Ivanovic v Mullungeen Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ivanovic v Mullungeen Pty Ltd [2024] NSWPIC 56
APPLICANT:	Stefan Ivanovic
RESPONDENT:	Mullungeen Pty Limited
MEMBER:	Paul Sweeney
DATE OF DECISION:	12 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 for a primary psychological injury; common ground that worker suffers from a somatic symptom disorder, a secondary psychological injury, and a major depressive disorder; worker argues that the latter condition is a primary psychological injury; employer argues that as it came on several months after the injurious incident in response to severe pain and disability it is also a secondary psychological injury and is not compensable by reason of section 65(2); Romanous Constructions Pty Limited v Arsenovic and JB Metropolitan Distributors Pty Limited v Kitanoski considered; Held – that the major depressive disorder caused by both reaction to the injurious event and by reaction to pain and disability.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffers from a primary psychological injury as a result of injury on 4 April 2019 namely major depressive disorder. 2. The applicant also suffers from a secondary psychological injury namely a somatic symptom disorder. 3. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of a primary psychological injury on 4 April 2019 bearing in mind the secondary psychological condition. 4. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, and a copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Stefan Ivanovic (the applicant) was formerly employed by Mullungeen Pty Limited (the respondent) at the Orchard Hotel, Chatswood where his duties included taking food to customers at their table.
On 4 April 2019, the applicant slipped and fell while descending stairs at the hotel. The applicant has complained of debilitating back and leg pain, which have been resistant to treatment since the injury. He has been treated by a neurologist, an occupational physician, a psychiatrist, and several pain specialists who have diagnosed a chronic pain syndrome superimposed on the applicant’s physical injury. He has been unable to return to work.
It is common ground that the applicant suffers from a secondary psychological injury which can be categorised as a somatic symptom disorder.
The applicant alleges, however, that he also suffers from a primary psychological injury in the form of a major depressive disorder with panic attacks. The respondent disputes the diagnosis of the primary psychological injury. It does so on the basis of the opinion of Dr Dayalan, a psychiatrist who opined that the applicant’s symptoms “were consequent to the persistent pain and significant impairment in functioning”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a primary psychological injury.
When the matter came on for a conciliation conference and arbitration hearing in the Personal Injury Commission (Commission) on 14 December 2023, Mr Daley, of counsel, appeared for the applicant and Mr Malouf of counsel appeared for the respondent. I was informed by counsel that they were unable to resolve the threshold issue of whether the applicant suffered a primary psychological injury. I am satisfied that the parties who were represented by experienced counsel had ample opportunity to resolve the issue in the conciliation conference but were unable to fashion a mutually acceptable resolution of the issue in dispute.

EVIDENCE

The documents before the Commission are as follows:
(a) the Application to Resolve a Dispute (Application) and the documents attached, and
(b) the Reply and the documents attached.
After the conclusion of submissions, the applicant sought to admit, the clinical records of a general practitioner, Dr Patel, which had not been attached to the Application or otherwise admitted into evidence in these proceedings. Mr Malouf objected to the tender of the document. He submitted that the respondent would be prejudiced by the admission of the clinical notes. He argued that if the notes had been available to the respondent prior to the arbitration hearing, it could have obtained the opinion of a qualified medical practitioner on their significance.
As the case had been argued on the basis of the evidence admitted at the commencement of the arbitration hearing, I rejected the tender of the notes. The admission of the notes would probably necessitate lengthy adjournment and almost certainly lead to reopening of submissions. It was open to the applicant to withdraw the Application and recast his evidence if counsel thought it was appropriate to do so.
There was no objection to any of the material referred to in [7] above and no application to adduce further written or oral evidence.
At the conclusion of submissions I issued a direction to the parties to lodge and serve a document citing and, if appropriate briefly stating the ratio of two cases from the Presidential Unit of the Commission, Romanous Constructions Pty Limited v. Arsenovic[1] and JB Metropolitan Distributors Pty Limited v Kitanoski.[2] Mr Daley had referred to the latter case and I had raised the former case during argument. Mr Daley provided a comprehensive list of the cases that had applied these authorities. I assume that the respondent accepted that it was a complete list of the relevant case law.
[1] [2009] NSWWCCPD 82 (17 July 2009) (Arsenovic).
[2] [2016] NSWWCCPD 17 (3 March 2016) (Kitanoski).

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel in these short reasons. Both parties relied on the opinions of the specialist psychiatrist qualified for the purpose of these proceedings, Dr Michael Hong, who provided a report to the applicant’s solicitors dated 6 May 2022, and Dr Sathish Dayalan who provided reports to the respondent’s solicitor of 24 August 2020 and 13 April 2023.
Mr Daley argued that the opinion of Dr Hong was consistent with both the evidence of
Mr Amani, the applicant’s treating psychologist, and the written evidence of the applicant. Both recorded psychological symptoms at the time of the injury which were a reaction to the incident. Mr Amani had diagnosed these symptoms as a sub-clinical post-traumatic stress disorder. Subsequently, he had expressed the opinion that the applicant suffered from major depression, somatic symptom disorder and post-traumatic stress disorder. The latter condition is only consistent with a primary psychological injury.
Mr Malouf submitted that there was no corroborative evidence of a primary psychological injury in the evidence, which was brought into existence contemporaneously with the incident, including the ambulance report, the notes of the Northern Beaches Hospital, or the notes of the applicant’s general practitioners brought into existence following the injury. The applicant had not been referred to a psychologist for many months following the injury.
The absence of any recorded history of symptoms consistent with a psychological reaction to the incident, as opposed to the development of chronic pain following it, cast doubt on the assertions made by the applicant in his written evidence. Further, a careful consideration of the language used by the medical practitioners and psychologists in their written evidence conveyed the impression that the applicant’s condition was consequential on his chronic pain.
Mr Malouf submitted that, in the circumstances of this case, where the doctors had concluded that the applicant suffered from specific diagnoses assessed in accordance with the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition (DSM-5), it was critical that I made a finding of the specific psychiatric condition/s from which the applicant suffered, if I found a primary psychological injury. A finding of the primary psychological injury without determining the nature the of injury made little sense in the context of the evidence in this case.
While Mr Malouf submitted that the absence of evidence from a general practitioner who treated the applicant immediately following the injury was a significant flaw in the applicant’s case, he objected to the tender of the documents which were presumably tendered for the purpose of curing that defect. As I rejected the tender of the notes, however, it is inappropriate to speculate as to what they may have recorded.
It will be necessary to return to this and the other submissions of counsel in resolving the dispute between the parties. It is first necessary, however, to compendiously set out the evidence of the applicant, Dr Hong and Dr Dayalan. What follows is not intended to be a comprehensive survey of their evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

The applicant

By his written statement dated 12 September 2023, the applicant recounts the fact of his fall while descending the steps at the Orchard Hotel on 4 April 2019. He states that he felt “embarrassed and self-conscious and tried to laugh it off but stopped immediately because I felt a sharp pain in my back”. He continues:
“I tried to get myself up but was having difficulty controlling my legs and I went into shock. At that point I became extremely worried about the severity of my injury and began to panic.”
The applicant continues:
“I felt very confused at this point as my mind was racing. I was concerned about the severity of my injury and the fact that I was continuing to have trouble getting myself up. I felt scared and I was freaking out.”
The applicant recounts that he went with a colleague to the surgery of Dr Patel which was only about 35m away. However, he was “only able to walk very slowly at this stage because of the back pain and my fear of a severe injury”.
On the way back to the hotel the applicant was “struggling to walk and continued to feel very anxious.”
The applicant records that he consulted Dr Artinian on 8 April 2019. He states:
“I first experienced nightmares and flashbacks after returning from hospital on 4 April 2019. They involve me falling over again and reliving the original pain. I take a step down and I slip hitting my back on each step down.
I also experience nightmares of me falling backwards into darkness unable to get up. I wake up in panic covered in sweat with pain in my chest and difficulty breathing. At these times I have a feeling of impending doom.
I also experience what I call sleep paralysis. At such times I am petrified by my inability to move while lying awake. My eyelids feel like a ton of bricks and I panic with difficulty breathing. When I am able to move after about 30-45 minutes (which feels like hours when it is happening) I sit on the side of my bed and experience a further wave of panic.”
The applicant also states that ever since the injury he has experience “sudden panic attacks”. He experiences a fear of “having to climb 3 steps to get to the bathroom”. He experiences anxiety and flashbacks as he descends the stairs. He also experiences anxiety when at the front door of his house which he attributes to the presence of steps. He requires assistance to go to a destination which does not have a flat surface or ramp. He continues:
“When I am out in public I have a fear that I will fall or slip down on the ground or fall on a small step and hurt my back even more or injure other body parts. The fear is very strong when I am experiencing panic attacks in public and my legs become so weak that I feel I will fall.”
The applicant says that he is frustrated and angry at requiring the assistance of others. He is also fearful of “never making a full recovery”. He sees others live out their lives while he is “stuck unable to move withering away”.
The applicant recounts his frustration with the workers compensation insurer of the respondent which cancelled both his physiotherapy and psychological treatment. He states that he has undergone the pain program at the Royal North Shore Hospital which alleviated his depression. However, he states:
“It did not improve me over all and the pain program did not help me in the end to get back to work, which made me even more depressed and anxious about my future as I was really hopeful it would work.”
The applicant sets out the medications he has been prescribed for pain and for depression, his development of constipation and stomach cramps, and his referral to and treatment by a gastroenterologist, Dr Tu on 3 June 2021.
The applicant says that he experienced nausea and vomits regularly. He says that he soils himself “a couple of times a month.” He says that he experiences difficulty in using public bathrooms “due to my accident”.

Dr Michael Hong

Dr Hong recorded that following the injury the applicant was in severe pain and could not get up. He was “in shock,” anxious, and scared while visiting his general practitioner and on admission to the Northern Beaches Hospital.
Dr Hong recorded that the applicant remained physically debilitated despite extensive treatment. He could only sit for five minutes and “struggles to walk 10 minutes”. He recorded that the applicant would not be able to bend over to pick up his phone from the ground. He remained severely depressed and anxious, experienced palpitations and anxiety when near stairs. He was unable to use stairs on his own “both because of his poor mobility and because of his anxiety.”
Under the heading “Current symptoms”, Dr Hong recorded that the applicant experienced impairment of memory and concentration and felt anxious and had panic attack like symptoms, had intrusive memories of the subject accident causing anxiety, and avoided social situations due to his anxiety. After carrying out a mental state examination and reviewing the medical evidence, Dr Hong expressed the opinion that the applicant suffered two diagnoses consistent with the criteria in DSM-5. They were a major depressive disorder with panic attacks and a somatic symptom disorder with predominant pain. He said this:
“Mr Ivanovic has developed a primary psychological injury which commenced immediately after the fall and persisted in the form of Major Depressive Disorder with panic attacks.
He has Somatic Symptom Disorder and this is a secondary psychological injury which developed some months after the accident.”
Dr Hong thought that the applicant’s prognosis was poor. He assessed him as suffering from 22% whole person impairment (WPI) as a result of the primary psychological injury.

Dr Sathish Dayalan

Dr Dayalan initially saw the applicant on 17 August 2020. He recorded that following the injury the applicant had been “frustrated by the associated functional impairment and being dependent upon others”. He was unable to pick things up from the ground. He required assistance to shower and was limited in his ability to perform household chores. The doctor continued:
“Mr Ivanovic had noted a decline in his mental state in the latter part of 2019. He acknowledged that his mental state fluctuated, and he noted a brief period of improvement in his mental state when his knee pain had reduced from engaging in hydrotherapy. He believed that his mental state would improve if the back injury was resolved. He believed that the symptoms from the back injury and the associated functional improvement were the main cause of his psychiatric symptoms.”
Dr Dayalan recorded that the applicant was anxious about his future, experienced panic attacks once a week, and experienced nightmares and flashbacks related to the injury “on an occasional basis”. He was anxious when climbing stairs and described increased startle response to loud sounds.
Dr Dayalan diagnosed an adjustment disorder with mixed anxiety and depressed mood. He said this:
“His presentation and description of symptoms would not warrant a diagnosis of Post Traumatic Stress Disorder (PTSD) at this stage but I agree that he manifests some of the symptoms noted in PTSD.
Mr Ivanovic describes somatic symptoms that are quite distressing and results in significant impairment in his functioning. He was noted to have a high level of anxiety about his health and appeared to be pre-occupied with the physical symptoms associated with the injury. He had these symptoms more than 6 months. Mr Ivanovic would fulfil the diagnostic criteria for Somatic Symptom Disorder with predominant pain.”
In respect of causation, Dr Dayalan said the following:
“The back injury sustained at the workplace and the consequent symptoms and impaired functioning appear to have resulted in depressive and anxiety symptoms and also symptoms of Somatic Symptom Disorder.
The injury at the workplace, the personality vulnerability and the concerns regarding his brother’s health would be regarded as causes for Mr Ivanovic’s psychiatric diagnoses.”
He concluded that the physical injury “would be regarded to be the substantial contributory factor to his Adjustment Disorder and Somatic Symptom Disorder”.
Dr Dayalan saw the applicant again on 31 March 2023. He again recorded that the applicant said that his “mental state deteriorated about 3 months after the accident”. He stated that he had “lost the capacity to do everything”. He said that “I can’t do anything now.” None of the treatments which he had received had been effective. Dr Dayalan recorded the following:
“In comparison to his mental state at the time of my last assessment, Mr Ivanovic indicated that his mental state has deteriorated. He explained the persistent nature of the pain, lack of response to treatment for his physical injury and ongoing impairment in his functioning had contributed to the deterioration in his mental state. He repeated that he required assistance for simple day to day tasks.”
His physical health had deteriorated so that he “can’t even get out of bed”.
Dr Dayalan diagnosed a somatic symptom disorder with predominant pain and a major depressive disorder. He expressed the opinion that “based on the history provided by
Mr Ivanovic, his psychiatric condition would be regarded as a secondary psychiatric condition, therefore a permanent impairment assessment cannot be made”. He continued:
“I vary on the opinion provided by Dr Hong in that Mr Ivanovic’s account of symptoms both in my initial assessment and subsequent assessment indicated that they were consequent to the persistent pain and significant impairment in functioning.”

LEGISLATION

Section 65A of the 1987 Act, which deals with psychological and psychiatric injury, is, insofar as it is relevant, as follows:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury no regard is to be had to any impairment symptoms resulting from secondary psychological injury.”
A primary psychological injury is defined to mean a psychological injury that is not a secondary psychological injury. A secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

DISCUSSION AND FINDINGS

It is common ground that the somatic symptom disorder diagnosed by both Dr Dayalan, Dr Hong, and, belatedly by Mr Amani, is a secondary psychological injury. While this psychiatric categorisation is not entirely consistent with the applicant’s history of developing very severe and disabling symptoms in his back and leg at the time of the injury, it would be inappropriate to resolve the issues in dispute on a basis that was not put by either party. In any event, chronic pain other than proven chronic regional pain syndrome (CRPS) is not assessable under the NSW workers compensation guidelines for the evaluation of permanent impairment. There is no suggestion that the applicant suffers from CRPS.

The case law to which I was referred included the decisions of the Presidential Unit in Cannon v The Healthy Snack People Pty Limited[3] and, more recently, Qannadian v Barter Enterprises Pty Limited.[4] The principles that arise from these cases, and the decisions in Arsenovic and Kitanovski, do no more than state that a primary psychological injury arises from a worker’s perception of the injurious incident and is, therefore, extrinsic to the physical sequelae of injury sustained in that incident. Secondly, whether or not there is a primary psychological injury is to be determined on the basis of all the evidence in the case.
[3] [2009] NSWWCCPD 32.
[4] [2016] NSWWCCPD 50 (18 October 2016).
Other than the qualified psychiatrists, the only specialist psychiatrist whose report is in evidence is that of Dr Singer, dated 17 September 2020. Dr Singer saw the applicant as part of his treatment at the Michael J Cousins Pain Management and Research Centre at Royal North Shore Hospital. By his report of 17 September 2022, he recorded that the applicant was physically active prior to his injury but had not returned to his hobbies. The applicant presented on a Canadian crutch. The doctor recorded that:
“He has prominent anxiety symptoms including panic attacks once a week which can be triggered by thinking about his situation. He describes a constellation of physiological symptoms of anxiety.”
The doctor recorded that the applicant presented with “chronic low back pain and left leg pain against the background of generalised anxiety disorder with panic.”
While the applicant’s treating psychologist, Mr Amani, diagnosed a “subclinical” post-traumatic stress disorder, neither of the psychiatrists qualified by the parties diagnosed that condition. Dr Dayalan explicitly rejects it and Dr Hong does so implicitly. Conversely, they both accept that the applicant has a major depressive disorder. Dr Hong asserts the major depressive disorder came on at the time of the incident and is a primary psychological injury. Dr Dayalan maintains that it developed subsequent to the injury as a response to the applicant’s pain and severe disability as a secondary psychological injury.
The applicant probably first saw Mr Amani, on referral from Dr Artinian, on 19 September 2019. He diagnosed a major depressive disorder and sub-clinical post-traumatic stress disorder. He recorded that the applicant suffered from severe anxiety, flashbacks, uncontrollable thoughts, nightmares, hyper arousal symptoms which included feeling tense, being startled easily and having trouble sleeping.
Mr Daley argued that the latter certificates of Mr Amani diagnose a full-blown post-traumatic stress disorder. But on reading those certificates, I doubt that this is the case. Certainly, as time progressed, Mr Amani added a diagnosis of somatic symptom disorder to the previously diagnosed major depression and “sub-clinical” post-traumatic stress disorder. However, he continues to refer to “subclinical” post-traumatic stress disorder as his formal diagnosis.
It is true, as Mr Malouf argued, that the notes of Dr Artinian, including the entries in those notes made by Dr Patel on 8 and 10 April 2019, do not refer to psychological symptoms prior to the doctor referring the applicant to Mr Amani, probably on 28 August 2019. It also follows, as Mr Malouf submitted, that there is no corroboration for the applicant’s complaints of psychological symptoms immediately following the incident.
Mr Malouf argued that this raised an issue as to the applicant’s reliability. However, a review of the applicant’s history and the entirety of the medical evidence does not provide an obvious basis to reject the applicant’s evidence. Certainly, there is some difference in emphasis in the history recorded by Dr Dayalan in August 2020 and that recorded by Dr Hong in 2023. Dr Dayalan recorded nightmares and flashbacks related to the injury “on an occasional basis”, anxiety when the applicant had to climb stairs, and a startle response when exposed to loud noise. These matters are accentuated in the applicant’s statement and in the history recorded by Dr Hong. That may relate to the questions posed by Dr Hong and the drafter of the applicant’s statement or to the worsening of these symptoms over the three year period since the applicant was examined by Dr Hong or to a combination of both. They do not necessarily reflect on the applicant’s reliability.
Equally, the absence of recorded complaint of psychological symptoms contemporaneously with the injury does not have the same impact in a psychological case as it does in a case of physical injury. The case law establishes that psychological symptoms can arise after the precipitating event. Importantly, medical practitioners often do not record psychological symptoms when treating what they rightly perceive to be a significant physical injury.
While the constellation of symptoms suffered by the applicant may raise some doubt as to his reliability, only one medical practitioner, Dr Truskett, among the large number of specialist that the applicant has seen, suggests the possibility of conscious exaggeration. In this case, there was no application to cross-examine the applicant. Given what I have recorded in the paragraphs above, I have concluded that there is no firm basis for Mr Malouf’s attack on the applicant’s reliability.
While classification of the applicant’s psychological condition in accordance with DSM-5 is seemingly artificial, it is necessary on a medical assessment as a precursor to the certification by a medical assessor of WPI. From a legal perspective, it may be important in determining whether the worker is suffering from a psychological injury as opposed to distress, frustration or anger. It is unlikely, however, that a worker perceives that he is suffering from a condition that can be compartmentalised into several different diagnoses. The classification of the diagnosis also places the Commission in a difficult position. The determination of the DSM-5 diagnoses were developed to assist specialist psychiatrists diagnose and treat psychiatric patients and not for legal purposes.
In this case, however, the qualified psychiatrists are, ultimately, in agreement that the applicant suffers a major depressive disorder. No other, diagnosis is contemplated. While Dr Singer refers to anxiety symptoms including panic attacks in 2022, he does not attempt to make a formal diagnosis. In the circumstances of this case there is no basis to reject this diagnosis. The question is what caused the major depressive disorder?
A striking feature of the medical evidence is the extreme pain perceived by the applicant at the time of the injury and it’s dramatic effect on his activities of daily living. His has been resistant to all forms of treatment. The applicant is precluded by pain from sitting for more than a few minutes, from bending, from lifting all but the lightest of weights, and for standing for more than 10 minutes. He wakes each morning in pain, he is unable to undertake household chores and some aspects of personal hygiene because of his perceived symptoms.
The applicant presented at the arbitration hearing in much the same way as he is presented to medical practitioners over the last several years. He was unable to remain in the room because of pain. His pain may have a physical basis, although the intensity and duration of the pain is difficult to explain on a physical basis.
There can be little doubt, as Dr Dayalan concluded, that the intensity of the pain experienced by the applicant materially contributed to the development of the major depressive disorder. The applicant has repeatedly stated that the gross restrictions of his physical activities caused by pain are at the forefront of his concerns. As recorded above he is “frustrated and angry” at requiring the assistance of others and fearful of “never making a full recovery”. He sees others live out their lives while he is “stuck unable to move withering away”.
Plainly, these concerns relate to the applicant’s perceived physical symptoms and restrictions. The physical symptoms restrict every aspect of his activities of daily living and impair to some extent each of the categories in the psychiatric impairment rating scales. The applicant is plainly unable to work and is grossly restricted in self-care, social and recreational activities, and travel.
However, as I have recorded above there are aspects of the applicant’s symptom complex that appear to be a reaction to the injurious event rather than his physical symptoms. Dr Dayalan recorded that the applicant experienced nightmares and flashbacks related to the injury “on an occasional basis”. He was anxious when climbing stairs and described increased startle response to loud sounds. The applicant’s statement suggests that the symptoms may have become prominent as time progressed. In addressing this aspect of the history, Dr Dayalan accepted that the applicant manifested some of the symptoms of post-traumatic stress disorder, although the symptoms were not sufficient to warrant the assignment of that DSM-5 classification.
Dr Dayalan’s conclusion is similar to the approach taken by Mr Amani. It follows that all the psychiatrists accept that there are aspects of the applicant’s presentation that are reactive to the initial injury as opposed to its sequelae.
Doing the best I can on the evidence, I would differ from Dr Hong’s opinion in one material respect. I find on the evidence and, in accordance with the Dr Dayalan’s opinion, that the applicant’s reaction to his physical symptoms materially contributed to his major depressive disorder. However, I accept Dr Hong’s opinion that the applicant’s reaction to the injurious event also contribute to the major depressive disorder. This is probably consistent with Mr Amani’s view. It is not inconsistent with Dr Dayalan’s view that the applicant manifested some of the symptoms of post-traumatic stress disorder. However, for reasons given above I would discount Dr Dayalan’s hypotheses that these symptoms cannot be characterised as a primary psychological injury because they arose some months after the incident.
The law is familiar with injury, including psychiatric injury, having multiple causes.[5] A diagnosis is not an injury. But plainly it can have multiple causes. On the evidence, I am inclined to find that the applicant experienced nightmares, flashbacks, startle response, and the other psychiatric symptoms which flow directly from the incident constitute a primary psychological injury. These symptoms materially contributed to the applicant’s major depressive disorder. I find that the applicant’s major depressive disorder was caused both by his reaction to the incident and by his reaction to his physical injuries. Thus, the major depressive disorder is a manifestation of both a primary and secondary psychological injury.
[5] See Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (20 December 2019).
From my perspective, the secondary psychological aspect of the injury is overwhelming and accounts for the largest part of the applicant’s psychological dysfunctionality. However, as the claim before the Commission is solely for permanent impairment, the function of the Commission is to determine liability issues. They include the issue of injury and the nature of the injury, although it is not always incumbent on the Commission to precisely identify the injury. Whether or not the applicant has permanent impairment, whether the impairment results from a secondary psychological injury or from a primary psychological injury, and what adjustments should be made for a pre-existing condition or supervening events are matters solely within the jurisdiction of a Medical Assessor. As my findings are quite different to the assumptions on which Dr Hong founded his assessment of WPI, the assessment of WPI should be determined by a medical assessor
I intend to find that as a result of the injury on 4 April 2019 the applicant suffers from a somatic symptom disorder, which is a secondary psychological injury, and a major depressive, which is a primary psychological injury, but which also arose from the applicant’s physical injuries. Having found a primary psychological injury, I intend to remit the matter to the President for referral to a Medical Assessor to certify the degree of permanent impairment as a result of the primary psychological injury having regard to the fact that the applicant also has a secondary psychological injury. The Medical Assessor is to have access to the Application and the Reply and a copy of these reasons.

[2024] NSWPIC 56

12 February 2024