Marium v Woolworths Group Ltd (No 2)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Marium v Woolworths Group Ltd (No 2) [2025] NSWPIC 332
APPLICANT:	Marium Marium
RESPONDENT:	Woolworths Group Limited
MEMBER:	Mitchell Strachan
DATE OF DECISION:	10 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury; benign paroxysmal positional vertigo; consideration of expert evidence; entitlement to weekly compensation; consequential condition; entitlement to medical expenses; Held – applicant is suffering from ongoing episodic phenomenon caused by benign paroxysmal positional vertigo; award for the respondent with respect to injury to right shoulder and traumatic brain injury.
DETERMINATIONS MADE:	Findings: 1. The applicant is suffering from ongoing episodic phenomenon caused by benign paroxysmal positional vertigo (BPPV) resulting from the incident on 31 July 2024. 2. Award for the respondent with respect to traumatic brain injury and injury to the right shoulder as a result of the incident on 31 July 2024. 3. The applicant sustained a consequential condition to her right ankle. Orders 4. The respondent to pay the applicant weekly compensation at the rate of $406.40 per week from 3 March 2025 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act). 5. The respondent to pay the applicant’s reasonably necessary medical and treatment expenses with respect to the episodic phenomenon resulting from BPPV and consequential condition to the right ankle in accordance with s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Marium Marium (the applicant) alleges she sustained an injury in the course of her employment with Woolworths Group Limited (the respondent) on 31 July 2024 when part of a plastic crate, described as a tote, she was carrying containing grocery items became dislodged and causing her to forcibly strike her own head with her hand.
The proceedings require determination as to the nature of the injury sustained by the applicant (if any) and the applicant’s entitlement to weekly compensation and medical expenses.
For the reasons that follow I am satisfied that the applicant suffers from an episodic phenomenon caused by benign paroxysmal positional vertigo (BPPV) as a result of the incident on 31 July 2024 and is entitled to ongoing weekly compensation and reasonably necessary medical expenses.
I am further satisfied that as a result of the episodic phenomenon she sustained a consequential injury to her right ankle.

ISSUES FOR DETERMINATION

The applicant makes a claim for weekly compensation from 3 March 2025 to date and continuing.
The applicant’s pre-injury average weekly earnings (PIAWE) was determined in Marium v Woolworths Group Ltd [2025] NSWPIC 59 as $496.63.
On 19 March 2025, following a preliminary conference between the parties, the Personal Injury Commission (Commission) issued a direction with respect to written submissions setting out the issues which the parties agree require determination and to which the parties’ submissions were to be directed:
(a) whether the applicant sustained a right shoulder injury or traumatic brain injury or post-concussion vertigo arising out of or in the course of her employment with the respondent on 31 July 2024 in accordance with s 4 of the Workers Compensation Act 1987 (1987 Act);
(b)    whether the applicant’s employment with the respondent was a substantial contributing factor to any seizures or seizure related condition (including vertigo) in accordance with s 9A of the 1987 Act;
(c) whether the applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease injury or condition in accordance with s 4(b)(ii) of the 1987 Act;
(d)    whether the applicant is suffering from a consequential condition to the right ankle as a result of any injury found;
(e)    whether the applicant is incapacitated for work and the quantification of any entitlement to weekly compensation, and
(f)    entitlement to medical and related treatment in accordance with s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The applicant filed an Application for Expedited Assessment on 13 February 2025, purportedly with respect to a work capacity decision which the applicant asserted had been made by the respondent.
The Application for Expedited Assessment was initially listed before me on 5 March 2025. The applicant, appearing in person, was not in a position to advance the claim on that date due to unforeseen personal circumstances. Additionally a Memoni interpreter was not available. The matter was stood over a further assessment conference on 12 March 2025. I issued a direction which, in addition to setting out procedural issues, reminded the applicant of the availability of independent legal assistance and encouraged the applicant to contact the Law Society of NSW Solicitor Referral Service or the Independent Review Office.
On 12 March 2025 the applicant again appeared in person. The Commission had made attempts to arrange an appropriate interpreter in a dialect it was understood would assist the applicant but again the applicant and interpreter were unable to understand each other.
Having had the benefit of reviewing pleadings prepared by the applicant and having heard from her during the preliminary part of the conference I formed the view that the applicant was able to understand what was occurring and wished to proceed without the benefit of an interpreter. My view was supported by the fact that the applicant had previously conducted an arbitration hearing in person without the assistance of an interpreter before Member Rimmer. The applicant also advised that she had the support of a community member who was able to assist with translation if necessary.
It is clear that the decision of the insurer against which the applicant seeks relief is not a work capacity decision but rather a liability decision disputing injury.
For reasons given orally during the conference and recorded, I determined it was appropriate that the matter be notionally transferred to a Form 2 – Application to Resolve a Dispute and determined by the Commission.
Given the applicant’s language difficulties and with the view to allowing her a proper opportunity to present submissions, I determined it appropriate for the matter to proceed by way of written submissions.
The applicant had also filed a separate application of interim relief seeking enforcement of a stay in the respondent’s decision which was ultimately withdrawn by the applicant and did not require determination.
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 during the initial conferences before me in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties have agreed to the determination of the matter without a conference or formal hearing and have put submissions before the Commission with respect to the issues in dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application for Expedited Assessment (notionally transferred to a From 2 Application to Resolve a Dispute) and attached documents;
(b)    Reply to Application for Expedited Assessment (treated as a From 2A Reply) and attachments, and
(c)    Application to Lodge Additional Documents filed by the respondent dated 7 May 2025.
The applicant filed an Application to Lodge Additional Documents dated 3 March 2025 however this was in relation to the Application for Interim Relief which was withdrawn by the applicant.
The following written submissions were also filed by the parties:
(a)    applicant’s primary submissions dated 13 April 2025;
(b)    respondent’s submissions dated 21 May 2025, and
(c)    applicant’s submissions in reply dated 2 June 2025.

FINDINGS AND REASONS

Effect of 15 October 2024 Certificate of Determination

While not an issue raised during the preliminary conference, the applicant’s submissions raise issue with the legal effect of a prior Certificate of Determination issued by the Commission.
The applicant submits that the question of liability has already been determined by the Commission in a Certificate of Determination – Consent Orders dated 15 October 2024.
The 15 October 2024 Certificate of Determination is in the following terms:
“By and with the consent of the parties, the Commission notes and directs:
1.      The proceedings are discontinued.
2.      The requirement to file a notice of discontinuance is dispensed with.
3.      Grant leave to file a Form 2.
Notations
A.      By email dated 28 August 2024, the respondent advised the applicant that her PIAWE had been re-calculated at $238.77 per week.
B.      The parties are in dispute as to the correctness of that figure, which is based on a       period of 52 weeks prior to injury.
C.      The applicant contends that a period of 28 weeks during which she did not work should be excluded from the calculation of PIAWE.
D.      There is no current dispute as to injury on 31 July 2024, or incapacity.
E.      The applicant does not currently have legal representation, but intends to ring the Law Society this week in order to obtain a list of appropriate specialists for that purpose.
F.      At conference today, she was assisted by her support person, who translated into Urdu for her as required.”
The applicant makes specific reference to paragraph D of the Certificate where it records “There is no current dispute as to injury on 31 July 2024, or incapacity.”
The applicant submits that in accordance with s 294 the Certificate was final and binding as to the matters it resolved.
The applicant submits that the respondent is now estopped from contradicting its previous express position.
It is well established that orders by consent are as effective and binding as those produced following submissions and determination by a court or tribunal (see Merkel J in Somander v Minister for Immigration, Multicultural & Indigenous Affairs [2000] FCA 1192; (2000) 178 ALR 677 at [686]).
However, consent orders only create estoppel between the parties in relation to issues that were necessarily decided (see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib) at [186]).
In the present matter, the only orders made in the earlier proceedings were for the discontinuance of the proceedings, a dispensation with any requirement to file a notice of discontinuance and the granting of leave to file a Form 2. The notations which follow are not orders of the Commission.
It is evident, from notation B that the nature of the dispute before the Commission as that time was with respect to the calculation of the applicant’s PIAWE (an issue ultimately determined in a subsequent decision of the Commission in Marium v Woolworths Group Ltd [2025] NSWPIC 59).
The applicant submits that “the respondent’s admission was given in the context of contested proceedings…; it therefore carries binding legal effect and cannot be retracted through later administrative notice.”
However, there is no evidence before me that prior to 15 October 2024 the respondent had effectively issued a dispute notice in accordance s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) such that the Commission would have had jurisdiction to determine any liability dispute. Further it is clear that as between the parties as at 15 October 2024, as set out in notation D, that there was no current dispute with respect to injury such that the Commission would have had jurisdiction to make any determination on the issue.
For these reasons, the consent orders of 15 October 2024 do not create an estoppel with respect to the liability issues raised by the respondent in its s 78 notice dated 7 February 2025.

Did the applicant sustain a right shoulder injury or traumatic brain injury or post-concussion vertigo?

Factual findings

The respondent’s insurer issued a notice pursuant to s 78 of the 1998 Act dated 7 February 2025 denying liability for “head, facial, right shoulder, concussion and post-concussion vertigo”.
This was on the basis that the incident on 31 July 2024 caused “at most, ‘superficial injuries to your face, characterised by pain and perhaps modest swelling, together with a mild concussion. These superficial injuries have resolved and do not render you with any total or partial incapacity’”. The respondent submits that on this basis the applicant did not suffer an injury within the meaning of s 4 of the 1987 Act which gave rise to an incapacity for work.
It is the applicant’s submissions that the injuries described arose out of our in the course of her employment.
The incident of 31 July 2024 was captured by CCTV footage of an area labelled on the footage as “Pickup Internal” which is before the Commission.
The incident occurs as 6.26pm (as timestamped on the footage). The applicant is seen walking into a large storeroom carrying what is described in other evidence as a “tote” but is essentially a large plastic crate used to collect, hold and store online grocery orders prior to pick up. The tote the applicant is carrying contains three large recyclable paper bags, (the type available for purchase when shopping at a Woolworths store that have replaced single use plastic bags in recent times). The tote has two small black, presumably plastic rods (described as staging rods), which extend across towards each end and appear to be able to fold back to either end when not needed allowing full access to the top of the tote. The applicant places to tote that she is carrying on top of two other totes which are stacked on what can be seen in earlier footage as a moveable black base.
In her left hand, the applicant is holding a handheld computer device with a strap around her wrist. As the applicant attempts to rearrange the tote she had carried into the room, presumably so it is stacked correctly on the two totes below it, she picks up the tote with her left hand using the black rod.
As she does so, the black rod becomes disconnected from the tote. The tote falls a small distance onto the tote below it however the applicant’s left hand, no longer under the force of the tote, strikes the front of her head. When this occurs, she is left holding the black rod which can be seen to then fall to the floor as well as the handheld device on the wrist strap. It is not clear from the footage whether the black rod or the handheld device struck the applicant in addition to her hand. What is clear however is that the applicant’s hand struck her head with some force.
After the incident the applicant is clearly in pain. She removes her glasses and walks around the room appearing somewhat dazed before she returns with another staff member, and she can be seen explaining how the incident occurred before leaving the storeroom at 6.30pm.
In footage from a difference camera (described on the footage as Produce Rear), at 6.30pm the applicant can be seen coming out of a staff only area (presumably the storeroom where the incident occurred given the continuity of time between the two cameras) and past the deli area before disappearing off the edge of the footage.
An incident report completed by the respondent records that “[the applicant] was taken the team lunch room to sit down. Ice was applied to the injury (above the eye). Imc has been notified by the store manager and a ambulance was called”.
Associate Professor Geevasinga, treating specialist, in a report of 5 September 2024 records a history as follows:
“She was in the process of carrying a 25-30 kg weight when it struck her head and her right shoulder. Immediately afterwards she had an unwitnessed syncopal episode. She may have had on vomitus. She noticed dizziness thereafter. She experienced a headache with blurriness of vision.”
A certificate of capacity completed by Dr Mustafa dated 6 August 2024 describes the injury in the following terms:
“Was working at Woolworths on 31/07/24 and was carrying a tote weight 25-30kg, lifting above head to place on shelf, alone at the room. Handle of tote broke and tote struck patient in the nose/face then fell onto R shoulder/arm. Patient denies headstrike but reports ‘falling back’ to rest against a vertical shelf immediately had an unwitnessed syncopal episode, unsure how long episode lasted. Woke up feeling groggy but aware of surroundings and incident. 1x vomit of water at the time of incident, nil further vomits but intermittent nausea. Severe dizziness with reports of room spinning at time of incident. Reports multiple episodes of feeling of blacking out but denies LOC as co-workers would rouse her. Persistent severe generalised headache with mild photophobia. Intermittent blurry vision when headache becomes severe. Pain at R shoulder and arm. Associated intermittent numbness and tingling of R arm down to fingers. Reports arm felt weak but was still able to move. Patient called co-workers for help then was BIBA.
Second episode of fainting and vomiting/bought into ED/had CT scan/ nil injury/ bleeding”
This history was taken from the discharge summary from Westmead Hospital dated 1 August 2024 where an identical history appears.
Having had the benefit of the available CCTV footage, I make findings that the incident occurred as set out at 37 to 43 above.
I do no accept, with the benefit of the footage, that the applicant struck or fell onto her right arm, that she fell backwards onto shelving or that she lost consciousness while in the storeroom.
What happens after this however is less clear. The applicant has not put any statement evidence before the Commission in these proceedings as to her recollections of the period between leaving the storeroom of the incident and when she is seen being transported from the store by paramedics which I will come to later.
The applicant submits that the respondent has not relied on CCTV footage from the staff lunchroom where the applicant was treated until paramedics arrived and transported her to hospital. There is no evidence that there is indeed CCTV cameras fitted in this area of the store.
The applicant submits that “without this footage, any attempt to infer the applicant’s medical state is inherently flawed. The Commission cannot meaningfully assess the progression or severity of her symptoms when the most critical period immediately after the incident and prior to medical evacuation has been withheld”.
I am not assisted by this submission. Firstly, there is no evidence that the footage exists nor that the applicant has sought it from the respondent and it has not been provided. No footage though from the lunchroom is before the Commission.
Secondly, ascertaining what occurred in the lunchroom before the paramedics arrived, from the evidence available, is necessary in determining the issues in dispute between the parties. It is a task complicated by the lack of direct evidence from the applicant. There is also no evidence from employees of the respondent who were with her during the period in the lunchroom and ultimately called for an ambulance. Given the inconsistencies in the history provided to Westmead Hospital as to what occurred in the storeroom including striking the right shoulder and fall backwards onto shelving which is not depicted in the CCTV footage, I place limited weight on the balance of the history provided by the applicant.
From further footage taken from a camera labelled “Produce Front” it is evident that an ambulance was called with paramedics arriving at 7.20pm and that the applicant was conveyed from the store by paramedics on a stretcher at 7.42pm. The applicant was wheeled out of the store laying flat and wearing a blood pressure monitor with her eyes closed.

What I can infer is that following the strike to the applicant’s head at 6.26pm and her leaving the store room for the team lunch room her condition and reported symptoms deteriorated to an extent that firstly it was considered necessary to call an ambulance as opposed to simply sending the applicant home which would have seemed appropriate if she simply had a headache and secondly that the paramedics were satisfied that her condition and symptoms warranted being transferred to Westmead hospital for further assessment and treatment and that she was transported out of the store on a stretching laying down.
This is consistent with the history recorded by Dr Mellick that the applicant did not describe vomiting to have occurred immediately after the impact but did describe vertigo and nausea.
Having made these findings of fact, it is now necessary to consider the individual injuries complained of. It is the applicant who carries the onus in establishing injury.

Right shoulder

Neither the applicant nor the respondent made substantive submissions with respect to injury to the right shoulder. I am not satisfied that the applicant has satisfied her onus in establishing an injury to the right shoulder for the following reasons.
Firstly, having the benefit of viewing the CCTV footage of the incident it is clear that there is no involvement of the right shoulder. She was lifting the tote below shoulder height at the time of the incident. Her right shoulder was not stuck by the tote as recorded in the history taken by A/Professor Geevasinga. While she may have rested against the shelving, she did not fall onto it as recorded in the history taken at Westmead Hospital.
Secondly, X-ray of the right shoulder and humerus taken at Westmead Hospital on 31 July 2024 did not identify an acute fracture although there remained unexplained reduced sensation and numbness down the right arm.
Thirdly, when the applicant was examined by Dr Mellick on 19 September 2024 he noted that there was no abnormality in her shoulder range of motion.
Fourthly, while the certificates of capacity note a right shoulder injury this seems to have been taken from the discharge summary from Westmead Hospital rather than any independent examination by Dr Mustafa. There is a comment added to the certificate dated 13 September 2024 which notes “Rt painful rt shoulder since injury 7/10, needs imaging” however without accompanying clinical notes it is not possible to understand what this notation means. “7/10” would ordinarily refer to 7 October however that is a time after the clinical note was recorded.
For the above reasons, there will be an award for the respondent with respect to injury to the right shoulder on 31 July 2024.

Traumatic brain injury or post-concussion vertigo

Turning now to the issue of traumatic brain injury or post-concussion vertigo.
For the reasons set out above, I have found that the applicant’s left hand and possibly the handheld device and rod from the tote struck the applicant’s head with some force and that in the period immediately following the incident her condition and symptoms deteriorated to the extent that it was considered necessary to request paramedics attend and for the paramedics to transport her to Westmead Hospital. While she did not vomit or lose consciousness in the storeroom this may have occurred to some degree in the lunch room.
The applicant was examined by Dr Mellick, consultant neurologist and an initial report prepared dated 19 September 2024. Unusually, both the applicant and the respondent rely on the opinion of Dr Mellick in advancing their opposing positions with respect to injury.
The history taken by Dr Mellick, with the exception of the fall backwards onto a vertical shelf, is largely consistent with the findings I have made with the benefit of the CCTV footage.
He noted that CT scans of the applicant’s brain have been reported as normal. An MRI of the brain performed on 28 August 2024 did not identify any intracranial pathology.
Dr Mellick has the benefit of witnessing one of the applicant’s episodes and recorded:
“During the examination Ms Marium suddenly indicated that she felt briefly nauseated and vomiting was threatening. The examination was abandoned as retching occurred frequently for several brief episodes. She then rested in the unoccupied waiting room. Her companion commented that he had seen this phenomenon on other occasions and that she would ‘be alright’.”
Having had the benefit of witnessing an episode, Dr Mellick noted that “the episode that occurred subsequent to the injury is referred to obliquely above in the history and, to the best of my understanding, was more likely than not an episode similar to the one witnessed by me today.’.
He continued:
“…there is no doubt that the main episodes established that vertigo was the primary symptom associated with secondary dry retching and on rate occasions, vomiting. The dominance of the symptom of vertigo indicates that those episodes should not be regarded as syncopal; BPPV is a possible diagnosis.”
Dr Mellick did not form the view that the applicant was embellishing her symptoms. Dr Mellick was asked whether the reported mechanism of injury and the results of the scans were consistent with the symptoms the applicant is experienced. He answered in the affirmative. He did not consider the workplace injury had resolved.
He noted that her normal scans were consistent with the applicant’s episodic phenomenon raising the possibility of peripheral vestibular disorder having arising from the impact which he described as a variant of BPPV. He noted that the applicant’s symptoms “may also be, in part, consequential upon a high measure of anxiety”. He did not consider there was any evidence of an organic brain disorder or injury.
Merriam-Webster dictionary defines BPPV as:
“benign [paroxysmal] positional vertigo: a condition marked by short, recurrent episodes of vertigo and nystagmus brought about by a change in head position that is caused by the movement of small crystals of calcium carbonate in the inner ear that have become dislodged from the utricle and entered the semicircular canals”.
Dr Mellick further commented that the phenomenon observed was anxiety related. He noted her symptoms were a significant barrier to her resuming employment and were producing significant functional impairment.
With respect to Dr Mellick’s opinion, the respondent submits that:
“Dr Mellick, properly understood, did not diagnose any injury consequent to the incident at work. It was only noted that there might be a diagnosis which explained the applicant’s symptoms but that was never linked, in explicit terms, or inferentially to the applicant’s employment with the respondent”.
I cannot accept that submission. Dr Mellick provided his opinion within the context of the history taken of the incident on 31 July 2024 and in response to the direct question as to whether ‘the reported mechanism of injury and the results of the scans consistent with the symptoms of which the team member currently complaints?’ He is also asked “Has the workplace injury (if any) resolved?” and he confirms “No”.
It is plainly clear from reading the entire report that Dr Mellick was provided a possible diagnosis of “a peripheral vestibular disorder having arisen from the impact, a variant of BPPV [emphasis added]”.
Dr Mellick provided a subsequent report dated 22 October 2024 having viewed two CCTV tapes, presumably of the incident in the storeroom. He noted that the phenomenon observed was anxiety related and that the mechanism of injury on the CCTV “could not be regarded to produce ‘a significant neurological injury’”. He says that he maintains his opinion that the features identified in his report were due to anxiety and that anxiety may be the underlying cause of any impaired “capacity for employment”. I accept that Dr Mellick expresses the opinion that the incident seen on the CCTV could not be regarded as producing “a significant neurological injury” however this is consistent with Dr Mellick’s earlier opinion that the applicant has not sustained an organic brain injury. I do not consider this is inconsistent with the incident causing BPPV or that the focus in the supplementary report with respect to anxiety represents Dr Mellick stepping back from his earlier suggested diagnosis of BPPV.
The applicant’s symptoms are complex and Dr Mellick notes that the symptoms may also be explained, in part, by anxiety. This cause of any anxiety condition is not explored by Dr Mellick.
Dr Mellick has taken a clear history which is largely consistent with the findings I have made having reviewed the CCTV footage. Dr Mellick, with the evidence before him, suggests a diagnosis of BPPV and that her symptoms may also be in part due to anxiety. Appropriately given his speciality, he does not provide an opinion with respect to the cause of the anxiety.
The only evidence with respect to pre-existing anxiety is in the referral from the general practitioner to Dr Geevasinga dated 8 August 2024 which notes that the applicant’s current medications include Lexapro 20mg and her past medical history includes anxiety with a reference date of 10 December 2020. There is no evidence however that any pre-existing anxiety was causing the current episodic phenomenon prior to the workplace incident on 31 July 2025.
Dr Mellick’s suggested diagnosis of BPPV is consistent with the initial impression of Associate Professor Geevasinga, the treating neurologist who had the initial impression in his report of 5 September 2024 that he was not certain that the episodes were indeed seizures.
Dr Mellick has provided a neurological explanation, in the from of BPPV, for at least part of the applicant’s symptoms following the incident on 31 July 2024. Scientific certainty is not required but I must feel actual persuasion of the occurrence or existence of a fact in issue before I can make such a finding (see NOM v DPP [2012] VSCA 198 at [124]).
While there is some confusion as to initial history there is no suggestion from either A/Professor Geevasinga or Dr Mellick that the applicant is embellishing her symptoms. I have previously found that she sustained a significant force to her head in the incident. She has experienced ongoing episodic phenomenon witnessed by Dr Mellick and the person with whom she lives (according to both A/Prof Geevasinga and Dr Mellick). The applicant was well and able to work for the respondent for four years prior to the incident. The episodic phenomenon did not exist prior to the 31 July 2024 incident. Dr Mellick has provided a logical explanation based on the available evidence of BPPV and anxiety. No other more plausible explanation is available on the evidence before me.
On this basis, I am satisfied that the applicant is suffering from ongoing episodic phenomenon caused by BPPV following the incident on 31 July 2024.
I do not make any findings with respect to anxiety for two reasons. Firstly, having regard to the current evidence, while Dr Mellick has provided an opinion, he is a neurologist rather than a psychiatrist and I have concerns as to the weight I can place on his opinion given his relevant speciality. Secondly, while a possible psychological condition based on the opinion of Dr Mellick is raised by the applicant and discussed by the respondent in submissions, it is not clear to me that a claim has been made on the respondent with respect to a psychological condition nor has a claim for psychological injury been disputed in the s 78 notice dated 7 February 2024 and as such I am not satisfied I have jurisdiction to deal with such a claim in these proceedings. It also did not form an area for submissions in my direction of 19 March 2025.
For completeness, having considered Dr Mellick’s opinion and the reported CT and MRI scans I am not satisfied that the applicant traumatic brain injury.
Further, while I am satisfied that the applicant experiences episodic phenomenon associated with the BPPV having regard to the opinion of Dr Mellick and the initial impression of A/Prof Geevasinga these cannot be properly characterised as seizures in the usual sense.

Was the applicant’s employment with the respondent was a substantial contributing factor to any seizures or seizure related condition (including vertigo) in accordance with s 9A of the 1987 Act?

In order for the applicant to succeed in her claim with respect to injury, I must be satisfied that her employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.
As discussed above, the applicant’s episodic phenomenon cannot be characterized as seizures in the usual sense.
However, I am satisfied for the reasons above, that the applicant’s employment with the respondent was the main contributing factor to the episodic phenomenon caused by BPPV which resulted from her hand striking her face in the course of her employment on 31 July 2025.
I am further satisfied, having regard to the histories recorded by Dr Mellick and A/Professor Geevasinga that the episodic phenomenon presents with dizziness and a spinning sensation and nausea.

Was the applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease injury or condition in accordance with s 4(b)(ii) of the 1987 Act

I deal with this issue for completeness only. No submission with respect to a disease injury was advanced by the applicant in her submissions.
For the reasons I have set out above in detail, I am satisfied that the BPPV causing the episodic phenomenon was a frank injury within the meaning of s 4 of the 1987 Act occurring on 31 July 2024.

Whether the applicant is suffering from a consequential condition to the right ankle as a result of any injury found

The respondent submits that the applicant presented to Blacktown Hospital suffering a suspected sprain to her right ankle following a seizure and rolling her ankle and that this can only be a consequential condition where the applicant’s seizures are referrable to a work injury.
The discharge summary from Blacktown Hospital dated 11 October 2024 records that the applicant presented to hospital with two friends following a seizure with pain on movement in the right ankle which was swollen.
A Certificate of capacity was completed by a Dr Thompson at Blacktown Hospital on 11 October 2024 which notes a ankle sprain “consequence of seizures secondary to workplace head injury”.
While the precipitating event is described as a seizure in the discharge summary I have found above that these were episodic phenomenon caused by BPPV characterised by dizziness and nausea.
Having regard to the certificate of Dr Thompson and the discharge summary I am satisfied that the ankle sprain on 11 October 2024 was a result of the episodic phenomenon and resulted from, on a common sense basis, the workplace incident on 31 July 2024.

Whether the applicant is incapacitated for work and the quantification of any entitlement to weekly compensation

The applicant makes a claim for weekly compensation from 3 March 2025 to date and continuing.
The respondent submits that A/Professor Geevasinga did not indicate that the applicant was incapacitated for work and that an inability to drive does not translate to an incapacity for work. The respondent also submits that Dr Mellick did not diagnosis any injury which gave rise to incapacity and therefore there is no basis to make an award under s 36 or s 37 of the 1987 Act.
I have considered the respondent’s characterisation of Dr Mellick’s opinion at 77 above. As discussed above, I do not accept that Dr Mellick has not provided a basis for the diagnosis of the episodic phenomenon resulting from BPPV.
In his report of 19 September 2025, Dr Mellick considered that the applicant’s symptoms were episodic and were producing significant impairment of function and that resumption of employment was not appropriate and unlikely to succeed at that time.
The applicant’s general practitioner issued a Certificate of capacity dated 5 February 2025 certifying the applicant has having no capacity for employment from 5 February 2025 to 5 March 2025. The proceedings were commenced on 13 February 2025.
There is no evidence of any resolution of the applicant’s symptoms as they were when she was assessed by Dr Mellick and the most recent evidence suggests that the incapacity was ongoing at least to 5 March 2025 after proceedings were commenced.
Given the episodic nature of the applicant’s condition I am satisfied, based on the certificates of the general practitioner and the opinion of Dr Mellick that she is incapacitated for work.
I understand that the applicant has been paid weekly compensation from 31 July 2024 to 2 March 2025. As such, the period under s 36 of the 1987 Act has been exhausted.
There will be an award in favour of the applicant under s 37 from 3 March 2025 to date and continuing.
The applicant’s PIAWE has been found in Marium v Woolworths Group Ltd [2025] NSWPIC 59 to be $496.63 per week (subject to indexation).
I have calculated the applicant’s indexed PIAWE as follows:
(a) from 1 October 2024 $506
(b) from 1 April 2025 $508.
As such, the respondent is to pay the applicant weekly compensation from 3 March 2025 at the rate of $406.40 per week (being 80% of $508) pursuant to s 37 of the 1987 Act.

Entitlement to medical and related treatment in accordance with s 60 of the 1987 Act.

The respondent has not made any specific submissions with respect to liability for medical expenses. I have found that the applicant sustained an injury in the form of an episodic phenomenon as a result of BPPV sustained in 31 July 2025 incident and a consequential condition to the right ankle.
I make a general order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses in accordance with s 60 of the 1987 Act with respect to these conditions.

SUMMARY

For the above reasons I make the orders set out in the attached Certificate of Determination.

[2025] NSWPIC 332

10 July 2025