ARD1) that his work required working at over 90 degree shoulder height which he's required to do all day.
3.     He says that he told the boss, Steve Kelly, that safety should be addressed every morning at the toolbox talks, and he was told words to the effect of ‘not necessarily’. The applicant said his issues were never addressed and that he felt belittled, unimportant, and ignored (statement paragraph 27).
4.     The applicant suffered a physical injury to his right shoulder for which he underwent surgery on 10 August 2022. Upon his return to work he says he was sent to jobs that were above his physical requirements and were not in line with what he could physically do (paragraph 28). He says that these issues made him fall into a deep depression and bringing up the safety issues at work nearly every day and his employer not acting on anything he said. (paragraph 36) He says he remains highly scared and fearful of the injury whilst employed. Every day he would go to work scared of injury.
5.     The applicant says that when he first started with the respondent he was angry due to the respondent having no regard for his welfare and wellbeing. The applicant in turn has progressed to the current depressive condition. (paragraph 44) In the applicant’s view his current mental health condition was caused by being bullied by the respondent because he raised multiple safety concerns with his role and they were supposed to legally act on workers safety, which didn’t happen and that led to his physical injury.(paragraph 92)
6.     The applicant's case is supported by Mark Dern. In his statement (ARD 17) he says that toolbox meetings would barely go for five minutes and they would only discuss the plan for the day. When he started at 3.45am there was almost never a toolbox meeting. Otherwise Mr Dern says that it was a common occurrence for employees to complain about unsafe conditions. Examples are set out in paragraph 9 of his statement. Mr Dern confirms that the applicant would always speak his mind. He was known for raising concerns he had regarding safety and the way in which work was carried out. Despite concerns being raised nothing was ever done about this (paragraph 15)
7.     The respondent relies upon the statement of Lachlan Tobin. (reply 13) Mr Tobin confirms that at the time the applicant underwent his induction there was no safety manager in place at the company (paragraph 23). He also confirms that the training material did not really cover in great detail the safety requirements required for the applicant's role (paragraph 27). He also confirms that the applicant's job did require him to work over 90 degree shoulder height for his whole shift. (paragraph 32) Mr Tobin does say he does not recall the applicant raising the safety concerns at toolbox meetings however we know from Mr Dern that safety issues were not dealt with at what toolbox meetings there were. Mr Tobin does not address the question of whether the applicant made complaints at other times. We know from Mr Dern that he did.
8.     The applicant consulted Dr Lim about his anxiety and depression on 20 August 2024. In a report dated 12 September 2024 Dr Lim records that the history of the psychological injury was that it was from repeated safety issues and concerns not being addressed during his employment. He felt unsafe in the workplace.(ARD 43).
9.     The treating psychologist, Robbie Matek also took a history that the applicant had reported many safety issues and concerns over the years but they were not addressed. He felt unsafe in the workplace. He was left to do the work of three people by himself. (ARD 40). Mr Matek diagnosed an adjustment disorder and thought that the applicant was unfit for work.
10.   The applicant was seen by Dr Kumagaya at the request of his solicitors in October 2024.
11.   Dr Kumagaya recorded a history that the applicant experienced invalidation and inadequate support during his vocational tenure with the respondent. He noted various occupational health and safety concerns. Despite raising those to his senior colleagues and management he described how his concerns were constantly dismissed. In particular he raised concerns about working above shoulder height and made suggestions about modifications to the system of work to reduce the risk of injury. He also described stress as a result of being frequently assigned tasks that might be performed by multiple people. Dr Kumagaya considered in the context of such workplace stresses the applicant described the onset of depressive and anxious symptoms during 2022 which included low mood, decreased interest and engagement in previously enjoyable activities, sleep disturbance, concentration difficulties, low energy levels, easy fatigue ability, anxiety and restlessness. (ARD 33).
12.   Dr Kumagaya diagnosed a major depressive disorder with anxious distress and alcohol use disorder. He thought the main cause was the applicant's experience of an invalidating and unsupportive workplace environment during his vocational tenure. He explained how it was in the context of such workplace stresses that the applicant developed the onset of depressive and anxious symptoms correlative with the diagnosis of major depressive disorder with anxious distress. (ARD 38) He thought that the current vocational incapacity arises as a result of the workplace primary psychological injury.
13.   The medical opinions in the applicant's case are all to the effect that the applicant has no current work capacity as a result of his psychological injury which was caused by the applicant's perception that his safety concerns were not being addressed causing him to have to work in an unsafe manner.
14.   The fact that the system of work resulted in injury confirmed the applicant's fears. The respondent has not brought any medical opinion to the contrary.
15.   PIAWE has been agreed.
16.   The respondent should be ordered to pay compensation at the rate of $1,282.33 from 12 September 2024 to 12 December 2024 and thereafter at the rate of $1,079.86 per week as indexed from 13 December 2024 to date and continuing.”
The respondent submitted in respect of the allegation of a primary psychological injury (emphasis in original and footnotes omitted):
“As referred to above, secondary psychological injury has been accepted by the Respondent.
The Applicant commenced employment with the Respondent as a machine operator in early 2020.
The Applicant told Dr. D’Abrera that he started experiencing anger and stress related to his workplace issues in 2020 and was prescribed Sertraline by his GP Dr. Elafifi, which he has been taking since then. Dr. D’Abrera noted that the Applicant stated to him that he was definitely not depressed at the time but was ‘sick of talking abou’” his workplace issues.
The Applicant told Dr. D’Abrera that he first experienced psychological symptoms related to the injury following his surgery in August/September 2022.
The records of Tahmoor Family Medical Centre were produced under Direction for Production and are attached to the Respondent’s ALAD dated 28 March 2025.
The Applicant commenced attending the Tahmoor Family Medical Centre on 13 November 2020. On that occasion he was seen by Dr. Masuma Khalil in respect of a COVID 19 swab. The Applicant then saw Dr. Mohamed Elafifi on 23 September 2021 when he was seen for COVID vaccine advice.
The Applicant was next seen at the Tahmoor Family Medical Centre by Dr. Mohamed Elafifi on 5 October 2021. He was seen for anxiety and delayed ejaculation. Dr. Elafifi noted that the Applicant was on Sertraline tablet 100 mg 1 tab daily but that “this was prescribed from outside this practice”. In other words,
Dr. Elafifi did not prescribe the Sertraline. Dr. Elafifi advised the Applicant to switch to Efexor and to monitor its effect. There was no reason recorded by Dr. Elafifi for the Applicant’s anxiety and certainly no connection made with his employment.
On 22 October 2021 the Applicant was seen by Dr. Elafifi for gout and, again, there was no mention of anxiety or indeed any work-related issues.
The Applicant was seen by Dr. Erman Osman on 31 January 2022 for his right hip and on 7 February 2022 was seen by Dr. Elafifi in respect of left elbow cellulitis and lower back pain. On this occasion Dr. Elafifi recorded “anxiety” but with nothing recorded as to the cause of his anxiety or indeed that it was in any way related to the Applicant’s work.
On 15 February 2022 the Applicant consulted Dr. Mohamed Elafifi by telephone, advising Dr. Elafifi that his back was still causing recurrent problems and that his cellulitis had improved. On 17 February 2022 the Applicant was seen by Dr. Elafifi for reasons unassociated with any work-related injury.
It was not until 28 March 2022 that the Applicant saw Dr. Elafifi in respect of his shoulder/s. The Applicant saw Dr. Elafifi again on 29 March 2022 complaining about his bilateral shoulders. There are then a number of attendances at the Tahmoor Family Medical Centre that have no dates and do not mention the name of the doctor who attended the Applicant on those occasions. It is clear however that the Applicant was being seen for his shoulder problem and for problems related to skin cancer/s ie squamous cell carcinoma, with no mention being made of anxiety/depression or any work-related issue.
The Applicant was seen by Dr. Andrew Kako on 19.2.24 at which time Dr. Kako recorded a history of injury on 5 March 2022 ie injury to the Applicant’s right shoulder whilst leveraging 880kg pallet of milk back up-to a conveyor. He also noted rotator cuff repair and compensatory neck and left shoulder pain. Dr. Kako recorded a number of issues including depressed mood and anxiety. However there was no note about what the depressed mood and anxiety was related to.
The Applicant was again seen by Dr. Andrew Kako on 7.3.24 where Dr. Kako again recorded depressed mood and anxiety, without any mention about what the Applicant was depressed and/or anxious about.
On 26 June 2024 the Applicant consulted Dr. Kalim Yacoub from Genesis Health Centre and was referred to Dr. Yousif Hurmoz at Precise Psychology. The referral thanks Dr. Hurmoz for seeing the patient for ‘low mood due to injury. Please provide counselling as needed’. (My emphasis). It is submitted that the inference to be drawn from this referral is that the ‘injury’ referred to is the injury of 5 March 2022 ie to the Applicant’s shoulders and neck.
A SIRA Certificate of Capacity dated 26 June 2024, issued by Dr Kal Yacoub, recorded that the Applicant had injuries to his right shoulder and neck sustained on 5 March 2022. His treatment was noted to include ‘psychology’. He was certified as fit to work six hours a day, five days a week with restrictions on physical activities. The next Certificate, issued by Dr Andrew Kako, dated 31 July 2024 recorded that the Applicant was awaiting approval for shoulder surgery and was anxious about the verdict.
There are therefore no contemporaneous records of the Applicant complaining to Dr. Elafifi about being depressed as stated by the Applicant in paragraph 30 of his statement of 1 October 2024 or feeling angry all the time because of what was happening at work.
The Applicant states that his anger was due to ‘his (my) employer having zero regard for my welfare and wellbeing.’
In fact at paragraph 89 of his statement, the Applicant states that:
‘over the 2.5 years of me raising many safety issues, at first I was angry, which is why I went to see Dr. Elafifi and explained that I was angry all the time due to my ignored requests on changes relating to safety issues at work. … Dr. Elafifi subsequently prescribed me Sertraline for my issues’.
The Applicant states that Dr. Elafifi put him on Sertraline because he ‘felt angry all the time because of what was happening at work’ A review, however, of the Tahmoor Family Medical Centre’s records that are attached to the Respondent’s ALAD 28 March 2025, indicates that Sertraline was not prescribed by Dr. Elafifi – it was prescribed from outside his practice.
It is submitted that the Commission would not accept the Applicant’s evidence that he was complaining to Dr. Elafifi about his safety concerns at work, or of being bullied at work, or indeed of having to perform the work of three people because although the Applicant was seen by Dr. Elafifi and other doctors at the Tahmoor Medical Centre on a number of occasions from 13 November 2020 onwards with a number of complaints as referred to in paragraphs 19 to 24 above, there were no complaints as described by the Applicant recorded in the clinical notes.
Dr David Lieu, Orthopaedic Surgeon, provided a report dated 8 July 2024 recording that the Applicant had a right rotator cuff arthropathy with irreparable tendon tears and progressive arthritis. He referred to this occurring in the context of the workplace incident on 5 March 2022. He also recorded that the Applicant described psychosocial issues with depression and anxiety following his injury and inability to return to work – in other words psychological complaints that are secondary to the Applicant’s physical injuries.
On 20 August 2024 the Applicant was seen by Dr Morgan Mo who provided a diagnosis which included ‘adjustment disorder’. Dr. Mo noted that the Applicant experiences neck and bilateral shoulder pain which affects his sleep. He has reduced social activities and travel capacity. He has low mood, low motivation and is depressed. He is unable to work on his cars or play with his grandchildren. He is unable to garden and relies on his partner to help with basic housework. It was in the context of his physical injuries that Dr. Morgan Mo noted that the Applicant was stressed, had low mood, low motivation, depressed, agitated, anxious frustrated.
Dr. Mo also referred to the Applicant having pre-existing anxiety and depression. The Applicant’s treatment was noted to be taking simple analgesia, sertraline and gabapentin. He was downgraded to having no work capacity and ‘neck, shoulder dysfunction, psychological barriers’ were recorded as factors affecting his recovery.
Dr. Mo stated that as a result of the work-related neck and bilateral shoulder injuries, the Applicant had developed chronic pain with functional limitations, and an adjustment disorder. He noted that the Applicant’s psychological condition
and concentration issues impaired his ability to retrain in alternate non-physical work roles. He referred the Applicant to Insightful Mind in relation to ‘ongoing psychological distress in context of chronic pain after work injury’. He recorded that the Applicant was on sertraline.
A letter from EML dated 3 September 2024 to Insightful Mind recorded that an initial psychological consult had been approved consistent with the fact that the Respondent has accepted that the Applicant has sustained a secondary psychological condition as a result of the Applicant’s physical injuries.
On the basis of the above medical evidence it is submitted that the Commission would not be satisfied that the Applicant has sustained a primary psychological injury.
In addition, Dr. Juan D’Abrera, Psychiatrist, provided a report dated 31 January 2025 diagnosing a major depressive illness secondary to the Applicant’s physical injury together with an alcohol use disorder, currently in remission. Dr. D’Abrera opined that the predominant cause of the Applicant’s condition is the pain and disability resulting from his physical injury.
Dr. D’Abrera stated that although the Applicant was upset by the OH&S issues he identified early in his position with the Respondent and felt frustrated after sustaining an injury in March 2022, an outcome he had warned management about, the predominant cause of his psychological injury is the pain and disability resulting from his physical injury. Dr. D’Abrera was of the view that whilst the Applicant felt upset and angry about the perceived OH&S shortfalls as early as 2020, he did not show any symptoms of major depression until around August 2022, following his physical injury.
In respect of capacity for work, Dr. D’Abrera opined that the Applicant was incapacitated for work but that this incapacity primarily relates to his physical issues. He was of the view that the Applicant would have work capacity from a psychological standpoint if his pain and disability were to improve.
In making a claim for primary psychological injury the Applicant relies upon the following medical evidence:-
(a) a report by Dr. Eric Lim dated 12 September 2024. Dr. Lim records that the history of the psychological injury was from repeated safety issues and concerns not being addressed during his employment. Dr. Lim notes that the Applicant’s last day of work was 8 August 2022.
Dr. Lim also notes that the Applicant is unable to work on his cars or play with his grandchildren. He is unable to garden and relies on his partner to help with basic housework.
It is submitted that these symptoms that Dr. Lim has recorded are related to the Applicant’s physical injuries and not from a primary psychological injury. They are consistent with a secondary psychological condition as a result of the Applicant’s inability to work on his cars or play with his grandchildren, his inability to garden and perform basic housework ie his physical condition.
(b) The Applicant also relies upon a report from a Robbie Matek, a psychologist, dated 12 September 2024. Mr. Matek took a history that the Applicant had reported many safety issues and concerns over the years but they were not addressed. He felt unsafe in the work place. He was left to do the work of three (3) people by himself. Mr. Hill’s last day of work was 8 August 2022, being the deemed date and Mr. Hill has not returned to work duties since.
Mr. Matek also noted that due to the Applicant’s work-related injury, the Applicant has been rendered unable to work, and he can no longer work on his cars or play with his grandchildren. He is unable to garden and relies on his partner to help with basic housework. It is noted that this is the same history as recorded by
Dr. Eric Lim on 12 September 2024 and referred to in numbered paragraph 41(a) above.
Mr. Matek further noted that due to the Applicant’s work-related injury and functional incapacity he (the Applicant) noted a deterioration in his mental state characterised by anxious and depressive cognitions, sleep disturbances, rumination, irritability, feelings of helplessness and hopelessness, poor concentration, low mood, agitation and fatigue. It is submitted that again Mr. Matek has linked the deterioration in the Applicant’s mental state to his physical and functional incapacity – therefore a secondary psychological condition.
The Respondent submits that Mr. Matek’s diagnosis is clearly a secondary condition related to the effects of the Applicant’s injury on 5 March 2022 to his shoulders ie to his physical injury and not to a primary psychological injury.
(c) The Applicant was seen by Dr. Kumagaya at the request of his solicitors and provided a report dated 4 October 2024. Dr. Kumagaya recorded a history that the Applicant experienced invalidation and inadequate support during his vocational tenure with the Respondent. He also noted that from the commencement of his employment, the Applicant noted various occupational health and safety concerns, and despite raising these to his senior colleagues and management, he described how his concerns were consistently dismissed.
Dr. Kumagaya considered that in the context of such workplace stressors, the Applicant described the onset of depressive and anxious symptoms during 2022, which included low mood, decreased interest and engagement in previously enjoyable activities, sleep disturbance, concentration difficulties, low energy levels, easy fatiguability, anxiety and restlessness. Dr. Kumagaya diagnosed a Major Depressive Disorder with anxious distress and alcohol use disorder.
It is submitted that the opinion of Dr. Kumagaya ought to be given no weight.
Dr. Kumagaya has not taken into account the fact that there is no contemporaneous evidence of complaints made by the Applicant to the doctors that he was seeing during 2022, and as referred to in numbered paragraph 33 above.
In addition, there is no discussion and explanation by Dr. Kumagaya of how complaints in September 2024 could be related to the Applicant’s employment, and in which the Applicant has not worked since 8 August 2022.
Dr. Kumagaya provided a further report dated 15 April 2025. In this report
Dr. Kumagaya reviewed the report of Dr. Juan Carlos D’Abrera dated 31 January 2025 and maintained his view that the Applicant sustained a primary psychological injury and that such arose independently of his physical injuries.
Dr.Kumagaya notes that according to the Applicant his psychological symptoms of a depressive and anxious nature predated his physical injury, and arose in the context of distinct workplace stressors. There is however no medical evidence before the Commission that the Applicant’s psychological symptoms predated his physical injury. Although the Applicant had commenced to consult the Tahmoor Family Medical Centre and in particular Dr. Elafifi prior to the work- related injury to his shoulders on 5 March 2022, there were no complaints of anxiety and/or depression as a result of workplace stresses including of an invalidating and unsupportive workplace environment; of having to perform the work of three (3) people; or raising occupational health and safety concerns in the records of Tahmoor Family Medical Centre or indeed in any records.
The Respondent repeats the submission that the Commission would prefer the evidence of contemporaneous clinical records rather than the evidence of the Applicant where it is not corroborated by the clinical records.
The mere fact that the Applicant may have raised some safety issues, although this is denied by the Respondent’s Lachlan Tobin, does not mean that he has suffered a psychological injury.
There is no evidence before the Commission of the Applicant suffering a psychological injury in the course of his employment with the Respondent prior to his work-related injury on 5 March 2022.
It is submitted that the Commission will not be satisfied that the Applicant has sustained a primary psychological injury arising out of or in the course of his employment with the Respondent. As has already been conceded, however, the Applicant has sustained a secondary psychological condition as a result of the injury on 5 March 2022 and for which the Applicant is currently being paid compensation.
There is no explanation of how the Applicant’s complaints in September 2024, two years after his employment with the Respondent ceased, amounts to a primary psychological injury arising out of or in the course of his employment with the Respondent.
There ought to be an award entered for the Respondent in respect of the Applicant’s claim for primary psychological injury.”

In reply the applicant submitted that there are complaints about psychological symptoms being recorded in the clinical records and although the cause of them is not identified, the fact of these complaints is consistent with the applicant’s evidence. The applicant also submitted that Dr D’Abrera does not reject the concept that the complaints about work safety being ignored could have caused psychological injury but rather he considers the physical injury is the predominant cause resulting in a secondary psychological condition.
The applicant submitted in reply as follows: (emphasis in original and footnotes omitted)
“With regard to the question of injury the submissions of the Respondent has submitted that there are no contemporaneous records of the Applicant complaining to treating doctors.
As outlined in the Respondent’s submissions there were a. number of occasions where the Applicant complained about psychological symptoms. These include complaining of anxiety to Dr Elafifi on 5 October 2021 and again on 7 February 2022. On 5 March 2022 Dr Kako recorded depressed mood and anxiety. The Applicant again complained to Dr Kako about depression and anxiety on 7 March 2024.
The entries confirm that the Applicant was suffering from symptoms of depression and anxiety. It is true that the doctors did not record the cause of these symptoms. Whilst it would be preferable that a cause of the work stress was recorded the lack of a recorded cause is not inconsistent with the Applicant’s case. The entries do not identify any other cause.
The Respondent’s submission that there is no contemporaneous evidence of complaint to doctors should be understood in the context that there were complaints to doctors it is just that the cause of those complaints was not recorded.
The medical material does not contradict the Appellant’s evidence which should be accepted.
It is immaterial that the Applicant is possibly mistaken about who prescribed Sertraline. The point is that it was prescribed.
Dr Abrera does not reject the concept that the events complained of caused a psychological injury. His opinion is merely that the physical injury is the predominant cause. He accepts that the Applicant became upset and angry about the perceived OH&S shortfalls as early as 2020 however he did not show symptoms until after the injury around August 2022.That opinion accepts the causal element of the factors other than the physical injury. He also accepts an incapacity from a psychological viewpoint.”
The applicant’s case for a finding that he has suffered a primary psychological injury must be determined on the evidence and in accordance with the law. The standard of proof is the balance of probabilities and the applicant bears the onus.
Turning then an examination of the evidence.
The applicant gave evidence in his statement dated 1 October 2024 as follows (emphasis in original):
“25. I feel that I have been bullied by my employer for not addressing the safety issues that I have raised. This has distressed me for a significant amount of time and continues to distress me.
26. I worked in the A2 Milk factory, and everything was over 90-degree shoulder height, which I was required to do all day.
27. I did some research, and I learn that no one is supposed to work above shoulder height for longer than 45 minutes per day. When my initial physical injury happened, I was using crowbars to lever the pallets that were coming off the conveyor chains, because in covid they had missing wooden boards underneath. I addressed this safety issue and requested an overhead crane, however, all we received was crowbars for 880kg two-litre pallets of milk. I told the boss Steve Kelly, that safety should be addressed every morning in the toolbox talks, and I was told words to the effect of, not necessarily. My issues were never addressed. I felt belittled, unimportant and ignored.”
I note there is no evidence from Mr Steve Kelly.
The applicant gave evidence later in his statement that:
“Tool box meetings would take place but safety would rarely be discussed. Not to mention, the meetings would go for no more than 5 minutes.
I am angry that had my employer taken care and ensured that we were performing duties safely, my injuries may not have occurred.”
He gave evidence that he told his GP (at the time Dr Ellafi) that he was depressed but he never did anything about it. He later transferred to Dr Lim in late 2024 who diagnosed a primary psychological injury and referred him treatment at the hands of Mr Matek psychologist.
He said the last day at the workplace was 8 August 2022 and “my delay in me lodging my psychological Workers Compensation claim, noting my date of injury being 8 August 2022, was due to me suffering a serious psychical injury which would over appear more important to Doctors than how I was feeling emotionally or psychologically.”
There is no dispute that the applicant suffered, among other things, a serious injury to his right shoulder which had to be surgically treated and significant ongoing pain and disability remains.
He goes onto give evidence:
“I remember telling someone from the insurer that I was terrified about returning to my place of work in case I re-injured myself or in case I was made to do things I could not physically do, but nobody did anything or told me I could bring a claim.
These issues made me fall into a deep depression and me bringing up the safety issues at work nearly every day and my employer not acting on anything I said, despite me raising concerns every day for roughly two years.”
The applicant gave evidence of having to stand on his tippy toes and lift his arms full extended above shoulder height as follows:
“The bottles were on a pallet 7.5 foot high. I would be required to reach up on my tippy ties and lift my arms fully extended to grab a bit of plastic to pull the bag of empty bottles down. I complained about this and stated that there should be a platform with a slippery dip system to be able to pull the bottles down below a 90 degree level…I was constantly working on over shoulder tasks all day.”
The applicant gave evidence that he reported to the supervisor Jody Houston and there was also a second supervisor Lachlan who was safety supervisor.
The applicant says that the respondent processed around 190,000 litres of milk on average per day and he was required to stand for 7 hours per day on concrete without anti-fatigue mats:
“I was on my feet for 7 hours per day on concrete, we did not even have antifatigue mats. I asked for anti-fatigue mats, but none were provided.”
He went onto state:
“I do not consider the A2 Milk Company to operate a safe workplace because no one took ownership of the safety issues I addressed time and time again for years. No one ever reverted to me about the solution or what they were working on in regard to my safety complaints not once. My safety issues were not ever even noted down. I believe that they didn’t act lawfully about workers safety.”
The applicant gave evidence:
“I have been raising safety concerns with my role for roughly 2.5 years prior to my physical injuries and no one at work listened to me and nothing changed and subsequently I sustained a very serious injury.
I had complained to the head manager, Steve Kelly, for roughly 2,5 years about not raising safety issues in the workplace. I brought up many safety concerns and no one acknowledged them nor stated that they were doing anything about them. I raised concerns with working alone for 4-5 hours. I raised working over 90-degree shoulder height for my whole shift. I raised these issues on nearly every machine and nothing was ever acted upon. I even asked for anti-fatigue mates, so that workers would not have to stand on hard concrete floors for their whole shift and I was told that we would not be getting them as it was another that would require cleaning. Over these 2.5 years of me raising many safety issues, at first I was angry which is why I went to see Dr Elafifi and explained that I was angry all the time due to my ignore requests on changes relating to safety issues at work. It was affecting my whole life too as I was coming home angry and snapping at my family. Dr Elafifi subsequently prescribed me sertraline for my issues. I stated on 50mg, buts then dosed up shorty thereafter to 100mg.”
The applicant goes onto give evidence that he has never not worked and he now can’t work because of the carelessness of his employer. He states the injury could have been avoided if he had been listened to by the respondent about safety issues repeatedly raised by him:
“My current work-related injury could have been voided by the A2 Milk Company addressing the safety issues. I even provided the A2 Milk Company a solution for the over shoulder work issues, however, they did nothing about this, despite me raising concerns for over 2.5 years.”
The applicant goes onto state:
“It is my opinion my current mental health condition was caused by being bullied by the A2 Milk Company because I raised multiple safety concerns with my role and they were supposed to legally act on workers safety, which didn’t happen and led to my physical injury.”
The applicant gave evidence that he repeatedly raised safety concerns with the manager Steve Kelly. Steve Kelly has not given evidence in these proceedings to controvert what the applicant says in this regard.
The only evidence from the respondent is from Lachlan Tobin, who the applicant identifies as a safety supervisor gave evidence in a statement dated 11 October 2024. He says he cannot recall the applicant raising safety issues at tool box meetings. He acknowledges the suggestion of anti-fatigue mats which were initially rejected by the respondent due to hygiene concerns. He says anti-fatigue mats have subsequently been implemented (it sems well after the cessation of the applicant’s employment).
Lachlan Tobin’s evidence also acknowledges the poor quality of the pallets that the applicant was required to work with and use a crow bar on and that the applicant suffered injury in the course of so using. He also says that after the applicant’s injury crowbars were locked up so that whether they were safe to use could be assessed by a manager first.
To the extent that the respondent is denying that the applicant was raising safety issues, I am satisfied when I weigh all of the evidence in the balance taking into account the applicant’s evidence, the lack of evidence from Steve Kelly and the measure of support that Lachlan Tobin’s evidence gives the applicant’s case that important safety concerns with the work practices that the applicant was required to undertake were at issue including the use of a crowbar on poor quality pallets and the need to work over shoulder height for prolonged periods, that the applicant was raising various important safety issues with the respondent. The applicant says he felt his concerns were ignored and he felt belittled as a result. He ultimately came to serious physical injury as a direct result poor workplace safety which he had raised with the respondent and having being ignored by the respondent.
The applicant says he was prescribed sertraline at 100mg by Dr Elafifi shortly after commencing employment with the respondent because he was angry the respondent wasn’t addressing safety issues. The respondent points out that the medical records of Dr Elafifi show that the sertraline wasn’t perceived by Dr Elafifi but had been prescribed by another unidentified medical practitioner. Despite leave having been sought and granted for directions for production, there are no other medical records in evidence which establish when and for what reason sertraline was first prescribed. The only evidence is that from the applicant about the prescription of sertraline. There seems to be no doubt it was prescribed because it can only be accessed on prescription and Dr Ellafifi seems to have continued to prescribe it. The applicant says it doesn’t make a difference to his case that he was mistaken about who prescribed it.
A review of the treating medical evidence shows reports of psychological symptoms which are not recorded as being attributable to work respect of either a secondary psychological condition or a primary psychological injury. There are however some complaints of psychological symptoms recorded from time to time.
The clinical records in evidence show that the applicant was not diagnosed with a work related psychological disorder until late 2024 when he saw a new GP Dr Lim who referred him to psychologist Mr Matek. The applicant says that Dr Lim wanted to increase his dosage of sertraline by the declined because he didn’t want to feel like a zombie. The applicant saw Mr Matek and there is a report from Mr Matek in evidence.
In any event both independent expert psychiatrists agree that the applicant suffers from a work-related psychological disorder. Dr Kumagaya, the independent medical expert (IME) qualified on behalf of the applicant, considers that the suffers from a major depressive disorder with anxious distress as a primary psychological injury. Dr D’Abrera, the IME qualified on behalf of the respondent, considers that the applicant suffers from a major depressive disorder as a secondary psychological condition resulting from his physical injuries.
The applicant made various complaints to the respondent about safety issues.
The applicant felt his concerns were ignored and he felt belittled for raising the concerns. He says his concerns were not acted upon.
He was required to work above shoulder height for the duration of his shifts.
He suffered injury to his right shoulder on 5 March 2022 and came to surgery and suffered an undisputed secondary psychological condition and last worked on 8 August 2022 because of his incapacitating injuries
Prior to the injury on 5 March 2022 he says he was prescribed sertraline because of anxiety.
There is no direct or first-hand medical evidence before me as to the prescription of sertraline prior to 5 March 2022 and the reasons for that. There are records in histories that it had been prescribed but not direct medical evidence of the first time it was prescribed, for how long and for what reason. I must weigh this in the balance with the other evidence.
There are notes throughout the clinical records and in histories given to doctors that he was taking sertraline prior to March 2022 for either anxiety or anger issues (variously recorded).
Dr Lim saw the applicant on 20 August 2024.
Dr Lim provided an “initial medical report” to Icare dated 12 September 2024 in which noted a history of pre-existing anxiety of which causation is not specified.
He recorded a history of injury as follows:
“psychological injury from repeated safety issues and concerns not being addressed during his employment, This over many years was the main contributing factor to his psychological deterioration. His last day of work was 8/8/2022, being the deemed date.
He had reported many safety issues and concerns over the years but they were not addressed. He felt unsafe in the workplace. He was left to do the work of 3 people by himself. He has not returned to work since 08.08.2022.
He experiences sleep disturbances. He has reduced social activities and travel capacity, he has low mood, low motivation and is depressed. He is unable to work on his cars or play with his grandchildren. He is unable to garden and relies on his partner to help him with basic housework.
Symptomalogy:
Anxious, fidgety, depressed, frustrated, angry , stressed, low mood, trouble sleeping , fatigued, lethargic, low energy, concentration issues. Low motivation, socially withdrawn, low self esteem.”
Dr Lim certified the applicant unfit for work and noted the aim of treatment was psychological stabilisation with a referral to a psychologist.
Dr Lim opined on causation as follows:
“he sustained a psychological injury from repeated safety issues and concerns not being addressed during his employment. This over many years was the main contributing factor for his psychological deterioration. His last day of work was 8/8/2022 being the deemed date.”
Dr Lim issued a workcover certificate dated 12 September 2024 certifying the applicant unfit because of a “psychological injury from repeated safety issues and concerns not being addressed during his employment. This over many years was the main contributing factor for his psychological deterioration. His last day of work was 8/8/2022 being the deemed date.” He noted management was psychological stabilisation and medication was Sertraline.
Dr Lim referred the applicant for treatment (psychological therapy) at the hands of Mr Matek psychologist.
Mr Matek saw the applicant and wrote back to Dr Lim on 12 September 2024.
Mr Matek recorded a history that the applicant had consistently raised safety issues with his employer “over the years” that were not addressed and that “he felt unsafe in the workplace. He was left to do the work of three (3) people by himself” and that his last date of employment was 8 August 2022. Mr Matek notes that due to his work related injury he has been ubale to work since 8 August 2022.
Under “Dates, Onset of Psych Issues” Mr Matek recorded:
“Due to his work-related injury, Mr Hill has been rendered unable to work. Mr Hill also noted that due to his work-related injury he can no longer work on his cars or play with his grandchildren. He is unable to garden and relies on his partner to help with basic housework. He is unable to go to the gym, he has reduced social activities and travel capacity.
Due to Mr Hills work-related injury and aforementioned functional incapacity, Mr Hill noted a deterioration in his mental state characterised by anxious and depressive cognitions, sleep disturbances, ruminations, irritability, feelings of helplessness and hopelessness, poor concentration, low mood, agitation and fatigue.”
Mr Matek diagnosed the applicant with an Adjustment Disorder, said employment was the main contributing factor, considered he was unfit for work and recommended ongoing psychological care.
The applicant saw Dr David Kumagaya, consultant psychiatrist, at the request of his lawyers.
Dr Kumagaya saw the applicant on 4 October 2024 and provided a report back to his lawyers on 4 November 2024.
Dr Kumagaya noted he reviewed the applicant’s statement dated 1 October 2024, report of Mr Matyek dated 12 September 2024, certificate of capacity issued by Dr Lim dated
12 September 2024 and the report of Dr Lim dated 12 September 2024.
The respondent submitted that in view of the limited documentation that was made available to Dr Kumagaya for review, his report should be given little to no weight.
Dr Kumagaya took a history from the applicant which he recorded as follows:
“Mr Hill described how he has been employed at the A2 Milk company Pty Ltd since
6 January 2020.
Mr Hill described how he experienced invalidation and inadequate support during his vocational tenure with the A2 Milk Company Pty Ltd. From the commencement of his employment, he noted various occupational health and safety concerns and despite raising these to his senior colleagues a and management, he described how his concerns were consistently dismissed.
Mr Hill noted, for example, how he raised concerns regarding the repetitive need to work above shoulder height, lifting items heavier than what safety standards recommended. He suggested the utility of a platform system or an overhead crane to reduce the risk to him and his colleagues, although such suggestions were dismissed, he noted a similar response towards his suggestion regarding the use of anti-fatigue mats.
Mr Hill also explained how the pallets that he and his team were required to work with frequently were missing supporting wooden boards. Such meant that they repeatedly slid off the conveyor belt. Mr Hill described how his employer provided him crowbars to lever such pallets back on the conveyor belt which he found most unsafe, given that one pallet could weigh up to 880kg.
Coinciding with such workplace stressors was Mr Hill’s frequent assigning of tasks that were meant to be performed by multiple people. He described how the increased workload exacerbated his experience of feeling overburdened and unsupported.
Mr hill stated that he had raised concerns regarding the safety of his workplace to his employer on a near daily basis during his vocational tenure during tool box meetings and safety meetings. He recalled however how his concerns were consistently dismissed and remained unaddressed.
In the context of such workplace stresses, Mr Hill described the onset of depressive and anxious symptoms during 2022 which included low mood, decreased interests and engagement in previously enjoyable activities, sleep disturbance, concentration difficulties. Low energy levels, easy fatigability and, anxiety and restlessness.
Mr Hill stated that he ultimately sustained psychical injuries to his neck and bilateral shoulders in 8 August 2022 which warranted subsequent surgical intervention, his workplace injuries were such, that he had been unable to return to work since 8 august 2022.”

Under “current functioning” Dr Kumagaya recorded that Mr Hill continued to experience ongoing depressive and anxious symptoms.
Dr Kumagaya conducted a mental state examination which noted his affect was dysphoric, and his thought content comprised depressive and anxious cognitions.
He noted he was receiving ongoing psychological counselling from Mr Matek and had been prescribed the psychotropic medication Sertraline.
In respect of any past psychiatric history Dr Kumagaya recorded that Mr Hill acknowledged a brief trial of antidepressant medication several years prior in relation to anger issues, which medication he had discontinued due to tolerability concerns and he denied any formal psychiatric diagnosis had been made.
Dr Kumagaya diagnosed the applicant to be suffering from a major depressive disorder with anxious distress and an alcohol use disorder. He attributed the main cause of which to be “his experience of an invalidating and unsupportive workplace environment during his vocational tenure” with the respondent.
He opined:
“the main cause of Mr Hills’s psychological injuries, major depressive disorder with anxious distress and alcohol use disorder, was his experience of an invalidating and unsupportive workplace environment during his vocational tenure with the A2 Milk company Pty Ltd.
Mr Hill described how, from the commencement of his employment with the A2 Mil Company Pty Ltd, he had repeatedly raised concerns in relation to the safety of his workplace. Despite escalating his concerns to his employer and suggesting avenues to reduce such safety risks, he described how such concerns were consistently dismissed.
In the context of such workplace stressors, Mr Hill developed the onset of depressive and anxious symptoms, correlative with the diagnosis of major depressive disorder with anxious distress. His already unstable mental state was further destabilised when he sustained his physical injuries, which he deemed to have been prominently foreseeable and avoidable, should his employer have addressed his antecedent concerns.”
As to any resultant incapacity, Dr Kumagaya opined:
“Mr Hill’s current vocational incapacity arises as a result of his workplace primary psychological injuries, major depressive disorder with anxious distress and alcohol use disorder.”
Dr Juan Carlos D’Abrera, psychiatrist, was the IME qualified to provide an opinion on behalf of the respondent. He saw the applicant and provided a report to the respondent’s lawyers dated 31 January 2025.
Dr D’Abrera recorded a history of injury as follows:
“Mr Hill reported that he was employed by The A2 Milk, beginning with the company in early 2020 as a machine operator. He worked full time as a machine operator. He stated that early in his employment he noticed various occupational health and safety breaches and provided a few examples today, including:
·        Having to repeatedly lift heavy items above shoulder height (90 degrees) for prolonged periods causing shoulder strain.
·        Requesting the use if anti fatigue padded mats so that workers do not have to stand on concrete for hours at a time.
·        The workers had to use pallets of inadequate quality, many of which were missing boards. This resulted in the pallets becoming stuck or slipping off the conveyor belt.
Mr Hill stated that the workers were provided with crowbars to lever the pallets back onto the conveyor belt. He noted that each pallet could weigh up to 800kg.
Mr Hill stated that he made numerous verbal complaints to his employer about these OH&S concerns. He also raised concerns in toolbox meetings (daily meetings to discuss workplace issues), but his concerns were dismissed as either impractical or too expensive. He informed the box Mr Kelly about his concerns and also informed the other members of the management team, namely Jody Houston and Lachlan Tobin.
Mr Hill stated that or around 4 March 2022, he was using a crowbar on a pallet that was pressed against his right shoulder , resulting in a muscle tear. An ultrasound of his shoulder on 28 march confirmed structural damage. He mentioned that he underwent surgical repair of the shoulder in September 2022 and three weeks ago, had a total shoulder replacement. Mr Hill noted that he lodged a worker’s compensation claim for the shoulder injury, which has been accepted. He described experiencing secondary neck pain and discomfort in his other shoulder related to his workplace injury.
Mr Hill stated that he did not return to work following the surgical intervention his shoulder in 2022(his last day of work was 08 August 2022, with surgical intervention around this date). Mr Hill stated that he had to take his case to the Personal Injury Commission to prevent the insurer from discontinuing payments for his physical injury.”
Under the heading “psychological injury”, Dr D’Abrera recorded the following history:
“Mr Hill stated that he started experiencing anger and stress related to his workplace issues in 2020 and was prescribed sertraline by his GP, Dr Elafiffi, which he has been taking since then. He asserted that he was definitely not depressed at that time but was “sick of talking about” his workplace issues. Mr Hill indicated that he first experienced psychological symptoms related to the injury following his surgery in August/September 2022.He noted that the pain and disability from his shoulder injury caused difficulties with sleep, low mood, anhedonia, fatigue, impaired concentration, and restlessness.
Mr Hill also expressed that he became more isolated within his marital relationship and has seen a decrease in his ability to manage his daily activities.
Mr Hill states that, despite first experiencing symptoms in 2022, he did not consult medical specialists until around the time he lodged his psychological injury claim in 2024. In explaining the two year delay, Mr Hill reported that he is “old school” and does not like to complain about psychological difficulties. I note from his witness statement that his legal team suggested he lodge a psychological injury claim. He mentioned that the insurer is disputing the claim and he is challenging the dispute at the Personal Injury Commission.”
Under “treatment history”, Dr D’Abrera records:
“Mr Hill indicated that he sees a psychologist, whose name he cannot recall, via Telehealth every couple of weeks. He noted that he had at least 20 sessions and remarked that it is nice to talk to someone about his feelings. He takes sertraline 100mg daily prescribed by his GP which “takes the edge off.”
He notes the applicant’s level of alcohol use and that any past psychiatric history is denied.
Under “medical history” Dr D’Abrera records:
“Mr Hill has lodged a worker’s compensation claim for meniscus tear approximately 15 years ago.He has hypertension and is overweight. He experiences ongoing pain in both shoulders. Which he rates at 6/10 and which he states is worse during the night and keeps him awake. He takes paracetamol as required for this. He states that he is unable to lift his grandchildren up, which further exacerbates his depressed mood.”
Dr D’Abrera conducted a mental state examination.
Under the heading “Summary, Diagnosis and Formulation” Dr D’Abrera opined:
“Mr Hill appears to have developed a major depressive illness secondary to his physical injury. He has an alcohol use disorder and is currently in remission.”
He is asked a specific question: “please provide your opinion at to the cause or causes of the applicant’s condition” and Dr D’Abrera answers:
“The predominant cause of his condition is the pain and disability resulting from his physical injury.”
He goes onto opine:
“Mr Hill’s psychological injury developed as a result of his employment, following the physical injury he sustained in March 2022 which caused pain and disability. I note that he continued working until August 2022, performing light duties and then, did not return to work thereafter.”
He is asked the specific question: “Your opinion as to whether the applicant’s employment on 8 August 2022 substantially contributes to their injury. Please explain” and Dr D’Abrera answered:
“Mr Hill was upset by the OH&S issues he identified early in his position at the A2 Milk, as he felt frustrated after sustaining an injury in March 2022, since this was the outcome he had warned management about. However, the predominant cause of his psychological injury is the pain and disability resulting from his psychical injury.”
He is asked whether injury was “in the nature of a disease process”, and he opined:
“The injury appears to be a gradual disease process with a sharp deterioration around the time of his surgery in 2022.”
He considered employment was the main contributing factor to the deterioration of the disease and he considered that the effects of the injury continued to be suffered.
He is asked:
“Please comment on whether this injury is a primary psychological injury or a psychological injury secondary to the applicant’s physical injuries. Please explain your reasoning”
and Dr D’Abrera answered:
“His psychological injury is secondary to his physical injuries, chiefly the pain and disability result from his shoulder injury. This became more intense after his surgery in 2022.”
Dr D’Abrera is asked to “comment on the report of Dr Kumagaya and the opinions contained therein” and he responded:
“I note Dr Kumagaya’s report. He diagnosed major depressive disorder with anxious distress and alcohol use disorder. He attributed the cause of Mr Hill’s psychological injuries to an invalidating and unsupportive workplace during his vocational tenure with the A2 Milk Company Limited. Dr Kumagaya stated that Mr Hill’s mental state was destabilised further when he sustained physical injuries. Dr Kumagaya opined that Mr Hill’s vocational incapacity resulted from his workplace (primary) psychological injuries. Mr Hill was clear with me today in his history that the bulk of his psychological stress is secondary to his pain and disability stemming from his physical injury. Based on the limited contemporaneous information available, I believe that while he felt upset and angry about the perceived OH&S shortfalls at the A2 Mil as early as 2020, Mr Hill did not show symptoms of major depression until August 2022 following his physical injury.”
He noted the applicant was incapacitated for work.
He was asked whether the incapacity resulted from the alleged primary psychological injury and he answered:
“I do not believe he has a primary psychological injury.”
Dr Kumagaya provided a further report dated 15 April 2025 addressing the opinion of Dr D’Abrera. He is asked to provide answers to specific questions which he does as follows (emphasis in original):
“1. We ask that you confirm your opinion as to whether you believe Mr Hill is suffering from a primary psychological injury or an injury secondary to his physical injuries. Please provide full reasoning.
Having reviewed the totality of the available evidence, I maintain that Mr Hill sustained a primary psychological injury as a result of his employment with the A2 milk company Pty Ltd and that such arose independent of his physical injuries sustained with the same employer.
Temporarily, Mr Hill reported the onset of depressive and anxious symptoms in 2022 prior to his physical injuries to his neck and bilateral shoulders. He noted that such arose owing to his protracted exposure to a prejudicial workplace characterised by safety concerns, and dismissal of such concerns when he escalated them to his employer.
Mr Hill’s physical injuries served to reinforce his depressive and anxious cognitions regarding the foreseeability and avoidable nature of his injuries; they were not, however, causative of his psychological injury.
2. Do you agree with the findings maintained by Dr D’Abrera in the enclosed report? Please provide full reasoning.
Dr Juan Carlos D’Abrera acknowledges a diagnosis of major depressive disorder, which is broadly in keeping with that of the undersigned. During Mr Hill’s psychiatric assessment with the undersigned on 4 October 2024, he also presented with prominent anxious symptoms, meeting the requisite specifier criteria for ‘anxious distress’.
In relation to causation, Dr D’Abrera attributes Mr Hill’s psychological injury ‘to his physical injuries, chiefly the pain and disability resulting from his shoulder injury’. Such is in difference with the history obtained by the undersigned. Mr Hill noted his psychological symptoms of a depressive and anxious nature predated his physical injury, and arose in the context of distinct workplace stressors as outlined in the response to question one.
To this extent, particular attention is drawn to Mr Hill’s statement, whereby he states ‘my current mental health condition was caused by being bullied by the A2 Milk company because I raised multiple safety concerns with my role, and they were supposed to legally act on workers [sic] safety, which didn’t happen and led to my physical injury’.
Such indicates that the cause of Mr Hill’s psychological injury was his experience of dismissal and invalidation of his occupation health and safety concerns by his employer, rather than the sequelae of his resultant physical injuries.”
The respondent submitted:
“The Applicant told Dr. D’Abrera that he started experiencing anger and stress related to his workplace issues in 2020 and was prescribed Sertraline by his GP Dr. Elafifi, which he has been taking since then. Dr. D’Abrera noted that the Applicant stated to him that he was definitely not depressed at the time but was ‘sick of talking about’ his workplace issues.
The Applicant told Dr. D’Abrera that he first experienced psychological symptoms related to the injury following his surgery in August/September 2022.”
The applicant submitted:
“Dr Abrera does not reject the concept that the events complained of caused a psychological injury. His opinion is merely that the physical injury is the predominant cause. He accepts that the Applicant became upset and angry about the perceived OH&S shortfalls as early as 2020 however he did not show symptoms until after the injury around August 2022.That opinion accepts the causal element of the factors other than the physical injury. He also accepts an incapacity from a psychological viewpoint.”
The respondent submitted that “There is no explanation of how the Applicant’s complaints in September 2024, two years after his employment with the Respondent ceased, amounts to a primary psychological injury arising out of or in the course of his employment with the Respondent.”
I note however that Dr D’Abrera, the IME qualified to provide an opinion on behalf of the respondent, specifically addressed with the applicant the reasons for the two- year delay in consulting medical specialists from first experiencing symptoms in 2022 and then not consulting medical specialists until the time he lodged his claim for primary psychological injury in 2024. That is, an explanation has been given by the applicant. Dr D’Abrera recorded that:
“Mr Hill reported that he is “old school” and does not like to complain about psychological difficulties. I note from his witness statement that his legal team suggested he lodge a psychological injury claim. He mentioned that the insurer is disputing the claim and he is challenging the dispute at the Personal Injury Commission.”
Given that Dr D’Abrera then goes onto diagnose the applicant as suffering a work related Major Depressive Disorder being in his opinion a secondary psychological condition, it can safely be concluded that he has accepted the applicant’s explanation for the delay and does not consider it a barrier to a diagnosis of a work-related psychological disorder. Dr Kumagaya also diagnoses a Major Depressive Disorder but considers it to be a primary psychological injury. That is the psychological diagnosis is the same, the experts differ as to whether it is a primary psychological injury or secondary psychological condition. The point is that the two-year delay is not considered, even by the expert psychiatrist qualified on behalf of the respondent, to be a barrier to the diagnosis of a work-related psychological disorder.
When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that it is more likely than not that the applicant suffered a primary psychological injury. While it is the case that there are otherwise limited references to reports of psychological symptoms prior to late 2024 and the attribution of a cause for same recorded in the clinical records, there are still complaints about psychological symptoms from time to time. The treating GP Dr Lim, the treating psychologist Mr Matek’s opinions are supported by Dr Kumagaya. When I weigh all of the evidence in the balance, I prefer the treating opinions of Dr Lim (GP) and Mr Matek (psychologist) supported by the IME Dr Kumagaya to that of Dr D'Abrera. Dr D’Abrera does take a consistent history of how the applicant felt when the applicant’s complaints that salient safety issues raised by him were ignored and he then came to serious injury. However, he considered the predominant cause of the applicant’s psychological disorder to be secondary to the pain and disability from the physical injury. When I weigh all of the evidence in the balance, I prefer the applicants’ evidence in his statement about the psychological distress he experienced as a result, supported by the treating opinions of Dr Lim, Mr Matek and the expert opinion of Dr Kumagaya who diagnosed him with a primary psychological injury.
Having weighed the totality of the evidence in the balance and for the reasons expressed throughout, I am satisfied on the balance of probabilities that the applicant suffered a primary psychological injury in the course of or arising out of his employment with the respondent, to which his employment was the main contributing factor.
If a primary psychological injury was found, it is not disputed that it is a disease, however the date on which the disease is deemed to have occurred is in dispute. That is, there is a dispute about the date of injury.
The respondent submitted the date of injury must be the date of original incapacity being
8 August 2022.
The applicant submitted it is the date of 12 September 2024 when he was first certified incapacitated as a result of the primary psychological injury. The applicant submitted as follows:
“The Respondent has raised the issue of date of injury.
The injury is either a disease or the aggravation etc of a disease. In either case the injury is deemed to have occurred when incapacity first results from the injury.
The evidence discloses that the in capacity did not commence until it was first certified from 12 September 2024. The claim was made at that time.
At the time the injury is deemed to have occurred the Applicant had already left the employ of the Respondent. The Notice of injury and the claim were made within the time frames imposed by sections 254 and 261.
In any event even without the deeming provisions the Applicant was not aware of a compensable injury until it was first diagnosed in September 2024. On that basis the injury did not occur until that time and the claim is within time.”
The respondent says the applicant didn’t amend the pleadings from 8 August 2022 and he shouldn’t be allowed to amend at this stage.
Given the applicant is suffering from a disease the provisions of ss 15 and 16 operate to deem a date of injury.
To that extent the specification of a deemed date of injury by Dr Lim can be considered largely irrelevant because the legislation operates to deem the date.
Under the “artificial” deeming provisions contained in ss15 and 16 of the 1987 Act, that date is deemed to be the date of incapacity and if there is no such date, then the date of claim.
The respondent says it should be 8 August 2022 in line with the pleadings and the respondent objects to any amendment being made to the pleadings in this regard.
I can see no prejudice in allowing the amendment. This accords with what the 1987 Act deems as the date of injury and no additional evidence is sought or would need to be called by the respondent to meet this issue.

The respondent says the incapacity is 8 August 2022 when the applicant suffered incapacity for work.
However, the applicant was not diagnosed with a primary psychological injury until September 2024 and he did not receive any certification for incapacity as a result of a primary psychological injury until 12 September 2024. This is the relevant incapacity with which ss 15 or 16 are concerned because the allegation of a primary psychological injury is an allegation of an injury separate to the physical injury and secondary psychological injury. The respondent concedes it is a separate injury. Therefore, the incapacity with which ss15 or 16 is concerned must be the incapacity that results from the primary psychological injury.
I find 12 September 2024 to be the correct deemed date according to the operation of the deeming provisions (ss 15 and 16 of the 1987 Act). To the extent that leave is necessary to amend the Application I grant such leave as there is no prejudice to the respondent in allowing an amendment that brings a date of injury in line with the deeming provisions under the 1987 Act.
This means there is no breach of the time limits prescribed in the notice and claims provisions in ss 254 and 261 of the 1998 Act.
However, to cover the field on the question of the applicant being out of time, even if I was wrong about the date of injury and it should have been deemed to have occurred on
8 August 2022, the applicant still would not fall foul of the late notice and late claim provisions. This is because he was not aware he had suffered a primary psychological injury until he received a medical diagnosis of same, first from Dr Lim (GP), then from his treating psychologist Mr Matek on 12 September 2024 and then confirmed by expert psychiatrist Dr Kumagaya, the IME qualified to provide an opinion on behalf of the applicant in his report dated 4 November 2024. It is not for a worker as a lay person to diagnose his own psychiatric condition and hence reportable injury. The respondent’s submission that he somehow should have given notice of a psychiatric condition or injury that he was not yet diagnosed with because “he was familiar with workers compensation legislation” is simply without merit.
Having found a primary psychological injury deemed to have occurred on 12 September 2024, I note that if this was my finding then there is no dispute about a general order for the payment of medical expenses.
I also note that there is no dispute that the applicant is totally incapacitated for employment as a result of his primary psychological injury.
There is no dispute about PAIWE.
The applicant seeks an award of weekly compensation and compensation for medical expenses.
There is no dispute about a general order for the payment of medical expenses.
The dispute lies in the payment of weekly compensation.
There is no dispute that the applicant has no current capacity for work as a result of his primary psychological injury.
The dispute arises because the applicant is already in receipt of weekly compensation on the basis of no current capacity for work (totally incapacity) for all relevant periods of the claim before me.
The applicant noting PAIWE is agreed (at) seeks an award for weekly compensation as follows:
“The respondent should be ordered to pay compensation at the rate of
$1,282.33 from 12 September 2024 to 12 December 2024 and thereafter at the rate of $1,079.86 per week as indexed from 13 December 2024 to date and continuing.”
In submissions in reply the applicant submitted as follows (emphasis in original and footnotes omitted):
“The respondent now seeks to resist the claim for weekly compensation on the basis of the application of section 46 of the Workers Compensation Act.
This ground for denying the liability to pay compensation was not raised in any section 78b Notice or in the Reply. The Respondent was given an opportunity to make an application pursuant to section 287A but declined to do so.
The application by the Respondent to apply section 46 is an application to find that the Respondent does not have a liability to pay weekly compensation. The application of section 46 requires certain matters to be proved by evidence including the nature of the incapacities suffered the payments made and such other circumstances as may be relevant to an exercise of discretion. In simple terms the Respondent is relying upon section 46 to dispute liability to pay compensation.
Section 78 provides;

78 INSURER TO GIVE NOTICE OF DECISIONS
(1) An insurer must give notice in accordance with this Division of any decision of the insurer--
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b)to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2) Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3) The requirement to give notice of a decision to discontinue payment to
a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.
The application of section 46 is a matter which is clearly within (a). The Respondent disputes liability to pay compensation because it says that it is already paying compensation in respect of another injury which it says is compensation for the same incapacity. The terms of the section do not distinguish cases where the Respondent seeks to argue that the Commission should exercise a discretion in order to dispute liability to pay compensation.
The purpose of section 78 is to inform the worker of the basis for any dispute so that an Application can be made to the Commission which addresses the matters in dispute and no other matters. The section is critical to the front end loaded process of the Commission.
The conclusion that any defence relying upon section 46 should be disclosed is apparent from the facts of this case. The parties have closed their evidentiary cases. The applicant has made submissions and now is confronted with a submission that cannot be met without additional evidence. Evidence is required concerning the nature of the incapacity resulting from the physical injury and the extent of the incapacity resulting from that injury. That question is not answered merely by stating that payments have been made. What is required is evidence of the actual incapacity and its nature. The section is concerned with the correct entitlement. The section is not a vehicle for the recovery of voluntary overpayments.
Critical to the application of section 46 is a finding that the potential payments are in respect of the same incapacity. In Freeth Member Holman accepted that there can be separate incapacities arising from separate injuries. This is consistent with prior authority such as ALCAN Australia Ltd v Jordan, Sydney City Council v Ince and Cordina Chicken farms Pty Ltd v Thoa Hong Le. In those circumstances there can be separate awards of weekly compensation. That only arises where there are separate incapacities arising from the separate injuries. If there is a single incapacity there cannot be two awards.
The question of whether there are separate incapacities is resolved by a consideration of the restrictions from each injury and how that injury affects the ability to work. The question is not resolved by a consideration of the extent of the injury or incapacity but by an examination of what restrictions flow from the injury.
In this case there is no evidence concerning the nature and extent of restrictions that flow from the prior injury. There is no evidence to establish what the prior injury is or what the current state of the condition that results from the injury. There is no evidence that establishes whether the other injury in fact causes no current work capacity or current work capacity. In the absence of such evidence it is not possible to properly determine whether the circumstances that enliven section 46 exist in this case.
There can be no dispute that there are separate injuries and the Respondent does not contend otherwise.
Equally the Respondent has not submitted that there is only one incapacity in the manner described in cases such as Alcan and Ince. Given that one injury is a physical injury and the other is psychological it would normally follow that the incapacity is of a different nature and impacts upon the ability to work by creating different restrictions.
The question is whether the incapacities are the same in order to enliven section 46.
In Freeth (which is under appeal) Member Homan considered that while the symptoms and restrictions resulting from each injury were different they had affected the Applicant’s ability to work in the same way in that they rendered her unable to work in her pre-injury employment or in any other suitable employment. The conclusion was that the incapacity was the same because it is total. This is contrary to authority and wrong. There is no support for the proposition in any of the cases that the question of whether the payment of compensation is for the same incapacity for work is to be determined by the extent of the incapacity.
Section 46 provides:

REDUCTION OF WEEKLY PAYMENTS TO PREVENT DUAL BENEFITS
(cf former s 13)
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2) Any such order shall have effect according to its tenor.
(3) This section does not affect the operation of section 49 or 50.
It is apparent from a reading of the section as a whole that the reduction in benefits can only occur where there have been dual benefits in respect of the incapacity that results from the injury in question and the incapacity that results from that injury. This takes account of the fact that the section does not refer to any incapacity for work but is limited to the incapacity for work. It is not a reference to any other incapacity for work.
In Purkiss and Freeth Member Holman erred because she failed to consider that distinction.
In this case the payments made have been made in respect of a different incapacity which is the incapacity resulting from the physical injury. That is not the incapacity resulting from the psychological injury. As such they are not payments in respect of the incapacity for work which is the subject of this claim.
If contrary to the above submissions a reduction is made pursuant to section 46 the reduction should only be to the amount which means the total amount of weekly compensation is equal to PIAWE ( as indexed ).
In Freeth Member Homan declined to exercise her discretion in that manner. She acknowledged that this was consistent with cases such as ALCAN but sought to distinguish the matter on the basis that the current legislationlimtis compensation for a single incapacity to relevantly 80% of PIAWE. She did not identify how this was in any way different from the prior provisions that limited weekly compensation to a statutory rate. That limit on compensation for a single incapacity was not seen as relevant by the courts in the other cases.
The Member otherwise said that there was no authority which supported the proposition. This is beside the point. There is no authority prior to Freeth which is against the proposition as it simply had not arisen in other cases. In fact Purkiss is the first time that section 46 was considered in the context of in capacity resulting from 2 injuries. There is no warrant for restricting the discretion in the manner found by Member Homan. The discretion in section 46 is a wide one and the section does not prescribe the limits on the exercise of the discretion. Generally the discretion should be exercised in the interests of justice. The interests of justice are not met where the Respondent has caused 2 injuries and 2 separate incapacities but only pays for one of them.
An award should be made in favour of the Applicant for the full amount calculated in accordance with sections 36 and 37.”
The respondent submitted in reply (emphasis in original and footnotes omitted):
“In respect of the Applicant’s submissions regarding the application of Section 46 WCA 1987 and the fact that this ground for denying liability was not raised in the Section 78 Notice, the Respondent submits that as the discretion pursuant to Section 46 is only exercisable by the Commission after the dispute as to whether the Applicant has suffered a primary psychological injury and whether any incapacity flows from such injury has been determined, that this was not a matter that was required to be notified by way of a Section 78 notice. See the discussion by Member Rachel Homan in Freeth v. Volvo Group Australia Pty. Ltd.
It is the Respondent’s submission that the application of Section 46 is not a matter which falls within Section 78(1)(a) of the 1987 Act as submitted by the Applicant. Subsection (a) of Section 78 requires notice to be given in respect of a dispute as to liability. In this case, the dispute as to liability is in respect of whether the Applicant suffered a primary psychological injury together with whether there is any incapacity flowing from any such injury, and the nature of that incapacity.
It is only after a determination as to liability is made that the discretion can be exercised. It is therefore not a dispute as to liability in respect of a claim within Section 78 of the Act.
In respect of paragraph 19 of the Applicant’s submissions, it is submitted that the nature of any incapacity and the extent of incapacity are matters for the Applicant to prove in any event. They are not matters that only arise because the Respondent is seeking the exercise of a discretion in accordance with Section 46 of the Act.
The nature of any incapacity and the extent of such incapacity are matters that are fundamental to whether or not the Applicant is entitled to a further award of compensation for a period that he is already in receipt of weekly compensation in respect of a separate injury. These are always matters for the Applicant to prove. See further submissions in respect of separate and distinct incapacity below.
In respect of paragraph 20 of the Applicant’s submissions, although the Respondent agrees that the application of section 46 requires a finding that the potential payments are in respect of the same incapacity, again it is submitted, that
it is for the Applicant to prove that the incapacity as a result of the psychological injury is separate and distinct from the physical injury. It is only in the event that the Commission member is satisfied that there is such a separate and distinct incapacity that the Applicant will be entitled to payments of weekly compensation as a result of any (disputed) psychological injury.
Again, this is not something that is required merely because the Respondent seeks the exercise of the discretion pursuant to Section 46 of the Act.
The Respondent agrees with the Applicant’s submissions in paragraphs 21 and 22 and says that it has at all times been a matter for the Applicant to prove that any incapacity resulting from any disputed psychological injury is separate and distinct from his physical injury. The onus has always been on the Applicant. As the Applicant is asserting an entitlement to further compensation, it is for him to prove.
The Respondent does dispute that the Applicant suffered separate injuries contrary to paragraph 23 of the Applicant’s submissions. The Respondent disputes that the Applicant has sustained a primary psychological injury.
In respect of paragraph 24 of the Applicant’s submissions, it is not for the Respondent to submit that there is only one incapacity. It is for the Applicant to prove that in the event he is found to have sustained a primary psychological injury, then any incapacity resulting from such injury is separate and distinct from the incapacity resulting from his physical injury.
The Respondent disputes the Applicant’s submission in numbered paragraph 24 that given that one injury is a physical injury and the other is a psychological one, it would normally follow that the incapacity is of a different nature and impacts upon the ability to work by creating different restrictions – see for example, Freeth where Member Homan accepted that although the incapacity resulting from both injuries flowed from different symptoms and restrictions ie the physical injury affected the applicant’s ability to use her upper limbs for work, whilst the psychological injury affected her psychological ability to engage in work, they have at all relevant times affected the applicant’s capacity for work in the same way ie they have rendered her unable to work in her pre-injury employment or in any other suitable employment. Member Homan was therefore satisfied that the incapacity resulting from both injuries had, at all relevant times, been the same. See also Dous v. Blacktown City Council where Member Michael Moore held that although the applicant had suffered two injuries, one physical and one psychological, they resulted in one incapacity. See also Purkiss v. Secretary, Department of Education where Member Homan held that although the applicant sustained two separate injuries, one physical and one psychological, the applicant was only entitled to one award because the incapacity resulting from both injuries was the same. Member Homan found, on the medical evidence before her, that both the physical and the primary psychological injury resulted in a total incapacity to engage in the applicant’s pre-injury duties as a Head Teacher or any other suitable employment.
The Respondent agrees with paragraph 25 of the Applicant’s submissions.
In respect of paragraph 26 of the Applicant’s submissions, the Respondent refers to paragraph 16 above.
In respect of paragraphs 28 to 33 of the Applicant’s submissions, the Respondent submits that upon a reading of the text, context and purpose of Section 46 it is apparent that it aims to prevent workers from getting dual benefits and being over- compensated. So that if a worker is already getting benefits for total incapacity for one injury they cannot get dual benefits in respect of a further total incapacity.
In any event, as a matter of logic, if one is already totally incapacitated for work, one cannot suffer a further total incapacity for work. See Baker where Roche DP said:
‘The authorities of Ince and Nowakowska refer to the circumstances where a worker may be entitled to two awards of weekly compensation (one for partial incapacity and the other for subsequent total incapacity). They do not suggest that a worker is entitled to two separate payments for two total incapacities. Given the facts in the present case, it is difficult to see how Mr. Baker could be entitled to two payments for two separate total incapacities, it is not possible to be further totally incapacitated (in a legal sense), and further compensated, as a result of a concurrent psychological condition.’
In this case, the Applicant is currently being paid weekly compensation benefits on the basis of a total incapacity for work resulting from his physical injuries. In other words, he already is totally incapacitated for work. He cannot therefore have a further total incapacity.
To the extent that the Applicant argues that the incapacity referred to in Section 46 is the incapacity that results from the injury, and is not a reference to any other incapacity for work, the Respondent submits that reading the section in this way makes no sense as the Applicant would never be entitled to dual benefits for the same incapacity resulting from one injury. A worker cannot have a total incapacity for which he is being paid weekly compensation and then a further total or partial incapacity for the same period arising out of the same injury.
In respect of paragraph 30 of the Applicant’s submissions, the Respondent submits that this is the very reason why a determination has to be made in respect of any incapacity and whether in fact the incapacity is separate and distinct, before the exercise of the discretion contained in section 46 of the Act. It is only in the event that the Applicant is able to prove ie the Commission Member is satisfied on the balance of probabilities, that any incapacity flowing from any psychological
injury (which is disputed) is separate and distinct from the incapacity flowing from his physical injury, that the Applicant would be entitled to any further award of weekly compensation.
In respect of paragraph 31 of the Applicant’s submissions, it is the Respondent’s submission that the discretion in Section 46 ought to be exercised in the same way as in the matters of Freeth, Dous and Purkiss, in that any award of weekly compensation in respect of the psychological injury ought to be reduced by the amount already paid in respect of the physical injury.
As to the Applicant’s submission that the reduction should only be to the amount which means the total amount of weekly compensation is equal to PIAWE (as indexed),
a similar submission was made to Member Homan in Freeth, however Member Homan stated that she was unable to discern any statutory basis for the submission that the worker should be compensated up to 100% of PIAWE. Member Homan further noted that she was not referred to any authority which would support that proposition. Member Homan noted that Sections 36, 37 and 38 in their current form entitle workers who have been incapacitated by an injury to an amount of weekly compensation which is a percentage of their PIAWE.
Likewise in this case, the Applicant has not pointed to any statutory basis for his submission that he is entitled to 100% of his indexed PIAWE. As the Applicant’s entitlements to weekly compensation are based on the Workers’ Compensation Act 1987 and the Workplace Injury Management Act & Workers’ Compensation Act 1998, there is no entitlement to 100% PIAWE without a statutory basis.
In fact, the Workers’ Compensation Act 1987 is quite specific – entitlements pursuant to Sections 36, 37 and 38 are a percentage of the Applicant’s relevant PIAWE (as indexed). The maximum entitlement is 95% which is during the Section 36 period and thereafter he is only entitled to 80% of the relevant PIAWE.
The Applicant has not relied upon any authority as a basis for his proposition that he is entitled to 100% of his PIAWE (as indexed).
Applicant’s Counsel in paragraph 32 of his written submissions notes that Member Homan declined to exercise her discretion in the manner submitted by him. He refers to ‘That limit on compensation for a single incapacity was not seen as relevant by the courts in the other cases’. He does not however identify the other cases he is referring to.
It is the Respondent’s submission that the Applicant’s entitlement to further weekly compensation (if any) and which is disputed in any event, is limited by statute as referred to above.
In respect of paragraph 33 of the Applicant’s submissions, there were indeed cases prior to Freeth – see Purkiss and Dous referred to above.”

Consistent with the determinations in Freeth, Purkiss and Dous by other Members of the Commission, by which I am not bound, but with which I agree, I find that the issue of the discretionary operation of s 46 does not need to be notified as a ground of dispute. It is sought to be brought into play by the respondent after a determination on liability for injury to prevent dual benefits of weekly compensation being paid by the respondent to the applicant in circumstances where he is already in receipt of payments of weekly compensation for all relevant periods of the claim based on total incapacity.
As Deputy President Roche said in Baker v NSW Polce Force [2010] NSWWCC PD 10 at 24-26:
“24. Mr Baker’s position is that his entitlements flow from the receipt of an injury, as defined in section 4 of the 1998 Act, and, if total or partial incapacity for work results from an injury, the compensation payable by the employer shall include a weekly payment during the incapacity (section 33 of the 1987 Act). The respondent’s denial of liability gives rise to a dispute ‘in connection with a claim for compensation’ (section 287 of the 1998 Act). Therefore, so it is argued,
Mr Baker is entitled to have the Commission determine the dispute and it is not open to the respondent to argue that Mr Baker’s physical and psychological conditions are ‘a single injury within the meaning of s. 4’ (Mr Baker’s submissions at paragraph 20). It “must be”, it is submitted, that the two conditions are separate and distinct injuries bearing separate and distinct incapacities. A worker suffering an injury from which incapacity flows is entitled to an award (Sydney City Council v Ince (1989) 16 NSWLR 690 (‘Ince’) and Nowakowska v Home Care Services of NSW [2008] NSWWCCPD 62 (‘Nowakowska’)).
25. The authorities of Ince and Nowakowska refer to the circumstances where a worker may be entitled to two awards of weekly compensation (one for partial incapacity and the other for subsequent total incapacity). They do not suggest that a worker is entitled to two separate payments for two total incapacities. Given the facts in the present case, it is difficult to see how Mr Baker could be entitled to two payments for two separate total incapacities. If a worker is being compensated on the basis of an accepted total incapacity for a physical injury or injuries, it is not possible to be further totally incapacitated (in a legal sense), and further compensated, as a result of a concurrent psychological condition.
26. It therefore follows that there is no “compensation at issue” on appeal because Mr Baker cannot recover any more than he is currently being paid. In these circumstances, the appeal does not satisfy the monetary threshold in section 352(2) and leave to appeal is refused.”
As Deputy President Roche said again in State of NSW v Stewart [2015] NSWCCPD1 at 96 and 97:
“96 With regard to the multiple concurrent awards for total incapacity, I note that it is impossible for a worker to recover multiple concurrent awards for total incapacity (Baker v NSW Police Force [2010] NSWWCCPD 10 at [25]). Once a worker is totally incapacitated because of an injury, it is impossible to suffer a second total incapacity, covering the same period, as a result of a separate injury. That is because, by definition, the first injury has eliminated the worker’s capacity to earn. Once that capacity is gone, it cannot be further reduced.
97. However, as explained in Le, it may be possible, in the appropriate case, to recover an award for partial incapacity for one injury and a later award for total incapacity for a second injury. In that event, once the award for total incapacity was entered, the award for partial incapacity would usually be reduced to a nominal figure in the exercise of the s 40(1) discretion. That situation does not arise in the present matter.”
Although Deputy President Roche was dealing with cases unaffected by the 2021 amendments, his approach to cases where the only incapacities suffered as a result of separate injuries are all total incapacities, still represents good law.
Here the applicant says he didn’t know he had to meet this application under s 46 to exercise a discretion to reduce weekly payments to prevent dual benefits being paid to the applicant, he can’t meet this application now as he would have brought evidence that the separate injuries have resulted in separate and distinct incapacities. With respect to the applicant it is for him to prove his case in circumstances where he is asking the Commission to award him weekly benefits based on a total incapacity for employment as a result of a primary psychological injury in circumstances where he is already being paid weekly benefits on the basis of a total incapacity as a result of an accepted physical injury and secondary psychological condition.
A worker should not be doubly compensated.
In any event it is inconsistent with authority that an injured worker can receive weekly benefits as a result of total incapacity for one injury and then weekly benefits for total incapacity for an injury that is deemed to have occurred at a later. I exercise my discretion under s 46 to prevent the applicant receiving dual benefits of compensation during the periods of total incapacity where they overlap.
This means that my order will be as follows:
(a) the respondent pay the applicant as a result of primary psychological injury deemed to have occurred on 12 September 2024 at the rate of $1,282.33 from
12 September 2024 to 12 December 2024 and thereafter at the rate of $1,079.86 per week as indexed from 13 December 2024 to date and continuing;
(b) under s 46 of the 1987 Act the weekly compensation payable to the applicant is reduced by the amounts already paid or being paid by the respondent to the applicant for weekly compensation in respect of the physical injury, and
(c) the respondent pay the applicant’s s 60 expenses as a result of primary psychological injury on production of accounts, receipts and/or Medicare Notice of Charge.

[2025] NSWPIC 460

5 September 2025