Lee v Fletcher International Exports Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Lee v Fletcher International Exports Pty Ltd [2023] NSWPIC 399
APPLICANT:	Eunsaem Lee
RESPONDENT:	Fletcher International Exports Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	9 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for ongoing weekly compensation and incurred treatment expenses in respect of physical and psychological injuries arising out of incident where worker trapped by a conveyer belt; subsequent allegations of harassment and termination of employment; whether worker sustained a primary psychological injury; ongoing effects of injury; Commission’s jurisdiction to award weekly compensation pursuant to section 38; Held – the applicant sustained a primary psychological injury pursuant to section 4(a) and 9A; the applicant has had no current work capacity as a result of the injury at all material times; Ferro v Mercon Group Pty Ltd distinguished.
determinations made:	The Commission determines: 1. The applicant sustained a personal psychological injury arising out of or in the course of her employment with the respondent pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) on 27 October 2020. 2. The applicant's employment with the respondent was a substantial contributing factor to the personal psychological injury pursuant to s 9A of the 1987 Act. 3. The applicant has claimed compensation in relation to her personal psychological injury, and claimed weekly compensation, in accordance with s 260 of the Workplace Injury Management and Workers Compensation Act 1998. 4. Since 9 June 2021, the applicant has had no current work capacity as a result of the injury which she received on 27 October 2020. 5. The applicant is likely to continue indefinitely to have no current work capacity. 6. The applicant’s pre-injury average weekly earnings (PIAWE) figure is $1,043.19. The Commission orders: 7. From 9 June 2021 until the end of the second entitlement period, the respondent to pay the applicant weekly compensation in accordance with s 37(1) of the 1987 Act at the rate of 80% of her PIAWE as periodically indexed pursuant to ss 82A and 82D of the 1987 Act. 8. After the second entitlement period to date and continuing, the respondent to pay the applicant weekly compensation in accordance with s 38(6) of the 1987 Act at the rate of 80% of her PIAWE as periodically indexed pursuant to ss 82A and 82D of the 1987 Act. 9. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Eunsaem Lee (the applicant) was employed as a process worker by Fletcher International Exports Pty Ltd (the respondent).
On 27 October 2020, the applicant was in the course of her employment with the respondent when she became caught on a conveyor belt, sustaining physical injuries. The applicant claims that she also suffered a primary psychological injury in the same event.
Liability to pay weekly compensation and treatment expenses for physical injuries to the applicant’s right hip and back was accepted by the self-insurer in a letter dated 28 October 2020. Payments of compensation continued until 8 June 2021.
On 27 October 2021, the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability to pay further compensation.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 13 January 2022. The applicant sought weekly compensation from 9 June 2021 on an ongoing basis as well as compensation for her past and future treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
During the proceedings, the respondent contended that, as the applicant had relocated to Queensland, the matter was affected by federal jurisdiction and the Commission had no power to hear and determine the claim.
On 7 June 2022, the Commission, constituted by Member Whiffin, issued a Certificate of Determination and accompanying statement of reasons. Member Whiffin found that the Commission was not exercising federal jurisdiction and proceeded to make orders in the applicant’s favour.
That decision was appealed by the respondent. In Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39, Snell DP held that Member Whiffin’s decision was made without jurisdiction.
The applicant applied to the District Court under s 26(3) of the Personal Injury Commission Act 2020 seeking leave to bring the application. On 24 March 2023, Andronos SC DCJ in Lee v Fletcher International Exports Pty Ltd [2023] NSWDC 71, found that the matter did not raise any issue of federal jurisdiction and that the usual-decision maker (the Commission), had power to determine the matter. The proceedings were remitted to the President to make such orders as he considered appropriate to facilitate the determination of the application.
On 29 March 2023, Phillips P made orders remitting the matter to the Division Head of the Workers Compensation Division to allocate it to be heard and determined in accordance with the Commission’s usual practice and procedure by a different member.
On 30 March 2023, the Division Head issued directions causing the matter to be listed before me for conciliation conference and arbitration hearing on 13 April 2023.
In the interim, the parties requested a preliminary conference, which was held on 4 April 2023. At the preliminary conference, directions were made for the exchange of further evidence. The conciliation conference and arbitration hearing were rescheduled to 9 May 2023.
I advised the parties at the preliminary conference that I considered that the directions made by Member Whiffin regarding the admission of documents remained in force and that to the extent that the applicant wished to rely on any documents not previously admitted pursuant to r 67(4), a further Application to Admit Late Documents should be lodged.
I also advised the parties of my intention to rely on the written submissions previously lodged except to the extent that the parties indicated that those submissions were no longer relevant or pressed. The parties were advised that I only intended to seek further submissions to supplement the written submissions, for example, in respect of any late evidence admitted in the proceedings or in respect of any new issue arising.
At the conciliation conference and arbitration hearing on 9 May 2023, directions were made admitting into evidence a body of late documents served and lodged by the applicant. To facilitate the lodgement of additional clinical records served but not yet lodged by the applicant, and due to the need to provide the respondent with an opportunity to respond to the late material, the conciliation conference and arbitration hearing was adjourned to 8 June 2023.
The parties appeared again for conciliation conference and arbitration hearing on 8 June 2023 via Microsoft Teams. The applicant was represented on that occasion by Mr Joshua Beran of counsel, instructed by Mr Kevin Sawers. The respondent was represented by Mr David Saul of counsel, instructed by Mr Paul Macken. The applicant was assisted by an interpreter in the Korean and English languages.
During the proceedings on that date, leave was granted to the respondent to serve and lodge a supplementary report from Independent Medical Examiner (IME), Dr Anthony Smith, together with any accompanying written submissions. A period of time was allowed for the applicant to serve and lodge any written submissions in response. The parties were advised of the Commission’s intention to determine the disputes at the conclusion of that timetable.
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 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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a primary psychological injury pursuant to ss 4 and 9A of the 1987 Act;
(b) whether the applicant had correctly made a claim in relation to the primary psychological injury pursuant to s 260 of the 1998 Act;
(c) whether the applicant had correctly made a claim for payments of weekly compensation after 8 June 2021 pursuant to s 260 of the 1998 Act;
(d)    the extent and quantification of any incapacity as a result of the workplace injury, since 8 June 2021;
(e)    the Commission’s jurisdiction to award weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act in the circumstances of this case, and
(f) whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    pages 1 to 39 (inclusive) of the documents attached to an Application to Admit Late Documents lodged by the applicant on 14 March 2022;
(d)    written submissions lodged by the applicant on 15 April 2022;
(e)    written submissions lodged by the respondent on 3 May 2022;
(f)    written submissions in reply lodged by the applicant on 5 May 2022;
(g)    documents attached to an Application to Admit Late Documents lodged by the applicant on 3 May 2023;
(h)    documents attached to an Application to Admit Late Documents lodged by the applicant on 10 May 2023;
(i)    supplementary report of Dr Roberts dated 7 June 2023, lodged by the respondent on 8 June 2023;
(j)    clinical records of Dr Sunil Jacob, lodged by the respondent on 8 June 2023, and
(k)    supplementary report of Dr Smith dated 8 June 2023, lodged by the respondent on 13 June 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in statements made by her on 20 July 2021 and 12 January 2022.
In her first statement, the applicant stated that she commenced work with the respondent in November 2018. Initially, the applicant was working in a meatpacking and meat slicing role. In September 2020, the applicant started learning a quality assurance (QA) role, managing meat quality. The applicant was learning the QA role on 27 October 2020.
On that date, the applicant was approached by a co-worker asking if she could remove a box that was stuck on a conveyor belt. As the applicant reached out to push and unblock the box, the conveyor belt started moving again. The jacket the applicant was wearing was sucked into the machine. The applicant’s jacket fell on the conveyor belt and her body was quickly turned around. The conveyor belt continued to run for approximately 20 to 30 seconds. The applicant yelled out for help but as the factory was so busy and loud, none of the applicant’s co-workers heard her for 20 to 30 seconds. The applicant was scared and thought she was going to die.
Finally, someone stopped the conveyor belt. The applicant had to be removed by maintenance workers. The applicant was unable to walk unassisted and her pain was so bad she could not hold herself up. The applicant was helped to a car and driven to the company doctor. The applicant was feeling significant pain in her back and leg.
After seeing the company doctor, the applicant went to Dubbo Base Hospital. After waiting a long time, she was sent home with just some Panadol. The company doctor, Dr Sunil Jacob, prescribed other medication but it made the applicant feel sick and dizzy.
The applicant wished to change doctors but was put under pressure not to do so by her employer. As a result, the applicant stayed with Dr Jacob and was referred to a sports medicine specialist, Dr Tim Low. Dr Low recommended the applicant continue with physiotherapy and wean off medication. Dr Low also recommended a steroid injection, which the applicant paid for herself.
The applicant eventually changed her nominated treating doctor to Dr Eric Lim, who referred her to a neurosurgeon, Prof Di Ieva. Prof Di Ieva recommended the applicant continue with physiotherapy and undergo a CT guided L5/S1 epidural injection. Dr Lim also referred the applicant for psychological treatment in relation to feelings of anxiety and depression and flashbacks of being pulled into the machine.
The applicant described her current symptoms and disabilities including ongoing pins and needles in her right leg and back and difficulties with self-care and domestic duties. The applicant was unable to drive due to pain and was experiencing psychological symptoms including, hypervigilance, poor concentration, panic attacks, nightmares and flashbacks.
The applicant stated that she remained off work for approximately one month with no capacity for work. The applicant returned to suitable duties on 7 December 2020. During this period, the applicant was tasked with shredding documents from a bin inside an office. The applicant came across some paperwork relating to her workers compensation matter which she had not ever received. The applicant sat down and took a rest for a moment whilst reading the documents. The applicant was then approached by a co-worker who asked what was in her hand. The applicant stated that it was her workers compensation paperwork. The applicant was later accused of stealing the paperwork and her employment was terminated on 1 June 2021.
The applicant’s workers compensation payments ceased on 8 June 2021 without a s 78 notice being issued.
In her supplementary statement, the applicant commented on the psychological impact of the injury. The applicant confirmed that she had been bullied and harassed during her employment but did not think about those matters on a day-to-day basis. The applicant said she was suffering with post-traumatic stress disorder as a result of the injury on 27 October 2020. During the incident, the applicant was so scared, she thought she was going to die. The applicant subsequently felt constantly anxious and depressed. The applicant was hypervigilant, had poor concentration, and experienced panic attacks, poor sleep and nightmares as well as flashbacks to the injury. The applicant worried about leaving the house.

Treating evidence

A clinical record made by general practitioner, Dr Sunil Jacob, dated 27 October 2020 recorded:
“Incident at Fletchers approx 8.30am
was pulled into conveyor belt - yanked in, twisted into narrow space
pain++ along rt hip - unable to weight bear”
The applicant was referred to “Dubbo Base Accident & Emergency”.
A Discharge Summary from Dubbo Base Hospital, dated 27 October 2020, indicated that the applicant presented complaining of pain to her right hip and the right side of her lower back. X-rays demonstrated no acute pathology and the applicant was able to mobilise with some pain. The applicant was going to borrow a crutch. The applicant was referred for review by her general practitioner and advised to take paracetamol and ibuprofen regularly.
The applicant was seen by Dr Jacob again on 29 October 2020 and referred for an MRI investigation. It was noted that the applicant was unable to mobilise. The applicant was prescribed Targin and Endone.
The report of an MRI of the lumbar spine, pelvis and right hip, dated 29 October 2020, noted a mildly displaced fracture through the right sacral ala as well as the right superior and inferior pubic rami.
On 3 November 2020, the applicant reported pain of 7/10 to Dr Jacob and was referred for physiotherapy.
On 14 January 2021, Dr Jacob recorded:
“Incident at Fletchers Abbatoir -pulled into conveyor belt - yanked in, twisted into narrow space
pain++ along rt hip - unable to weight bear
initial XR at DBH nad MRI organised following - Mildly displaced fracture through the right sacral ala, as well as the right superior and inferior pubic rami.
seeing Kylie Barden - with slow improvement over 12 wks
pain along sacrum -on sitting, requiring to change position
pain along rt hip/ rt posterior thigh
now working alternate days 5 hrs shifts - administrative duties”
The applicant was referred for a further MRI.
The report of an MRI of the lumbar spine, pelvis and right hip performed on 19 January 2021 indicated substantial healing of the previously demonstrated right sacral ala fracture. The fracture through the right superior pubic ramus was also less distinct. The fracture through the inferior pubic ramus remained moderately prominent. There was adjacent bone and soft tissue oedema and bridging callus across the fracture.
Physiotherapist, Ms Kylie Barden, prepared a letter of referral to orthopaedics and sports medicine specialist, Dr Tim Low on 2 February 2021, giving a history as follows:
“13 weeks ago she had an injury at Fletchers. She leaned or sat on a conveyer belt to reach above it and the belt moved - pulling her along and trapping her beneath a higher conveyor belt. She sustained fractures of the right sacral ala and the right inferior and superior pubic rami.
Recent MRI (at 12 weeks) showed fractures are healing, though inferior ramus is a little behind the others and has ongoing oedema. However, Claire's main complaint is of pain posteriorly over the right sacral area. I was hoping for your opinion on whether you think this is all bony or ligamentous Injury to the right SIJ? I find it hard to decipher if pain is SIJ or nearby fracture site on testing.
Claire to her credit is making good progress. She was in a wheelchair for 4 weeks Initially and has progressed from 2 crutches to none over the last month.
She had a very strongly trendelenburg gait but this is improving as we work on strengthening her core and hip girdle and improving her gait. She sees me 2x 1 week. She has RTW currently on 5 hrs x3 days per week on office duties where she can sit or stand as tolerated. She is driving locally and cooking meals but she finds heavier house cleaning painful.”
The applicant was seen by Dr Low, who prepared a report dated 3 February 2021. Dr Low took a history as follows:
“On October 27, 2020 she unfortunately got squashed between 2 conveyor belts
Initial xrays at DBH showed no fracture
Subsequent MRI showed mildly displaced fractures of her right sacral ala, right superior pubic rami and right inferior pubic rami
Was in a wheelchair for a few weeks as walking too painful
Has been seeing Kylie Barden for physio
Able to walk now
However standing for greater than 20 minutes brings on a lot of right sacral region pain
At work she is currently doing 5 hours, 3 days/week
She finds after about 4 hours her right sacral region pain gets much worse
Currently taking Panadol, Nurofen and Palexia for pain
Is getting better but very slowly
Repeat MRI shows sacral ala and superior pubic rami fracture have had substantial healing and the right inferior pubic rami fracture some healing”
Dr Low commented that he had explained to the applicant that this was a “big injury” and it could take several months to make a full recovery.
The applicant was seen by psychologist, Paige Jackson on 18 February 2021. Ms Jackson took a history of the incident in October 2020 noting that, had the applicant not grabbed onto a pole, she would have fallen into a piece of machinery that may have crushed her. The applicant reported symptoms of intense anxiety and flashbacks approximately two to three times per day, panic attacks, shortness of breath and a heavy feeling on her chest. The applicant also reported nightmares and avoiding people from work who were present at the time of the incident. Ms Jackson made diagnostic comments as follows:
“DASS: extremely severe for depression, anxiety and stress
K10: raw score: 40 - severe psychological distress
PCL-5: total score: 72 - indicative of a provisional PTSD Dx”

At a further session on 26 February 2021, Ms Jackson recorded,
“Client reported: Still waking up ‘feeling stressed’ approx. 2-3am
When at work -feeling stressed/anxious/short of breath/heavy chest - unable to do deep breathing (has to wait it out approx. 30 mins)
Feeling anxious nearly all the time - still noticing that she is very jumpy/on edge even at home
Only able to feel completely relaxed when at home
Continuously referring to what she might have done differently
Heart is pounding on and off all day
Appointment next Wednesday 03/03 - with GP and specialist.
Concerned that work hours will go back up again at work
Does not feel ready
Highly concerned that if hours are increased may be forced to go back into area where accident happened (client became visibly distressed when discussing this, short sharp breathing, had to do deep breathing in session to calm)”
Ms Barden prepared a further report, dated 26 February 2021, in which she stated that the applicant was continuing to attend physiotherapy twice a week, working on strengthening all core muscles. Ms Barden commented:
“Her main complaint is right buttock pain. She is making good progress especially with gluteals getting stronger. She now has a negative trendelenburg sign. Her gait is improved noticeably. Her walking tolerance is 20-30 minutes+ sitting tolerance is 1 hour. Her SIJ tests are positive on right for laxity and pain on P4 and glide I squish tests. Resisted active SLR is also weaker on right.”
Ms Barden noted that the applicant was working on home exercises daily and had been very compliant with all that had been asked of her.
Dr Low prepared a report, dated 3 March 2021, as follows:
“Feels her pain is no better since last review
In a letter from Kylie Barden, kylie feels her strength and function is improving She is currently working 4 hours x5 days/week
Currently her most painful areas are her right anterior thigh
Gets a burning pain with some pins and needles
Sometimes hits her thigh when this happens to try and relieve symptoms
Also has pain in right sacroiliac joint region
When gets home from work collapses on couch for 2 hours
Also only sleeping 3-4 hours/night due to pain
Taking Palexia for pain but only does so when she really needs it as she doesn't like taking tablets”
Dr Low again commented that the applicant had a significant injury which could cause pain for several months while the fractures were healing. Dr Low suggested a bone scan to assess bony healing.
The applicant was seen again by psychologist, Ms Jackson on 4 March 2021 reporting similar symptoms.
The report of a bone scan performed on 8 March 2021 showed:
“1.     Near complete healing of right sacral alar and right superior pubic ramus fractures.
2.      Similar intensity low level uptake at the incompletely healed right inferior pubic ramus fracture.
3.      No focally active lumbar facet arthropathy.
4.      Minimal increase in right sacroiliac joint stress remodelling.”
In a report dated 17 March 2021, Dr Low recorded:
“Bone scan shows healed right superior pubic rami fracture and sacral ala fracture, inferior pubic rami fracture nearly healed
Mild uptake in sacroiliac joints bilaterally, a bit more on the right
Her pain is a little better than 3 months ago
She can now walk for 30min when 3 months ago she could only walk for 10 minutes She points to her right lateral gluteal tendon attachement and right posterior sacroiliac joint as areas of pain
Likely has a lot of muscle deactivation and weakness that is not helping her symptoms and these need time and physio rehab to restore
Patient is getting frustrated with her lack of significant progress
Affecting her mental health as well - she has been seeing a counsellor as well
This is not surprising as this is what chronic pain, disturbed sleep and lack of function can do.”
Dr Low said he had explained to the applicant that this was a significant injury and would take time and lots of rehab to get better.
On 23 March 2021, Dr Jacob recorded:
“not taking pain relief as often (taking palexia IR every 2nd/ 3rd day)
taking pandol/ nuofen every 2nd day - before work/ nighttime
physiotherapsist x2/ wk - Kylie Barden
Tim Lowe once monthly
admin work at fletchers - shredding/ filing x4hrs/ day
doing some house work (gardening/ cooking) - pacing self
doing exercises - yoga/ passive exercise
------------
anxious w palpitations depressed mood
frustrated w progress
flinches w sudden noises at home”
In a report on 19 May 2021, Dr Low noted that the applicant was still in pain, especially around the coccyx region. The applicant felt a sensation of incomplete emptying of her bowel and bladder and was getting tingling pain radiating down her right anterior thigh. Dr Low considered that the applicant’s ongoing pain could be combination of sacroiliac joint incompetence and a pelvic nerve injury.
An initial assessment report prepared by general practitioner, Dr Eric Lim, dated 25 May 2021, indicated that the applicant reported an injury to her back, right hip and right knee after her lab coat got caught in a conveyor belt and she was dragged into a narrow space. After she was removed from the machine, the applicant was unable to walk independently due to pain. The applicant was seen by the company doctor and then Dubbo Base Hospital. Despite having difficulty walking, the applicant was discharged later that afternoon. The applicant had an MRI two days later that showed multiple fractures in her pelvis and sacrum. The applicant returned to work on light duties in December whilst still on crutches.
The applicant reported feeling depressed and anxious. The applicant reported having flashbacks and nightmares of being pulled into the machine. The applicant was hypervigilant and easily scared, had difficulty sleeping, poor concentration and panic attacks. The applicant reported symptoms of lower back pain radiating down the right leg, right hip and knee pain as well as right leg weakness.
Dr Lim recorded his findings on examination and diagnosed a lumbar spine strain, sacral ala fracture, superior and inferior pubic rami fracture, possible sacral plexus injury and post-traumatic stress disorder. Referrals were made to a psychologist, psychiatrist, physiotherapist and neurosurgeon. The applicant was also referred for an MRI of the lumbar spine.
Neurosurgeon, Prof Antonio Di Ieva prepared a report for Dr Lim on 9 June 2021. Prof Di Ieva took a history of a trauma in October 2020 with a hip fracture causing local pain. The pain got worse over time and the applicant had been left with pain in the back of the thighs, sometimes radiating all the way down to the foot. The applicant was on gabapentin 200 mg a day. An MRI in March showed the healing process of the right sacroiliac fracture. Prof Di Ieva advised:
“Her neurological examination today was unremarkable, with normal stretching manoeuvre, although the hips manoeuvre on the right-side triggered some local pain.
At this point, it looks like she still has some residual pain from the fracture and the healing process. There is no surgical indication for this, but she should increase the dose of gabapentin 300 mg at least BID and eventually increase the pain management. In the case of a lack of response to this, I have given her a referral for a CT-guided L5-S1 epidural injection, as well as a sacroiliac joint injection on the right-side to allow her to cope better with the inflammation and pain. Physiotherapy should be continued.”
Consultant psychiatrist, Dr Abdal W Khan, prepared a report for Dr Lim on 21 July 2021 in which he took a history of the incident on 27 October 2020. Dr Khan described a deterioration in the applicant’s mental state characterised by symptoms including nightmares and flashbacks, unwanted memories, panic and hypervigilance. Dr Khan diagnosed post-traumatic stress disorder and chronic pain and recommended that the applicant continue on fluoxetine, commence melatonin and engage in psychological therapy.
On 7 July 2021, the applicant underwent a lumbar steroid injection under CT guidance to the L5/S1 epidural space.
Dr Low prepared a report for Dr Lim, dated 23 August 2021, in which he said there had been no change in the applicant’s symptoms since last review.
In a report to Dr Lim, dated 10 September 2021, Dr Khan recorded that the applicant had described some reduction in the intensity and frequency of her trauma symptoms but still struggled with mood dysregulation, agitation, anxiety and sleep disturbance. Dr Khan recommended the applicant continue on fluoxetine, increase her melatonin and continue to engage in psychological therapy. The applicant was said to have no capacity for work.
In a report for the applicant’s solicitors dated 29 October 2021, Dr Lim said the applicant continued to experience pain in her back, right hip and right knee, impacting upon her physical function. The applicant also had ongoing intrusive psychological thoughts about the incident. Dr Low had last seen the applicant on 23 August 2021 and reported healing pelvic fractures, sacroiliac joint, incompetence, and some pelvic nerve damage. Neurosurgeon, Prof Di Leva had recommended a cortisone injection and an increase in gabapentin. He advised that the applicant was still suffering from a healing pelvic fracture. In view of the reports from the applicant’s treating specialist team, Dr Lim did not agree that the applicant’s physical condition had resolved.
Responding to a report from the respondent’s IME, Dr Anthony Smith, Dr Lim stated,
“Taking into context his report and the above, it is clear Dr Smith has ignored his history and cursory examination, to provide the opinion that she has recovered. His opinion then states that her pelvic fractures were insignificant, without viewing her imaging as part of her assessment, which would be usual medical practice. I therefore disagree with the report of Dr Smith which is not plausible, in the context of the information detailed by Ms Lee today. Furthermore, I question the validity and appropriateness of an Independent Medical Examination conducted in the presence of her insurer's solicitor, if her reports of them being present are true.”
Dr Lim also disagreed with the opinions given by the respondent’s psychiatric IME, Dr John Roberts that the incident was not significant enough to have caused post-traumatic stress disorder. The applicant had been diagnosed by her treating psychiatrist with post-traumatic stress disorder and was taking medication for this. Dr Roberts’ suggestion that the applicant had an adjustment disorder due to chronic pain was contradicted by Dr Smith who stated that the applicant had recovered from her physical injury.
Dr Khan prepared a report for the applicant’s solicitors, dated 12 December 2021. Dr Khan recorded a history of the incident on 27 October 2020, as a result of which the applicant suffered physical injuries to her lumbar spine sacrum and superior and inferior pubic rami. The applicant continued to experience chronic pain. Dr Khan took a history of psychological symptoms resulting from the accident, including nightmares and flashbacks, unwanted memories, panic and hypervigilance. The applicant denied any pre-existing medical or psychiatric injury. The applicant’s treatment had included counselling, psychological therapy and psychotropic medication including antidepressant medication and anti-insomnia sedative medication prescribed by her psychiatrist.
Dr Khan performed a mental state examination and diagnosed post-traumatic stress disorder in accordance with DSM-5 diagnostic criteria.
In responding to the report from Dr Roberts, Dr Khan noted that the applicant had been caught in a conveyor belt and almost died. The applicant suffered serious physical injuries including multiple fractures. For Dr Roberts to suggest that this experience was not of sufficient severity to cause post-traumatic stress disorder showed a lack of understanding of criterion (a) of the DSM-5 diagnostic criteria. Dr Khan gave the opinion that Dr Roberts’ statements were far-fetched and raised questions about his objectivity.
Dr Khan found that the work injury was a substantial contributing factor to the psychological condition of post-traumatic stress disorder. Any bullying and harassment in the workplace did not have any significance in the context of the frank injury on 27 October 2020 and was not an enduring component of the applicant’s thought content.
Regarding the applicant’s capacity for work, Dr Khan commented,
“Ms Lee has not worked since 19 May 2021 to date. She continued to suffer from pervasive symptoms of trauma, depression and anxiety, which impact on her mood regulation, motivation, energy, attention, concentration and self-confidence. She does not currently have capacity for work in pre-injury duties and hours or other jobs/duties.”
The applicant’s prognosis was said to be guarded.
Clinical records from another general practitioner at the same practice as Dr Lim, Dr Ben Dickson, noted ongoing complaints of pain and persisting trauma symptoms in late 2021 and early 2022. On 4 January 2022, for example, Dr Dickson recorded:
“Enduring post-trauma symptoms but less depressed in mood and improvement in motivation
Ongoing pain but trying to go for a walk once or twice a week”
On 30 September 2022, Dr Lim prepared a further report for the applicant’s solicitors in which he advised:
“Due to her chronic back/hip/knee pain with limited functional capacity, she has not and cannot return to work as a process worker or work in a customer role. Considering her limited vocational profile as a process worker for 2.5 years, waitress for 3 months, she will unlikely ever return to any work within her education, training, and experience. Furthermore, she has enduring PTSD, and English as her second language. Her current psychological condition and concentration issues prevent her from retraining, which she requires, considering her lack of transferable skills for alternate non-physical work.”
Dr Khan prepared a further report for the applicant’s solicitors on 17 April 2023 in which he noted there had not been any significant change in the applicant’s mental state since his previous consultation on 21 April 2022. It was noted that the applicant had been regularly seeing a psychologist and psychiatrist until the denial of her claim. The applicant continued to be reviewed by her general practitioner. Dr Khan stated:
“Ms Lee’s mood remained dysregulated and continued to be characterised by depression, anxiety, panic attacks and agitation (including skin-picking and hair-pulling). Feelings of hopelessness and worthlessness persisted and perpetuated passive suicidal ideation. Ms Lee brushed her teeth and showered less frequently and she often required prompting from her partner to do so. She relied on her partner for the completion of all domestic tasks, including cooking, grocery shopping and cleaning. Ms Lee remained withdrawn from previously enjoyed activities, which included socialising with family and friends and attending outings. Her partner was supportive but she remained isolated from her family and friends. Ms Lee avoided leaving her home on her own and she preferred to remain socially withdrawn. Her sleep and appetite issues persisted. Ms Lee struggled with persistent nightmares, flashbacks and distressing memories about the subject injury and she avoided reminders of her traumatic accident. She only ate one meal daily and she had lost some weight. Ms Lee experienced ongoing cognitive difficulties, particularly with regard to attention, concentration and memory. She was unable to focus on cognitively challenging tasks such as reading and she was easily distracted. Ms Lee had not worked in any capacity since 19 May 2021. The subject injury had eroded her self-confidence, self-esteem and self-identity. Her chronic pain served as a constant reminder of her traumatic experience.”
D Khan remained of the view that the applicant was totally incapacitated for work from a psychiatric perspective.
Dr Khan commented further on Dr Roberts’ reports, stating:
“Dr Roberts has not provided any statistics to support his assertion that ‘The cascade of increasing complexity and increasing symptomatology is not impossible but statistically improbable’. The fact that Dr Roberts did ‘not consider that the stressor was of sufficient severity to produce PTSD’ is his subjective opinion. Ms Lee perceived that she could have been killed at the time of the subject traumatic incident that occurred on 27 October 2020. Had the conveyer belt not stopped and had she not been freed from the machine with the support of her colleague, she would have been pulled through an industrial machine. She sustained pelvic fractures in this process, which highlights the gravity of the incident. I do not agree with Dr Roberts’ opinion in this regard. I consider this stressor to be of sufficient severity to produce post-traumatic stress disorder.”
With regard to the applicant’s return to suitable duties following the injury, Dr Khan commented,
“Dr Roberts has failed to acknowledge that there is often ‘delayed expression’ of post-traumatic stress disorder where the full symptomology has not occurred within six months of the traumatic incident occurring. This descriptor of ‘delayed expression’ is in the DSM-5 diagnostic criteria. Dr Roberts’ opinion here is subjective and not based on fact. When considering the delayed expression of her symptoms, it is not unreasonable that Ms Lee would have return to work for a period of time after the subject injury. Dr Roberts also did not comment on the ‘pressure’ Ms Lee felt from her employer to return to work before she felt well to do so, which is a significant omission. I do not agree with Dr Roberts that Ms Lee’s termination is significant as I am of the opinion that regardless of her termination, her psychiatric condition was so fragile that there was a high likelihood that she would have eventually become totally incapacitated to work due to her psychiatric injury.”
Psychologist, Mr Carl Nielsen, prepared a report on 1 May 2023 in which he also diagnosed post-traumatic stress disorder. Mr Nielsen reported:
“Due to her work related injury Ms Lee noted a deterioration in her mental state characterized by repeated disturbing and unwanted memories pertaining to the injury and specifically regarding being stuck in the conveyor belt. She noted avoidance of social interactions and speaking about the incident generally. Ms Lee noted negative thinking characterised by anxious and depressive cognitions regarding her future capacity to return to pre-injury duties and general functioning. Ms Lee noted fluctuations in arousal ranging from hypervigilance to low mood. Due to her work related injury Ms Lee has been rendered unable to work. She is unable to play sports including soccer or drive. Ms Lee has become socially withdrawn and isolated and prefers to stay at home. She relies on her partner to perform domestic duties including cooking, cleaning and grocery shopping.”
The applicant was said to have capacity to work two hours per day two days per week.
Dr Lim prepared another report for the applicant’s solicitors on 1 May 2023 in which he reiterated his previous opinions but noted that the applicant had enrolled in an English course.

Certificates of capacity

A WorkCover certificate of capacity was issued on 3 November 2020 by Dr Jacob. The certificate gave a diagnosis of pelvic fractures and left shoulder bursitis. The applicant was certified as having no current work capacity until 1 December 2020.
In a certificate, dated 3 February 2021, the applicant was certified as having capacity for suitable employment for four hours per day, five days per week.
A diagnosis of “anxiety/depression disorder” was added to a certificate dated 29 March 2021. The applicant’s capacity for work was increased to five hours, five days per week.
A SIRA certificate of capacity was issued by Dr Lim on 25 May 2021, certifying the applicant as having no current work capacity. The certificate diagnosed:
“Lumbar spine strain, R) sacral ala fracture, R) superior and inferior pubic rami fracture; ?Sacral plexus injury; PTSD (PCL-5: 73)”.

Dr Lim and Dr Dickson, continued to issue certificates certifying the applicant as having no current work capacity from that time until 23 December 2022, when the applicant was certified as having capacity for some type of work for two hours per day, two days per week. Certificates to the same effect have been lodged with the Commission covering the period to 31 July 2023.

Dr Soo

The applicant relies on medico-legal reports prepared by orthopaedic surgeon, Dr Gavin Soo, dated 16 August 2021 and 19 April 2023.
In his first report, Dr Soo took a history of the applicant’s jacket getting caught in a machine on 27 October 2020. A conveyor belt sucked the applicant into a machine and she experienced severe pain to her lower back and right hip. An MRI performed two days later showed multiple pelvic fractures.
The applicant complained of ongoing severe pain to her lower back located on the right side of her back and tailbone. The applicant also experienced ongoing right hip pain radiating to the back of the thigh and sometimes to the right foot. The applicant’s pain was worse with prolonged sitting, standing or walking and she was woken at night due to pain. The applicant described numbness and tingling to the right foot.
The applicant had difficulties performing all normal daily activities, including attending to personal hygiene and was assisted by her partner. The applicant was taking Panadeine Forte and Gabapentin. A cortisone injection to her right sacroiliac joint helped her pain for a short while.
Dr Soo noted that due to the COVID situation he was unable to perform a formal examination but noted the examination findings of Prof Di Ieva on 9 June 2021 and Dr Low on 19 May 2021. Dr Soo referred to the results of the bone scan performed on 8 February 2021 and MRI of the lumbar spine, pelvis and right hip on 29 October 2020.
Dr Soo gave the opinion:
“Miss Lee presents with ongoing lower back and right leg pain following an injury at work on the 27th October 2020. She suffered pelvic ring fractures which were diagnosed two days after being discharged from Dubbo Base Hospital on an MRI scan. Since the injury Miss Lee has continued to experience ongoing pain and dysfunction to her pelvis and right hip. She has difficulty performing all her normal day to day activities and requires her partner to assist her with these activities.
Prior to this accident Miss Lee was an otherwise well lady who denies any previous history of pain or injury.
Based on my assessment, I am of the opinion that the accident that occurred at work on the 27th October 2020 is the main contributing factor to her current pain and disability.
Miss Lee has been unable to return back to her previous level of occupational duties due to this pain and disability. She also has marked difficulty with her normal day to day activities. The main contributing factor towards her incapacity is the workplace injury that occurred on the 27th October 2020.”
Dr Soo, prepared a further report for the applicant’s solicitors, dated 29 October 2021, in response to a report prepared by the respondent’s IME, Dr Smith, dated 17 September 2021. Dr Soo commented:
“…to say that a person suffering multiple traumatic fractures to their pelvis and dismissing these injuries as being ‘fairly insignificant’ is quite astonishing. I can only think that perhaps Dr Smith has never treated or worked in a trauma centre that deals with pelvic fractures. Pelvic fractures are one of the most painful and debilitating injuries you can suffer and patients are often bed bound and unable to even sit out of bed due to pain. I would definitely NOT call them ‘insignificant’.”
Responding to Dr Smith’s statement that he would have expected a bone scan to show significant uptake for up to 12 to 18 months, Dr Soo said that the applicant’s history was consistent with the findings on bone scan:
“Ms Lee has had multiple traumatic ‘significant’ fractures of her pelvis which have shown signs of bony union, and that correlates with the findings of bonescan.”
In his supplementary report, Dr Soo said he had performed an interview with the applicant via telehealth on 19 April 2023, with the assistance of an interpreter. The applicant’s current symptoms were said to include right hip pain radiating down the right leg to the foot associated with numbness from the hip to the foot. The pain and numbness were worse with prolonged sitting, standing and walking. The applicant was woken at night due to pain. The applicant also complained of pain to her lower back and tailbone, especially when bending forward. The applicant was able to perform her normal daily activities, including personal hygiene but had difficulty performing all her household duties due to pain. The applicant was not receiving any treatment other than taking Panadeine Forte and Gabapentin.
Dr Soo made a diagnosis of:
“Ongoing chronic pain post pelvic fractures. Clinically she likely has a combination of neuropathic pain to the right hip and leg and musculoligamentous pain to her lower back and right sacroiliac joint.”
Asked to comment further on the report of Dr Smith, Dr Soo stated,
“Dr Smith, although stating clinically she is debilitated by ongoing pain, made his decision to conclude ‘theoretically, there would be no restriction, from an orthopaedic point of view, that I would place on her.’ based primarily on his MRI scans and imaging. As we know, imaging does not always show the whole picture and is not 100% sensitive, especially in terms of musculoligamentous injuries or neuropathic pain.”
Dr Soo said the applicant did not have capacity to return to her pre-injury duties.

Dr Hong

The applicant also relies on a medico-legal report prepared by consultant psychiatrist, Dr Michael Hong, dated 6 August 2021.
Dr Hong took a history of the incident on 27 October 2020. It was noted that the applicant’s pain was initially severe but had improved to a two to three out of ten. The applicant remained in fear that she was seriously hurt from the accident.
Dr Hong took a history of difficulties experienced by the applicant on return to the workplace including, inappropriate comments, verbal bullying and abuse. The applicant felt increasingly anxious and isolated herself at work. It had also been alleged that the applicant was trying to steal confidential documentation and an unfair dismissal claim had been brought. The employer’s WorkCover manager had tried to extend the applicant’s work hours beyond what had been certified by her doctor.
Dr Hong identified no other major life events or losses or potential contributing factors outside employment. The applicant had been prescribed antidepressant medication and was consulting a psychologist.
Dr Hong diagnosed post-traumatic stress disorder and commented:
“Ms Lee's condition was caused by the incident when she was caught by the conveyor belt machine and she sustained pelvic fractures. Her symptoms have not subsided and was further aggravated when she returned to work due to perceived bullying and harassment. In my opinion, her psychological injury is directly caused by her employment, and the work injury is the substantial contributing factor to her current condition. There is no underlying condition.”
Dr Hong gave the opinion that the applicant was not fit for work and her incapacity had been caused by the psychological injury sustained at work. The applicant’s prognosis was uncertain.

Dr Smith

The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr Anthony Smith, dated 17 September 2021 and 8 June 2023.
In his first report, Dr Smith took a history of the applicant’s clothes being caught in a conveyor belt and the applicant being dragged by the conveyor belt into a machine. The machine was stopped and the applicant was helped out. The applicant was taken to a medical centre where she could not walk and required wheelchair. X-rays taken at Dubbo Base Hospital showed no fractures. After a few days, the applicant was no better and an MRI was undertaken where fractures were demonstrated. The applicant was given crutches and a wheelchair and was generally stuck in bed. The applicant continued with a lot of pain in the pelvis, could not sleep very well or walk very well. The applicant had psychological and physiotherapy treatment and was not a great deal better overall.
Dr Smith referred to the MRIs taken on 29 October 2020 and 19 January 2021, as well as the bone scan report dated 8 March 2021. Dr Smith also had before him correspondence from Dr Low, Dr Di Ieva and the report of Dr Soo, dated 16 August 2021.
Dr Smith gave the opinion:
“In the work accident that occurred on 27 October 2020, she would appear to have sustained a number of fractures to the right side of the pelvis, including the ala of the sacrum and the inferior and superior pubic rami on the right. These would appear to have healed without any displacement, based on the radiology available. She describes symptoms in the right lower back running down the right leg to the foot. Radiologically looking at the lumbosacral spine, there is no cause demonstrated for any such symptoms.
I would expect the fractures to heal and leave no disability. I would have thought recovery would have happened after six months at the most from the accident and would have left no disability.”
In response to a question as to whether the applicant’s injuries could properly be said to be continuing, Dr Smith stated:
“Based on the bone scan results of 8 March 2021, six months post injury, the fractures have almost healed. I would have thought they were fairly insignificant fractures, because I would have expected the bone scan to demonstrate significant uptake for up to 12 to 18 months from the significant fracture/ injury. As stated above, she could have sustained an injury to her back, as well as her pelvis, under the circumstances described.”
Asked about the applicant’s fitness for employment, Dr Smith stated,
“From an orthopaedic point of view, I would have thought she has fully recovered, and will be fit to work in her previous occupation on a full-time basis. Theoretically, there would be no restriction, from an orthopaedic point of view, that I would place on her. It may be worthwhile having her observed.”
In his report dated 8 June 2023, Dr Smith took a history of the incident and subsequent treatment, consistent with his previous report. The applicant reported that she continued with pain in the tailbone radiating into the right buttock and down the right leg. The symptoms were no better since Dr Smith last saw her. The applicant spent most of her time in bed.
Dr Smith recorded his findings on examination noting a peculiar, staggering gait, loss of sensation in the entire surface of the right lower limb and marked power loss with all movements of the right lower limb without any wasting or reflex change. Dr Smith gave the opinion,
“Regarding today's clinical examination, she is manufacturing physical signs. There is an unphysiological restriction in straight leg raising and hip flexion which contrasts with her ability to flex her hips to 110° bilaterally without pain. When testing sensation in the legs, the weakness she exhibits in the right lower limb is so great that it would not be possible for her to walk at all, but she can, nonetheless, walk.
…
I am unable to find anything wrong with her that represents objective evidence of any disability. She is manufacturing physical signs. The actual injuries sustained are fairly minor, from an orthopaedic point of view. One would expect a complete recovery with no ongoing symptoms after six months at the most, and more likely than not, a much lesser period than that.”

Dr Roberts

The respondent also relies on medico-legal reports prepared by psychiatrist, Dr John Albert Roberts, dated 21 October 2021 and 7 June 2023.
In his first report, Dr Roberts said he had been informed that the applicant claimed to have sustained an injury at work on 27 October 2020 involving “a fall on a conveyer belt”. The applicant was initially diagnosed with a muscle strain or soft tissue injury but later alleged a pelvic fracture and injury to her lower back. The applicant was subsequently fit to return to suitable work and was provided with employment until she was involved in allegations of serious misconduct. The applicant was referred to a different medical practitioner at the recommendation of her lawyer and then sought to allege a psychiatric or psychological injury in the nature of post-traumatic stress disorder. The precise basis for the alleged psychological injury had never been properly particularised.
Dr Roberts said the applicant’s own account of the incident was that certain clothes were caught in a conveyer belt and the applicant was stuck for a time. The applicant was not initially taken to hospital but referred for X-ray. The applicant was able to walk home on the same day. Some two to three days post-accident some fractures were detected on MRI and treated with analgesia.
Dr Roberts took a history of the applicant’s physical and psychological symptoms and commented,
“The range of symptoms described is extreme and beyond what would be anticipated as arising from the subject accident even if Post-traumatic stress disorder is assumed, the alleged fears of being nervous that someone would break in appears difficult to connect with the subject accident. I questioned Ms Lee as to why she should be scared in the manner described and she replied that she couldn't get out of her car, she doesn't know the reason; that she is nervous about having another accident/injury; that post-accident she had been offered light duties but she had been bullied and sexually assaulted.”
Dr Roberts noted that the applicant had been able to return to work after the injury and commented:
“In regard to the fact that Ms Lee was able to return to work post-date of injury, it would be assumed that if there was a psychiatric condition, such should not significantly impact upon her self-care and personal hygiene, travel, her ability to function normally in terms of interaction with others and would have required that her concentration, persistence and pace were within normal limits and that her capacity for employment from the psychiatric viewpoint was not significantly compromised.”
Dr Roberts referred to academic writings indicating that post-traumatic stress disorder was easy to fake as diagnosis was based almost entirely on the individual subjective report of symptoms, which were difficult to independently verify.
Referring to reports from Dr Low indicating that the applicant was making good progress, Dr Roberts commented that this appeared to be inconsistent with the applicant’s presentation and assertions as to her physical complaints.
Dr Roberts concluded,
“The cascade of increasing complexity and increasing symptomatology is not impossible but statistically improbable. I note that medical records in terms of access to them has been restricted. There appears to be certain inconsistencies in regard to expressions of improvement and I note that the fractures have been shown to be substantially if not totally healed but complaints of which symptomatology remain. The symptoms of Post-traumatic stress disorder as has been mentioned are readily available and easily learnt. The check-list for diagnosing Post-traumatic stress disorder is an unreliable instrument and should not be relied upon especially in circumstances of potential secondary gain.
…
In this context the accident was an accident that produced as far as I am able to ascertain minor non-displaced fractures which have healed and certain physical conditions which in terms of my understanding of such conditions have a positive prognosis.
Based therefore on DSM5 criteria I do not consider that the stressor was of sufficient severity to produce PTSD.
A differential diagnosis however from PTSD would be an Adjustment Disorder with anxiety and depression as a response to the symptoms alleged to be present as a consequence of the physical injury.
It would therefore my recommendation to refer Ms Lee for detailed forensic psychological assessment which would indicate that her response to the questions put are consistent with the symptomatology alleged.”
With regard to the applicant’s capacity for work, Dr Roberts referenced his experience working with holocaust survivors with post-traumatic stress disorder, most of whom, in spite of ongoing symptomology, had a history of involvement in the arts, sciences and professions. Even assuming a diagnosis of post-traumatic stress disorder or adjustment disorder was present, Dr Roberts did not consider that any psychiatric condition would result in unemployability. Work capacity would be based on the applicant’s physical limitations alone.
In his report of 7 June 2023, Dr Roberts took a history of the applicant’s physical symptoms as well as her psychological symptoms. Amongst other things, the applicant asserted that her memory was becoming worse and had deteriorated to the extent that if she took a shower and washed her hair, she was unable to remember if she did so. Dr Roberts commented that the applicant did not demonstrate such symptomology during the interview and suggested her example of memory disturbance was consistent with “a most severe form of short-term memory loss, of which there was no clinical evidence.”
The applicant also said she never left the house alone. Dr Roberts commented that this was difficult to understand on reasonable psychiatric grounds since going out of the house would not involve being exposed to machinery or circumstances reminiscent of the industrial circumstances in which she had worked.
The applicant continued to take melatonin and fluoxetine, as well as Panadeine Forte and Gabapentin.
Dr Roberts commented on Dr Khan’s report of 17 April 2023, including his comment that the applicant perceived she could have been killed at the time of the traumatic incident. Dr Roberts commented that perceptions held by a person at the time of an incident were not relevant to the current definition of post-traumatic stress disorder.
Dr Roberts considered that detailed forensic psychological assessment was vital to establish the correct diagnosis given the applicant’s complaint of a short-term memory deficit which would render her incapable of independent existence and requiring full-time, 24-hour care at a dementia facility.
Dr Roberts, stated:
“I would consider that on reasonable psychiatric grounds, having regard to her complaints, her presentation is on reasonable psychiatric grounds, impossible.”

Respondent’s factual evidence

Amongst the material attached to the respondent’s Reply is a completed job application form, which sets out the applicant’s education and training, as well as a resume. The applicant studied chemistry and horticulture at universities in South Korea between 2007 and 2013. In Australia, the applicant had performed work including fruit picking, production management and cooking.
Statements from two of the applicant’s co-workers, dated 19 May 2021, indicate that the applicant was seen reading paperwork from the shredding bin and placing it into her bag.
On the same date, the applicant was hand-delivered a letter advising her that she was stood down on full pay, pending an investigation into allegations involving the potential misuse of sensitive and highly confidential documents.
In further correspondence, the applicant was advised that the employer had concluded that it was more probable than not that she did engage in the conduct described in the allegations. In particular, none of the papers contained the applicant’s name or were related to her injury and/or claim. The applicant was advised that the employer was considering terminating her employment.
On 24 May 2021, the applicant was sent a further letter inviting her to show cause as to why she should not be dismissed.
A “draft” employer response to unfair dismissal proceedings brought in the Fair Work Commission indicated that the applicant’s employment was terminated on 1 June 2021.

Applicant’s written submissions

The applicant relies on written submissions prepared by Mr Beran on 14 April 2022 and 4 May 2022.
The applicant submitted that she had an incapacity resulting from both physical and psychological injuries sustained in the incident on 27 October 2020.
The applicant referred to the description of the injurious event in the treating evidence and submitted that there would be no doubt that she would have feared for her life in such circumstances. It was noted that the applicant’s physical injuries required her to use a wheelchair and that she had received a significant injury, from which it was expected the applicant would take several months to recover.
The applicant noted the references to psychological symptoms in the report of Dr Low, dated 17 March 2021 and submitted that the respondent was fully aware of the applicant’s deteriorating mental health at this stage. Dr Lim diagnosed post-traumatic stress disorder in the SIRA certificate of capacity issued by him on 25 May 2021 and in each of the certificates issued thereafter.
It was noted that the applicant’s physical symptoms remained sufficiently severe as to require lumbar steroid injection in July 2021.
The applicant referred to the treating reports from psychiatrist, Dr Khan, including his detailed rationale as to why the DSM-5 criteria for post-traumatic stress disorder had been met. That diagnosis was said to be consistent with that made by Dr Hong.
The applicant noted that Dr Smith’s opinion of 17 September 2021, that he believed the applicant would have recovered after six months at most, was given only two months after the applicant was in such pain as to require lumbosacral injections and increasing neuropathic pain medication.
Dr Smith’s comment that the applicant had insignificant fractures was inconsistent with the applicant’s use of a wheelchair for one month following the accident and the fact that she was wedged between two conveyor belts and unable to extricate herself without assistance. Dr Smith’s opinion was said to “escape the bounds of reality” when compared with the plethora of contradictory medical evidence. The applicant noted that her IME, Dr Soo, described pelvic fractures as one of the most painful and debilitating injuries and definitely not insignificant.
The applicant submitted that the history recorded by Dr Roberts of falling “on” a conveyor belt indicated that his opinion was based on a false premise. The applicant was in fact drawn into a conveyor belt system by her clothes and crushed between two moving conveyors. Dr Roberts’ opinion that the stressor was not sufficient in severity to produce post-traumatic stress disorder clearly showed total incomprehension of the severe and life-threatening nature of the injury and ought to be rejected.
The applicant submitted that the combined evidence of Dr Lim, Dr Di Ieva and Dr Soo stood in stark contrast to that of Dr Smith. Dr Smith’s opinion ought to be rejected.
The applicant submitted that there was a plethora of medical evidence from her treating practitioners and independent psychiatrist to support a finding that the applicant suffered from post-traumatic stress disorder as a result of the work injury. Dr Roberts’ opinion ought to be dismissed or given little weight, given the wrong history on which he relied. Employment was a substantial contributing factor to the psychological injury.
The applicant never returned to her pre-injury duties. The evidence of significant ongoing physical restrictions and psychological injury supported the view that the applicant had no capacity for any employment.
The applicant asserted that at least from the time of service of a previous Application to Resolve a Dispute, the respondent was formally placed on notice of a claim for weekly benefits resulting from a psychiatric injury in the frank event on 27 October 2020. Strict compliance with s 260 of the 1998 Act was not required.
The applicant submitted that the work the applicant was performing for the respondent after the injury was not “real work” but rather menial duties provided by the respondent. The applicant referred to the authority in Wollongong Nursing Home Pty Ltd v Dewar[1] in this regard.
[1] [2014] NSWWCCPD 55.
The applicant submitted that there was no evidence that she had a psychiatric injury of gradual onset caused by multiple factors. The injury was a frank injury caused by the traumatic event on 27 October 2020. There was a plethora of medical opinion to support this diagnosis and cause. On this basis, there was no need to prove employment was “the main contributing factor”.

Respondent’s written submissions

The respondent relies on written submissions prepared by Mr Macken, dated 3 May 2022.
The respondent submitted that the applicant had been able to return to work and carried out suitable work without difficulty until 19 May 2021. In consultations with her general practitioner on 3 November 2020 and 3 February 2021, only physical injuries were described. There was no allegation of any psychiatric or psychological injury.
The respondent noted that on 19 May 2021 the applicant was engaged in an activity properly described as serious misconduct. The applicant’s allegations that the documents she accessed related to her were false and had been contradicted by the respondent’s witness evidence. It was clear that until 19 May 2021, the applicant had a capacity to earn as much as her pre-injury average weekly earnings (PIAWE) and well in excess of 80% of those earnings.
Once the applicant had been found to have engaged in gross misconduct and her employment had quite appropriately been terminated, the applicant elected to change to a different general practitioner at the recommendation of her solicitor. Despite residing in Dubbo, the applicant saw Dr Lim in Sydney who only saw the applicant by telephone. Dr Lim’s consultations did not involve any physical examination of the applicant at all. Despite no alteration in the applicant’s condition, Dr Lim certified the applicant as having no work capacity. That assertion ought to be rejected.
The respondent submitted that the applicant’s statement evidence did not come from her but was a statement advanced on her behalf by her legal advisors and ought to be rejected.
The respondent submitted that Dr Smith carefully reviewed the radiological and other evidence and provided an opinion that was consistent with the observations of Prof Di Ieva, who reported that his physical examination was largely unremarkable.
The respondent said despite not ever having submitted a claim in respect of a psychiatric or psychological injury, the applicant was examined by Dr Roberts. Dr Roberts took a history of the applicant walking home on the same day as the incident. On any view, the incident could not be considered life-threatening.
The history of sexual harassment at work along with the termination of her employment were clearly significant factors to the development of any psychiatric or psychological injury notwithstanding the forensic decision made on the applicant’s behalf not to rely on such matters in the current application.
The respondent objected to the applicant’s attempt to rely on multiple forensic reports.
The respondent said that Dr Smith’s view that the injury was “insignificant” was consistent with the evidence from Dr Jacob and the medical practitioners at Dubbo Hospital as well as the radiological investigations.
The respondent submitted that the opinion of Dr Hong was of no assistance due to the failure to distinguish between the incident on 27 October 2020 and subsequent bullying, harassment and assault reported by the applicant or the termination of the applicant’s employment. The respondent submitted that it could be inferred that any psychological condition after the termination of employment was a consequence of the issues surrounding the termination of the applicant’s employment. The respondent noted that the report of Dr Low of 3 February 2021 and the report of Ms Barden, dated 26 February 2021, made no reference to psychological symptoms.
The respondent submitted that the applicant had not discharged the onus of proof regarding an alleged psychiatric or psychological injury attributable to the incident as opposed to other matters. Any such injury was in the nature of the disease, and the applicant carried the onus of proving that employment was the main contributing factor to the cause or aggravation of that disease process.
The respondent submitted that there should be an award for the respondent in respect of any alleged psychological injury and that the applicant should be accepted as having recovered from the effects of any physical injury, having regard to the views of Dr Smith and Dr Di Ieva. The medical evidence would not permit a finding of ongoing incapacity.
The respondent noted that according to the resume attached to its Reply, the applicant held university qualifications in both horticulture and chemistry and had considerable employment experience, including in production management and accounting.

Applicant’s oral submissions

In oral submissions at the arbitration hearing on 8 June 2023, the applicant indicated that she relied upon the recitation of evidence and findings of Member Whiffin in relation to the substantive matters in dispute.
A plethora of new evidence had subsequently been lodged with the Commission including clinical records made by Dr Jacob on the date of the incident describing the applicant being pulled into a conveyor belt, yanked and twisted into a narrow space. The applicant reiterated her submission that Dr Roberts had failed to take proper account of the traumatic nature of the incident.
Further clinical material from Dr Low identified the psychological impact of the incident. The records from Ms Jackson indicated that from 18 February 2021 onwards, the applicant was seeking treatment for psychological symptoms including flashbacks and panic attacks. Those were the same symptoms the applicant continued to report, and which were recorded by Dr Roberts. Less than four months after the injury, and well before any allegations of impropriety at work, the applicant was given a provisional diagnosis of post-traumatic stress disorder. The new evidence strengthened the applicant’s claim.
The applicant noted that her current certificates of capacity certified a low capacity of two hours per day, two days per week. Dr Lim’s reports for the applicant’s solicitors had, however, identified a lack of capacity for pre-injury duties and the applicant’s enduring psychological symptoms, language barriers and limited vocational experience as issues preventing her from retraining.
Mr Nielsen had recorded symptoms and made a diagnosis consistent with the prior evidence and opinions of the treating psychiatrist, Dr Khan. Mr Nielsen identified psychological barriers to employment which ought to be considered in conjunction with the applicant’s ongoing physical symptoms.
The most recent evidence from Dr Khan was that there had been little change in the applicant’s mental state. Dr Khan considered the applicant had no capacity to work due to the pervasiveness of her psychological symptoms.
The applicant submitted that Dr Roberts stood on his own with respect to the psychiatric aspect of the applicant’s injury.
With regard to her ongoing physical symptoms, the applicant referred to the supplementary report from Dr Soo. Although no physical examination was performed, Dr Soo gave the opinion that clinically, the applicant had a combination of neuropathic pain and musculoligamentous pain which had not resolved. The applicant’s ongoing pain affected her on a daily basis and limited her normal activities.
The applicant submitted that the totality of the medical evidence indicated that she continued to have no current work capacity.
The applicant noted that in his supplementary report, Dr Roberts took a consistent history of complaints. Dr Roberts considered the applicant’s complaints to be inexplicable but took no new history of the incident and did not change his opinion regarding its severity. The applicant relied on her previous submissions regarding the correctness of the history upon which Dr Roberts’ opinions were based.
Noting the new evidence of treatment by Ms Jackson, the applicant submitted that there was no delayed onset of post-traumatic stress disorder symptoms. The applicant was reporting symptoms and getting treatment soon after the incident.
The applicant noted that Dr Roberts had asserted that there were no abnormalities of mood or effect without recording or conducting a mental state examination. That omission significantly undermined the value of Dr Roberts’ reports and ought to be contrasted with Dr Khan’s mental state examination.
The applicant submitted that the weight of evidence overwhelmingly indicated that she had no capacity for employment. Although the certificates indicated a capacity for two hours per day, two hours per week, the specialist evidence indicated that the applicant had no capacity for any employment. The only contrary evidence was from Dr Roberts, whose report should hold no weight.
The applicant conceded for the purposes of s 38 of the 1987 Act that if she were found to have current work capacity, the Commission would lack jurisdiction to award weekly payments after the second entitlement period. The applicant referred to the arbitral decision in Chea v Woolworths[2] and submitted that the applicant had no capacity to engage in her pre-injury employment, and there were no real jobs or “suitable employment” capable of accommodating the applicant’s restrictions for the purposes of s 32A of the 1987 Act. The applicant’s doctors had expressed the view that the applicant’s prognosis was poor. In effect, this constituted an opinion that the incapacity was “likely to continue indefinitely”.
[2] [2022] NSWPIC 26.

Respondent’s oral submissions

In oral submissions at the arbitration hearing on 8 June 2023, the respondent noted that the applicant’s most recent medical certificates certified her as fit for suitable employment. In enacting s 38 of the 1987 Act, Parliament had made clear that unless a worker was totally incapacitated or working a minimum of 15 hrs per week, there was no entitlement to further weekly compensation. The applicant faced an uphill battle to convince the Commission that she had no current work capacity.
The respondent referred to the presidential decision in Lee v Bunnings Group Limited[3] (Lee v Bunnings) and said it constituted binding authority that assessment of work capacity was within the realm of the insurer. Although the Commission now had jurisdiction to review that assessment, until the requirements of s 38 were triggered, the Commission had no jurisdiction to determine the matter.
[3] [2013] NSWWCCPD 54.
In the present case, the applicant had not approached the insurer to assess work capacity and no claim for compensation under s 38 of the 1987 Act was made in the ARD. The respondent referred to the recent presidential decision in Ferro v Mercon Group Pty Ltd[4] and submitted that arbitral decisions awarding weekly compensation under s 38 of the 1987 Act prior to Ferro were not correct. The Commission would not follow those arbitral decisions over a presidential decision.
[4] [2022] NSWPIC 165.
The applicant’s own evidence from her general practitioner indicated that she was capable of performing suitable employment and did not satisfy the requirements of s 38(3) of the 1987 Act.
The effects of the injury remained very much in dispute. Although there was a plethora of additional evidence, there was no new statement evidence from the worker beyond January 2022. It was not known what the applicant’s activities were since her move to Queensland.
The respondent observed that Mr Nielsen, Dr Lim and Dr Khan all practised from the same address. There was no indication that Mr Nielsen had examined the applicant. It was not apparent that the applicant had been referred to him for therapy or what therapy had been provided.
The respondent submitted that the Commission would not be convinced that the applicant’s English language ability preclude her from working. It was not apparent that an interpreter was used in the preparation of the applicant’s statement evidence, or in all of her medical examinations.
It remained unclear what physical or psychological treatment the applicant had been receiving. The applicant’s treatment appeared at all times to have occurred via telehealth. No treating practitioners in Queensland had provided evidence in the case.
With regard to the applicant’s physical injuries, no recent radiological investigations had been provided. The bone scan had revealed near complete healing of the pelvic fractures. One might expect to see a further scan to see whether there had been complete healing. On Dr Soo’s own report, the fractures were minor. The opinions given by Dr Soo were based entirely on the applicant’s self reporting over telehealth.
The respondent submitted that the Commission had before it an incomplete picture of the ongoing effects of the applicant’s physical injury.
With regard to the alleged psychological injury, the respondent noted that the first evidence of psychological treatment occurred four months after the injury. The matters discussed with Ms Jackson were not confined to the shock of the injury. The applicant made complaints around her distrust in her healthcare providers and the workers compensation process. No report had been obtained from Ms Jackson and the Commission would approach her clinical records with caution consistently with Mason v Demasi.[5]
[5] [2009] NSWCA 227.
The respondent suggested that the applicant’s case might be stronger if Dr Khan was in fact regularly treating the applicant and there was a regular treating psychologist. It was not known what the applicant’s current symptomology was other than through hearsay and outdated medical reports.
The complaints made by the applicant did not all relate to the primary incident but also subsequent events. The applicant’s reported symptoms should be seen in the context of what was going on in her employment. The respondent submitted that the applicant would have continued working but for the misconduct at work and termination of the applicant’s employment. It beggared belief that if there was a psychological condition, it would be other than secondary to the matters which occurred in the workplace. Dr Roberts was in the same position as the applicant’s doctors in not having seen the applicant recently.
The respondent submitted that the applicant had demonstrated a capacity to do light work upon her return to employment in December 2020. This was consistent with Dr Smith’s opinion that the physical injury should have resolved within months. The clinical records of Dr Jacob indicated that by 1 December 2020 the applicant’s pain levels had reduced to 3 to 4 out of 10. The applicant’s work hours were steadily increased and the applicant was performing a real job which would have continued if she had not been terminated.
The respondent submitted that the earlier reports of psychological symptoms were indicative of someone who was frustrated with the physical effects of her injury and the workers compensation process. This was indicative of a secondary rather than primary psychological condition.
The applicant’s reports of ongoing physical pain were inconsistent with the radiology and just a subjective reaction to what else was going on. The respondent submitted that the Commission would not be convinced that there was a problematic physical condition.
The respondent submitted that the applicant was fit for suitable duties as evidenced by her return to work. The Commission lacked proper treating evidence capable of giving a true picture of the applicant’s mental and physical condition.

Applicant’s oral submissions in reply

The applicant submitted that the correct legal test was whether the applicant had “current work capacity”, which required consideration of whether there was “suitable employment”.

Incapacity and the extent of the applicant’s entitlement to weekly compensation

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
There is no dispute that the applicant sustained a physical injury in the event on 27 October 2020. I have also found that the applicant sustained a primary psychological injury in the same event. There is, however, an outstanding dispute as to the ongoing effects of the physical and psychological injuries on the applicant’s capacity for employment.
The claim for weekly compensation commences on 9 June 2021 in the second entitlement period pursuant to s 37 of the 1987 Act.
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, as alleged, she must demonstrate that she has, during the relevant period, had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The applicant has provided certificates of capacity certifying her as having no current work capacity, covering the period from 9 June 2021 to 22 December 2022. From 23 December 2022 onwards, the applicant was certified as having capacity for some type of employment for two hours per day, two days per week.
Amongst other things, the applicant claims that, notwithstanding the more recent certifications, there is no “suitable employment”, or real jobs that would accommodate her restrictions. Accordingly, it is submitted that the Commission should find that the applicant has at all material times had “no current work capacity”. The applicant relies in the comments of Roche DP in Wollongong Nursing Home Pty Ltd v Dewar[12] in this regard:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
[12] [2014] NSWWCCPD 55.
The applicant has given evidence as to the ongoing effects of the injury on 27 October 2020 in her written statements. The applicant described ongoing physical symptoms including pins and needles in her right leg and back, causing difficulties with self-care and domestic duties. The applicant said she was unable to drive due to pain. The applicant also described ongoing psychological symptoms including, hypervigilance, poor concentration, panic attacks, nightmares and flashbacks.
Although, as noted by the respondent, no statement evidence has been provided by the applicant since her statement of 12 January 2022, the Commission does have before it more recent treating and medicolegal evidence with regard to the ongoing effects of the applicant’s injuries.
The physical symptoms described by the applicant in her statement evidence were consistent with those reported by Dr Lim in his initial assessment report prepared shortly prior to the period of weekly compensation claimed in these proceedings.
The applicant was seen at the commencement of the period of weekly compensation in dispute by Prof Di Ieva. The respondent’s submissions drew attention to a comment made by Prof Di Ieva in his report of 9 June 2021, that his neurological examination was “unremarkable”. The respondent’s submissions did not, however, note the finding of right-sided local pain on examination or Prof Di Ieva’s recommendations that the applicant increase her dose of Gabapentin and continue with physiotherapy or his referral for epidural injection to allow the applicant to cope better with the residual inflammation and pain. The applicant underwent the injection on 7 July 2021 and it was later reported to have provided only temporary relief.
When the applicant was seen by Dr Low on 23 August 2021, he indicated there had been no change in the applicant’s physical symptoms since his last review in May 2021. On that occasion, the applicant had reported pain, especially around the coccyx region, tingling pain radiating down the right anterior thigh and a sensation of incomplete emptying of the bowel and bladder. Dr Low considered that the applicant’s ongoing symptoms could be combination of sacroiliac joint incompetence and a pelvic nerve injury.
Dr Lim’s report to the applicant’s solicitors on 29 October 2021 was consistent with the evidence from the specialists described above. Dr Lim did not agree that the applicant’s physical condition had resolved.
Ongoing pain continued to be recorded in Dr Lim’s and Dr Dickson’s clinical records during 2022. In a further report for the applicant’s solicitors on 30 September 2022, Dr Lim described chronic back, hip and knee pain with limited functional capacity as factors limiting the applicant’s capacity to engage in employment. Dr Lim reiterated his opinions in his most recent report, dated 1 May 2023.
The applicant’s medico-legal expert, Dr Soo, took a history of similar symptoms when he first saw the applicant in August 2021. Although Dr Soo was unable to perform a physical examination, he noted the findings of Dr Low and Prof Di Ieva described above. Dr Soo noted the applicant had marked difficulty with her normal day to day activities and had been unable to return to her previous level of occupational duties due to pain and disability.
Most recently, Dr Soo performed a telehealth interview with the applicant on 19 April 2023. The applicant continued to report right hip pain radiating down the right leg associated with numbness, which was worse with prolonged sitting, standing and walking. The applicant continued to take Panadeine Forte and Gabapentin. Dr Soo found that, clinically, the applicant likely had a combination of neuropathic pain to the right hip and leg and musculoligamentous pain to her lower back and right sacroiliac joint, notwithstanding the radiological evidence showing healing of the pelvic fractures. Dr Soo commented that radiological imaging did not always show the full picture, particularly in cases of musculoligamentous injuries or neuropathic pain.
Weighing against this body of evidence are the reports from Dr Smith. In his first report, Dr Smith took a history of symptoms that was broadly consistent with the evidence relied upon by the applicant. Notwithstanding the applicant’s clinical presentation, Dr Smith placed significant weight on the radiological evidence, noting that there was no radiological explanation for the symptoms reported at the lumbosacral spine and that the pelvic fractures had healed. Dr Smith commented that the pelvic fractures were likely to have been fairly insignificant in view of the findings on bone scan. Dr Smith said that from an orthopaedic standpoint, he expected the applicant would have fully recovered and would be fit to work in her pre-injury duties.
Dr Smith’s report has been criticised by Dr Soo and Dr Lim for his characterisation of the pelvic fractures as “insignificant”. Dr Soo commented that pelvic fractures are one of the most painful and debilitating injuries and patients are often bed bound and unable to even sit out of bed due to pain. As noted in the applicant’s submissions, Dr Smith’s characterisation of the injury is also consistent with Dr Low’s description of the injury as a “big” or “significant” and one from which it could take several months to make a full recovery.
Dr Smith’s opinions were also criticised by Dr Lim and Dr Soo for his failure to take proper account of the applicant’s clinical presentation. Dr Smith did not consider the possibility of a musculoligamentous or neuropathic explanation for the reported symptoms, as found by the applicant’s doctors.
The applicant reported ongoing symptoms of the same kind when she saw Dr Smith again in June 2023. On this occasion, Dr Smith found that the applicant was manufacturing physical signs and noted a number of unusual findings on physical examination. Dr Smith reiterated his view that the actual injuries were fairly minor and that the applicant ought to have made a complete recovery with no ongoing symptoms after six months. No submissions in response to this report have been provided by the applicant notwithstanding the opportunity to do so.
In weighing Dr Smith’s evidence against that relied on by the applicant, I note the respondent’s submission that neither Dr Soo nor Dr Lim appear to have physically examined the applicant. Their opinions are consistent with those given by Dr Low and Prof Di Ieva, who did have the benefit of physically examining the applicant. However, from the material before me, it appears that Prof Di Ieva last saw the applicant in June 2021 and Dr Low last saw the applicant in August 2021. The respondent correctly observed that no evidence from a doctor located in Queensland where the applicant now resides has been provided. The respondent also drew attention to the absence of more recent radiological investigations.
These circumstances and Dr Smith’s most recent findings on clinical examination do raise questions around the reliability of Dr Soo, Dr Lim and Dr Dickson’s opinions as to the ongoing effects of the applicant’s physical injury on her capacity for work.
I do not accept that the applicant’s treating and expert doctors’ connection with the same medical practice provides a sufficient basis on which to discount their qualified professional opinions.
The success of the applicant’s claim is not, however, contingent upon the ongoing physical effects of the injury. None of the applicant’s doctors has suggested that she has been totally incapacitated for work as a result of her physical injury during the period of weekly compensation in dispute. Dr Soo has only commented on the applicant’s capacity to return to her pre-injury duties. Similarly, in his report of 30 September 2022, Dr Lim commented only on the impact of the applicant’s physical symptoms on her ability to return to work as a process worker or work in a customer role.
The applicant was physically able to perform suitable duties for the respondent prior to the termination of her employment and had, up until that point, been certified as having capacity to work up to 25 hours per week.
The contemporaneous treating evidence from Ms Jackson reveals, however, the significant psychological impact of that return to work on the applicant.
Since the diagnosis of post-traumatic stress disorder was added to the applicant’s certificates of capacity by Dr Lim in May 2021, she has been certified by her general practitioners as having no current work capacity.
The treating evidence from Dr Khan and, more recently, Mr Nielsen, indicates that the applicant’s ongoing psychological symptoms have left her incapacitated for both her pre-injury duties and any other work.
In his report for the applicant’s solicitors, dated 12 December 2021, Dr Khan noted that the applicant had not worked since 19 May 2021. Her pervasive symptoms of trauma, depression and anxiety impacted upon the applicant’s mood regulation, motivation, energy, attention and concentration. The applicant was found to have no capacity for work in pre-injury duties or other jobs/duties. Enduring trauma symptoms were noted in the clinical records during 2022 and in Dr Lim’s report for the applicant’s solicitors on 30 September 2022.
Although from late December 2022, the applicant has been certified as having capacity for some type of work for two hours per day, two days per week, this is inconsistent with the view expressed by Dr Khan in April 2023 that the applicant remained totally incapacitated for work from a psychiatric perspective. Dr Khan noted sleep and appetite issues and ongoing cognitive difficulties, particularly with regard to attention, concentration and memory.
Dr Hong formed the same view when he examined the applicant in mid-2021.
Most recently, the applicant’s symptoms have been described by Mr Nielsen in a report on 1 May 2023. The applicant’s experience of repeated disturbing and unwanted memories, avoidance of social interactions and anxious and depressive cognitions were noted. Mr Nielsen said the applicant’s capacity to work was the same as that which appeared in her certificates of capacity, namely two hours per day, two days per week.
The increase in the applicant’s certified capacity since 23 December 2022 is not explained by Dr Lim or Dr Dickson. Dr Lim’s most recent report, does, however, suggest that the applicant had enrolled in an English course. It is possible that the certified four hours per week is a reflection of the applicant’s ability to engage with that course. An ability to participate in English language study, his not, however, the same as an ability to engage in employment. The certificates must also be weighed together with the specialist evidence from Dr Khan, which indicates that the applicant continues to have no current work capacity.
Weighing against the evidence relied upon by the applicant are Dr Roberts’ reports. Most recently, Dr Roberts has given the opinion that the applicant’s reported complaints and presentation were impossible on reasonable psychiatric grounds. I have found above, however, that the opinions given by Dr Roberts’ rest heavily on his erroneous understanding of the nature of the injurious event and its physical effects. As a result, I give Dr Roberts’ reports limited weight.
In considering the applicant’s capacity for work from a psychological perspective, I have taken into account the respondent’s submissions noting the applicant’s ability to return to suitable duties with the respondent prior to the termination of her employment. As noted above, however, Ms Jackson’s evidence indicates that this return to work took a serious psychological toll on the applicant.
The evidence indicates that the applicant was performing duties involving shredding documents and filing papers in a room by herself for four hours per day. The applicant has submitted, and I accept, that the provision of such limited duties did not reflect a capacity to work in a “real job”.
I do accept that the applicant has a tertiary education, work experience in a variety of fields, and an English language ability sufficient to have enabled her to find work in Australia previously. However, having regard to the nature of the applicant’s psychological symptoms and the extremely limited hours for which she is certified as having capacity to engage in suitable employment in her most recent certificates of capacity, I am not satisfied that any real jobs have been identified for which the applicant is currently suited.
I am satisfied on the balance of probabilities that the applicant has had an inability, arising from her injury, to work in either her pre-injury employment or in suitable employment, since 9 June 2021. I am satisfied that such inability continues as at the date of this decision. I find that the applicant has at all material times had “no current work capacity”.

The entitlement to weekly compensation

The applicant’s PIAWE figure is agreed at $1,043.19. That figure is subject to indexation pursuant to ss 82A and 82D of the 1987 Act.

In view of the findings above, there will be an award for the applicant for weekly compensation pursuant to s 37(1) of the 1987 Act from 9 June 2021 to end of the second entitlement period at the rate of 80% of the agreed PIAWE as periodically indexed.
The applicant seeks an order for ongoing weekly compensation beyond the second entitlement period (130 weeks). After the second entitlement period, s 38 of the 1987 Act provides:
“38    Weekly payments after second entitlement period (after week 130)
(1)     A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)     An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8)     A worker’s entitlement to compensation under this section may be reassessed at any time.”
The respondent relies on the decision in Lee v Bunnings and the more recent Presidential decision of Ferro to submit that the Commission cannot make the award for weekly compensation under s 38 of the 1987 Act sought by the applicant. In Ferro, Parker SC ADP commented in reference to Lee v Bunnings:
“… the Member has no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act. Section 38 requires the insurer to make a work capacity assessment. Therefore the Member’s function in the event of a contest is to determine whether the insurer has made an assessment and what is the assessment.”
I accept, however, the applicant’s submission that Lee v Bunnings was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018 (the 2018 Amending Act). Those amendments removed from s 43(1) of the 1987 Act the provision that work capacity decisions are final and binding on the parties and not subject to appeal or review except under s 44BB or judicial review by the Supreme Court. Other amendments included the omission of the former s 43(3) and Part 3, Division 2, Subdivision 3A about review of work capacity decisions and repeal of the note in s 105 of the 1998 Act relating to the restriction of the Commission’s jurisdiction to determine any dispute about a work capacity decision.
The letter dated 27 October 2021 notified the applicant of decisions that she was not incapacitated, had a current capacity for work and was able to earn as much as or more than her pre-injury average weekly earnings in employment including suitable employment as defined. The letter relied, amongst other provisions, on s 38 of the 1987 Act. I find that the letter dated 27 October 2021 notified the applicant of a work capacity decision within the meaning of s 43 of the 1987 Act.
The 2018 Amending Act enacted s 78 of the 1998 Act which included in sub-s 2 a provision that an insurer’s decision notice can involve both a liability dispute and a discontinuation or reduction of weekly compensation. The 2018 Amending Act also inserted ss 81 and 83 in the 1998 Act to enable a stay of a work capacity decision where a dispute for determination is referred to the Commission. Those sections envisage jurisdiction for the Commission to determine disputes that have been referred to it about an insurer’s decision to discontinue or reduce weekly compensation payments.
None of these matters appear to have been raised for the Acting Deputy President’s consideration in Ferro, probably because the issue in that case was whether the Commission member had erred by making an award for the respondent pursuant to s 38 of the 1987 Act without making relevant findings as to the application of s 38 of the 1987 Act. The actual application of s 38 and the Commission’s role in determining a dispute about an insurer’s decision pursuant to s 38 were not matters the Acting Deputy President was called upon to determine as I am here.
I am satisfied in all the circumstances that the Commission has jurisdiction to determine the dispute about applicant’s claim for weekly compensation pursuant to s 38 of the 1987 Act.
Insofar as the respondent alleged that the ARD failed to include a claim for weekly compensation pursuant to s 38 of the 1987 Act, I accept that a claim for “ongoing” weekly compensation was made in the ARD if not by the correspondence from the applicant’s solicitors forwarded earlier. This logically extended, eventually, beyond the second entitlement period. At the time of lodgement of the ARD, the claim was still within the second entitlement period. The Commission does not require strict pleadings. I am satisfied that a claim for weekly compensation pursuant to s 38 of the 1987 Act is properly before me.
The applicant did concede that she can only obtain an award of weekly compensation pursuant to s 38 of the 1987 Act in accordance with sub-s 38(2) on the basis that she has no current work capacity and is likely to continue indefinitely to have no current work capacity. That is because there is no evidence that the applicant had applied to the insurer in writing within the relevant time period. Nor is there any evidence that the applicant has returned to work for a period of not less than 15 hours per week for the purposes of s 38(3) of the 1987 Act. These are not pre-requisites for the application of s 38(2) of the 1987 Act.
I have found above that the applicant has had and continues at the time of this decision to have “no current work capacity”. Sub-section 38(2) also requires me to consider whether the applicant is likely to continue indefinitely to have no current work capacity.
An opinion in the language used in s 38(2) has not been provided in the evidence before me. The applicant’s treating and medico-legal evidence does, however, consistently indicate that the applicant’s prognosis is guarded or uncertain. No indication has been given in the evidence that a recovery or increase in the applicant’s capacity for work is likely in the foreseeable future. The applicant’s symptoms have now endured for more than two years. Having regard to the duration and ongoing severity of the applicant’s symptoms I am satisfied that the applicant is likely to continue indefinitely to have no current work capacity. The requirements of s 38(2) are satisfied.
After the second entitlement period to date and continuing, I find that the applicant is entitled to weekly compensation in accordance with s 38(6) at the rate of 80% of her indexed PIAWE.

Medical and related treatment expenses

I have found above that the applicant has sustained a psychological injury which has to date remained symptomatic and incapacitating. Whilst it has not been necessary for me to determine the extent to which the applicant’s physical symptoms have contributed to her incapacity, my analysis of the evidence above indicates that the physical effects of the applicant’s injury endured beyond the date on which liability to pay further compensation under s 60 of the 1987 Act was disputed.
In all the circumstances of this case, it is appropriate to make an award of a general nature that the respondent is to pay the applicant’s reasonably necessary medical and related treatment expenses upon production of accounts, receipts and / or valid Medicare Notice of Charge in accordance with s 60 of the 1987 Act. Should any particular expense be disputed, the applicant will be entitled to bring further proceedings before this Commission.

[2023] NSWPIC 399

9 August 2023