Lee v Fletcher International Exports Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lee v Fletcher International Exports Pty Ltd [2022] NSWPIC 271
APPLICANT:	Eunsaem Lee
RESPONDENT:	Fletcher International Exports Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	7 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to pelvis, lower back and psychological condition; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the Personal Injury Commission would be exercising federal jurisdiction if it determined the applicant’s dispute; Australasian Temperance and General Mutual Life Assurance Society Limited v Howe; ABF v Allianz Australia Insurance Limited; ABG v Allianz Australia Insurance Limited; Ritson v State of New South Wales; Crouch v Commissioner for Railways (Qld); Annalysse Shantel Stanton v Jasmine Winning; Deputy Federal Commissioner of Taxation v State Bank of NSW; section 75 (iv) of the Commonwealth of Australia Constitution Act 1900; section 4 of the NSW Self Insurance Corporation Act 2004; section 42 of the Personal Injury Commission Act 2020 considered; consideration of whether the applicant sustained a primary psychological injury pursuant to sections 4 and 9A of the 1987 Act; Dayton v Coles Supermarkets Pty Ltd; NSW Police Force v Gurnhill; Inman v NSW Police Force considered; consideration of whether the applicant correctly claimed compensation in relation to her primary psychological injury and in relation to her weekly compensation, pursuant to section 260 of the 1987 Act; Fletcher International Exports Pty Limited v Barrow & Anor; Rinker Group Limited v Mackell; Tan v National Australia Bank Limited considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the 1987 Act; Wollongong Nursing Home Pty Limited v Dewar considered; Held– opinion provided that the Commission is not exercising federal jurisdiction in determining this dispute; applicant sustained a personal psychological injury arising out of or in the course of her employment with the respondent; applicant’s employment with the respondent was a substantial contributing factor to the personal psychological injury; applicant has correctly claimed compensation in relation to her primary psychological injury and in relation to her weekly compensation; applicant has no current work capacity; ongoing award for the applicant pursuant to section 37 of the 1987 Act; award that the respondent pay the applicant’s treatment expenses pursuant to section 60 of the 1987 Act.
THE COMMISSION’S POSITION:	1. The Commission is not exercising federal jurisdiction in determining this dispute.
DETERMINATIONS MADE:	1. On 27 October 2020, the applicant sustained a personal psychological injury arising out of or in the course of her employment with the respondent pursuant to section 4 (a) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant's employment with the respondent was a substantial contributing factor to the personal psychological injury pursuant to section 9A of the 1987 Act. 3. The applicant has correctly claimed compensation in relation to her personal psychological injury, pursuant to section 260 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). 4. The applicant has correctly claimed weekly compensation from 9 June 2021, pursuant to section 260 of the 1998 Act. 5. Since 9 June 2021, the applicant has had no current work capacity as a result of the personal injury (both psychological and physical) which she received on 27 October 2020. 6. The applicant’s pre-injury average weekly earnings is $1,043.19. 7. The applicant is entitled to have her reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent, in relation to the personal injury (both psychological and physical) which she received on 27 October 2020.
ORDERS MADE:	1. There will be an award that the respondent pay the applicant $834.55 per week (as adjusted) from 9 June 2021 to date and on a continuing basis, pursuant to section 37 of the 1987 Act. 2. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Eunsaem Lee (the applicant) is 33 years old and commenced employment as a meat packer and meat slicer with Fletcher International Exports Pty Limited (the respondent) in around November 2018. She has not however worked for the respondent or any other organisation since 19 May 2021. Her employment with the respondent was terminated by it on 1 June 2021.
The applicant alleges that she sustained injuries to her pelvis and lower back on 27 October 2020, when her jacket got caught and she was dragged into a conveyor belt system at the respondent’s premises. She also alleges that this accident led to her developing a primary psychological condition.
The applicant was able to return to work for the respondent in December 2021, performing suitable office-based duties. She was still performing those duties when she was stood down from her employment and later terminated, on the basis of alleged misuse of sensitive and confidential documents. She was paid weekly compensation until 8 June 2021, but has received no weekly compensation payments since. The respondent has also refused to re-imburse her for the medical expenses that she has incurred since prior to 8 June 2021.
On 27 October 2021, the respondent issued a notice denying liability under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the applicant's claim on the basis that she has recovered from her physical injuries, she did not sustain a psychological injury, her medical treatment was not reasonably necessary as a result of her workplace injury, and she was not incapacitated for work.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 9 June 2021 to date and on a continuing basis pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act). The applicant also claims past and future treatment expenses pursuant to section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

At the teleconference held by the Commission on 17 February 2022, the respondent confirmed (as noted in the Commission’s direction of that date) that the issues which it was disputing were outlined at page 2 of the respondent’s Reply (Reply) filed by it. The parties therefore agree that the following issues remain in dispute:
(a) Whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the Personal Injury Commission Act 2020) if it determined the dispute.
(b) Whether the applicant sustained a primary psychological injury pursuant to section 4 of the 1987 Act.
(c) If the answer to (b) is in the affirmative, whether the applicant has correctly made a claim in relation to the injury pursuant to section 260 of the 1998 Act.

(d) Whether the applicant has correctly made a claim for payments of weekly compensation after 8 June 2021 pursuant to section 260 of the 1998 Act.
(e) Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the workplace injury, since 8 June 2021.
(f) Whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
An extensive conciliation conference was held in the dispute on 5 April 2022. On that occasion, Mr Beran of counsel appeared for the applicant instructed by Mr Sawers, and Mr Macken (solicitor) appeared for the respondent.
During the conciliation conference, the parties agreed on the calculation of the applicant’s relevant pre-injury average weekly earnings (PIAWE) at $1,043.19.
During the conciliation conference, the applicant conceded that she had moved to Queensland prior to the lodging of the ARD with the Commission. The respondent then sought an opinion from the Commission regarding whether it had jurisdiction to determine the dispute or whether the determination of the dispute would involve the exercise of federal jurisdiction.
After hearing oral submissions, I advised the parties that it was my opinion that the Commission had jurisdiction to determine the dispute, and that I would publish my reasons in this regard when I published my reasons determining the dispute.
Following these oral submissions, there was insufficient time left from the allocated time in order for the parties to make further oral submissions on 5 April 2022.
Written submissions were therefore ordered and have been provided.
Prior to ordering the written submissions, I determined four applications made by the respondent.
The respondent objected to the admission into evidence of the applicant’s 12 January 2022 statement. The respondent had not seen the statement prior to the lodging of the ARD. I allowed the statement into evidence as the respondent had had well over two months to obtain its own evidence in relation to the matters raised in the statement.
The respondent objected to the admission into evidence of the reports from Dr Khan dated 21 July 2021, 10 September 2021, and 12 December 2021, as well as the reports from Dr Hong dated 6 August 2021 and 28 October 2021. The respondent submitted that the reports altered the basis of the applicant’s claim and were predicated on a different claim and a different history provided by the applicant to the doctors. I considered the authority of Brambles Industries Limited v Bell [2010] NSWCA 162 and allowed the reports into evidence subject to the weight that I would give to them if the respondent was correct in its submission. (Having since reviewed the reports, I find that the reports did not alter the basis of the applicant’s claim, which consistently since Dr Jacob’s 29 March 2021 certificate of capacity had been based upon a psychological injury directly arising from her 27 October 2020 accident.)
The respondent objected to the admission of all the documents contained in the applicant’s Application to Admit Late Documents lodged 14 March 2022 (applicant’s AALD).
I found no prejudice to the respondent in the admission of the previous application to resolve a dispute lodged by the applicant on 27 July 2021 with the Commission (pages 32-39) as the respondent had dealt with that application in previous Commission proceedings; and that document was therefore admitted as it was in the interests of justice to do so. I found no prejudice to the respondent in the admission of the clinical notes from Workers Doctors (pages 3-31) as they were records that had been produced subject to a direction issued by the respondent and as they had been available to the respondent since at least 14 March 2022; and the clinical notes were therefore admitted as it was in the interests of justice to do so. I found no prejudice to the respondent in the admission of the letter from the applicant’s solicitors to the respondent’s solicitors dated 14 March 2022 (pages 1-2); and that document was therefore admitted as it was in the interests of justice to do so. I also considered that these documents that I had admitted had the potential to significantly assist the Commission in its determination of the dispute.
I however refused to admit the remainder of the documents in the applicant’s AALD (pages 40-68) as I considered that they may prejudice the respondent. These documents were the front page of the applicant’s passport, the applicant’s 2021 taxation return, and some bank records of hers. I considered that the respondent would not have had sufficient time since 14 March 2022 to investigate these documents further.
The respondent also applied for an adjournment of the conciliation/arbitration in order to “address records”. I presume that the respondent was referring to the admitted records from Workers Doctors as it had had access to the other records relied upon by the applicant since the ARD was lodged. The application was refused as I considered that the respondent had had enough time since 14 March 2022 to address the records from Workers Doctors.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents, and
(c)    the applicant’s AALD and attached documents (only pages 1-39 inclusive).

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant provided a statement signed on 20 July 2021 (page 2 of the ARD).
She was born in South Korea and moved to Australia in July 2018. She obtained tertiary qualifications in chemistry in South Korea. She commenced her employment with the respondent in November 2018. At the time of her accident on 27 October 2020, she was learning a quality assurance role with the respondent, having been initially employed by it performing meat packing and meat slicing duties.
She describes the circumstances of her accident on 27 October 2020. She had been asked to remove a box that was stuck on a conveyor belt. She states:
“As soon as I pushed and unblocked the box stuck on the conveyor belt, the conveyor belt started moving again, and at the same time the jacket I was wearing was sucked into the machine by the conveyor belt…..As soon as my jacket was sucked into the machine, my jacket fell on the conveyor belt, and my body quickly turned around with the conveyor belt still going for approximately 20–30 seconds…..I was yelling at the time for help but due to the factory being so busy and loud due to lots of machines and workers no one heard me for that 20–30 seconds I was yelling…..I was so scared and thought I was going to die.”
The conveyor belt was eventually stopped and she was “removed” from the conveyor belt by maintenance workers. She was driven to consult with the respondent’s company doctor (Dr Jacob) by an employee of the respondent’s. After consulting with Dr Jacob, she also attended Dubbo Base Hospital, but did not need to be admitted.
She continued to consult with Dr Jacob, who referred her to a sports medicine specialist (Dr Low). She underwent a steroid injection and received physiotherapy treatment.
She was off work for approximately one month and then returned to office–based duties with the respondent on 7 December 2020. She found it difficult to concentrate while performing these duties due to the medication that Dr Jacob had prescribed for her.
She was concerned about the treatment which she was receiving from Dr Jacob, but as he was the “company doctor”, she was pressured into remaining with him. She eventually however elected for Dr Lim to become her general practitioner.
She describes an episode of sexual harassment while performing her office-based duties on 9 March 2021, when she was inappropriately touched by a fellow employee named Patrick.
Her employment with the respondent was terminated on 1 June 2021 after she was accused of stealing some paperwork. She states that she had been asked to shred some documents, and in doing so, she found some documents relating to her workers compensation claim, which she had not previously received herself. She sat down to read these documents and was asked by a fellow employee named Linda what she was reading. When she advised that she was reading paperwork relating to her workers compensation claim, Michaela Stanton took the documents from her. She later had a meeting with Jason Herbert and was accused of stealing paperwork.
She was paid by the respondent until 8 June 2021.
She elected to change her general practitioner from Dr Jacob to Dr Lim in May 2021. Dr Lim referred her to a neurosurgeon, Dr Di Ieva. Dr Lim also arranged psychological treatment for her as she was “feeling anxious and depressed and… Having flashbacks of being pulled into the machine”.
Her statement records her ongoing disabilities, which include pins and needles in her right leg and back, difficulties with showering and toileting, difficulties with household activities, the inability to drive, hypervigilance, poor concentration, panic attacks, nightmares, flashbacks, reduction in appetite, and worry about going outside of her home.
The statement then records Dr Lim issuing her with certificates of capacity, and it also records interactions between her solicitors and the respondent.
The applicant provided an updated statement signed on 12 January 2022 (page 1 of the ARD). In that statement, she stated that she still experienced the psychological symptoms referred to in her earlier statement, and that despite being bullied and harassed in her employment with the respondent, she did not “think about those matters on a day-to-day basis and am really only affected by the workplace injury” (which in the context of the statement clearly refers to the 27 October 2020 accident).
The only evidence from Dr Jacob in the ARD are certificates of capacity from him dated 3 November 2020, 3 February 2021, and 29 March 2021 (pages 225-233). The first certificate certifies the applicant as having no work capacity from 3 November 2020 to 1 December 2020, and it also refers to the applicant’s injuries as “pelvic fractures, left shoulder bursitis”. The second certificate certifies the applicant as having capacity for some type of employment for four hours per day, five days per week, from 3 February 2021 to 3 March 2021, and it also refers to the applicant’s injuries as “pelvic fractures”. The third certificate certifies the applicant as having capacity for some type of employment for five hours per day, five days per week, from 29 March 2021 to 26 April 2021, and it also refers to the applicant’s injuries as “pelvic fractures, anxiety/depression disorder”. The third certificate is issued in relation to the 27 October 2020 accident, and does not mention the sexual harassment incident on 9 March 2021.
The other certificates of capacity in the ARD are from Drs Lim and Dickson, both from Workers Doctors (pages 234-270). The certificates cover the period between 25 May 2021 and 8 March 2022, save that there is no certificate covering the period between 16 November 2021 and 4 January 2022. The certificates are consistent in certifying the applicant as having no work capacity. The certificates are also consistent in their description of the applicant’s injuries, the last certificate providing the following diagnosis:
“Lumbar spine strain, R) sacral ala fracture, R) superior and inferior pubic rami fracture healing, ? Sacral plexus injury, SIJ instability, PTSD (PCL-5: 73)”.
Dr Lim also prepared a report following his initial consultation with the applicant on 25 May 2021 (page 210 of the ARD). He takes a history that the applicant suffered multiple fractures to her pelvis and sacrum when her “lab coat got caught in the conveyor belt and dragged her into a narrow space”. He records that:
“She reports feeling depressed and anxious. She reports having flashbacks and nightmares of being pulled into the machine. She is hypervigilant and easily scared since the accident. She has difficulty sleeping with poor concentration. She is scared and has panic attacks whenever she goes into work in fear of another accident.”.

On examination, the doctor found decreased back range of movement, difficulty performing a left single leg stand, and pain on palpitation over the pubic rami. He recorded a sitting tolerance of two hours, a standing tolerance of 45 minutes, a walking tolerance of 5-10 minutes, and pain when squatting. He recommended referrals to a physiotherapist, a psychologist, an orthopaedic surgeon, a neurosurgeon, an interpreter, and a psychiatrist. He opined that the applicant was totally unable to work and also had self-care issues and domestic duties issues. His conclusion is consistent with the diagnoses contained within his certificates of capacity.
Dr Lim prepared a further report dated 29 October 2021 (page 170 of the ARD). The report repeats much of the contents of the 25 May 2021 report, but then refers to his review of various reports prepared by both treating doctors and medico-legal doctors. He specifically disagrees with Dr Smith’s opinion that the applicant had recovered from her fractures, and with Dr Roberts’ opinion that she did not have post-traumatic stress disorder.
There are five reports from Dr Low in the ARD (pages 222, 219, 216, 214, and 183).
Dr Low initially reports on 3 February 2021. He takes a history that the applicant was squashed between two conveyor belts on 27 October 2020 and suffered mildly displaced fractures of her right sacral ala, right superior pubic rami, and right inferior pubic rami. She had been confined to a wheelchair for a few weeks and had been having physiotherapy treatment. She had improved so that she could walk but standing for more than 20 minutes brought on a lot of pain. She was working five hours per day, three days per week, but found that her pain got much worse after four hours. She was taking Panadol, Nurofen and Palexia for pain and was “getting better but very slowly”. A recent MRI scan had shown substantial healing to the sacral ala fracture and the superior pubic rami fracture, but only some healing to the inferior pubic rami fracture.
The doctor’s examination revealed:
“Looks a bit sore walking
Standing on right leg only she can do but looks unstable, much better on left
Tender to palpate right SIJ posteriorly
Single leg trendelenburg positive
Tender to palpate right superior pubic rami
Pelvic squeeze causes some sacral region discomfort
Full hip ROM bilaterally
Hip movements doesn't aggravate pain”.
The doctor had a lengthy discussion with the applicant and explained that “this is a big injury as can take several months to make a full recovery”. He recommended ongoing physiotherapy treatment, gradual weaning off analgesia, and attempting to return to work four hours per day, five days per week.
The doctor next reports on 3 March 2021, following a consultation on that date with the applicant, her partner, and a return to work officer from the respondent. The doctor’s examination on that date revealed:
“Antalgic gait
Single leg trendelenburg positive right side
Full hip ROM
All movements aggravate pain
Slump test positive
4Ps test positive
Altered sensation right anterior thigh
Difficult to elicit right knee reflex”.
The history that the doctor obtained on 3 March 2021 included that the applicant felt her pain was no better, but that she was currently working four hours per day, five days per week. Her most painful area was her right anterior thigh where she got a burning pain with pins and needles. She was only sleeping three–four hours per night due to her pain and collapsed on the couch for two hours after getting home from work. The doctor again had a long discussion with the applicant, confirming that she had sustained a significant injury. He suggested that a bone scan be performed.
The doctor next reports on 17 March 2021 after reviewing the bone scan, which showed the right superior pubic rami fracture and the sacral ala fracture healed, and the inferior pubic rami fracture nearly healed. However, the applicant still complained of pain and expressed her frustration to him with her lack of progress. The doctor takes a history that her mental health was being affected, and she was seeing a counsellor. He does not find this surprising.
The doctor next reports on 19 May 2021. He takes a history that the applicant is still in pain, especially around the coccyx region and down the right anterior thigh. He diagnoses that the applicant’s fractures have likely now all healed, and her ongoing pain could be a combination of sacroiliac joint incompetence and a pelvic nerve injury. He agrees that the applicant should consult with a neurologist. His examination reveals:
“Tender to palpate coccyx, sacrum and posterior SIJs bilaterally
Deep hip flexion right side aggravates pain
4Ps positive right side”.
The doctor finally reports briefly some months later on 23 August 2021. He then takes a history that the applicant’s symptoms have not changed since his last review. He continues to diagnose right sacroiliac joint incompetence and some likely nerve damage in the pelvis causing some increased urinary and faecal frequency.
The applicant was referred to a neurosurgeon, Dr Di Ieva, and she consulted with him on 9 June 2021. In his report of that date (page 209 of the ARD) he takes a history of a hip fracture in October 2020 causing local pain. The pain had got worse over time, and the applicant had been left with “pain on the back of the thigh, sometimes radiating all the way down”. The doctor’s neurological examination was unremarkable, although the hips manoeuvre on the right side triggered some local pain. The doctor opined that the applicant had residual pain from the fracture and the healing process. He recommended increasing her dose of Gabapentin and he also gave her referrals for a CT-guided L5-S1 epidural injection and a sacroiliac joint injection on the right side. She underwent these injections on 7 July 2021 and the relevant report in this regard is at page 208 of the ARD.
The applicant relies upon a medico–legal report from Dr Soo dated 16 August 2021 (page 184 of the ARD). The doctor records that the applicant is unable to drive, unable to walk for more than one hour, unable to stand for more than one hour, and unable to sit for more than 20 minutes. She has difficulty performing all household duties and is unable to lift any heavy objects. She continues to take Panadeine Forte and Gabapentin. The doctor describes the pain that the applicant reported to him as follows:
“Currently Miss Lee complains of ongoing severe pain to her lower back. The pain is constant and located on the right side of her lower back and tail bone. She also experiences ongoing right hip pain which radiates to back of the thigh. Sometimes the pain radiates to the right foot. The pain is worse with prolonged sitting, standing or walking. She finds that cold weather and night time her pain becomes worse. She gets woken up at night due to pain…She describes numbness and tingling to the right foot”.
The doctor was unable to perform a formal examination due to the COVID situation at the time, but he was able to review the reports of Drs Low and Di Ieva, as well as a 8 February 2021 bone scan and a 29 October 2020 MRI scan.
The doctor provides a guarded prognosis. He opines that although her fractures have probably healed, she may experience long-term pain issues as she continues to experience ongoing chronic pain which has only shown small improvement with non—surgical measures. He advises physiotherapy, hydrotherapy, pain management, and activity modification.
The doctor opines that the applicant has been unable to return to work due to her pain and disability. He notes that she was otherwise well prior to 27 October 2020, and he opines that the accident at work on that date “is the main contributing factor to her current pain and disability”.
Dr Soo was also asked by the applicant’s solicitors to comment upon Dr Smith’s report dated 17 September 2021 (page 22 of the Reply), and Dr Soo prepared a report dated 29 October 2021 in this regard (page 168 of the ARD). He criticises Dr Smith’s view that the applicant sustained “fairly insignificant fractures”, arguing that a bone scan cannot be used to form such a view, specifically because the uptake found in a bone scan will naturally show a low uptake once a fracture has successfully united and remodelled. He states:
“Ms Lee has had multiple traumatic ‘significant’ fractures of her pelvis which have shown signs of body union, and that correlates with the findings of bonescan”.
The doctor opines that:
“Pelvic fractures are one of the most painful and debilitating injuries you can suffer and patients are often bedbound and unable to even sit out of bed due to pain. I would definitely NOT call them ‘insignificant’”.
The applicant was referred by Dr Lim to a psychiatrist, Dr Khan. Dr Khan provided a report to the applicant’s solicitors dated 12 December 2021 (page 161 of the ARD).
The doctor initially consulted with the applicant on 21 July 2021. He took a history that the applicant feared for her life at the time of the accident, and since the accident, she has experienced nightmares and flashbacks, unwanted memories, anxiety, panic, hypervigilance, heightened startle reaction, depressed mood, reduced motivation, reduced enjoyment in activities, social withdrawal, avoidance of accident-related reminders, sleep disturbance, poor sleep maintenance, impaired attention, and impaired concentration. He conducted a mental state examination of the applicant on 21 July 2021 and subsequent dates. He states:
“During follow–up mental state examinations, Ms Lee’s affect continue to remain anxious and dysphoric and her thought content comprised pervasive trauma, depressive and anxious cognitions; however, there had been gradual improvement overall”.
The doctor diagnosed post-traumatic stress disorder and he explained in some detail how the criteria for that diagnosis (under DSM-5) are met. His prognosis is a guarded one, and he recommended ongoing treatment with medication, visits to a psychiatrist every six-eight weeks, visits to a psychologist every two weeks, and visits to a general practitioner every two-four weeks. He opined that the applicant is totally incapacitated for work into the foreseeable future as she continued to suffer from pervasive symptoms of trauma, depression and anxiety, which impacted on her mood regulation, motivation, energy, attention, concentration, and self-confidence.
The doctor was obviously asked by the applicant’s solicitors to comment upon the report from Dr Roberts dated 21 October 2021 (page 27 of the Reply). While some of these comments are not particularly helpful to the Commission, Dr Khan’s opinion that Dr Roberts was incorrect in failing to appreciate the severity of the “traumatic ordeal” experienced by the applicant on 27 October 2020, is noted. Dr Khan believes that this error led to Dr Roberts failing to diagnose post-traumatic stress disorder.
The doctor was also obviously asked by the applicant’s solicitors to comment upon the sexual harassment experienced by the applicant on 9 March 2021. Relevantly, the doctor states:
“Bullying and sexual harassment does not have any significance in the context of Ms Lee’s frank injury on 27 October 2020. Bullying and sexual harassment did not cause Ms Lee to be caught on a conveyor belt. Although the bullying and harassment that Ms Lee suffered during her return to work after work–related injury on 27 October 2020 led to some aggravation of her mental health struggles, it did not cause her psychological condition of post-traumatic stress disorder and it is not an enduring component of her thought content. The main contributing factor to Ms Lee’s current psychological condition of Post traumatic stress disorder was the incident on 27 October 2020 when she was caught on a conveyor belt and almost died”.
There are additional reports from Dr Khan in the ARD dated 21 July 2021 (page 206) and 10 September 2021 (page 177). These reports are consistent with the histories, findings, and opinions proffered in the 12 December 2021 report.
The applicant relies on a medico-legal report from Dr Hong dated 6 August 2021 (page 189 of the ARD). Dr Hong takes a history of both the applicant’s 27 October 2020 accident and the events which occurred during the course of her employment with the respondent subsequent to that accident. He records that “she was in fear and thought she would be seriously hurt from that accident”, and he also records that when she returned to work she was not treated appropriately by about five people, who variously made comments implying her injuries were self-inflicted or downplaying the seriousness of the injuries. Two of the workers also made statements against her alleging that she was attempting to steal documentation, when she was in fact only looking at documents relevant to her workers compensation claim. Pressure was also put upon her to extend her working hours beyond the certifications provided by her doctors.
Dr Hong recorded the applicant’s current symptoms which included a depressed mood, intermittent crying, a reduction in enjoyment and motivation, distracted concentration, daily flashbacks and nightmares, fleeting suicidal thoughts, appetite problems, sleep disturbance, a sense of apprehension, recurring panic attacks, and irritability. The anxiety attacks make her afraid to leave her home, but when she is at home by herself, she thinks about work, sees the conveyor belt, and feels tense.
The doctor diagnoses the applicant as suffering from post-traumatic stress disorder and opines that she is currently not fit for any work. Her prognosis is uncertain and she requires consultations with a psychiatrist every three to six weeks, consultations with a psychologist every one to four weeks, and medication. In relation to causation of the post-traumatic stress disorder, he opines:
“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 provides a further report dated 28 October 2021 (page 174 of the ARD). In this report he largely confirms the opinions in his early report, but he also comments upon Dr Roberts’ report dated 21 October 2021. The opinions of Dr Roberts do not change his opinions especially in relation to the 27 October 2020 accident being a criterion A event for the purpose of a diagnosis of post-traumatic stress disorder under DSM-5.
The remaining medical evidence in the ARD consists of:
(a)    A treatment request from Yulia Vystavkina (the applicant’s treating psychologist) dated 9 September 2021 (page 178) - requesting that the respondent approve eight more sessions of psychological treatment, and noting the applicant’s current symptoms of low mood, irritability, impaired memory and concentration, anxious and depressive cognitions, sleep disturbance, flashbacks, unwanted thoughts and memories, nightmares, social anxiety, and fear of crowds – the request is specifically made regarding a date of injury of 27 October 2020.
(b)    A report from the bone scan on 8 March 2021 (page 218) - this report is surprisingly the only radiological report contained in the ARD despite the fact that the applicant clearly underwent at least two MRI scans – the report is commented upon by Drs Soo, Smith, Di Ieva and Low.
(c)    Physiotherapy reports from Kylie Bardin dated 2 February 2021 (page 224) and 26 February 2021 (page 221) - I will refer to these reports where I have been referred to them specifically during the submissions from both parties.
(d)    Clinical records (contained from page 3 in the applicant’s AALD rather than the ARD) from Workers Doctors (where the applicant consults with Dr Lim, Dr Dickson, Dr Khan, and Yulia Vystavkina) - I will refer to these records where I have been referred to them specifically during the submissions from both parties - however, it is to be noted that according to the records (up to 18 February 2022), the applicant last consulted with Dr Khan on 19 January 2022 and she last consulted with Dr Dickson on 4 January 2022, who recorded:
“Teleconsult
Korean interpreter
Injury: Lumbar spine strain, R) sacral ala fracture, R) superior and inferior pubic rami fracture; ?Sacral plexus injury; PTSD (PCL-5: 73).
Tolerating fluoxetine 40mg
Some slow improvement in mental state since last review
Has moved from Dubbo to QLD - will send updated address via email
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
Experiencing some dizziness if takes a daytime gabapentin
Discussed sedating nature and not to drive/operate machinery or other tasks requiring attention/focus if affected”.
There is a significant amount of correspondence in the ARD from the applicant’s solicitors regarding their dealings with the respondent between 5 February 2021 and 22 July 2021. The correspondence is not only with the respondent, but it is also with the Independent Review Office and the State Insurance Regulatory Authority. I will not go through the correspondence in detail but will refer to specific correspondence where I am specifically referred to it during the submissions from both parties. It is clear however from the correspondence that the applicant’s solicitors were getting increasingly frustrated by the respondent’s refusal to pay weekly compensation to the applicant after 8 June 2021. I will make no findings regarding whether this frustration was justified, but I do find the following correspondence to be relevant to the issues that I need to determine:
(a)    27 May 2021 letter – page 130 of the ARD – respondent provided with Dr Lim’s 25 May 2021 certificate of capacity and with Dr Lim’s 25 May 2021 report, which both diagnose that the applicant had suffered a psychological injury at the time of her 27 October 2020 accident.
(b)    9 June 2021 letter – page 114 of the ARD – respondent again provided with Dr Lim’s 25 May 2021 certificate of capacity, as well as Dr Jacob’s 29 March 2021 certificate of capacity (which referred to an “anxiety/depression disorder”) – the respondent was also asked “Please explain why you are not paying our clients weekly payments. We demand you commence weekly payments.”
(c)    11 June 2021 letter – page 100 of the ARD – the respondent was asked “Please also send to us all denial notices you have issued on the claim, I note you are not paying our clients weekly payments, if there is no liability denial please immediately pay her weeklies.”
(d)    2 July 2021 letter – page 85 of the ARD – the respondent was requested to pay for invoices relating to psychological treatment.
(e) 22 July 2021 letter – page 51 of the ARD – the respondent was provided with certificates of capacity dated 25 May 2021, 23 June 2021, 1 July 2021, 8 July 2021, and 22 July 2021 - the respondent was then advised that it last paid the applicant weekly compensation on 8 June 2021, and it was requested to re-commence those payments as it had not issued a notice pursuant to section 78 of the 1988 Act.
In relation to the respondent’s knowledge of the applicant’s current claims, the applicant also relies upon a previous Application to Resolve a Dispute which she lodged with the Commission (page 32 of the applicant’s AALD). The pleadings in relation to her injury are identical in the previous application to the pleadings in the current ARD, save that in the current ARD, a psychological condition is pleaded as a primary injury and the diagnosis of post-traumatic stress disorder is included.
The ARD also includes:
(a)    Various invoices paid by the applicant for medical treatment.
(b)    A letter from the respondent to the applicant dated 19 May 2021 (page 150) standing her down from her employment on full pay pending an investigation into her “potential misuse of sensitive and highly confidential documents”.
(c)    A letter from the respondent to the applicant dated 1 June 2021 (page 129) terminating her employment with it “on the grounds of serious misconduct”.
(d)    A report from a pharmacist, Luke McGrath, dated 3 August 2021 (page 197) - I will refer to this report where I am specifically referred to matters raised in it during the submissions from both parties.

Respondent’s evidence

The respondent relies upon the medical opinion proffered by Dr Smith in his report dated 17 September 2021 (page 22 of the Reply).
The doctor takes a history of the applicant’s 27 October 2020 accident and immediate treatment consistent with her statement and the histories provided to other doctors. He then takes a history that:
“She currently continues with a lot of pain in the pelvis. She cannot sleep very well or walk very well. She has been dismissed from her employment. The pain is in the tailbone and into the buttocks, especially on the right down the right leg to the toes.”
The doctor then summarises the radiological and other medical reports that have been provided to him. He conducts what he concedes to be a limited physical examination of the applicant.
He opines that the applicant sustained a number of fractures in her accident, which would appear to have healed without any displacement. He would have expected the fractures to have healed within six months and left no disability. He also opines that the applicant could have injured her pelvis and her lower back in her accident, but that he can find no radiological cause for her symptoms in her right lower back, running down her right leg to her foot. He notes that no neurological abnormality had been found by Dr Di Ieva.
The doctor relies upon the bone scan report dated 8 March 2021 to conclude that the applicant only sustained "fairly insignificant fractures" as he would have expected the bone scan to show significant uptake for up to 12-18 months with a significant fracture.
The doctor considers the applicant to be fully fit for her pre-injury employment from an orthopaedic point of view.
The respondent also relies upon the medical opinion proffered by Dr Roberts in his report dated 21 October 2021 (page 27 of the Reply).
It is not clear as to whether the doctor took a complete history from the applicant regarding the circumstances of her 27 October 2020 accident. On the second page of the report, the doctor refers to a history provided by the respondent’s solicitors that the accident involved “a fall on a conveyor belt”. Then, on the eighth page of the report, the doctor records that the accident occurred when the applicant’s clothes were caught in a conveyor belt and stuck there for a time.
In relation to the applicant's psychological status, the doctor recorded that she woke up regularly from her sleep, had frequent nightmares of being chased, saw family and friends dying in her dreams, and experienced frequent flashbacks. She was quickly startled and nervous, and had experienced a decline in appetite. The doctor saw these symptoms as "extreme and beyond what would be anticipated as arising from the subject accident even if post-traumatic stress disorder is assumed".
The doctor noted a lack of past psychiatric history prior to the accident, and he also noted that the applicant was being treated by Dr Lim and Dr Khan.
The doctor questioned the applicant for evidence of the physiological concomitants of anxiety and commented upon the symptomology elicited as follows:
“There is an assertion of memory and concentration which is not clinically evident, chest, cardiac, stomach, appetite and weight change, bowel symptomology, urinary symptoms, although organic factors require exclusion, an increase in perspiration, are potentially all related to heightened anxiety of inappropriate degree. If the truth and accuracy of her account is accepted and having regard to the adjectives mild, moderate and severe of a moderate degree, her level of anxiety would be of severe degree, namely a level of anxiety that would enter awareness, cause discomfort and while making functioning more difficult, would not of itself prevent function. If a depressive element is present, functionality may be further compromised.”
The doctor questioned the applicant about her dismissal from the respondent’s employ, but conceded that he was not able to elicit much information in this regard. The applicant advised that the respondent paid her compensation and it “admitted that this was their mistake”.
The doctor also questioned the applicant in relation to her allegation of sexual harassment. The applicant told the doctor that she still had nightmares. When she complained about the harassment, she was advised that it occurred as a result of cultural differences. She was regarded as over-reacting.
In relation to the significance of the applicant’s psychological condition, the doctor opined as follows:
“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.”
He also opined:
“Ms Eunsaem Lee presents with a complicated history initially relating to an industrial accident followed by the development of alleged post-traumatic stress disorder, complicated by allegations of sexual harassment, and most recently allegations of possible neurological damage impacting upon bowel and bladder. The cascade of increasing complexity and increasing symptomology is not impossible but statistically improbable.”
In determining whether the 27 October 2020 accident had led to the applicant developing post-traumatic stress disorder, the doctor considered the severity of the accident to be the important consideration. He opined:
“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 symptomology alleged.”
The doctor answered specific questions posed to him by the respondent’s solicitors as follows:
“The potential of the accident of the 27 October 2020 to give rise to a condition does on reasonable psychiatric grounds exist, whether the condition would come under the heading post-traumatic stress disorder would be a matter for consideration but the potential, possibly for an adjustment disorder with anxiety and depression would also need to be considered. Ms Lee's response to as stated, to the circumstances under consideration is in terms of its severity unusual but not impossible and clarification as to the existence of a condition would require detailed forensic psychological assessment.”
Finally, the doctor opined that neither psychiatric diagnosis suggested by him would result in the applicant being unemployable.
The only other medical evidence contained in the respondent’s Reply (page 3) is pages 1, 6, and 8 of the applicant’s discharge note from Dubbo Base Hospital on the date of her accident. The note is incomplete as it apparently contains 25 pages in all. The pages in the application refer to the hospital diagnosing a soft tissue injury with no x-ray pathology shown. The applicant complained of pain in her right hip and right lower back, but she was able to mobilise with pain. She was prescribed medication and given time off work.
The Reply also contains (page 11) a resume that the applicant had provided to the respondent, as well as (page 10) a document prepared by the respondent in relation to the applicant’s qualifications. These documents reveal that the applicant had completed degrees in chemistry and horticulture, in South Korea.
The Reply also contains certain documentation regarding the respondent’s termination of the applicant’s employment:
(a)    A brief statement from Linda Gilholme dated 19 May 2021 (page 12) - stating that she saw the applicant reading paperwork that she had been asked to shred and then placing the paperwork into her bag - Michaela then took the paperwork from the applicant.
(b)    A brief statement from Michaela Stanton dated 19 May 2021 (page 13) - stating that Linda had informed her that the applicant was reading documents that she was supposed to be shredding, and that Linda then asked the applicant what documents she was putting in her bag -   Michaela then took the documents from the applicant and told her not to perform any more shredding.
(c)    Correspondence from the respondent to the applicant (pages 14-19) about its investigation into its allegation that she misused sensitive and confidential documents, about its standing down of her, and about its requirement for her initially to respond to its allegation and then later to show cause why she should not be terminated.
(d)    The respondent’s response to the applicant’s Fair Work Commission unfair dismissal application (page 43) - this is only a draft response and none of its nine attachments are attached to the Reply – it was completed in July 2021, and it largely repeats the allegation that the applicant misused sensitive and confidential documents, and then details the procedure that it followed before terminating the applicant’s employment - surprisingly it is the only Fair Work Commission document included in either the ARD or the Reply - it maintains that it was not aware of any psychological condition suffered by the applicant.

Applicant’s submissions

The applicant made oral submissions on 5 April 2022 as to the jurisdiction of the Commission, following her move to be a resident of Queensland. This would only affect the jurisdiction of the Commission if the respondent was either considered to be a resident of New South Wales or the State of New South Wales.
The applicant relied upon various authorities in her submission that a corporation was not a resident of any state, including Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290 (Howe), ABF v Allianz Australia Insurance Limited [2021] NSWPIC 165 (ABF), ABG v Allianz Australia Insurance Limited [2021] NSWPIC 166 (ABG), Ritson v State of New South Wales [2021] NSWPIC 409 (Ritson), and Crouch v Commissioner for Railways (Qld) [1985] HCA 69 (Crouch).
The applicant also sought to distinguish the respondent from the NSW Self Insurance Corporation (which in Ritson had been held to be a state for the purpose of section 75 (iv) of the Commonwealth of Australia Constitution Act 1900 (the Constitution)). The applicant referred to section 4 (2) of the NSW Self Insurance Corporation Act 2004, by which the Corporation is constituted as a statutory body representing the Crown.
The applicant’s position was that just because the respondent had been licensed as a self-insurer in accordance with Division 5 of the 1987 Act, there was no statutory provision that made it a state or part of a state. The respondent’s submissions in this regard failed to explain how a self-insurer was effectively a state for the purpose of the Constitution. Those submissions were missing the necessary link that section 4 (2) of the NSW Self Insurance Corporation Act 2004 provided to the NSW Self Insurance Corporation.
The applicant also submitted orally that if the Commission was to posit an opinion that it could decide the dispute without exercising federal jurisdiction, it was able to continue to then decide the dispute. The dispute did not need referring to the District Court simply because the respondent had raised the issue, so long as the Commission had provided the appropriate opinion that it could decide the dispute.
The remainder of the applicant’s submissions have been reduced to writing, and I will therefore not go through them in detail.
The submissions ask the Commission to prefer the combined evidence of Drs Lim, Di Ieva, and Soo, over the evidence of Dr Smith, in relation to the ongoing nature of the applicant’s physical symptoms. Dr Smith’s view that the applicant only sustained fairly insignificant fractures from which she should have recovered within six months, should be rejected. That view is not only contradicted by the combined evidence referred to above, but it is also contradicted by the applicant’s statements and the fact that only two months prior to the appointment with Dr Smith, the applicant required a CT-guided L5-S1 epidural injection and a sacroiliac joint injection on the right side.
In relation to the applicant’s psychological condition, she submits that the Commission should accept the diagnosis of post-traumatic stress disorder made by Drs Lim, Khan, and Hong. The applicant was developing psychological symptoms since at least March 2021, and the opinions provided in the reports from these practitioners are consistent in their explanations as to how the conditions for the diagnosis are met. The applicant also points out that her 27 October 2020 accident was a “highly traumatic incident” during which there “can be no doubt that the applicant would have feared for her life”.
The applicant asks the Commission to give little weight to the report from Dr Roberts on the basis that the doctor posits his opinion having regard to an incorrect history as to the traumatic nature of the applicant’s accident.
In her submissions, the applicant confirms that she only relies upon the 27 October 2020 accident as causing her psychological condition. She refers to her statement evidence for confirmation that any harassment or bullying which she received after she returned to work is not an ongoing stress or for her.
The applicant also confirms in her submissions that she is not alleging that her psychological condition was a disease aggravated by the 27 October 2020 accident. As a result, she needs to prove that the accident was a substantial contributing factor to the condition, rather than the main contributing factor to the condition.
The applicant submits that due to the ongoing nature of both her physical and psychological conditions, the respondent should pay for her reasonably necessary medical treatment.
The applicant also submits that due to the ongoing nature of both her physical and psychological conditions, she has no capacity for employment. She asks the Commission to specifically note that prior to the termination of her employment with the respondent, she was only undertaking suitable office-based duties. She had not returned to (and was not fit to return to) her pre-injury duties.
Finally, in response to the respondent’s allegations that the applicant had not correctly claimed either compensation for her psychological condition or weekly payments compensation after 8 June 2021, she submits that strict compliance with section 260 of the 1998 Act is not required in accordance with Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (Barrow) and Rinker Group Limited v Mackell [2008] NSWWCPD 100 (Rinker). The respondent was on notice of the applicant’s psychological condition from as early as Dr Low’s 17 March 2021 report, and then subsequent certificates of capacity. It was certainly fully aware of all aspects of her current claim following its receipt of the applicant’s previous Application to Resolve a Dispute.
The applicant also lodged brief submissions in reply following her receipt of the respondent’s written submissions. The submissions in reply:
(a)    Refer the Commission to the recent District Court case of Annalysse Shantel Stanton v Jasmine Winning [2022] NSWDC 104 (Stanton) in relation to whether it would be exercising federal jurisdiction if it determined this dispute.
(b)    Refer the Commission to Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar) - the applicant was not performing “real work” but only menial duties prior to the termination of her employment by the respondent – she was not demonstrating her full pre-injury earning capacity at that time.
(c)    Invite the Commission to reject the respondent’s argument that the applicant’s statements were self-serving documents prepared by her lawyers – there was no application by the respondent to cross examine the applicant in relation to the statements.
(d)    Confirm that the Commission should reject the respondent’s argument that the applicant’s psychiatric injury is a disease caused by multiple factors and that therefore she needed to prove that the 27 October 2020 accident was the main contributing factor to the injury.

Respondent’s submissions

The respondent also made oral submissions on 5 April 2022 as to the jurisdiction of the Commission, following the applicant’s move to be a resident of Queensland.
The respondent submitted that, as a licensed self-insurer pursuant to Division 5 of the 1987 Act, it was in the same position as the NSW Self Insurance Corporation in Ritson. There was no distinction between the position of the respondent and the position of the corporation. Indeed, all licensed insurers were also in the same position as the corporation, so that federal jurisdiction would be exercised by the Commission if it determined a dispute involving a resident of another state.
The respondent was effectively a state for the purpose of section 75 (iv) of the Constitution because of its self-insurer licensing. The respondent specifically referred to section 211B of the 1987 Act which deemed government employers covered by the government’s managed fund scheme to also be self-insurers.
As the respondent was an insurer in the same way as the NSW Self Insurance Corporation, it was a state for the purpose of the Constitution.
The respondent’s alternate position was that it was a resident of New South Wales because it would otherwise not be entitled to a licence as a self-insurer. The applicant’s claim therefore involved the exercise of federal jurisdiction as the parties were residents of different states.
The respondent’s final oral submission was that as it had raised the issue that the Commission was potentially exercising federal jurisdiction, that issue needed to be determined by the District Court. The Commission was entitled to posit an opinion regarding whether it was exercising federal jurisdiction, but it was not entitled to determine the dispute even if it opined that it was not exercising federal jurisdiction. It would still need to refer the dispute to the District Court first.
The remainder of the respondent’s submissions have been reduced to writing, and I will therefore not go through them in detail.
The respondent includes with its submissions two unreported decisions of the Commission’s Motor Accidents Division Head Johns dated 30 March 2022 and 31 March 2022 (matters M10452902/21 and APP-10486197 respectively). The name of the applicant in both matters is redacted. Both matters were dismissed on the ground that the determination of the dispute may potentially involve the exercise of federal jurisdiction. On the basis of these decisions, the respondent submits that the applicant’s dispute should also be dismissed.
The respondent seeks to draw a distinction by considering the nature of the applicant’s condition between 27 October 2020 and 19 May 2021 (when she was stood down from her employment with it on the basis of misconduct) and the nature of her condition subsequent to 19 May 2021. It agrees that the applicant sustained physical injuries on 27 October 2020, but submits that by 19 May 2021 she “had been able to return to work and carry out suitable employment in a manner which resulted in her having a clear capacity to earn as much as her pre-injury average weekly earnings”. It is submitted that the work being carried out by the applicant prior to 19 May 2021 was “real work for which she was fit”. A bone scan on 8 March 2021 demonstrated a near complete healing of her pelvic fractures. She did not complain of any psychological injury in her consultations with Dr Jacob on 3 November 2020 and on 3 February 2021, and the first certificate of capacity that mentions such an injury (dated 29 March 2021) was issued after the applicant’s sexual harassment episode on 9 March 2021.

The submissions continue:
“The medical and other evidence in respect of the period after the termination of the applicant’s employment needs to be considered in the light of those matters leading up to it”.
The respondent puts the applicant’s credit in issue, alleging a “demonstrably false” assertion that the documents that she sought to put into her bag on 19 May 2021 were documents relating to her workers compensation claim. This assertion was contradicted in the respondent’s response to her Fair Work Commission application, and the respondent submits that the Commission should accept the account submitted in that response.
The respondent notes that after 19 May 2021, the applicant began to be treated by a new general practitioner, Dr Lim. It is stated that this change was recommended to her by her solicitors, and it is also stated that the doctor only consulted with the applicant by telephone. The respondent submits that as a result, the doctor’s view as to the applicant having no work capacity should be rejected, especially as there was no physical alteration in her condition following the termination of her employment.
The respondent submits that much of the applicant’s 20 July 2021 statement as well as the whole of her 12 January 2022 statement are advanced on behalf of her solicitors and are “self-serving”. The latter statement should therefore be rejected.
The respondent submits that the opinion of Dr Smith is consistent with that of Dr Di Ieva and that Dr Smith carefully reviewed the radiological and other material sent to him in detail. The respondent notes that Dr Di Ieva’s physical examination of the applicant on 9 June 2021 was unremarkable.
The respondent submits that the 27 October 2020 accident could not be considered to be life threatening. It relies upon the initial hospital diagnosis of a soft tissue injury, the initial Dr Jacob diagnosis of a muscle strain, as well as the history that the applicant gave to Dr Roberts that she walked home from hospital on the date of the accident. These points also are consistent with Dr Smith’s opinion that the applicant’s fractures were not “significant”.
The respondent notes that the applicant told Dr Roberts that she had a lot of nightmares after the 9 March 2021 episode of sexual harassment. It submits that that episode was therefore clearly a significant factor in the development of her psychological condition, along with the circumstances surrounding the termination of her employment.
The respondent objects to the applicant relying upon “multiple forensic medical reports”.
In relation to Dr Soo’s opinion, the respondent notes that the doctor opined that the applicant’s fractures had probably healed, and the respondent also notes that the doctor deferred to the physical examinations conducted by Drs Di Ieva and Low as he was unable to physically examine the applicant.
In relation to Dr Hong’s opinion, the respondent notes that the doctor does not distinguish between the 27 October 2020 accident and the applicant’s subsequent sexual harassment and bullying when ascribing her psychological condition to her work.
In relation to the report from the pharmacist (Luke McGrath), the respondent raises two issues:
(a) It is recorded that the applicant’s partner had been providing interpreter services for her – calling into question the reliance that can be placed upon reports prepared in the context of him interpreting.
(b) It is recorded that the applicant’s partner drove her to and from work on the weeks when he was home from his own work – the applicant however contends that she was not working as at the date of the pharmacist’s report.
The respondent finally submits:
(a)    The applicant has not discharged her onus of proving that her psychological condition is attributable to the 27 October 2020 accident rather than other factors – the condition is a disease and the applicant has failed to prove that the accident was the main contributing factor to the cause or aggravation of the disease process – Dr Low does not mention the condition in his reports dated 3 February 2021 and 19 May 2021, and the applicant’s physiotherapist does not mention the condition in her 26 February 2021 report.
(b)    The applicant has recovered from her physical injuries.
(c)    The medical evidence does not permit a finding of ongoing incapacity in circumstances where Dr Low’s last report is dated 19 May 2021, and Dr Di Ieva’s last report is dated 9 June 2021.
(d)    In relation to the applicant’s capacity, the Commission should have regard to the applicant’s university qualifications and previous work experience – it should also have regard to the fact that the applicant has moved to Queensland.

FINDINGS AND REASONS

Whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the Personal Injury Commission Act 2020) if it determined the dispute

I posit an opinion that the Commission would not be exercising federal jurisdiction in determining the dispute, and I therefore intend to determine it.

The respondent submits that after positing my opinion, I am still required to refer the dispute to the District Court. It can however point to no authority in this regard, and if the respondent was correct in its submission, then not only would the positing of an opinion seem to be irrelevant, but it would mean that any application where a party raised the possibility of the Commission exercising federal jurisdiction (however spuriously) would need to be referred to the District Court. Such a situation is clearly contrary to the stated guiding principle of the Commission in section 42 of the Personal Injury Commission Act 2020, regarding facilitating the just, quick, and cost effective resolution of the real (emphasis added) issues in the dispute. My view is that once the Commission has opined that it has jurisdiction to determine a dispute, it should proceed to determine the dispute.
In positing my opinion, I have also opined that the respondent is neither a state nor a resident of a state. Therefore, the fact that the applicant is now a resident of Queensland does not deprive the Commission of jurisdiction to determine her dispute. For the Commission to be exercising federal jurisdiction, in accordance with section 75 (iv) of the Constitution, the dispute would need to be considered to be a matter between states, or between residents of different states, or between a state and a resident of another state. The High Court is given original jurisdiction in those matters. Section 77 of the Constitution then allows the federal Parliament to invest state courts with the High Court’s original jurisdiction under section 75 (iv), and the federal Parliament invested that jurisdiction in state courts (such as the District Court) to determine matters between residents of different states or between a state and a resident of another state, when it enacted section 39(2) of the Judiciary Act 1903 (Cth).
However, in my opinion, the Commission is not a court of a state. I refer to and agree with the reasoning of Principal Member Harris in Ritson:
“13. The Workers Compensation Commission is not a court: Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; Mahal v State of New South Wales (No 5) [2019] NSWWCCPD 42.
14. It was properly accepted that the Commission is not a court of a State.Despite the substantive changes introduced by the PIC Act, the nature of the appointment of members of the Commission is a substantial reason why no other conclusion is reasonably open.
15. As was accepted by the Chief Justice in Attorney General for New South Wales vGatsby [2018] NSWCA 254whenreferring to the observations of Kenny J in Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85, the ‘absence of security of tenure’ was an important matter in the characterisation of whether a member was a judge and whether the relevant tribunal was properly characterised as a Court. Whilst members of the Commission exercise an independent decision-making function, they have limited tenure in accordance with their appointment by the Minister.
16. Whilst further reasons are unnecessary, s 26 of the PIC Act shows a clear intention by Parliament that matters of federal jurisdiction should be heard by the District Court. The obvious reason for that section is that the District Court has the power to hear matters arising under s 75(iv) of the Constitution, whereas the Commission does not.”
Therefore, in my opinion, the Commission does not have jurisdiction to determine a dispute between a resident of Queensland (the applicant) and either a resident of another state or another state. The respondent’s objection to the jurisdiction of the Commission is that it is either a resident of New South Wales or a state (presumably New South Wales).
In Howe the majority of the High Court found that corporations (such as the respondent) were not residents within the meaning of section 75 (iv) of the Constitution. In Crouch, I refer to the judgment of Mason, Wilson, Brennan, Deane and Dawson JJ:
“2. The plaintiff's contention that the Commissioner is, for the purposes of s.75(iv), a resident of the State of Queensland is effectively answered by the decision of the Court in Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [1922] HCA 50; (1922) 31 CLR 290. As the dissenting judgments of Isaacs J. and Starke J. demonstrated, the reasoning of the majority in that case might well be thought to be less than compelling (see also Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p.777). The decision has however stood for over sixty years and the Court unanimously refused over fifty years ago to reopen it (see Cox v. Journeaux [1934] HCA 72; (1934) 52 CLR 282). In the course of argument in the present case an application was made on the plaintiff's behalf that the decision be reconsidered, but the Court, again unanimously, refused to reopen it. The basis of the decision in Howe is correctly stated in the headnote to the report (at p.290): ‘the words 'residents' and 'resident' in sec.75(iv) refer to natural persons only and not to artificial persons or corporations’ (see per Knox C.J. and Gavan Duffy J. at pp.294ff. and per Higgins J. at pp.325ff.).”
In my opinion, I am bound by this authority of the High Court. The respondent is a corporation and therefore not a resident of a state within the meaning of section 75 (iv) of the Constitution. In my opinion, the respondent’s submission that it must be a resident of New South Wales to be licensed as a self-insurer in New South Wales carries no force when considering the High Court authority.
I also fail to see the link between the respondent’s self-insurance licensing arrangements and its submission that it is effectively a state within the meaning of section 75 (iv) of the Constitution. Its submissions in this regard relied upon the assumption that it should be considered to be similar to the NSW Self Insurance Corporation, which was opined to be a state in Ritson.
In my opinion however, as pointed out in the applicant’s submissions, the position of the NSW Self Insurance Corporation is quite different to the position of the respondent, in that by section 4 (2) of the NSW Self Insurance Corporation Act 2004, the Corporation is specifically said to be constituted as a statutory body representing the Crown. The respondent is not in the same position, in my opinion.
The fact that the respondent has been provided with a particular licence by the State Insurance Regulatory Authority pursuant to section 210 of the 1987 Act does not in my opinion make it a state for the purpose of section 75 (iv) of the Constitution.
In Deputy Federal Commissioner of Taxation v State Bank of NSW [1992] HCA 6, the High Court stated:
“20. Once it is accepted that the Constitution refers to the Commonwealth and the States as organizations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government.”

In Ritson [at 53], Principal Member Harris stated:
“Several States within the Commonwealth require compulsory insurance for workers compensation and motor vehicle injuries which are controlled by a corporation properly characterised as the Crown”.
The controlling corporation in my opinion is a state for the purpose of section 75 (iv) of the Constitution, but there is no logical reason why the insurers which it controls would also be a state for that purpose. Those insurers (including the respondent) in my opinion are not “agencies or instrumentalities of government”, but corporations with their own constitution determined by their individual articles of association and such.
My opinion in this regard is I believe supported by the decision in Stanton (a decision of the District Court published on 11 April 2022). The decision was published after the two decisions referred to in the respondent’s submissions of the Commission’s Motor Accidents Division Head Johns, and I intend to follow it.
In Stanton, Priestley SC, DCJ considered the position of NRMA as an insurer licensed by the State Insurance Regulatory Authority in relation to the compensation scheme set up by the Motor Accidents Compensation Act 1999. I consider the respondent to be in a similar position to NRMA in this regard.
After considering the unreported decision of Gibb DCJ on 5 November 2021 in Ritchie v Nominal Defendant (in which her Honour found the defendant to be a state), Priestley SC, DCJ stated:
“14 The characteristics of SIRA which Gibb DCJ found resulted in the conclusion that it was part of the state of NSW are not present with NRMA. In my view NRMA is not a part of the state of NSW for that reason. It is a public company with shareholders carrying out the commercial activity of insurance. It is also a company taking part in the scheme established by MACA, but that is simply an example of private enterprise taking part in opportunities established by government, and a participant in the relevant scheme here does not thereby become the state.”

Whether the applicant sustained a primary psychological injury pursuant to section 4 of the 1987 Act

“Injury” is defined in section 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant has proceeded to maintain that her psychological injury was a personal (or frank) injury that occurred arising out of or in the course of her employment with the respondent at the time of her 27 October 2020 accident. She does not allege that she has sustained any disease. If she is correct, she does not need to show that her employment was the main contributing factor to her psychological condition, but she still needs to satisfy section 9A of the 1987 Act, which relevantly provides:
“No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
Sub-section (2) of section 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a)     the time and place of the injury,
(b)     the nature of the work performed and the particular tasks of that work,
(c)     the duration of the employment,
(d)     the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)     the worker’s state of health before the injury and the existence of any hereditary risks,
(f)     the worker’s lifestyle and his or her activities outside the workplace.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]) to be decided after a consideration of all the evidence.
In this matter, I am satisfied that the applicant sustained a psychological injury arising out of or in the course of her employment with the respondent on 27 October 2020, and that her employment with the respondent was a substantial contributing factor to that injury. I accept the opinions of Drs Khan, Hong and Lim, as well as the applicant’s evidence in this regard.
Regarding the submissions made by the respondent as to the applicant’s credit, it is to be noted that the respondent did not seek to cross-examine the applicant in relation to her statement evidence. There is no evidence to suggest that her statements were not properly signed by her and adopted by her. I reject any submission made by the respondent that the statements were advanced on behalf of her solicitors. The respondent also complains that the statements were self-serving, but this is the nature of most statement evidence not provided by independent parties. The statement evidence then has to be considered in the light of the other evidence. In the applicant’s case, I find the statement evidence to be consistent with the history provided by the applicant to her doctors.
I do not find that the termination of the applicant’s employment by the respondent reflects upon her credit. In this regard, I do not place much weight upon the respondent’s response to the applicant’s Fair Work Commission application. It is a draft document and does not have its stated annexures attached to it. In contrast, I also do not place much weight upon the applicant’s comments (those comments not forming part of her signed statement evidence to the Commission) to Dr Roberts that she received compensation from the Fair Work Commission application as well as an admission that the respondent had made a “mistake”. There is a distinct lack of evidence from both parties relating to the Fair Work Commission application.
The evidence that I am left with suggests that two employees of the respondent’s (Linda Gilholme and Michaela Stanton) saw the applicant on 19 May 2021 placing paperwork that she was asked to shred into her bag. The applicant states that that paperwork related to her workers compensation claim and that she had not previously received the paperwork. The evidence of Linda Gilholme and Michaela Stanton is silent as to the nature of the paperwork. The respondent later wrote to the applicant alleging that the paperwork did not relate to her workers compensation claim, but no other statement evidence has been offered by the respondent as to the exact nature of the paperwork.
In the circumstances, and again noting that the respondent did not seek to cross-examine the applicant, I accept the evidence of the applicant as to the nature of the paperwork. In doing so, I am not suggesting that the applicant was not guilty of misconduct in keeping documents that she was asked to shred. That question may have been answered by the Fair Work Commission, but I have no reliable evidence in this regard.

From the evidence that I have, I do not accept the respondent’s submission that the applicant falsely advised the Commission in her statement evidence that the paperwork that she put into her bag on 19 May 2021 related to her workers compensation claim.
In relation to the respondent’s submissions regarding the reliability of the applicant’s evidence having regard to the comments made in the pharmacist’s report from Luke McGrath, it is noted that the comments followed a discussion between the pharmacist and the applicant’s partner, Brendon, on 7 July 2021. There is no suggestion that the applicant was involved in this discussion. In those circumstances, I do not place much weight upon the comments.
As to Brendon interpreting for the applicant “for all of her consultations in the past”, this is not an unusual situation when English is an applicant’s second language. However, it is also incorrect as the clinical notes from Workers Doctors refer to a number of consultations with Drs Lim and Dickson where interpreters were present prior to 7 July 2021. It is also to be noted that interpreters continued to be present at Workers Doctors’ consultations after 7 July 2021, and it is further to be noted that both Drs Soo and Khan refer to interpreters being present at their consultations with the applicant.
As to Brendon advising the pharmacist that the applicant was working as at 7 July 2021, this is contrary to all of the other evidence in the proceedings from both the applicant and the various medical practitioners that have treated her or seen her for medico-legal purposes. I cannot say whether the pharmacist misunderstood Brendon or whether Brendon misled the pharmacist, but I do not accept on the totality of the evidence that the applicant was working as at 7 July 2021.
Having accepted the applicant’s statement evidence, I have no difficulty in finding that the 27 October 2020 accident was an exceptionally traumatic event as far as the applicant was concerned. She states that she was so scared that she thought she was going to die. She was trapped in the conveyor belt system for 20-30 seconds, while yelling out for help that was not initially provided. At the same time, she was in physical pain, later diagnosed as pelvic fractures. I do not accept the respondent’s submission that the incident could not be considered by the applicant to be life threatening. The fact that the initial medical advice to her was that she had only suffered a soft tissue injury or a muscle strain and the fact that she was able to walk home from hospital on the date of the accident have little relevance to the psychological effects that the accident would have had upon her.
The psychological effects were eventually recognised by Dr Jacob in his 29 March 2021 certificate of capacity. They had previously been mentioned in Dr Low’s 17 March 2021 report. Dr Lim diagnosed the condition as post-traumatic stress disorder after his first consultation with the applicant on 25 May 2021. The diagnosis has since been confirmed by both the applicant’s treating psychiatrist, Dr Khan, and a medico-legal psychiatrist, Dr Hong.
Dr Roberts does not on balance believe that the stressor experienced by the applicant on 27 October 2020 was of sufficient severity to produce post-traumatic stress disorder. In my opinion however, the doctor has underestimated the significance of the stressor, especially considering the history that he took of the applicant's accident as "a fall on a conveyor belt" where the applicant's clothes were caught for a time. I accept the applicant’s submission in this regard that the doctor has not recorded a correct history regarding the traumatic nature of the 27 October 2020 accident.
It is also relevant to note that Dr Roberts did not rule out the diagnosis of post-traumatic stress disorder, concluding that the accident had the potential (emphasis added) to lead to that diagnosis. The doctor also suggested a differential diagnosis of an adjustment disorder with anxiety and depression, and recommended a detailed forensic psychological assessment, which the respondent has never sought to undertake.
Dr Khan has taken a correct history that the applicant feared for her life at the time of the 27 October 2020 accident, and he explains in some detail her ongoing symptoms and how those symptoms meet the criteria for a diagnosis of post-traumatic stress disorder. The doctor also agrees that Dr Roberts failed to appreciate the severity of the traumatic ordeal experienced by the applicant on 27 October 2020.
In the circumstances, I find Dr Khan’s opinion to be more reliable than Dr Roberts. Dr Khan’s opinion is also supported by Dr Hong, who records very similar symptoms to Dr Khan and also diagnoses post-traumatic stress disorder caused by "the incident when she was caught by the conveyor belt machine and she sustained pelvic fractures”.
In the context of the opinions provided by Drs Lim, Khan, and Hong, the respondent objects to the applicant relying upon “multiple forensic medical reports”. I find however that the applicant has not breached regulation 44 of the Workers Compensation Regulation 2016 as only Dr Hong’s report can be considered to be a forensic medical report according to that regulation. The reports from Drs Lim and Khan are reports from treating doctors.
The respondent submits that the circumstances surrounding the termination of the applicant's employment was a significant factor in the development of her psychological condition. There is however in my opinion no medical evidence to support such a submission.
There is however some medical evidence to support the respondent's submission that the harassment that she was exposed to on 9 March 2021 was a factor in the development of that condition, although I find it to be a minor factor. In this regard, Dr Khan does not believe it to have significance, Dr Roberts questions the applicant about it and takes a history of nightmares but does not refer to it when providing his summary and final opinion regarding causation, and Dr Hong believes that it aggravated the applicant’s symptoms which were caused by the 27 October 2020 accident. The applicant also stated in her 12 January 2022 statement that she does not think about the harassment on a day-to-day basis.
Considering:
(a)    my acceptance of the opinions provided by Drs Lim, Khan, and Hong;
(b)    my acceptance of the applicant’s statement evidence;
(c)    my opinion as to the limitations in Dr Roberts’ evidence;
(d)    the lack of evidence as to any psychological condition of the applicant’s prior to 27 October 2020, and
(e)    my opinion regarding the minor significance of the psychological effects upon the applicant of the harassment that she was exposed to on 9 March 2021;
I find that the applicant sustained psychological injury in the form of post-traumatic stress disorder arising out of or in the course of her employment with the respondent on 27 October 2020, and I also find that the applicant’s employment on that date was a substantial contributing factor to the psychological injury.
I do not find (as submitted by the respondent) that the applicant’s psychological condition is a disease. In NSW Police Force v Gurnhill [2014] NSWWCCPD 12, Deputy President Roche stated [at 72]:
“Returning to Mr Gawthorne’s submissions in reply, which at least addressed the issue argued by his counsel at the arbitration, whether a psychological condition is classified as a personal injury or a disease depends on the evidence in each case. For it to be found that a worker with a psychological condition has received a personal injury, it is necessary that the events complained of had a physiological effect on the worker (Yates v South Kirkby Collieries Ltd[1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio[1973] 47 WCR 3). More specifically, the High Court has described a personal injury under s 4(a) as a ‘sudden or identifiable physiological change’(Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310 per Brennan CJ, Dawson and Gaudron JJ at 716 (Zickar)) and as ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at 300 [39] (Petkoska)).”
The Deputy President then considered Inman v NSW Police Force [2013] NSWWCCPD 11 (Inman), and stated [at 74]:
“In Inman, though it was clear that the worker had (at some stage) suffered a physiological effect, she did not manifest the kind of ‘sudden physiological change or disturbance of the normal physiological state’ that normally constitutes a ‘personal injury’. In the circumstances of that case, the conclusion was that the worker’s psychological condition had been contracted gradually, as a result of multiple events over time, and the disease provisions applied ([262]).”
Even though there has been no evidence led in relation to the reporting of the applicant’s psychological condition until Dr Low’s report dated 17 March 2021, I have accepted the applicant’s evidence that she was so scared at the time of the 27 October 2020 accident that she thought she was going to die. Dr Lim also reports on 25 May 2021 (page 211 of the ARD) that the applicant informed him that she had been hypervigilant and easily scared since the accident. She also reported to him that she had panic attacks whenever she had gone into work (from December 2020) after the accident. He also records her reports of feeling depressed and anxious, having flashbacks and nightmares, having difficulty sleeping, and having poor concentration.
Dr Khan first examined the applicant on 21 July 2021. It is clear from his report (page 166 of the ARD) that he believed she then suffered from “pervasive symptoms of trauma, depression and anxiety, which impact on her mood regulation, motivation, energy, attention, concentration and self-confidence”.
Unlike the situation in Inman, I am of the opinion that there is sufficient evidence to conclude that the psychological trauma suffered by the applicant on 27 October 2020 created a sudden physiological change or disturbance which continued to cause her symptoms, even though her post-traumatic stress disorder was not diagnosed until 25 May 2021. I do not see the medical evidence (especially from Drs Lim and Khan) as supporting the proposition that the post-traumatic stress disorder had been contracted gradually, so as to render it a disease pursuant to section 4 of the 1987 Act.

If the answer to (b) is in the affirmative, whether the applicant has correctly made a claim in relation to the injury pursuant to section 260 of the 1998 Act

This issue is raised in the respondent’s notice pursuant to section 78 of the 1998 Act. The respondent however makes no submissions regarding the issue except to maintain the argument that the applicant had never submitted to it any claim in respect of psychological injury. The respondent concedes in its submissions that it nevertheless arranged for the applicant to be examined by a psychiatrist (Dr Roberts) on 30 September 2021. There is also a concession in a letter from the respondent’s solicitors to the applicant’s solicitors dated 14 July 2021 that it had paid for some of the applicant’s medical treatment in relation to her psychological condition.
In her submissions, the applicant refers to the authorities of Barrow and Rinker as supporting the proposition that in making a claim, strict compliance with section 260 of the 1998 Act is not required. In Tan v National Australia Bank Limited [2008] NSWCA 198, Young CJ in Eq (Basten JA agreeing) held (at [79]):
“Lack of strict compliance with s 260 and the Guidelines therefore does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.”
The respondent had received notice of the applicant’s psychological injury when it received Dr Low’s 17 March 2021 report. It then received Dr Jacob’s 29 March 2021 certificate of capacity, which added “anxiety/depression disorder” in handwriting to the injury diagnosis section. It is relevant to note that the certificate of capacity specifically referred to the date of injury as 27 October 2020.
The respondent was then sent correspondence from the applicant's solicitors on 27 May 2021, 9 June 2021, and 22 July 2021 attaching certificates of capacity which all referred to the applicant as suffering from “PTSD” as a result of her 27 October 2020 accident. The applicant's solicitors also sent a letter to the respondent on 2 July 2021 requesting that it pay invoices relating to psychological medical treatment.
The respondent was finally aware of the applicant’s claim regarding her psychological injury when previous Commission proceedings were filed by her.
In the circumstances, considering the knowledge that the respondent possessed as to the applicant’s psychological injury on 27 October 2020 and her desire to claim compensation for that injury, any lack of strict compliance with section 260 of the 1998 Act can be excused. Section 260 (5) specifically provides that “a minor defect in form or style” in a claim is not a bar to the recovery of compensation.
In any case, it is relevant to note that the applicant’s psychological injury comes from an accident on 27 October 2020 in relation to which the respondent had already accepted a claim from her. It admitted liability for that claim in its letter to her dated 28 October 2020 (page 49 of the ARD). The psychological injury was just another injury that arose from that claim in my opinion. It was not necessary for the applicant to make a further formal claim, as long as the respondent received certificates of capacity and other medical information clearly putting it on notice that the original claim now included an allegation of an additional injury occurring in the accident the subject of the claim. As explained above, I find that the respondent received these certificates of capacity and other medical information.
I therefore find that the psychological injury which the applicant sustained in her 27 October 2020 accident has been the subject of a claim pursuant to section 260 of the 1998 Act.

Whether the applicant has correctly made a claim for payments of weekly compensation after 8 June 2021 pursuant to section 260 of the 1998 Act

This issue is raised in the respondent's notice pursuant to section 78 of the 1998 Act. The respondent however makes no submissions regarding the issue at all. This is understandable considering the extensive correspondence attached to the ARD regarding the applicant's solicitors' dealings with the respondent (and also with the Independent Review Office and the State Insurance Regulatory Authority) between 9 June 2021 and 22 July 2021. I refer specifically to the letters to the respondent dated 9 June 2021, 11 June 2021, and 22 July 2021, which all clearly claim weekly compensation from the respondent on behalf of the applicant from 9 June 2021.
I therefore find that the applicant has put the respondent on notice of her claim for weekly compensation from 9 June 2021, and there is no impediment therefore to the Commission determining that claim.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of workplace injury, since 8 June 2021.

The applicant alleges that since 8 June 2021, she has had no current work capacity, so as to entitle her to an award in her favour pursuant to section 37 (1) of the 1987 Act. Schedule 3, clause 9 (2) of the 1987 Act relevantly provides:
“(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.”
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“’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.”
I have already accepted the evidence of Drs Lim, Khan, and Hong in relation to causation of the applicant’s psychological injury. I see no reason not to accept their evidence as to the level of the applicant’s current incapacity as a result of that injury.
Specifically, Dr Khan (being the applicant’s treating psychiatrist) has provided a coherent report explaining in some detail the history he obtained from the applicant, the mental state examinations that he undertook, his diagnosis and how he arrived at that diagnosis, and his prognosis for the applicant. He opined that she was totally incapacitated for work into the foreseeable future.
It is interesting to note that in the respondent’s submissions, the respondent has not sought to deal with the opinions of Dr Khan, despite dealing with the opinions of virtually the entirety of the remainder of the medical evidence relied upon by the applicant.
Dr Hong also opines that the applicant is unfit for work in his 6 August 2021 report.
The applicant’s treating general practitioners from Workers Doctors (Drs Lim and Dickson) have also provided consistent certificates of capacity since 25 May 2021, certifying the applicant as having no current work capacity.
In its submissions, the respondent seeks to discredit the opinions proffered by Dr Lim as he conducted his physical examinations of her by “teleconsult” and failed to mention that fact in his reports. I reject this submission. First, the doctor was consulting with the applicant during the height of the COVID pandemic in 2021, and Drs Soo and Smith were also forced to conduct their physical examinations of the applicant remotely. “Teleconsults” with general practitioners were regular during the pandemic and the doctors were forced to adapt. I have no reason not to accept that when Dr Lim consulted with the applicant, he used his best endeavours in history taking and remotely examining her in order to arrive at his diagnosis and treatment recommendations. It should be noted that his clinical notes from his examination of the applicant on 25 May 2021 are far more detailed than the Commission generally sees in clinical notes of general practitioners. Second, it is clear from the records of Workers Doctors that the examinations were by “teleconsult”, and any suggestion that Dr Lim was attempting to hide this fact in preparing his reports is therefore without foundation. Third, the fact that Dr Lim certified the applicant as having no current work capacity on 25 May 2021 (in circumstances where she had been performing suitable duties with the respondent up to 19 May 2021) is an opinion of the doctor that has since been agreed to by two psychiatrists (Drs Khan and Hong).
In relation to the applicant’s ongoing physical symptoms from the pelvic fractures which she sustained on 27 October 2020, there is not a tremendous amount of recent medical evidence that has been put forward, aside from the certificates of capacity and clinical notes from Workers Doctors. These certificates and notes are consistent in their acknowledgement of her ongoing physical pain.

I find the reports from Dr Low to be helpful. He consulted with the applicant between 3 February 2021 and 23 August 2021. When he initially consulted with her, the doctor was hopeful that she would make a full recovery from her pelvic fractures, albeit within "several" months. After reviewing the 8 March 2021 bone scan on 17 March 2021, he confirmed that her fractures were nearly healed, and on 19 May 2021, he reported that he believed the fractures had healed. However, on both dates, he records the applicant as having ongoing pain in her lower back and right leg, which on 19 May 2021 he believed could be a combination of sacroiliac joint incompetence and pelvic nerve injury. At his 23 August 2021 consultation with the applicant, he recorded that her symptoms had not changed and he maintained his diagnosis of sacroiliac joint incompetence and pelvic nerve injury.
Dr Low recommended that the applicant consult with a neurosurgeon and she therefore consulted with Dr Di Ieva on 9 June 2021. The doctor referred to an unremarkable neurological examination on this date, but he also noted that “the hips manoeuvre on the right-side triggered some local pain”. He accepted that the applicant still has residual pain from her fractures and the healing process. He suggested an increase in medication, an increase in pain management, physiotherapy, and injections.
The respondent submits that the report of Dr Di Ieva is consistent with the report of Dr Smith, and concentrates on the doctor's unremarkable neurological examination. I reject this submission. Dr Di Ieva accepted that the applicant had ongoing pain from her pelvic fractures, and ordered a plethora of ongoing treatment, whereas Dr Smith opined that he would have expected the applicant to have had no disability after the fractures would have healed within six months.
Dr Soo’s opinion is also inconsistent with the opinion of Dr Smith. I specifically refer to the doctor's report dated 29 October 2021 where he criticises Dr Smith's reading of the 8 March 2021 bone scan, as well as the doctor's opinion that the applicant suffered "fairly insignificant fractures". Dr Soo describes the fractures as "multiple traumatic significant fractures of her pelvis" which are "one of the most painful and debilitating injuries you can suffer ".
Dr Soo consulted with the applicant by “telehealth” on 16 August 2021, and her complaints to him about her ongoing pain are consistent with her complaints to Dr Low on 23 August 2021.
Considering the consistent medical evidence from Workers Doctors, Dr Low, Dr Di Ieva, and Dr Soo especially in relation to the applicant’s ongoing symptoms in her lower back and right thigh, I find that I cannot accept the opinion of Dr Smith. On the balance of the evidence, she has not recovered from the physical injuries which she sustained in her 27 October 2020 accident.
While the applicant’s ongoing physical symptoms may not totally incapacitate her for work, I find that when combined with her ongoing psychological symptoms, she has no current work capacity in accordance with the definition provided under the 1987 Act. The combined medical evidence from her treating doctors, as well as Drs Soo and Hong lead me to conclude that she is not capable of performing suitable employment within the meaning of section 32A of the 1987 Act.
In coming to this conclusion, I have mainly considered the array of medical evidence, but I have also considered the applicant's age, education, skills and work experience, as well as the work that she was performing for the respondent between December 2020 and 19 May 2021. There is no other evidence that has been put before me by the parties in relation to return to work planning or occupational rehabilitation services.
The applicant has tertiary qualifications from South Korea, as well as work experience in production management and accounting. However, especially in light of the psychological medical evidence certifying her as unfit for work, there is no evidence before me as to a “real job” (as found to be necessary in Dewar) which she could perform in any of these fields.
Further, I accept the applicant’s submission that the work that she was performing for the respondent between December 2020 and 19 May 2021 was not a “real job” which she would currently be fit to perform. The work was menial office-based work which the respondent was obliged to provide to her pursuant to its obligations under Chapter 3 of the 1998 Act, as the applicant was unfit for her pre-injury employment duties. The respondent has provided no evidence that such work would be available to her elsewhere as a “real job”, especially having regard to the current evidence as to her psychological condition.
The respondent asks that I draw a distinction between events which occurred prior to 19 May 2021 and events since, in relation to my acceptance of the medical evidence put forward by the applicant. The distinction that I draw in this regard however focuses upon the date of 25 May 2021, when the applicant first consulted with Dr Lim. Prior to that date, she had been dissatisfied with the services provided to her by Dr Jacob (who initially only diagnosed her with a muscle strain) and she had otherwise only consulted with Dr Low and had physiotherapy treatment. She had not had any psychological treatment, despite Dr Jacob recognising her psychological symptoms on 29 March 2021.
In those circumstances, it was reasonable for Dr Lim to (on 25 May 2021) order referrals to a physiotherapist, a psychologist, an orthopaedic surgeon, a neurosurgeon, an interpreter, and a psychiatrist. Not all of those referrals occurred, but the applicant has clearly had significantly greater treatment for her 27 October 2020 accident injuries since she initially consulted with Dr Lim.
Any suggestion by the respondent that this greater treatment was unnecessary is in my opinion countered by not only the evidence of the doctors who provided that treatment (such as Drs Di Ieva and Khan) but also the evidence of Drs Soo and Hong.
I find that the applicant’s lack of current work capacity continues, notwithstanding the respondent’s submission as to the lack of current medical evidence.
It is true that there is no specialist medical evidence regarding the effects of her physical injuries since August 2021, but there are certificates of capacity from Workers Doctors certifying her as having no current work capacity up to 8 March 2022. There is no recent evidence to contradict these certificates or to suggest that she has recovered from the effects of her physical injuries.
Further, in relation to her psychological injuries, there is evidence that she was still consulting with Dr Khan as at 19 January 2022.

Section 60 expenses

I have accepted the applicant’s evidence that she continues to suffer pain in her lower back and her right thigh, and I have also accepted her evidence that she continues to be significantly affected by her psychological injury. It is reasonably necessary for her to have medical treatment in relation to both her physical and her psychological injuries.
I propose to make a “general” order in this regard.
In relation to the claim in the ARD for past treatment expenses, at the teleconference on 17 February 2022, I made a direction that if the applicant wished to maintain a claim for a specific amount to be awarded to her under section 60 of the 1987 Act, she would need to provide a schedule showing when each expense was incurred. I believed that this was necessary in order to determine whether any of the expenses were not claimable due to lack of approval pursuant to section 60 (2A) of the 1987 Act. This schedule has not been provided, and I therefore do not intend to order payment of a specific amount. I also note that the amounts referred to in the invoices attached to the ARD (on my calculations) add up to a different total amount than the amount pleaded in the ARD.
In relation to the claim in the ARD for future treatment expenses, although both Drs Khan and Hong have made recommendations, the recommendations are not precisely consistent. It is my opinion that the applicant needs to make a precise claim on the respondent, in order for it to be able to consider approving future treatment expenses.

SUMMARY

I opine that the Commission is not exercising federal jurisdiction in determining this dispute.
I find that on 27 October 2020, the applicant sustained a personal psychological injury arising out of or in the course of her employment with the respondent pursuant to section 4 (a) of the 1987 Act.

I find that the applicant's employment with the respondent was a substantial contributing factor to the personal psychological injury pursuant to section 9A of the 1987 Act.
I find that the applicant has correctly claimed compensation in relation to her personal psychological injury, pursuant to section 260 of the 1998 Act.
I find that the applicant has correctly claimed weekly compensation from 9 June 2021, pursuant to section 260 of the 1998 Act.

I find that since 9 June 2021, the applicant has had no current work capacity as a result of the personal injury (both psychological and physical) which she received on 27 October 2020.

I find that the applicant’s PIAWE is $1,043.19.
I find that the applicant is entitled to have her reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent, in relation to the personal injury (both psychological and physical) which she received on 27 October 2020.

There will be an award that the respondent pay the applicant $834.55 per week (as adjusted) from 9 June 2021 to date and on a continuing basis, pursuant to section 37 of the 1987 Act.
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act.

[2022] NSWPIC 271

7 June 2022