Khano v Akropolis Food Services
[2024] NSWPIC 62
•14 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Khano v Akropolis Food Services [2024] NSWPIC 62 |
| APPLICANT: | Ashour Khano |
| RESPONDENT: | Akropolis Food Services |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 14 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum benefits; whether applicant suffered back injury; whether applicant suffered a primary psychological injury; Held – back injury established, respondent expert applied wrong test; primary post-traumatic stress disorder established; no expert evidence challenging proposition; Romanous Constructions Pty Limited v Arsenovic and White v Marist Youth Care considered and discussed. |
| DETERMINATIONS MADE: | The Commission finds: 1. The applicant injured his lumbar spine in the subject incident. 2. The applicant suffered a primary psychological injury in the subject incident. The Commission orders: 3. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 5 December 2019 (b) Matter for assessment: Psychological injury (c) Evidence: Application to Resolve a Dispute and attached documents Application to Admit Late Documents (ALD) dated 28 November 2023 Reply and attached documents ALD from respondent. |
STATEMENT OF REASONS
BACKGROUND
Ashour Khano, the applicant brings an action pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for lump sum compensation.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) did the applicant suffer an injury or consequential condition to the back?
(b) Is the psychiatric injury primary or secondary?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter was heard in person on 8 December 2023. The applicant was represented by Mr Greg Shipp instructed by Mr Christopher Chidiac from Prominent Lawyers. Akropolis Food Services (the respondent) was represented by Mr Justin Haine from Messrs SMK Lawyers and Mr Dominic Ye appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Application to Admit Late Documents (ALD) dated 28 November 2023 from the applicant;
(c) Reply and attached documents, and
(d) Application to Admit Late Documents from the respondent.
Oral evidence
No application was made with respect to oral evidence.
FINDINGS AND REASONS
At the outset of the hearing, Mr Shipp advised that the two issues for determination were whether Mr Khano had injured his back, and whether his psychological condition was primary or secondary. The transcript will show that the claim for injury to the upper extremities was discontinued by Mr Shipp.
Applicant’s statement
Mr Khano was born in Syria and emigrated to Australia in 2014. He began work for the respondent as a warehouse storeman in 2017. Mr Khano was born in 1979. He was working five days per week for five hours per day. In his first statement dated 9 July 2021 he said his injuries occurred on 5 December 2019. He said:[1]
“… I was at work and was standing on the forks of a forklift and it was reaching for one of the boxes on the shelves of the warehouse. As I was reaching for the box, I lost balance and fell onto the floor causing me to sustain various injuries.
5. My injuries from the accident include:
1.….
2.Lower back
3.Both legs
4.Scarring
5.Psychological/psychiatric”
[1] ARD page 1.
The applicant said firstly that a member of the staff, Rami, was asked to pick Mr Khano up from the office area to his car and drive to the hospital. However he then said that his employer, Donivan Polis left him at the hospital “and I can’t speak English.”
Mr Khano said he had not had any previous injuries although he had developed a raised cholesterol level, hypertension and diabetes prior to the accident.
In a second statement dated 3 May 2022 Mr Khano gave some further detail as to the accident. He said:[2]
“2. On 5 December 2019 the way I fell I wish to describe as falling from the height of 3-4m and landing I fell extremely heavily onto both feet in a crouching position. I then fell forward onto my knees into the kneeling position. I fell into a confined narrow space. The forklift was on my right, the pallets of flour were on my left and in front of me was the co-worker, Doreid. Whilst in the process of falling onto my knees I was able to grab onto my co-worker. It was a big heavy fall to the extent that it caused my fractures.
3. My biggest injuries were my factures. They overshadowed any pain I had, I feel, in my back at that stage.”
[2] ARD page 4.
Mr Khano was admitted to hospital on 5 December 2019 and discharged on 9 December 2019. He mentioned a wheelchair and crutches at home, by which I assume he meant that he needed the help of those devices because of his injuries.
He came to surgery on 21 December 2019, after the swelling from the trauma, had reduced. On discharge from the hospital Mr Khano was in a cam boot from about 23 December 2019 until about April 2020. He used the wheelchair from 9 December 2019 to about 9 March 2020. He said from [7]:
“I strongly believe and feel that the problems with my …. back are from the fall….
Since the accident is the injuries have changed the way I walk. I now walk differently compared to how I used to walk. ”
Mr Khano said that he was not the same person as he was before. He was constantly having arguments with his wife, about whom he expressed surprise that she was still with him. Mr Khano said he had “completely changed.” He said he was having nightmares and flashbacks about the accident amongst other symptoms.
This evidence was somewhat confusing, and may have been through somewhat imprecise translation as Mr Khano appears to have very little English.
Following the teleconference on 20 November 2023, Mr Khano put on a supplementary statement, saying relevantly:[3]
“I confirm I have sustained primary psychological injury as a result of this injury as I am continuing to experience ongoing symptoms of Posttraumatic Stress Disorder (PTSD). I have sleep disturbances, flashbacks and nightmares of the injury. I experience flashbacks and nightmares once a fortnight. I also experience psychological triggers, particularly around trucks and forklifts.”
[3] ALD 28 November 2023 – statement dated 28 November 2023.
Dispute notices
Dispute notices were issued on 31 August 2021 and 12 October 2023. The s 78 notice of 31 August 2021 raised a dispute as to whether Mr Khano had suffered a secondary or a primary psychological injury, the Insurer concluding that the psychological condition was secondary to Mr Khano’s injuries.
The second dispute notice of 12 October 2023 accepted liability for injury to both lower extremities, but maintained its dispute regarding whether the psychological condition was secondary or primary. Liability was also denied for the claim regarding both shoulders and the lumbar spine. It was also noted that Mr Khano had amended the lump sum claim to include an allegation that Mr Khano had contracted Type 2 Diabetes Mellitus, which was subsequently accepted by the respondent.
MEDICAL
Dr James Bodel
Dr Bodel, orthopaedic surgeon, assessed Mr Khano on behalf of the applicant. Dr Bodel, who had the assistance of an official interpreter of the Arabic language, took a detailed history in his report of 19 November 2020:
“On the day he was standing on the tines of the forklift, raised about 3-4 metres above ground level. As he reached for one of the boxes in the storage area, he lost balance and fell to the floor, landing on his feet. He also jarred his back and shoulders. He states that as he was slipping, he ‘jumped’ and took most of the weight on the left leg. He unfortunately suffered bilateral calcaneal fractures.
An ambulance was called, and he was taken to Fairfield Hospital and from there transferred to the Liverpool Hospital. This occurred in the early hours of the morning. He was initially at Fairfield Hospital and then transferred to Liverpool Hospital at about 8.30 am.
He was admitted under the care of Dr Jay Dave with back pain and bilateral shoulder girdle pain as well as foot and ankle pain. The x-rays of the feet confirmed bilateral calcaneal fractures which required open reduction and internal fixation on 22 December 2019. The feet were very swollen in the initial stages and he had to rest and elevate the feet.
He went home in a wheelchair at about a month. He was unable to weight bear and he could not use crutches because of his shoulder and back injuries.
He went into CAM boots at about four months and became partial weight bearing with crutches. He at this stage, 11 months after the injury, is still having physiotherapy once a week. He has also been trialled on hydrotherapy.”
Dr Bodel advised:
“The diagnosis is the bilateral calcaneal fractures which are intra-articular fractures involving the subtalar joint and also the musculoligamentous injury to the lower part of the back and rotator cuff pathology to both shoulders.”
Dr Bodel summarised the history taken, saying:
“This gentleman had a fall from a height, and he injured both calcanei with intra-articular fractures involving the subtalar joint for which he has had bilateral subtalar fusions. He also suffered a soft tissue musculoligamentous injury to the lower part of the back and injuries to both rotator cuffs in the shoulders. The psychological and psychiatric issues are matters outside my level of expertise.”
As to causation, Dr Bodel said simply:
“There is a direct causal link between the fall from the tines of the forklift and his ongoing complaints.”
In his second report of 24 March 2023, Dr Bodel repeated his diagnosis, relevantly.
He also advised:
“His injuries to the lower back, the shoulders and the heels have been caused by the fall…”
Dr Frank Chow
Dr Chow, consultant psychiatrist, was qualified by Mr Khano. Dr Chow took a consistent history of the accident. He noted:
“He said psychologically it has been bad. He was very focussed on his physical injuries initially. But his psychological state worsened. He was having recurrent sleep disturbance, flashbacks and nightmares of the accident. He is recurrently woken up by the pain and worries in life.”
Dr Chow noted that Mr Khano was still having flashbacks and nightmares “once a fortnight.” Mr Khano had been seeing a psychologist every two months at that stage.
Dr Chow advised that Mr Khano “reported experiencing sufficient symptomatology for a diagnosis of posttraumatic stress disorder and major depressive disorder…” In his summary, Dr Chow said:[4]
“On 5 December 2019, he suffered a work injury after he fell off the forklift tongue, three metres above the ground. He sustained bilateral calcaneal fractures. Despite surgery, he was wheelchair-bound for a couple of months and later on he continued to suffer severe pain which restricted his mobility and functioning.
He also reported significant psychological symptoms quite early on, which continue to affect him.”
[4] ARD page 33.
A supplementary report from Dr Chow dated 8 December 2022[5] advised that Mr Khano had suffered a primary post-traumatic stress disorder and a secondary major depressive disorder psychological injury.
[5] ARD page 38.
Clinical notes
Complaints about back pain from Mr Khano were registered by different health professionals from time to time, the earliest being 31 January 2020 to Mr Khano’s general practitioner (GP), Dr Hanna.[6] Further mention of back pain was reported on 13 May 2020,[7] 17 September 2020,[8] and 31 December 2020.[9] The clinical notes thereafter demonstrated a number of complaints of back pain in 2022 and 2023. The entry of 14 July 2022 showed that Mr Khano “needs to see endocrinologist and psychiatrist to be allowed to drive a truck.”[10] It also noted “psychotherapy offered – says no longer has anxiety.”
[6] Applicant ALD page 18.
[7] ARD page 227 – to a claims manager.
[8] ARD page 91 – to Dr Dave.
[9] ARD page 219 – to a claims manager.
[10] ARD page 62.
Dr Anil Nair
For the respondent Dr Anil Nair, consultant orthopaedic surgeon reported first on 19 May 2021.[11] Dr Nair outlined a consistent history. He said, in noting current symptoms:
“…He states that he has generalised pain in both the shoulders and lumbar spine region, although he has not had any medical imaging or seen any specialist for the shoulders or lumbar spine region.”
[11] Reply page 106.
Dr Nair said:
“There is no conclusive evidence of work-related conditions to his lumbar spine and shoulders. The mechanism of injury, specifically an axial loading injury is not typically associated with shoulder injuries or intervertebral disc injuries.
…..
….. [T]here is no conclusive evidence of workplace injuries to the shoulders or lumbar spine.”
On 20 April 2023 Dr Nair reported again. Mr Khano’s complaints were a lower back ache, and aching shoulders secondary to using crutches.
Dr Nair advised that “there had been no injuries identified in [Mr Khano‘s] shoulders or lumbar spine.”
Dr Nair’s third report of 24 November 2023 was concerned with the admitted injuries.[12]
[12] ALD respondent page 20.
Dr Ashwinder Anand
Dr Anand was a consultant psychiatrist retained by the respondent. On 17 June 2021 he took a comprehensive and detailed history of the matter.[13] He advised:
“In my opinion, Mr Khano meets the criteria for Major Depressive Disorder with Prominent Anxiety. This psychological injury has developed secondary to his physical injury sustained following his workplace accident.….”
[13] Reply page 112.
Dr Anand agreed with Dr Chow’s assessment of 24% whole person impairment, but he did not discuss Dr Chow’s diagnosis that Mr Khano had suffered a primary post-traumatic stress disorder.
SUBMISSIONS
Mr Shipp
Dealing firstly with the issue regarding the claim for lower back, Mr Shipp referred to the recorded complaints made by Mr Khano. Mr Shipp submitted that the first of these were contemporaneous with the onset of the problem, bearing in mind that Mr Khano had been in a wheelchair for two months. In fact Mr Khano’s first complaint was registered when he was still in a wheelchair, Mr Shipp said.
He submitted that Dr Nair’s opinion should be given very little weight as Dr Nair couched his advice around the concept of there being “conclusive” evidence, which he submitted did not comply with the relevant standard of proof, being on the balance of probabilities.
Dr Nair indicated that there was no discal injury, and that the mechanics of the fall were not likely the cause of the injury. Dr Nair accepted Mr Khano’s presentation was unremarkable, which was a good indication, Mr Shipp submitted, that Mr Khano’s complaint of back pain since the injury could also be accepted.
Mr Shipp submitted that it had never been suggested that Mr Khano suffered a discal injury. Dr Bodel’s opinion had been that it was a soft tissue ligamentous injury.
In regard to the question of whether the psychiatric injury was primary or secondary, Mr Shipp said that the diagnosis of post-traumatic stress disorder was consistent with the seriousness of Mr Khano’s injury.
Mr Shipp referred to eight criteria required for a definition of post-traumatic stress disorder and submitted that Mr Khano’s situation was consistent with the application of that criteria. Mr Shipp forwarded me the criteria, without identifying their source, which I assume was within the fifth edition of the Diagnostic and Statistical Manua of Mental Disorders (DSM5). He submitted that the relevant criteria were identified – particularly as to Mr Khano’s history of experiencing nightmares and flashbacks, which were noted by Dr Chow. Mr Shipp noted that Dr Anand did not comment on whether there were such symptoms or not.
Mr Shipp referred to a number of authorities, and I was supplied with a further list by email on 13 December 2023, for the proposition that a diagnosis of post-traumatic stress disorder was at least presumptive of a finding of a primary psychiatric injury. If such a disorder arose from an incident as opposed from rising from an injury, it was, Mr Shipp submitted, a primary psychiatric injury.
Mr Haine
Mr Haine submitted that I would not necessarily accept Mr Khano’s self-reporting at face value. Whilst Mr Haine conceded that complaints had been made, he submitted that the expert opinion needed to go further than simply the complaint. The essential difference between Dr Bodel and Dr Nair was that Dr Nair could not find any neurological deficits, but took a different view as to injury from that absence from that of Dr Bodel, who, whilst also not finding any neurological deficit, nonetheless diverged from Dr Nair’s opinion. There were different opinions, but the divergence was properly based by Dr Nair, I understood Mr Haine to argue, on an absence of pathology.
Mr Haine said that the other issue regarding the back claim was that the clinical records referred to facet joint pathology but Dr Bodel found simply a soft tissue ligamentous injury. In that regard, whilst Mr Shipp submitted that no discal injury had been diagnosed by Dr Bodel, Mr Haine asked rhetorically what was an in vertebral injury but a discal injury.
Mr Haine submitted that care should be taken in accepting the self-reports of Mr Khano, as they were sparse. The only basis on which a back injury had been found, was because the worker had self-reported it to the various medical professionals. There was no other basis for Dr Bodel’s support and accordingly Dr Nair’s opinion should be accepted, Mr Haine submitted. He said that there was inconsistency between GP Dr Nasser Hanna’s notes and those of Dr Kako to whom Mr Khano changed in 2022. The reports by the applicant to different practitioners were said to be different.
Mr Haine submitted that when Mr Khano was referred to psychologist Dr Hannah in October 2020 Mr Khano had been recorded by Ms Zaarour saying that he was worried about matters that had occurred as a result of his inability to earn money. He was not able to work, he had ongoing pain, he was distressed at his pain from the day, he complained of financial hardship and distress and he complained about his relationship issues.
Mr Haine said that all those recorded complaints were the effects of the physical injury. Mr Haine said that whilst Mr Khano did raise some other symptoms, even if they did give rise to a post-traumatic stress disorder diagnosis, a decision still had to be made as to whether that diagnosis was primary or secondary. Flashbacks of themselves did not necessarily mean that the condition was primary, he submitted. The accepted depression and anxiety may have just compounded Mr Khano’s mental state to produce a post-traumatic stress disorder, he argued. Mr Haine did not agree with Mr Shipp’s submission that a post-traumatic stress disorder of itself gave rise to a presumption that the condition was primary.
There was a basis for not accepting Mr Khano’s evidence which was also relevant for the claim for psychiatric injury.
Mr Haine submitted that Mr Khano had every reason to report such things, as he would receive the benefit of those reports. The most significant proof of his unreliability, I understood Mr Haine to argue, was the entry of 14 July 2022 which reported that Mr Khano wished to get back to truck driving and had no anxiety. I do not agree, with respect. Mr Khano was saying what he needed to do to be a truck driver. The comment about Mr Khano having no anxiety points up the caution that must be exercised when dealing with clinical notes, as there is no suggestion elsewhere that Mr Khano had no anxiety. The note was certainly inconsistent with Mr Shipp’s submission that Mr Khano was avoidant of truck driving.
Mr Shipp in reply
Mr Shipp referred to Dr Dave’s mention in his report of 17 September 2020 that Mr Khano had “ongoing lower back pain as well.”[14] Mr Shipp submitted that the clinical note of 14 July 2022 did not support Mr Haine’s submission that Mr Khano was unreliable. It did not take account of the evidence that Mr Khano was triggered when he saw a truck or a forklift.
[14] ARD page 91.
Mr Shipp submitted that Mr Haine’s reference to Mr Khano’s irritability was itself a criteria of post-traumatic stress disorder, although he conceded that other evidence was required.
Mr Shipp concluded by submitting that flashbacks were only indicative of a primary injury. The authorities showed that one can have a primary and a secondary injury, such as an assault, and Medical Panels constantly showed that they would deduct the secondary from the primary with sometimes unfortunate results for the claimant.
DISCUSSION
The lower back
In his statement of 9 July 2021 Mr Khano said, in a formulaic and uninformative list, that his lower back was one of his “various injuries.” In his statement of 3 May 2022, Mr Khano did not actually say he injured his back, but that the fractures (which he did not identify) “overshadowed any pain I had, I feel, in my back at that stage.” Mr Khano’s meaning was unclear and his statement poorly drafted.
However, there has been no challenge to the estimate of the distance Mr Khano fell – 3-4 metres, or 9-13 feet. The fall involved some velocity, as it was enough to fracture both heels (or calcanea), which resulted in his hospitalisation and subsequent surgery on 22 December 2019. He was confined to a wheelchair from 9 December 2019 to about 9 March 2020, and was in a cam boot 23 December 2019 to about April 2020.
I was assisted by the clear and detailed history taken by Dr Bodel, with the aid of an official Arabic interpreter. It is apparent that Dr Bodel went to some trouble to ensure he took an accurate history through the interpreter.
I accept that Mr Khano felt some back pain at the time of the fall, as the effect of a fall which fractured the heels is likely to transmit shock through the body, including the lower back. The various entries in the clinical material tends to confirm that view, and Dr Bodel recorded that the fall “jarred his back...” I do not necessarily accept Dr Nair’s opinion that an axial loading injury is not typically associated with intervertebral disc injuries, although no determination is required in the present case, as Dr Bodel had diagnosed a musculoligamentous injury, and did not suggest an intervertebral injury. Dr Nair did not consider Dr Bodel’s diagnosis.
It was argued that Dr Nair’s view should be preferred. Dr Nair advised that there had been no medical imaging or specialist consultation regarding the lumbar spine (relevantly), and then said that “there was no conclusive evidence” of a work-related condition. In the absence of any specialist intervention or any imaging it is hardly surprising that no “conclusive” evidence was available. However, there is no requirement for an applicant to prove his case to a “conclusive” standard. An applicant is only required to prove his/her case to the balance of probabilities.
Dr Bodel also acknowledged that no x-rays or other tests had been available for review in either of his reports of November 2020 or March 2023. However, he was satisfied on clinical grounds that Mr Khano had suffered a back injury in the subject incident. Moreover, in his report of 19 November 2020, on examination Dr Bodel found asymmetry of movement and guarding on examination,[15] and similar asymmetry of motion in examination on 24 March 2023. Dr Nair found a 40% reduction of thoracolumbar range of motion globally on 19 May 2021, which was assessed at 30% on 20 April 2023. Whether those global restrictions were asymmetric or not, Dr Nair did not advise.
[15] ARD page 27, and on 24 March 2024.
For these reasons I am satisfied that Mr Khano injured his lumbar spine in the subject incident.
The psychiatric injury
Section 65A of the 1987 Act provides:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note : If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply-
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note : If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section-
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”The essential difference between the opinions of the two expert psychiatrists was that, whilst they both found that Mr Khano was suffering a secondary Major Depression Disorder as a result for the injuries he suffered in the subject accident, only Dr Chow found that Mr Khano had suffered an additional primary post-traumatic stress disorder. I was addressed at some length by both counsel as to this diagnosis. Mr Shipp was kind enough to send me an aid memoire as to the essential criteria to support this diagnosis, and I note his submissions that Mr Khano met most, if not all of them. Mr Haine, on the other hand, made some submissions as to why a post-traumatic stress disorder diagnosis would not have been appropriate. He referred to entries in clinical notes of various health professionals, and endeavoured to establish that Mr Khano could therefore not be relied on. This submission must fail, as entries in clinical notes are unsafe evidence on which to base a credit finding, and the usual caution required when considering them is underlined in Mr Khano’s case by his lack of understanding of the English language.[16]
[16] See eg Collins v Bunnings Group [2021] PIC 313 at [221].
Mr Haine also submitted that even if Mr Khano had suffered a PTSD, it did not automatically become a primary psychological injury, as was submitted by Mr Shipp. Flashbacks, Mr Haine advised, did not of themselves indicate that the injury was primary, and it was possible, had there been a post-traumatic stress disorder present, that it was simply that his depression and anxiety had compounded to create that condition. This submission too must be rejected, as M Haine had no evidentiary support for his point of view, which amounted to evidence from the bar table. Dr Anand simply did not consider Dr Chow’s post-traumatic stress disorder diagnosis, and therefore the reasons advanced by Mr Haine amounted to no more than speculation.
I was grateful for Mr Shipp’s breakdown of the criteria necessary to establish a post-traumatic stress disorder, but in the final analysis, Dr Chow’s opinion may be accepted, as it was not challenged. Dr Chow diagnosed a post-traumatic stress disorder in his report of 17 February 2021, whilst Dr Anand’s report was dated 17 June 2021, and his only reference to Dr Chow was in answer to a question whether he agreed with Dr Chow’s assessment of 24% whole person impairment.
This caused some reflection, as although he endorsed Dr Chow’s assessment, Dr Anand did not address the fact that his diagnosis differed from that of Dr Chow. This was problematic, in that it was the condition that Dr Anand did not address (the post-traumatic stress disorder), that Dr Chow then advised in his report of 8 December 2022, was a primary psychological disorder. No evidence in response was lodged from Dr Anand.
I am accordingly satisfied that I may accept Dr Chow’s opinion that Mr Khano also suffered a post-traumatic stress disorder in the incident. A moment’s reflection on the subject incident itself, involving a fall from 3-4 metres, and the fracture of both heels, speaks of a traumatic event for Mr Khano to experience.
I am also satisfied that the onset of Mr Khano’s post-traumatic stress disorder was a primary psychological injury pursuant to s 65A of the 1987 Act. In Romanous Constructions Pty Ltd v Arsenovic[17] DP Roche stated at [58]:
“The appellant’s first argument seems to accept that Mr Arsenovic has PTSD, but because ‘post-traumatic’ means ‘following an injury or traumatic event’ then, because Mr Arsenovic’s ‘injury or traumatic event’ was physical, the psychological symptoms are a consequence of, or secondary to, the physical injury and section 65A applies. The evidence does not support that submission….”
[17] [2009] NSWWCCPD 82.
In White v Marist Youth Care Limited[18] Principal Member John Harris, whilst dealing with a dispute as to whether a post-traumatic stress disorder had been established on the evidence, referred to the criteria within DSM5 necessary for a diagnosis to be established, and which Mr Shipp so thoroughly ventilated in his submissions in the present case. In that case, as in this, the only diagnosis of primary psychological injury was post-traumatic stress disorder. On the facts the learned Principal Member found against the applicant. In this case, there has been no expert evidence traversing Dr Chow’s opinion, which I accept.
[18] [2023] NSWPIC 578.
Accordingly, I make the findings and orders above.
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