Jennings v Pattison Pastoral Butchery Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jennings v Pattison Pastoral Butchery Pty Ltd [2025] NSWPIC 67
APPLICANT:	Debbie (Deborah) Jennings
RESPONDENT:	Pattison Pastoral Butchery Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	4 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 in respect of primary psychological injury not disputed by the respondent; the respondent claimed that the applicant also sustained a secondary psychological injury as a result of physical injuries sustained by the applicant arising out of or in the course of her employment with the respondent; the occurrence of the physical injuries was not disputed by the respondent but based on what Campbell J found at [20]-[22] in State of New South Wales (NSW Department of Education) v Kaur; submitted that there must be a determination on whether the applicant sustained a secondary psychological condition in addition to the primary psychological injury; Held – the Commission accepted that there must be such determination; detailed examination of contemporaneous treating medical evidence and the opinions of Independent Medical Examiners considered together with the applicant’s evidence; determination that the applicant had sustained a secondary psychological condition as a result of the undisputed physical injuries suffered in the course of the applicant’s employment with the respondent; matter remitted to the President for referral to a Medical Assessor (MA) for assessment of whole person impairment as a result of primary psychological injury; Certificate of Determination and Statement of Reasons to accompany the referral to the MA.
DETERMINATIONS MADE:	The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of primary psychological injury deemed to have occurred on 27 December 2022. 2. The applicant suffered a secondary psychological condition as a result of physical injuries sustained on 21 November 2022 arising out of or in the course of her employment with the respondent. 3. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Lodge Additional Documents dated 18 February 2025 and attached documents lodged by the respondent; (d) Application to Lodge Additional Documents dated 19 February 2025 and attached documents lodged by the applicant, and (e) this Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Debbie (Deborah) Jennings (the applicant/Ms Jennings) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of her employment as an apprentice butcher with Pattison Pastoral Butchery Pty Ltd (the respondent), deemed to have occurred on 27 December 2022, the date on which she ceased work for the respondent.
The psychological injury is claimed to be as a result of work related stressors within the applicant’s employment with the respondent.
In a notice issued to the applicant on 17 September 2024 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the respondent’s insurer, icare, does not dispute that Ms Jennings suffered from a primary psychological injury on 27 December 2022 as claimed, but alleges that she also suffered from a secondary psychological condition.[1] This allegation is based on an opinion of Dr Bisht, psychiatrist, who independently medically examined the applicant via Telehealth at the request of the respondent on 17 July 2024 and produced a report to the respondent’s solicitor dated
[1] Application to Resolve a Dispute (ARD) p 14.
[2] Reply p 1.
30 July 2024.[2]
The secondary psychological condition is claimed to have arisen as a result of physical injuries suffered by the applicant on 21 November 2022 in the course of her employment with the respondent. On that day, Ms Jennings injured her back and shoulder(s) whilst lifting heavy boxes of meat weighing about 25kg onto high shelving, above shoulder height, due to an apparent impending flood of the shop premises in which she was working.
There is no dispute as to the occurrence of the physical injuries suffered by the applicant on 21 November 2022.
Ms Jennings consulted Dr Silva of the Deniliquin Medical Centre on 9 January 2023 in respect the physical injuries suffered on 21 November 2022. Dr Silva planned to organise X-rays, and also referred the applicant to a psychologist for treatment of the triggering of a pre-existing post traumatic stress disorder caused by the aggressive approach of a new butcher in the respondent’s employ.[3]
[3] Application to Lodge Additional Documents 18 February 2025 (ALAD 18 February 2025) p 49.
The applicant subsequently came under the care of Dr Lim, general practitioner, who she first consulted on 2 March 2023.[4] Dr Lim concluded that Ms Jennings had sustained left shoulder and low back injuries due to repetitively lifting heavy boxes above shoulder height at work, resulting in chronic pain causing an adjustment disorder.
[4] ARD p 61.
The applicant was independently medically examined via videoconferencing by
Dr Kumagaya, consultant psychiatrist, at the request of her solicitor on 7 November 2023.
[5] ARD p 37.
[6] ARD p 33.
Dr Kumagaya produced a report dated 7 November 2023,[5] and a supplementary report dated 12 October 2024.[6]
In his report dated 7 November 2023 Dr Kumagaya diagnosed that Ms Jennings had sustained major depressive disorder with anxious distress, which was a primary psychological injury sustained as a result of her employment with the respondent. In his supplementary report dated 12 October 2024 Dr Kumagaya commented on the opinion of
Dr Bisht in his report dated 30 July 2024, expressed the opinion that the applicant did not sustain a secondary psychological injury, and refuted the assessment by Dr Bisht of a 50% apportionment of the applicant’s psychosocial impairment to such alleged secondary psychological injury.
The applicant does not accept that she sustained a secondary psychological condition as a result of the physical injuries sustained on 21 November 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant sustain a secondary psychological condition as a result of the physical injuries she sustained on 21 November 2022 arising out of or in the course of her employment with the respondent?
(b) What are the terms of remittal of the matter to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of the primary psychological injury the applicant is deemed to have suffered on
27 December 2022?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 25 February 2025 conducted via video conference. Ms Warren of counsel appeared for the applicant briefed by Ms Harrison. The applicant attended separately. Mr Stiles of counsel appeared for the respondent briefed by Ms Whiting. A representative of the respondent’s insurer also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 18 February 2025 and attached documents lodged by the respondent (ALAD 18 February 2025), and
(d)    Application to Lodge Additional Documents dated19 February 2025 and attached documents lodged by the applicant (ALAD 19 February 2025).

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary they are as follows.

Applicant

The applicant notes her lengthy statement in support of her case dated 27 February 2023, a complete copy of which is attached to ALAD 19 February 2025. This provides evidence in support of the principal psychological injury she suffered in the course of her employment with the respondent which commenced in May 2022. The applicant’s supplementary statement dated 30 October 2024 sets out the ongoing symptoms from which she suffers as a result of the undisputed primary psychological injury.[7]
[7] ARD p 1.
The applicant submits that her claim is supported by what is contained in the consultation the applicant had with Dr Liebenberg at the Deniliquin Medical Centre on 9 June 2022, the first consultation after the commencement of Ms Jenning’s employment in May 2022.[8] This is evidence of the anxiety Ms Jennings was suffering due to the new Wi-Fi and the electronic till.
[8] ALAD 18 February 2025 p 49.
The applicant also notes her subsequent consultation with Dr Silva on 9 January 2023, the record of which commences on the same page of the clinical notes, which relates to the physical injuries suffered six weeks previously “…lower back pain 6 weeks ago when flooding…”. The reason for the visit includes a recording of “PTSD”, which does not refer to the currently claimed injury, but a pre-existing condition which was triggered by interaction with a new butcher. No symptoms of a secondary psychological condition are recorded in that entry in the clinical notes.
The applicant notes a subsequent entry in the clinical notes which records a consultation she had with Dr Liebenberg on 3 February 2023 which refers to the physical injuries sustained on 21 November 2022 when lifting heavy boxes.[9]
[9] ALAD 18 February 2025 p 51.
The applicant refers to a report of Dr Qin of Ochre Health Deniliquin Medical Centre dated
[10] ALAD 18 February 2025 p 79.
29 February 2024, being a referral to Shelley Connell of Enable Workplace Consulting for treatment and management of “…possible ongoing PTSD…” as a result of workplace bullying.[10]
The applicant refers to the report of Dr Lim dated 2 March 2023 (referred to above at [7]). The applicant submits that although Dr Lim refers to chronic pain and the deterioration of the applicant’s psychological state since her injury on 21 November 2022, he is a general practitioner and not a psychologist or psychiatrist. Dr Lim is the only practitioner other than Dr Bisht which would tend to support the inference of a secondary psychological injury. This report must be balanced with the remainder of the treating records in evidence, which all support a much stronger inference that there is no secondary psychological injury from this separate physical injury to the back and shoulders. There is no diagnosis from the treating psychologists in regard to a secondary psychological injury, or of such injury impacting the level of impairment that the applicant suffers as a result of the psychological condition.
The applicant refers to a subsequent report of Dr Lim dated 12 April 2023 in which he deals with the primary psychological injury, and does not attribute psychological symptoms to a secondary psychological condition.[11]
[11] ARD p 59.
The applicant refers to the report of Carl Nielsen, treating psychologist, dated 20 April 2023 which deals with her primary psychological injury and does not record any symptoms arising from a secondary condition arising from a physical injury.[12]
[12] ARD p 54.
The applicant relies on the reports of Dr Kumagaya dated 7 November 2023 and
12 October 2024, referred to above at [8]. The applicant notes that the doctor was aware of the physical injury to her shoulders and back she sustained on 21 November 2022 when he prepared his report, but does not comment on any psychological symptoms arising from such physical injury. The diagnosis is of a major depressive disorder with anxious distress, being a primary psychological injury sustained as a result of her employment with the respondent.
Dr Kumagaya says that the applicant’s work with the respondent was a substantial contributing factor to her psychological condition, and a disease condition, the main contributing factor to which was her employment with the respondent.
In his supplementary report dated 12 October 2024 Dr Kumagaya expresses his disagreement with the opinion of Dr Bisht, and rejects his finding that the applicant suffered a secondary psychological condition as a result of the physical injury she sustained.
Turning to the report of Dr Bisht dated 30 July 2024, the applicant submits that in answer to question [10] on p 10 of the report, there is a lack of explanation of the existence of a secondary psychological condition apart from reference to the physical injury in the workplace in November 2022 on p 4 of the report. Where the doctor lists the persisting psychological symptoms in 2022 as including the matters listed thereunder, there is no history of psychological symptoms emanating form the physical injury. The applicant submits that the doctor’s opinion as to the secondary psychological condition is not supported by the history recorded in his own report. This contrasts with he opinion of Dr Kumagaya who explains why he disagrees with Dr Bisht.
The applicant submits that the remittal of the matter to the President for referral to a Medical Assessor should simply be for the assessment of permanent impairment as a result of psychological injury deemed to have been sustained on 27 December 2022.
The applicant notes that the documents to be referred to the Medical Assessor should be those listed in [14] above and the Certificate of Determination and Statement of Reasons.

Respondent

The respondent refers to [17]-[18] of the complete copy of the applicant’s statement dated
27 February 2023 which sets out the circumstances of what occurred on 21 November 2022 when the applicant sustained physical injuries to her lower back and shoulders. She experienced symptoms in these areas of her body, and what is described therein should be looked at in the context of what was recorded by Dr Silva on the applicant’s attendance on him on 9 January 2023. The respondent submits that, while accepting that there is not a significant amount of material relating to the physical injuries as such, that clinical note confirms what the applicant says in her statement. Then, critically, reference should be made to the more detailed report of Dr Lim dated 2 March 2023, which sets out in more detail what the doctor says about the physical injuries.
The respondent notes that Dr Lim in the report lists the previous hobbies and activities in which Ms Jennings has been unable to participate, the financial stress she is exhibiting, and the fact that her psychological state had been deteriorating. He lists the applicant’s symptomatology and results of examination, including restricted right shoulder range of motion, and his “Conclusion/Causation”, which includes:
(a) that as a result of the work-related shoulder and back injuries that the applicant had suffered chronic pain causing adjustment disorder, and
(b) she was limited from working four days a week due to a separate psychological injury, and would only he able to work two days a week from a psychological perspective.
The respondent submits that it is apparent that Dr Lim knew of the separate psychological injury when he gave the report dated 2 March 2023. The respondent submits that, in an earlier clinical note of Dr Silva dated 9 January 2023[13] there is no reference by Dr Silva to a secondary psychological condition, is irrelevant. That is because such a condition takes time to develop and it had not manifested itself at that stage.
[13] ALAD 18 February 2025 p 49.
The respondent refers to the clinical note of Dr Tawadros dated 29 August 2023.[14] The respondent notes the listing by the doctor of the two injuries/conditions under “V1” (physical injuries to left shoulder, lumbar spine, and cervical spine), and “V2” (adjustment disorder). Under “Progress” Dr Tawadros lists the difficulties being experienced by Ms Jennings as a result of the physical injuries.
[14] ARD p 327.
The respondent then refers to the report of Dr Bisht dated 30 July 2025 which it submits contains a critical history of the secondary psychological condition. Under the heading “HISTORY OF INJURY”[15] the symptoms are listed to include those of a psychological nature which persisted in 2022 and gradually increased over the following few months. The applicant submits that these, together with what Dr Bisht refers to on the following page of his report (p 4 of the report) about the applicant’s workplace experiences and physical injury, are consistent with the restrictions noted by Dr Lim, such as the inability to go skiing or go to the markets, which Dr Lim says gave rise to the secondary psychological condition. They are also consistent with the restrictions recorded in the clinical note of August 2023 (Dr Tawadros).
[15] Reply p 3.
The respondent submits that these restrictions are consequences of the physical injuries and conditions the applicant sustained. The respondent accepts that there are a raft of other things that gave rise to her primary psychological injury, but Dr Bisht has come to the view that there were substantial ramifications that resulted from the physical injuries, but does concede that some of these may have resulted from the primary psychological injury.
Dr Bisht has applied a 50% reduction from his assessment of permanent impairment as being due to the physical injuries, but that is not something that has to be determined by the Commission, but will be a matter for the Medical Assessor. The respondent submits that
Dr Bisht has recorded a number of thing that the applicant was unable to do physically, consistent with the findings of Dr Lim.
In respect of the report of Dr Kumagaya, the respondent submits that in his first report dated 7 November 2023 the doctor briefly refers to the injury to the shoulders and back sustained by the applicant, but that this is a “throw away point”, and he does not deal with the secondary psychological condition caused by the physical injuries. Dr Kumagaya simply says that the applicant suffers from a primary psychological injury resulting from workplace events experienced by
Ms Jennings.
The respondent refers to the second report of Dr Kumagaya dated 12 October 2024, prepared without the benefit of a re-examination of Ms Jennings. The doctor is asked to comment on the s 78 notice and Dr Bisht’s report, and the question of a secondary psychological condition diagnosed by Dr Bisht. Dr Kumagaya says that he disagrees with
Dr Bisht, that there is a lack of evidence to support the finding of the secondary psychological condition, and that he disagrees with the apportionment. The respondent submits that
Dr Kumagaya has made no effort to delve into the comments in Dr Bisht’s report which support the finding of a secondary psychological condition. He has made no comment on the restrictions imposed on Ms Jennings and the psychological consequences thereof. He has not had the benefit of any further or updated history from the applicant.
The respondent submits that Dr Kumagaya has not seen the report of Dr Lim, but simply re-iterates his (Dr Kumagaya’s) opinion in respect of a primary psychological injury.

The respondent notes that the ongoing symptoms from which the applicant suffers are recorded in her second statement dated 30 October 2024, and that this evidence, considered along with the evidence of Dr Lim and Dr Bisht, is sufficient to allow a conclusion to be reached that Ms Jennings has sustained a secondary psychological condition as a result of her physical injuries.
The respondent submits that a finding as to whether or not the applicant has sustained a secondary psychological condition must be made by the Commission, and bases this submission on what was said by Campbell J at [20]-[22] in State of New South Wales (NSW Department of Education) v Kaur.[16] This was a judicial review application flowing from of a Medical Appeal Panel decision, the details of which were discussed by the respondent, and are referred to hereunder.
[16] NSWSC 246 (29 March 2016) (Kaur).
The respondent submits that the Medical Assessor to whom the matter is referred for assessment will take into account the secondary psychological condition from which the applicant suffers and make an apportionment between the degree of permanent impairment attributable to the primary psychological injury and secondary psychological condition, without any necessary regard the apportionment of Dr Bisht.
The respondent submits that the terms of the remittal of the matter to the President for referral to a Medical Assessor should be:
(a)    The matter is remitted to the President for referral to a Medical Assessor to assess permanent impairment as a result of psychological injury deemed to have been suffered on 27 December 2022.
(b)    The applicant sustained a secondary psychological condition as a result of physical injury on 21 November 2022 arising out of or in the course of her employment with the respondent.
(c)    The documents to be referred to the Medical Assessor are:
(i)ARD and attachments;
(ii)Reply and attachments;
(iii)Application to Admit Additional Documents dated 18 February 2025 and attached documents;
(iv)Application to Admit Additional Documents dated19 February 2025 and attached documents, and
(v)Certificate of Determination and Statement of Reasons.

Applicant in reply

The applicant refers to the two entries in the clinical notes of Dr Tawadros dated
29 August 2023 at 14:38:08 and 15:05:31 containing a reference to Ms Jennings being teary and agitated.[17] The applicant notes that the usual caution needs to be exercised in respect of clinical notes of treating doctors. The records refer to both claims, but the two entries on the same day do not refer to separate appointments, simply entered into the clinical notes separately. It is therefore more difficult to draw inferences as to what degree of psychological sequalae results from the physical injury as opposed to the psychological injury.

FINDINGS AND REASONS

[17] ARD pp 327-328.

State of New South Wales (NSW Department of Education) v Kaur

Kaur was a judicial review by Campbell J of a decision of a Medical Appeal Panel which had determined, on appeal from the assessment of an Approved Medical Specialist (now referred to as a Medical Assessor), that on the facts of that case the injured worker had not sustained a secondary psychological injury or condition.
Paragraphs [20]-[22] of Kaur are as follows:
“20.   Dr Martin’s reports do not raise the question whether Dr Kaur’s psychological injury is a secondary psychological injury. I have come to this conclusion because I am of the view that the definition of secondary psychological injury in s 65A (5) of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where ‘injury’ appears in the phrases, ‘secondary psychological injury’, ‘primary psychological injury’ and ‘physical injury’ it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.
21.    Accordingly, I am not persuaded that the Appeal Panel made the first error contended for by the Department. I should say, however, that it follows from this reasoning that if the Appeal Panel made an error of law in its expression of legal opinion at [37], that error of law was not dispositive of the appeal.
22.    Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] – [111] by Emmett JA, with Meagher and Ward JJA agreeing. At [111] his Honour said:
‘It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act [1987 Act]. The Commission must always determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act [1998 Act]. However, that jurisdiction is subject to the restriction contained in s 65(3) in the Compensation Act [1987 Act], which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that the medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act [1987 Act] in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7 [of the 1998 Act].’ [Original emphasis]”
I accept the respondent’s submission that a determination in this case must be made by the Commission as to whether or not the applicant suffered a secondary psychological condition. The issue was raised in the s 78 notice dated 17 September 2024, and such condition is claimed to have resulted from physical injuries sustained by Ms Jennings arising out of or in the course of her employment with the respondent. Incidentally, that was not the case in Kaur, where the (then) s 74 notice did not include this issue, and the physical injuries or conditions said to result in the secondary psychological condition do not appear to have been work related.

Secondary psychological condition

The parties rely on the entries in the clinical notes and records of treating practitioners at the Deniliquin Medical Centre (Dr Liebenberg and Dr Silva), Ochre Health Deniliquin Medical Centre (Dr Qin), and those of Dr Lim and of Carl Nielsen, psychologist.
In referring to these records I take into account the caution which must be exercised in relying on such records, noting that the entries are recorded in the course of a busy practice where the practitioner is focussed on treating the patient rather than on medico-legal issues.
Dr Liebenberg saw Ms Jennings on 9 June 2022 when she expressed anxiety due to a new Wi-Fi and electronic till and payment system when she was working for the respondent as a butcher. The next entry in the clinical notes of the Deniliquin Medical Centre is by Dr Silva on 9 January 2023, which refers to lower back pain six weeks previously, carrying of 20kg boxes, yelling and screaming and a new butcher being aggressive, and left shoulder pain.
[18] ALAD 18 February 2025 p 50.
[19] ARD pp 50/51.
Dr Silva planned X-rays and referral to a psychologist. The following entry in the clinical notes is also that of Dr Silva dated 16 January 2023,[18] when the same history is recorded as that on 9 January 2023, and an investigation and treatment regime is organised in respect of left shoulder pain and “PTSD”. Dr Silva saw the applicant again on 18 January 2023 when a Centrelink medical certificate was issued in respect of lower back pain, left shoulder pain, and post-traumatic stress disorder.[19]
Dr Liebenberg saw the applicant on 3 February 2023 when he recorded an apparent verbal attack on Ms Jennings by another butcher on 18 November 2022, the injury to the shoulder of 21 November 2022 when lifting heavy boxes, and an opinion in respect of such injury.
The applicant makes the point that although there is reference in these consultation notes to the physical injuries to the shoulder and lower back, there is no reference of a psychological condition secondary to such injuries.
The applicant also refers to the report of Dr Qin to Shelley Connell dated 29 February 2024, referring to workplace bullying since 21 November 2022 and “…possible ongoing PTSD as a result of this.” (see [21] above). This 2024 (emphasis added) report is not of assistance in determining the secondary psychological condition issue.
Returning to the 2023 chronology, the applicant started consulting Dr Lim from
2 March 2023. Her submissions in respect of her consultations with Dr Lim on 2 March 2023, 12 April 2023, and with Carl Nielsen, treating psychologist, dated 20 April 2023, are referred to above at [22]-[24].
The applicant emphasises that, although Dr Lim quite clearly diagnoses her as suffering from a secondary psychological condition as set out in his report dated 2 March 2023, he is a general practitioner, and not a psychiatrist or psychologist. The applicant submits that Dr Lim does not refer to a secondary psychological condition in his subsequent report dated
12 April 2023.
The point to be made about these two reports of Dr Lim is that they are more than simply clinical notes generated on the occasion of the visit of a patient to her doctor. They are both detailed and considered reports prepared by Dr Lim, addressing the workers compensation aspects of the matters of injury, causation thereof, capacity for work, and treatment. The earlier report addresses the physical injuries which undisputedly occurred on 21 November 2021 which are recorded as having a significant impact of Ms Jennings and which, according to Dr Lim, caused the applicant to suffer chronic pain causing an adjustment disorder. The second report of 12 April 2023 contains a diagnosis of “Adjustment disorder”, and addresses psychological injury sustained in the workplace. The history of injury recorded by Dr Lim in that report sets out in some detail the matters giving rise to that injury, matters not disputed by the respondent. It sets out the sequalae of the psychological injury. Dr Lim concludes the report with the comment that he has arranged rehabilitation to assist with Ms Jennings’ return to work. These reports demonstrate that Dr Lim was not inexperienced in dealing with workers who present to him with work injuries. In my view, the two reports can be logically read together.
The applicant was seen by Dr Tawadros on 29 August 2023 as noted in [43] above. I accept that the two entries relate to the one consultation as submitted by the applicant. The first entry timed at 14:38:08 deals predominantly with the “Progress” in respect of the physical injuries. The second entry timed at 15:05:31 deals predominantly with “Progress” in respect of the applicant’s psychological condition. It does reveal that as at that date, Ms Jennings was experiencing significant difficulties as a result both her physical injuries and psychological condition. I do not draw inferences either in favour or not in favour of the case put by the applicant from the setting out of the two clinical notes.
The respondent bases its case on the report of Dr Lim dated 2 March 2023, and the report of Dr Bisht dated 30 July 2024 following his Telehealth examination of Ms Jennings on
27 July 2023. He had before him two reports of “Dr Eric Lim dated 12 April 2023, 20 April 2023” (see “DOCUMENTS REVIEWED”). I was not taken to, nor could I find, any report from Dr Lim dated 20 April 2023. Dr Bisht may have been referring to the report of Carl Nielsen of that date. Dr Bisht may not have seen Dr Lim’s report dated 2 March 2023. Dr Bisht did have extensive reports of Dr Adesina Adesanya, consultant psychiatrist, who treated the applicant for her pre-existing post-traumatic stress disorder sustained in the course of her employment with Sunrice (Ricegrower Limited). It is not necessary to refer to that material as it is not relevant to the current issue before the Commission, although Dr Bisht did say that he did not identify any report that pertained to assessment of impairment due to the prior work related condition. Nevertheless, in his assessment of permanent impairment, Dr Bisht made a deduction of one tenth for the pre-existing condition.
With regards to causation of the current work relayed injury, Dr Bisht states that it was a combination of a primary injury, and secondary injury, due to Ms Jennings’ physical injuries sustained at the workplace. On p 3 of his report Dr Bisht records in detail the cause of the “…physical injury at the workplace in November 2022”, her attempt to go back to work despite the shoulder injury, her decision not to claim workers compensation at the time, and her wish to get on with her own treatment. The applicant described to Dr Bisht that she started to have persistent psychological symptoms in 2022, gradually increasing over the following few months. The list of symptoms included frequent recollections of stressful workplace experiences, preoccupation with physical injury and other psychological symptoms. As a result of worsening symptoms Ms Jennings stopped work in December 2022.
Dr Bisht notes before proceeding to make an assessment of whole person impairment in accordance with the PIRS (psychiatric impairment rating scale) that Ms Jennings continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment. His assessment of the proportionate contribution of the two components of psychological injury was 50%.
If there is a finding of secondary psychological condition it will be a matter of assessment by the Medical Assessor as to what, if any, proportion of permanent impairment is attributable to a secondary psychological condition.
Dr Kumagaya, on whose assessment the applicant relies, refutes the diagnosis of Dr Bisht of a secondary psychological condition. In his supplementary report dated 12 October 2024 when commenting of the report of Dr Bisht under “Causation” Dr Kumagaya says that:
“With respect to causation, Dr Bisht states, ‘the current work related injury is a combination of a primary injury secondary injury [sic], due to the worker’s physical injuries sustained at the workplace’. I respectfully disagree with Dr Bisht’s opinions in this regard.
Firstly, there is a lack of evidence to demonstrate the presence of a secondary psychological injury distinct to Ms Jennings’ primary psychological injury. It is noted that Dr Bisht, in his independent medical examination report, diagnoses Ms Jennings with the sole psychiatric condition, major depressive disorder with anxious distress, in relation to her subject work-related condition. There is also a notable absence of robust justification supporting a 50% apportionment of Ms Jennings’ psychosocial impairment to her alleged secondary psychological injury.
A review of the available medical evidence shows that Ms Jennings’ psychological symptoms were prominent far before the onset of her physical injury. During this period, it was Ms Jennings’ work-related exposure to inadequate food hygiene procedures, inadequate occupational health and safety procedures, an unsupportive work environment, and hostility, which resulted in the onset of her psychological injury.
Subsequent to her physical injury during November 2022, Ms Jennings noted that it was her prejudicial treatment by her employer, rather than her physical injuries, which resulted in the worsening of her psychological symptoms, such that she had been unable to work beyond 27 December 2022. In support of this position, is the fact that Ms Jennings continued to work following her physical injury.
Hence, from having reviewed the totality of the available medical evidence, including the contemporaneous evidence provided as part of the insurer’s section 78 notice, I maintain my medical opinion that Ms Jennings did not sustain a secondary psychological injury, nor is a 50% apportionment of her whole person impairment rating appropriate under such clinical circumstances.”
I agree with Dr Kumagaya that there is an “…absence of robust justification supporting a 50% apportionment of Ms Jennings’ psychosocial impairment to her alleged secondary psychological injury.” However it does not appear to me that, on a review of the available medical evidence, Ms Jennings’ psychological symptoms were prominent far before the onset of her physical injury. The applicant attended on Dr Liebenberg at the Deniliquin Medical Centre on 9 June 2022 when the relevant entry in the clinical note is:
“Likes the job. Had anxiety again due to new Wi-Fi and electronic till + payment system + computer. She has a fixed belief that Wi-Fi and mobile phone affect the aneurysm stents in her head and causes a variety of physical symptoms”
This entry must be viewed in the context of the applicant commencing work with the respondent in May 2022, and a pre-existing psychological condition. On 9 June 2022 the applicant is recording as liking her job, and experiencing anxiety due to matters of Wi-Fi, electronic till, payment system and computer, perhaps understandable in the context new employment. Having anxiety “again”, and concern about “stents in her head” causing “a variety of physical symptoms” may be a reference to the pre-existing condition.
A complete copy of the applicant’s statement dated 27 February 2023 is attached to ALAD 19 February 2025. The respondent relies on [17]-[18] thereof for details of the physical injuries sustained on 21 November 2022. Otherwise the statement is somewhat rambling in form and difficult to follow. I cannot discern therein a timeframe for the applicant experiencing the type of conduct alleged to give rise to the primary psychological injury, at least prior to
9 June 2022.
The next attendance recorded in the clinical notes is that of Dr Silva on 9 January 2023. The applicant points out that there is no reference in that note to psychological symptoms as a result of the physical injuries to the left shoulder and low back, but a referral to a psychologist because of the triggering of the post-traumatic stress syndrome caused by the aggressiveness of the new butcher. The respondent meets this submission by saying that the secondary psychological condition had not manifested itself at that time, but had by the time that Ms Jennings saw Dr Lim on 2 March 2023. I think that that is a reasonable submission.
The subsequent visits to Dr Silva again on 16 and 18 January 2022 are summarised above at [49].
The respondent’s submissions in respect of the assessment and opinion of Dr Kumagaya are set out at [37] above. It is not apparent from the list of “DOCUMENTATION REVIEWED” in Dr Kumagaya’s principal report dated 7 November 2023 as to what medical reports and clinical records he had access, and the letter requesting the report is not in evidence. The “Statement” in that list may refer to the applicant’s statement dated 27 February 2023; it could not refer to the supplementary statement dated 20 October 2024. Irrespective of those matters I accept the respondent’s submission that Dr Kumagaya, in his supplementary report dated 12 October 2024 and prepared without the benefit of a further examination of
Ms Jennings following his earlier assessment via videoconferencing on 7 November 2023, has not engaged with the evidence of the problems experienced by Ms Jennings following the physical injuries she suffered to the extent that Dr Bisht has.

Dr Bisht saw the applicant via Telehealth on 17 July 2024. He recorded that she still thinks about the workplace experiences and her physical injury every day, and gets distressed when she does. She described that she is still hypervigilant about people and worries about worsening her physical injury. He goes on to describe symptoms of psychological disharmony. Ms Jennings described to Dr Bisht how she would previously sell her organic produce at markets on the weekends, but finds it hard to do so because of her shoulder injury, as well as her fragile emotional state. She cannot lift boxes. She still has limited movement in her left thumb and pain in her neck, due to the workplace physical injury.
Ms Jennings cannot work for long periods due to the physical injury and due to lack of motivation. She has not been able to tend her orchard, and has to make sure that the water troughs are clean and feed provided for the animals she keeps.
In answer to questions put to him, Dr Bisht:
(a)    diagnoses that the applicant major depressive disorder with anxious distress for the current work related condition, and post traumatic stress disorder for the prior work related condition;
(b)    finds that there was a pre-existing condition at the onset of her current work related condition;
(c)    finds that the work related condition involved an aggravation of a pre-existing psychological condition;
(d)    finds that there needs to be a deduction of one tenth for the pre-existing condition;
(e)    in respect of causation, finds that the current work related injury is a combination of a primary psychological injury and secondary psychological injury due to the applicant’s physical injuries sustained at the workplace, and
(f)    says that the applicant has continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment.
I do note from the consultation the applicant had with Dr Tawadros on 29 August 2023 that the applicant was, as at that date, experiencing significant difficulties as a result of both her physical injuries and psychological condition.
The evidence must be viewed as a whole. Having regard in particular to that of Dr Lim, Dr Tawadros, and the clinical notes of the other treating general practitioners when read with the report of Dr Bisht, I think that the respondent has discharged the onus on it to show that the applicant sustained a secondary psychological condition.
I accept the opinion of Dr Bisht in preference to that of Dr Kumagaya. I find that the applicant sustained a secondary psychological condition as a result of the physical injuries sustained on 21 November arising out of or on the course of her employment with the respondent.

Terms of referral to a Medical Assessor

These terms will be in accordance with those submitted by the respondent.

SUMMARY

The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of primary psychological injury deemed to have occurred on 27 December 2022.
The applicant suffered a secondary psychological condition as a result of physical injuries sustained on 21 November 2022 arising out of or in the course of her employment with the respondent.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    ALAD dated 18 February 2025;
(d)    ALAD dated 19 February 2025, and
(e)    Certificate of Determination and Statement of Reasons.

[2025] NSWPIC 67

4 March 2025