Lobel v Secretary, Department of Customer Service

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lobel v Secretary, Department of Customer Service [2025] NSWPIC 546
APPLICANT:	Ursula Lobel
RESPONDENT:	Secretary, Department of Customer Service
MEMBER:	Anne Gracie
DATE OF DECISION:	14 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for lump sum compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and other factual material; consideration of injury and causation; consideration of material contributing factor; Kooragang Cement Pty Limited v Bates, Federal Broom Co Pty Ltd v Semlitch, AV v AW, Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Briginshaw v Briginshaw, Helton v Allen, Austin v Director General of Education, and Duncan v Roads & Traffic Authority of NSW and Anor; Held – the applicant’s employment with the respondent has been the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the applicant’s psychological condition (chronic post-traumatic stress disorder) pursuant to section 4(b)(ii); the matter is referred to the President for referral to a Medical Assessor for determination of whole person impairment.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant’s employment with the respondent has been the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the applicant’s psychological condition complex post-traumatic stress disorder pursuant to s 4 (b) (ii) of the Workers Compensation Act 1987 with a deemed date of injury, 19 December 2018. 2. The claim for the psychological injury is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: · date of injury: 19 December 2018 (deemed); · body systems referred: psychological injury, and · method of assessment: whole person impairment (WPI). 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and annexures; (c) Reply and annexures; (d) applicant’s Application to Lodge Additional Documents and annexures filed on 1 October 2025, and (e) respondent’s Application to Lodge Additional Documents and annexures filed on 1 October 2025. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ursula Lobel, the applicant, is 67 years old. She was employed by the Department of Customer Service, the respondent, as a senior auditor having commenced employment with the respondent in its various governmental iterations since 1996.
On 19 December 2018, the applicant sustained injury at work whilst working for the respondent when she was sliding her chair on a plastic mat and she fell heavily, striking her head and neck on the edge of a filing cabinet. In attempting to break her fall the applicant also injured her right hand.
The applicant lodged a claim for workers compensation which was accepted by the workers compensation insurance company Allianz Australia Insurance Limited in respect of the applicant’s physical injuries.
In a certificate of capacity dated 15 February 2019, the applicant’s nominated treating doctor, Dr Walz included an additional diagnosis of “Exacerbation of pre-existing complex PTSD”.
In response to this additional diagnosis, the insurer arranged for the applicant to be examined by Dr Allan, psychiatrist. Dr Allan saw the applicant on 4 June 2019 and produced a report dated 5 June 2019. On the basis of the report, Allianz Australia Insurance Limited issued a s 78 notice pursuant to the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) dated 21 June 2019 denying liability for the exacerbation of the complex post-traumatic stress disorder on the basis that the workplace injury was not the main contributing factor to the exacerbation of the complex post-traumatic stress disorder condition.
The applicant sought a review of the insurer’s decision on 30 August 2019. The review was unsuccessful and the insurer maintained its decision to deny liability for the exacerbation of the complex post-traumatic stress disorder.
On 17 September 2024, the applicant’s lawyers made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychological injury, for
17% whole person impairment (WPI) based on two reports from Associate Professor Robertson dated 24 February 2022 and 14 May 2024.
On 13 December 2024 the insurer denied liability for the s 66 claim by way of a further s 78 notice. The insurer relied on an independent medical opinion from Dr D’Abrera dated
18 November 2024. The insurer maintained its position that the workplace injury was not the main contributing factor to the exacerbation of the complex post-traumatic stress disorder condition. In respect of the claim pursuant to s 66, the respondent further noted that
Dr D’Abrera provided an assessment of WPI of 17% with a deduction of 2% for pre-existing injury or condition. Dr D’Abrera considered that 50% of the assessment of 15% was attributable to secondary psychological issues arising out physical injuries sustained in the workplace injury on 19 December 2018 and 50% of the assessment of 15% was attributable to the workplace injury of 19 December 2018 causing a primary psychological injury claimed as an exacerbation of the applicant’s complex post-traumatic stress disorder condition (page 110 of the Reply), therefore not reaching the relevant threshold to maintain a claim pursuant to s 66 for WPI. The report however is somewhat unclear in this respect and it is noted that the s 78 notices and the s 287A notice do not include the issue of primary psychological injury and secondary psychological injury in the “Summaries of the Decision” and the respondent did not identify this issue at the preliminary conference nor at the commencement of the Arbitration on 7 October 2025.
On 15 July 2025, the applicant filed proceedings in the Personal Injury Commission (Commission). The matter was listed before me for conciliation/arbitration on
7 October 2025. The matter did not resolve at conciliation and proceeded to an arbitration before me on that day.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was the applicant’s employment with the respondent the main contributing factor to the development of her psychological condition, chronic post-traumatic stress disorder and

(b) in the event that the applicant is successful in proving that employment with the respondent was the main contributing factor to the development of her psychological condition, the issue of the level of WPI remains in dispute and will need to be referred to a Medical Assessor.

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.
A preliminary conference was held before Senior Member Haddock on 20 August 2025. At that time the matter did not resolve and was set down for conciliation/arbitration on
7 October 2025 in person at 1 Oxford Street Darlinghurst. A Direction was issued by Senior Member Haddock following the preliminary conference. Direction two noted the following:
“The respondent disputes that the applicant has sustained injury; that employment was a substantial contributing factor to injury; that employment was the main contributing factor to injury; and the quantum of any permanent impairment.”
Senior Member Haddock was not available to hear the matter on 7 October 2025 and the matter was transferred to Member Gracie.
On 2 October 2025, following an application by the applicant’s legal representative, the applicant was excused from attending the conciliation/arbitration in person due to her contracting a respiratory condition. The applicant joined the conciliation/arbitration by
MS Teams. At the commencement of the arbitration and at the conclusion of the applicant’s submissions and the conclusion of the respondent’s submissions, the applicant was given the opportunity, by consent, to discuss with her legal representatives whether there were any further matters that she wanted her legal representatives to bring to my attention. This is reflected in the recorded transcript.
On 7 October 2025, the matter did not resolve during the conciliation phase and proceeded to arbitration. The applicant was represented by Mr James McEnaney of counsel instructed by Ms Ieraci, solicitor from Carroll and O’Dea Lawyers. The respondent was represented by Ms Kavita Balendra of counsel instructed by Mr Tuxford, solicitor from SMK Lawyers.
Ms Luhrs was also present from Allianz Australia Insurance Limited.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents and annexures filed by the respondent on 1 October 2025, admitted by consent and
(d)    Application to Lodge Additional Documents and annexures filed by the applicant on 1 October 2025 admitted by consent. The parties were advised that as there were 2,180 pages annexed to the Application to Lodge Additional Documents, comprising primarily clinical notes from the Carlingford Epping Surgery (1,778 pages), I would only be considering the pages from the clinical notes from the Carlingford Epping Surgery that I was taken to in submissions. Both counsel agreed with this course of action.

Oral evidence

There was no oral evidence called at the arbitration hearing. The proceedings were recorded and a recording of the transcript is available to all parties.

Applicant’s evidence

The applicant relied on two statements by the applicant dated 21 June 2025 (page 2 of the Application to Resolve a Dispute (ARD)) and 29 September 2025 (page 1 of the Application to Lodge Additional Documents filed by the applicant (ALADA)).
The applicant also relies on two independent medical reports from Associate Professor Robertson, psychiatrist, dated 24 February 2022 (page 25 of the ARD) and 15 May 2024 (page 43 of the ARD).
The applicant relies on numerous reports from her treating doctors including, in particular, a report from Dr Llewellyn-Jones, psychiatrist, dated 31 May 2019 (page 73 of the ARD).The applicant also relies on clinical notes and reports from her treating doctors including her treating general practitioner, Dr Walz from the Carlingford Epping Surgery (page 111 of the ARD and page 6 of the ALADA) and the Northern Pain Centre (page 2067 of the ALADA) where the applicant has received treatment from Dr Holford, Interventional Pain Medicine Specialist, and Ms Plahn, psychologist. The applicant also relies on medical reports prepared by Dr Holford dated 21 April 2020 (page 60 of the ARD) and 19 November 2019 (page 62 of the ARD). The applicant relies on reports from Ms Plahn dated 24 February 2021 (page 55 of the ARD) and 22 January 2020 (page 56 of the ARD). The applicant also relies on the clinical notes from the Lighthouse Psychology Clinic where the applicant receives psychological treatment from Ms Azzopardi (page 2,067of the ALADA).
The applicant relies on a fitness for work assessment prepared on behalf of the respondent from Dr Abeya dated 10 December 2019 (page 64 of the ARD).
The applicant also relies on several Allied Health Recovery Requests from Ms Plahn and
Ms Azzopardi (from page 76 of the ARD).
The applicant relies on correspondence between the parties and a permanent impairment claim form dated 6 September 2024 (page 22 of the ARD).
I have considered this material. In relation to the clinical notes from the Carlingford Epping Surgery, I have only considered the material I was taken to in submissions.

Respondent’s evidence

The respondent relies on notices issued pursuant to s 78 of the 1998 Act dated
21 June 2019 (page 4 of the Reply) and 13 December 2024 (page 13 of the Reply) together with a review notice issued pursuant to s 287A of the 1998 Act dated 11 September 2019 (page 9 of the Reply).
The respondent relies on an independent medical report from Dr D’Abrera, psychiatrist, dated 18 November 2024 (page 92 of the Reply) and an earlier independent medical report from Dr Allan, psychiatrist, dated 5 June 2019 (page 36 of the Reply). It was agreed that this report did not offend regulation 44 of the Workers Compensation Regulation as it had been obtained for the purpose of a separate part of the applicant’s claim (Regulation 44(4)(c)). The report was also included in the evidence for the purpose of history as Associate Professor Robertson has referred to the report from Dr Allan in some detail.
The respondent relies on an Independent Consultant Report from Mr O’Neill, psychologist dated 12 May 2021 (page 68 of the Reply).
The respondent relies on a number of forensic medical reports referrable to the physical injuries sustained by the applicant. Those reports include a report from Associate Professor Hope, orthopaedic surgeon, dated 27 February 2023 (page 87 of the Reply) and Dr Sheehy, neurosurgeon, dated 23 February 2023 (page 79 of the Reply). The respondent also relies on an Injury Management Consultant’s report from Dr Smith dated 11 August 2020 (page 57 of the Reply).
The respondent relies on the Injury Report Form dated 19 December 2018 (page 1 of the Reply). I note in this respect the document appears to be the permanent impairment claim form dated 6 September 2024 rather than an Injury Report Form. The respondent also relies on correspondence from Allianz Australia Insurance Limited dated 29 August 2023 in respect of the applicant’s entitlements pursuant to s 39 of the 1987 Act (page 21 of the Reply) together with correspondence requesting further and better particulars from SMK Lawyers dated
30 September 2024 (page 23 of the Reply) and further correspondence from SMK Lawyers dated 19 September 2025 (page 10 of the Application to Lodge Additional Documents filed by the Respondent (ALADR)) and response to that correspondence from Carroll and O’Dea Lawyers dated 24 September 2025 (page 12 of the ALADR).
The respondent relies on the clinical notes from the Carlingford Epping Surgery (page 13 of the ALADR and page 360 of the Reply). The respondent also relies on the clinical notes from the Lighthouse Psychology Practice (page 112 of the Reply), the clinical notes from Macquarie Medical Centre (page 182 of the Reply) and clinical notes from Dr Llewelyn Jones (page 212 of the Reply).
The respondent relies on a redacted list of payments from Allianz-TMF as of 6 August 2025 (page 27 of the Reply).
The respondent also relies on a number of treating reports from the applicant’s treating doctors including Dr Walz (commencing at page 72 of the Reply and at pages 4 and 8 of the ALADR) and Dr Holford (commencing at page 63 of the Reply and at pages 1 and 6 of the ALADR) and Ms Plahn dated 24 February 2021 (page 3 of the ALADR) and the report from Dr Llewellyn-Jones dated 31 May 2019 (page 33 of the Reply).
I have considered all of this material.

Applicant’s submissions

Mr McEnaney, on behalf of the applicant submits that before addressing the issue of “material contributing factor”, there are three important issues to note that are not in dispute. The parties agree that the applicant sustained physical injuries to her head and neck in a fall at work on 19 December 2018. Further, the parties agree that the applicant had suffered from a pre-existing complex post-traumatic stress disorder. Finally, it is agreed by the parties that at the time of her injury the applicant had been working as a senior auditor with the respondent and was fully functional in this role respect despite several stressful events that had occurred in her life prior to the work accident on 19 December 2018.
Mr McEnaney referred to the decision of Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 and the observations of Kitto J in relation to the issue of aggravation and exacerbation of a disease process. He then referred to the decision of AV v AW [2020] NSWWCCPD 9 where Snell DP dealt with the nature of the test for “main contributing factor”.
Mr McEnaney referred to the relevant paragraphs of the applicant’s statements highlighting the severity of the fall and the symptoms that developed after the fall including nausea and dizziness.
Mr McEnaney conceded that the applicant suffered from a preexisting psychological condition, complex post-traumatic stress disorder. He pointed out that I need not be bothered with this as the applicant only needs to prove an aggravation of this condition as a result of the fall and the effects of the fall on the applicant’s psychological condition.
Mr McEnaney then took me to the applicant’s statement and highlighted the psychological symptoms the applicant has developed since the fall and the worsening of her psychological condition.
Mr McEnaney took me to the clinical notes from the applicant’s treating general practitioner, Dr Walz. At the applicant’s first attendance on 29 December 2018 (page 117 of the ARD),
Dr Walz records tension type headaches, and a history of post-traumatic stress disorder.
Dr Walz arranged an MRI scan of the brain to rule out any brain injury as the cause for the headaches. At follow up attendances on 4 January 2019 and 11 January 2019, Dr Walz records the applicant was experiencing emotional lability and difficulties concentrating and fatigue (page 119 of the ARD). The MRI scan of the brain was reported as clear and no physical cause for the headaches and the fatigue were identified. Mr McEnaney then took me to the clinical note entry on 8 February 2019. This entry records that the applicant had been seen by her psychiatrist who expressed the opinion that the applicant’s symptoms may be the result of an exacerbation of her complex post-traumatic stress disorder and had increased her medication for this condition.
Mr McEnaney then took me to the report from the applicant’s treating psychiatrist,
Dr Llewellyn-Jones dated 31 May 2019 (page 73 of the ARD). He noted that the applicant had consulted with Dr Llewellyn-Jones on five occasions in the months leading up to the fall on 19 December 2018. Mr McEnaney advised that the report must be read closely and despite the preexisting trauma recorded by Dr Llewellyn-Jones, what I need to address is the exacerbation of the applicant’s psychological condition as a result of the fall at work. Mr McEnaney highlights the increase in the applicant’s symptoms since the fall and the increase in her medication since the fall recorded by Dr Llewellyn-Jones. Mr McEnaney submits that Dr Llewellyn-Jones would be in the best position to comment on the pre- and post-accident functioning of the applicant and whether the fall at work had been the material contributing factor to the exacerbation of the applicant’s psychological condition (complex post-traumatic stress disorder).
Mr McEnaney then took me to the independent medical reports prepared by Associate Professor Robertson dated 24 February 2022 and 15 May 2024 (page 25 and page 50 of the ARD). He also referred to the independent medical report Dr Allan dated 5 June 2019 (page 36 of the Reply). Mr McEnaney submitted that both doctors agree that the incident in December 2018 precipitated a catastrophic and permanent aggravation of the applicant’s underlying complex post-traumatic stress disorder.

Mr McEnaney also pointed out that Associate Professor Robertson advances a mechanism of injury for the deterioration of the applicant’s psychological condition referable to the physical trauma sustained by the applicant in the fall.
In his second report, Associate Professor Robertson clarifies the applicant’s history and its relevance to the aggravation. The applicant advised Associate Professor Robertson that her second husband had died in 2017 and since that time she had commenced a new relationship. In light of this additional history, Associate Professor Robertson elevates the December 2018 incident as the primary factor exacerbating her complex mental state.
Mr McEnaney submits that the opinions of Dr Llewellyn-Jones and Associate Professor Robertson are consistent with the applicant’s evidence.
Mr McEnaney then addressed the independent medical report from Dr D’Abrera dated
18 November 2024 (page 92 of the Reply). Mr McEnaney submits that Dr D’Abrera agrees that the fall had a significant impact on the applicant’s complex post-traumatic stress disorder but was not the main contributing factor in her psychological decompensation. Dr D’Abrera does however label the fall as the “precipitating event”. Dr D’Abrera states that other
non-work-related factors contributed to the aggravation however Mr McEnaney submitted that this not the test. Mr McEnaney submits that I would reject the opinion of Dr D’Abrera and prefer the opinions expressed by Dr Llewellyn-Jones and Associate Professor Robertson. The applicant had complex post-traumatic stress disorder and it has been made worse by the fall.

Respondent’s submissions

On behalf of the respondent, Ms Balendra submitted that the applicant was a poor historian and the applicant’s opinion that the deterioration in her complex post-traumatic stress disorder was due to the fall at work is not consistent with the clinical records. Ms Balendra referred to the report from Dr Llewellyn-Jones dated 31 May 2019 and listed the symptoms the applicant had advised Dr Llewellyn-Jones about in the five attendances with
Dr Llewellyn-Jones prior to the workplace fall. Dr Llewellyn-Jones referred the applicant to a psychologist, Ms Sam Forbes prior to the workplace incident. Dr Llewellyn-Jones also listed the challenging circumstances that the applicant had faced prior to the fall at work.
Ms Balendra conceded that the applicant has experienced a worsening of her symptoms since the fall at work however Ms Balendra submitted that based on the evidence the work accident was not the main contributing factor to this deterioration in light of the significant history of her psychological condition prior to the fall.
Ms Balendra notes that in his first report, Associate Professor Robertson acknowledges that the traumatic bereavement of losing her husband in 2017 and the fall at work were factors to consider in respect of the deterioration of her mental state.
Ms Balendra submitted that the second report prepared by Associate Professor Robertson was completely driven by the applicant. The respondent submitted that the applicant was a poor historian, and therefore the report from Associate Professor Robertson cannot be relied on as it is inconsistent with the history in the clinical notes.
Ms Balendra submitted that the report from Dr Abeya dated 10 December 2019, who undertook a fitness for work assessment on behalf of the respondent, noted that the applicant presented with long term chronic complex post-traumatic stress disorder (page 64 of the ARD).
Ms Balendra then took me to the report from Dr D’Abrera whom the applicant had been referred by the respondent for an independent medical opinion. The report is dated
18 November 2024 (page 92 of the Reply).
Ms Balendra submitted that Dr D’Abrera took a consistent history from the applicant and formed the opinion that the fall at work did contribute to the deterioration of the applicant’s complex post-traumatic stress disorder but was not the main contributing factor. Dr D’Abrera considered that the death of the applicant’s husband in 2017 and a dispute involving her late husband’s will were also contributing factors to the deterioration in the applicant’s mental state. Dr D’Abrera opined that the fall at work was responsible for a 30% deterioration in the applicant’s mental health with the other factors making up the balance of 70% and therefore the other factors were the main contributing factor to the deterioration in her psychological health.
Ms Balendra made a final comment in relation to the opinion expressed by Dr D’Abrera concerning primary and secondary injury. In response to the following question, “In providing your permanent impairment assessment, please kindly identify the WPI which is related to any primary psychological injury which occurred on 19 December 2018 and that related to the secondary psychological injury attached to the Worker’s cervical spine injuries.”
Dr D’Abrera opined the following, “I estimate that approximately 50% of the WPI relates to a primary psychological injury, and the remainder (50%) to the secondary psychological effects of her cervical spine injuries, with the caveat that this is a ‘best-guess’ and not an exact science.”
Mr McEnany objected to this submission on the basis that the issue of primary and secondary injury had not been identified as an issue that was before me. The applicant’s claim before me was in respect of an aggravation, acceleration, exacerbation and/or deterioration of the complex post-traumatic stress disorder condition and had not been claimed as a secondary condition as a result of pain. Ms Balendra confirmed that the issue of a secondary condition was not in issue.

Applicant’s submissions in reply

In reply, Mr McEnaney submitted that the applicant was a reliable historian and had provided all of the medical practitioners that she had seen with a complete history of her psychological condition and the various traumas she had faced in her life.
Mr McEnaney submitted that the additional history taken by Associate Professor Robertson in relation to her commencing a relationship following the death of her husband was relevant and the fact that the applicant provided Associate Professor Robertson with this additional information only adds to her credit.
In response to the opinion expressed by Dr D’Abrera that the applicant had developed a secondary psychological condition in response to her pain, Mr McEnaney points out that
Dr D’Abrera does not describe or label what the secondary psychological condition is apart from a reference to chronic pain and somatic symptoms which is not, in Mr McEnaney’s submission, a DSM diagnosis.

FINDINGS AND REASONS

Section 4 of the 1987 Act defines “injury” as follows:
“(a) 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 any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
The applicant has the onus of proof in establishing that she has suffered an injury within the terms of s 4 of the 1987 Act.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246 (Nguyen) McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; NSWCCR 796 (Kooragang) wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The question as to what constitutes “aggravation, acceleration, exacerbation or deterioration” of a disease was dealt with in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch). In Austin v Director General of Education (1994) 10 NSWCCR 373 (Austin) Clarke JA, applying Semlitch, said a judge, faced with the potential application of the ‘disease’ provisions, should ask the following questions:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?...”
Deputy President Roche at [93] in Duncan v Roads & Traffic Authority of NSW and Anor [2007] NSWWCCPD 113 (Duncan) applied this test as an “appropriate starting point”.
Since the Workers Compensation Legislation Amendment Act 2012 the above references to “a contributing factor” would be replaced with a consideration of “main contributing factor”.
Snell DP dealt with the nature of the test for “main contributing factor” AV v AW [2020] NSWWCCPD 9. At [66], the Deputy President said:
“66. I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act.[97] There may be more than one ‘substantial contributing factor’. “Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.”[98] (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be “the main contributing factor” (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments” …
“70. In Awder Pty Limited t/as Peninsular Nursing Home v Kernick, I expressed the view that whether ‘substantial contributing factor’, for the purposes of s 9A of the 1987 Act, was satisfied was “a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.” That view was applied by Keating P in Hogno v Fairfax Regional Printers Pty Limited and by Roche DP in Villar v Tubemakers of Australia Pty Ltd. The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.”
If these questions are determined in the affirmative, then an injury exists under s 4(b)(ii) of the 1987 Act.”
The above-mentioned legal principles need to be considered in the context of the evidence in this case.
I have considered the medical evidence, the statement evidence and the submissions made by counsel and I am satisfied, on the balance of probabilities, on the evidence before me, that the applicant has sustained a psychological injury by way of an aggravation, acceleration, exacerbation and/or deterioration of her chronic post-traumatic stress disorder during the course of her employment with the respondent. I am also persuaded, on the balance of probabilities, that her employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease process in respect of her psychological injury. I make these findings for the following reasons.
I accept the applicant as a witness of truth. I reject the respondent’s submission that the applicant is a poor historian. The applicant has provided all of the doctors that she has seen for the purpose of her claim and for treatment, a comprehensive history of the challenges that she has faced since a young age.
It is clear from the medical evidence that the psychological condition from which the applicant suffers has, at times, affected her memory however the medical evidence before me clearly demonstrates that the applicant has frankly acknowledged the events in her life which preceded the work place accident on 19 December 2018 to all of the medical providers that she has seen for the purpose of treatment and her claim.
I accept that at the time of the fall at work on 19 December 2018, the applicant was performing her role as a senior auditor with the respondent without any concerns despite the fact that she had consulted with Dr Llewellyn-Jones, her treating psychiatrist in September 2018, three months before the work accident and had consulted with Dr Llewellyn-Jones on four further occasions before the work accident.
I accept the applicant’s submission that in light of this, Dr Llewellyn-Jones was in the best position to provide an opinion as to the effect of the work accident on her psychological condition.
I accept the applicant’s submission that, on a close reading of the report from Dr Llewellyn-Jones dated 31 May 2019, it is apparent that the opinion expressed by Dr Llewellyn-Jones in bold that the applicant has “experienced a substantial worsening of her chronic PTSD as a result of an accident at work” is supported by the increased medication dosage of Duloxetine following the work accident and the introduction of a further medication, Antenex to address sleeping difficulties. The report also documents an increase in the applicant’s symptoms since the fall including fatigue, memory problems and concentration difficulties. I note the report from Dr Llewellyn-Jones was prepared prior to the respondent denying liability for the claim by way of the s 78 notice dated 21 June 2019. Dr Llewellyn-Jones has highlighted that the applicant had reported to him that the symptoms of fatigue, memory problems, concentration difficulties and headaches were not significantly present prior to the workplace accident. I also accept that the applicant had been able to continue working as a senior auditor with the respondent during the period prior to the work accident when she had attended Dr Llewellyn-Jones for five consultations from September 2018 up to the day before the work accident. Following the work accident on 19 December 2018, apart from a failed attempt at a return to work for a couple of days after the work accident, the applicant has been unfit for work (page 119 of the ARD). The applicant confirms this in her statement dated 29 September 2025 (page 1 of the ALADA).
Dr Walz, the applicant’s treating general practitioner, records the increase in the applicant’s symptoms in her clinical notes. At the applicant’s second attendance with Dr Walz following the fall at work, Dr Walz records on 4 January 2019, (page 119 of the ARD), “Had nausea, headaches, trouble concentrating, some emotional liability” and “increased fatigue. Since then, went back to work for five hours per day but was very unproductive and could not concentrate”.
Dr Walz also arranged to have an MRI scan of the brain to rule out any injury to the brain as a result of the fall and identify the cause of the applicant’s headaches. The MRI scan was clear. Dr Llewellyn-Jones has recorded in his report that the headaches commenced after the fall. He considered the headaches were the result of muscle tension and her complex psychological condition.
I have considered the reports from Associate Professor Robertson and the report from
Dr D’Abrera. I prefer the opinion of Associate Professor Robertson over the opinion of
Dr D’Abrera. I accept the applicant’s submissions that Associate Professor Robertson, having considered the applicant’s history, has reached the conclusion that the incident in December 2018 has precipitated a catastrophic and permanent aggravation of the applicant’s underlying complex post-traumatic stress disorder. This conclusion accords with the conclusion reached by Dr Allan in his report dated 5 June 2019 (page 36 of the Reply).
I reject the respondent’s submission that the second report from Associate Professor Robertson was completely driven by the applicant. In his first report, Associate Professor Robertson had opined:
“The catastrophic deterioration of her mental state in 2018 occurred
in the context of the subject workplace incident in addition to the likely complications arising from the traumatic bereavement following her second husband’s death.”
In his second report dated 14 May 2024 following review of the applicant he noted the applicant had “begun a relationship that she considers stable and supportive”. He records that she “will only occasionally go out with her partner”. He records that the applicant reported her current relationship as stable. This information is repeated in the psychiatric impairment rating scale (PIRS) (page 52 of the ARD). This information, included in the report prepared by Associate Professor Robertson was voluntarily provided to Associate Professor Robertson by the applicant, to her detriment, for the purpose of her claim pursuant to s 66 of the 1987 Act and was important for the purpose of calculating the applicant’s level of WPI. Upon receiving this additional information, Associate Professor Robertson clarified his earlier opinion and expressed the opinion that this information “elevates the December 2018 injury as being the primary factor exacerbating her complex mental health status particularly given the ongoing experience of pain mediated through a somatic symptom disorder.” This opinion was not “driven” by the applicant. The opinion was based on the information provided to him by the applicant.

In his second report dated 14 May 2024, Associate Professor Robertson confirms the opinion that he had previously expressed in his earlier report dated 24 February 2022 which was that the injury sustained by the applicant in December 2018 had “precipitated a catastrophic and permanent exacerbation of her complex PTSD. The subject incident was the main contributing factor to the exacerbation of her underlying C-PTSD”. I accept this opinion.
I prefer the opinion provided by Associate Professor Robertson over the opinion provided by Dr D’Abrera. Dr D’Abrera has opined that:
“the accident at work in 2018 and the consequential decompensation occurred on the background of her husband's death in 2017 and a dispute over his will with associated financial hardship and itinerancy. I feel that these life experiences in combination triggered her C-PTSD and that she has not made significant improvements in her mental state since.”
Dr Llewellyn-Jones has noted the death of the applicant’s husband in 2017 and financial stress as a result of the applicant being cut out of her late husband’s will (page 73 of the ARD) but despite this, Dr Llewellyn-Jones has provided his opinion that the applicant “had experienced a substantial worsening of her chronic PTSD as a result of an accident at work.”
The applicant has also provided a supplementary statement dated 29 September 2025 (page 1 of the ALADA). In that statement the applicant notes that the clinical notes from the Northern Pain Centre make reference to past events with regard to her late partner’s will and financial pressures associated with this. In paragraph eight of her statement, the applicant states “this was not the cause of my psychological injury, given I was able to continue working without any problems or complications”. The applicant also addressed this issue in paragraph 29 of her earlier statement dated 25 June 2025 (page 4 of the ARD).
I also accept the applicant’s submission that Dr D’Abrera has identified the work accident as the “precipitating event” and the “last straw” leading to the decline in the applicant’s psychological condition (page 102 and page 99 of the reply). This would appear to be at odds with Dr D’Abrera’s opinion that the fall at work was not the main contributing factor to the decline in the applicant’s psychological condition.
There is no doubt that the applicant suffered from and had been treated for a psychological condition prior to the work accident on 19 December 2018. To be successful in her claim the applicant must establish on the balance of probabilities that the accident at work on
19 December 2018 is the main contributing factor to her current psychological condition. This must be determined on the evidence overall and not just the medical evidence.
I have accepted the applicant as a witness of truth. I accept her statements. I accept that the work injury on 19 December 2018 has caused a catastrophic and permanent aggravation of her pre-existing psychological condition (complex post-traumatic stress disorder) and a sharp decline in her mental health.
I accept the opinion expressed by Dr Llewellyn-Jones and agree that he is in the best position to comment on the impact of the work accident on the applicant’s psychological condition.
In relation to the opinion expressed by Dr D’Abrera concerning primary and secondary injury, as I advised the parties, that issue was not before me and I do not intend to make a finding in this regard. I do however note in her supplementary statement dated 29 September 2025, the applicant states “The pain I have experienced from my physical injury is not the cause of my psychological injury” (page 1 of the ALADA). Associate Professor Robertson does not distinguish the applicant’s psychological condition as either a primary or secondary injury but rather saw the physical injuries sustained on 19 December 2018 as the mechanism of exacerbation of the complex post-traumatic stress disorder. On page 14 of his first report, Associate Professor Robertson opined “C-PTSD can be exacerbated by incidents involving physical injury” (page 38 of the ARD). Furthermore, Dr D’Abrera noted that there is a close link between her pain experience and her psychological symptoms. Dr D’Abrera was asked to identify the assessment of WPI referable to the primary psychological injury which was triggered following the fall at work on 19 December 2018 and any secondary psychological effects as result of the injury the applicant sustained to her cervical spine. Dr D’Abrera provided his opinion on this question however concluded that her opinion was a “best guess and not an exact science.” I do not accept this opinion as it is not supported by any additional information in the report nor is it supported by the applicant’s evidence or the medical opinions of Dr Llewellyn-Jones and Associate Professor Robertson.

SUMMARY

On the basis of the evidence before me I am satisfied that I feel an actual persuasion of the existence of a significant deterioration in the applicant’s psychological health as a result of an exacerbation of her underlying complex post-traumatic stress disorder following the fall at work on 19 December 2018.
I have considered the evidence and find that on the commonsense evaluation of the causal chain in respect of the applicant’s psychological condition and the “catastrophic decline” in the applicant’s mental health following the work accident allows me to conclude that the work accident has been the main contributing factor to the deterioration of the applicant's mental state.
I have considered the three questions raised in the matter of Austin by Clarke J and note it is agreed:
(a)    that the applicant was suffering from a disease, that is a psychological condition diagnosed as complex post-traumatic stress disorder;
(b)    there has been an aggravation, acceleration, exacerbation and/or deterioration of the applicant’s psychological condition following the fall on 19 December 2018 (see the report of Dr Llewellyn-Jones dated 31 May 2019), and
(c)    the fall on 19 December 2018 occurred at work. The fall set in train a catastrophic decline in the applicant’s psychological heath. In the circumstances, employment was the main contributing factor to the exacerbation of the applicant’s psychological condition based on the opinions expressed by Dr Llewellyn Jones and Associate Professor Robertson, which I accept.
I also find that the evidence before me supports my finding that the work accident on
19 December 2018 and the catastrophic decline in the applicant’s psychological health following the accident satisfies, on the balance of probabilities, the definition of “material contributing factor” as established by Snell DP in AV v AW.
I therefore find that the applicant’s employment with the respondent is the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the applicant’s psychological condition - complex post-traumatic stress disorder pursuant to s 4 (b) (ii) of the 1987 Act with a deemed date of injury, 19 December 2018.
The matter will be referred to the President for referral to a Medical Assessor in respect of the claim for WPI.

[2025] NSWPIC 546

14 October 2025