Moore v Queanbeyan-Palerang Regional Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moore v Queanbeyan-Palerang Regional Council [2024] NSWPIC 368
APPLICANT:	James Glen Moore
RESPONDENT:	Queanbeyan Palerang Regional Council
MEMBER:	Paul Sweeney
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (the 1987 Act); claim for whole person impairment for accepted psychological injury pursuant to section 66; worker seeks referral of a medical dispute to a medical assessor alleging injury is a “disease injury” within the meaning of section 4; employer argues that applicant suffered two different pathologies namely post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) which should be assessed separately; Department of Juvenile Justice v Edmed, Ozcan v Macarthur Disability Services Limited considered; Held – a diagnosis made could not be equated with “injury” for the purpose of the 1987 Act; the MDD resulted from the PTSD; medical dispute referred for an assessment of whole person impairment on the basis of a “disease injury”.
DETERMINATIONS MADE:	The Commission determines: 1. Find that the applicant suffered a psychiatric injury arising out of and in the course of his employment which is a disease injury within s 4(b) of the Workers Compensation Act 1987 namely post-traumatic stress disorder and major depressive disorder will. 2. Remit the matter to the President for referral to a Medical Assessor in the form of the Referral for Permanent Impairment dated 2 April 2024, 3. The Medical Assessor is to have access to the Application to Resolve a Dispute, the Reply, the Application to Admit Late Documents dated 11 June 2024 and the documents attached to each together with a copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

James Glen Moore (the applicant) commenced employment with the Queanbeyan Palerang Council (the respondent) in 2003. At the time he last worked for the respondent in December 2021, he was employed as a supervisor/team leader in the road maintenance section.
While the respondent does not accept the entirety of the applicant’s evidence or history to medical practitioners, it is common ground that he suffered a psychological injury or injuries arising out of and in the course of his employment with the respondent.
It is also common ground that the appropriate diagnoses for the applicant’s psychological injury/s are post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) with anxious distress. It is evident that the psychiatrists who have seen the applicant at the request of his solicitor and at the request of the respondent have made those diagnoses in accordance with the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition, Text Revision, American Psychiatric Association, 2022 (DSM-5-TR).
The parties accept that as there is a dispute as to the degree of permanent impairment suffered by the applicant as a result of the injury/injuries, it is necessary to remit the matter to the President for referral of the dispute to a Medical Assessor (MA) for a medical assessment. The parties do not agree, however, on the form of the referral.
The respondent alleges that the form referral should permit the MA to make separate assessments of whole person impairment (WPI) in respect of the diagnosis of post-traumatic stress disorder and the diagnosis of MDD. It contends that is necessary because there are “separate psychiatric conditions” caused by unrelated events in the course of the applicant’s employment. The condition of post-traumatic stress disorder was caused by exposure to traumatic events witnessed by the applicant during bushfires and his attendance at the scene of motor vehicle accidents. The “psychiatric condition” of Major Depressive Disorder, on the other hand, was engendered by exposure to less remarkable events in the course of his employment over a period of time including overwork, under-resourcing, abuse by members of the public, and interpersonal conflict with team members.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). He alleges that his injury is a disease, which is deemed to have occurred on 25 May 2023, presumably the date of claim, in accordance with ss 15 or 16 of the 1987 Act. The He describes the injury and its cause in the Application to Resolve a Dispute (Application) as follows:
“Exposure to events and circumstances in the course of employment including conflict with supervisor and other interactions with management and staff, together with exposure to traumatic events and circumstances including participation in bushfire fighting activities and work associated with traffic control in aftermath of major motor vehicle accidents together with workload and duties including very lengthy working hours including on-call work and responding to numerous reports and complaints lodged by members of the public.”
When the matter came on for conciliation and arbitration in the Commission, Mr Morgan, of counsel, appeared for the applicant and Mr Doak, of counsel, appeared for the respondent. The matter was heard audio visually. I was informed by counsel that the parties could not agree on the threshold issue of whether the applicant had suffered one psychological injury or two, and the form of the referral to an MA. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve their dispute but were unable to agree on a mutually acceptable resolution.

EVIDENCE

The documents before the Personal Injury Commission (Commission) are as follows:
(a)    the Application and the documents attached;
(b)    the Reply and the documents attached, and
(c)    An Application to Admit Late Documents lodged on 11 June 2024 which contained a supplementary report of the respondent’s qualified psychiatrist, Dr Nagesh, dated 6 June 2024.
Mr Morgan objected to the tender of this supplementary report of Dr Nagesh, on the basis that, by reason of its lateness, his qualified specialist had no opportunity to respond to it. I admitted the document. The respondent had foreshadowed at the preliminary conference in the matter that it was seeking a further report from Dr Nagesh. More importantly, as Dr Smith, on behalf of the applicant, had already addressed the substance of Dr Nagesh’s opinion, I did not believe that the tender of the report would cause the applicant detriment. Conversely, a further report from Dr Smith would not have assisted the deliberations of the Commission on this issue.
During oral argument, reference was made to aspects of the case law dealing with the assessment of permanent impairment following multiple employment injuries. The cases referred to included New South Wales Fire Brigades v Turton,[1] Department of Juvenile Justice v Edmed[2] and Warwar v Speedy Courier (Australia) Pty Limited.[3]
[1] [2008] NSWWCCPD 66 (27 June 2008) (Turton).
[2] [2008] NSWWCCPD 6 (Edmed).
[3] [2010] NSWWCCPD 92 (Warwar).
Mr Doak stated he wished to make a short written submission in respect of import of these cases. Consequently, I directed that both parties lodge a brief submission relating to the case law and to an aspect of Mr Doak’s submission that had not been recorded and which occurred after Mr Morgan had left the conference.

SUBMISSIONS

The submissions of the parties are recorded or in writing. It is, therefore, unnecessary to reiterate each of the arguments of counsel in these short reasons. I will address the thrust of counsel’s arguments when resolving the views in dispute below.
It should be noted that Mr Doak relied upon the language of s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and on the exegesis of that section by Deputy President Roche in Edmed. He concluded this aspect of his submission thus:
“The above reasons support the proposition that if impairments result from ‘different pathologies’ (including different psychological pathologies), they are not to be assessed together or aggregated.
In this matter, the impairments have not resulted from the same injury or same psychological pathology but have resulted from separate psychological pathologies of Major Depressive Disorder and PTSD which have arisen from separate injurious events or incidents.”
Mr Doak also submitted that the facts of this case should be distinguished from those in Ozcan v Macarthur Disability Services Limited.[4] Although there was evidence of a “possible contribution from the applicant’s PTSD to his Major Depressive Disorder”, Dr Nagesh identified “separate pathologies and separate causes for the two diagnoses”. Mr Doak submitted that this opinion should be preferred to that of Dr Smith. Dr Nagesh was the only medical expert “to properly embark on the exercise of identifying the incidents which caused each psychological pathology”.
[4] [2021] NSWCA 56 (Ozcan)
Conversely, Dr Smith had failed to separate the various causal events which led to the respective diagnoses of post-traumatic stress disorder and Major Depressive Disorder respectively. That criticism was equally applicable to the report of the applicant’s treating psychologist, Lisa O’Connor dated 14 February 2023.
Mr Doak submitted the facts in the case should be distinguished from those in earlier cases where the Presidential Unit of the Commission had held that separate incidents, which had resulted in psychological injury, be assessed together as they had given rise to only one injury, in the sense that there was one pathology. These cases include NSW Police Force v Gurnhill[5] and AP v N.SW Police Force.[6]
[5] [2014] NSWWCCPD 12 (Gurnhill).
[6] [2013] NSWWCCPD 11 (AP).
Mr Morgan submitted that the entirety of the applicant’s argument was based on “unqualified acceptance” of the opinion of Dr Nagesh. An analysis of the doctor’s several reports led to the conclusion that there was no proper basis for acceptance of his opinion on this issue. It was based on an inadequate history. It was inconsistent with the recorded histories and opinions of two treating psychologists and the applicant’s treating psychiatrist, Dr Shen.
Mr Morgan also relied on the reasoning of MacFarlan J in Ozcan for the purpose of submitting that there was likely a causal relationship between the diagnoses of post-traumatic stress disorder and MDD. Thus, there were no “definitive boundaries” between the two diagnoses and the respondent’s contention should fail.
Before addressing these arguments, it is first necessary to set out compendiously the evidence of the applicant and that of Dr Smith and Dr Nagesh. What follows is not intended to be a comprehensive survey of the evidence in the case. Rather, I set out the salient points of the evidence so that the parties can understand the way in which the Commission has resolved their dispute.

Applicant

The applicant’s evidence is contained in three signed statements, dated 8 December 2022, 4 December 2023, and 26 September 2023. The latter statement is largely concerned with responding to evidence attached to the respondent’s dispute notice.
By his initial statement, the applicant outlined the difficulties he experienced from 2019, working with another supervisor, who was also responsible for road construction. He states that there was “constant conflict” with this supervisor who was “highly aggressive towards me throughout”. The applicant recounts occasions on which he was required to perform road maintenance work himself through the lack of staff, although that was no longer part of his job description. He refers to several instances where his colleague used demeaning and offensive language in respect of the allocation of labour to their respective teams. He states there was “an air of animosity and aggression that he showed me in just about all our interactions”.
The applicant recounts that superimposed on these difficulties he was required to deal with numerous complaints from rate payers. He recalls receiving 139 telephone calls and responding to 59 emails on one day from members of the public many of which “involved abuse towards the Council and myself”.
The applicant also complained of his workload. He states that on occasion he was required to work between 6.30am and 2.30am on the following day, after flooding in the municipality. He states:
“In July 2021 as a result of the workload issues and the conflict issues I approached HR and told them I was suffering from severe anxiety.”
The applicant also recounts where he was exposed to potentially unnerving experiences. In 2019, he attended at the scene of an accident where there was a “burnt and unrecognisable body” in a car. In 2018 or 2019, he was required to travel in a truck to a fire zone which he describes as a “terribly stressful period when we felt completely isolated”.
The applicant states that after going on leave in December 2020, he felt anxious and worried “about the prospect of returning to work and all of the stresses associated” with it. He says that he simply could not face going back in January 2021. Accordingly, he saw a general practitioner, Dr Rao of Isabella Plains, who certified him as unfit for work and referred him to a psychologist, John Wells.
The applicant recounts that he is being treated by Dr Shen, the psychiatrist, via telehealth. He has been treated with Luvox. He states:
“I feel a sense of hopelessness. I remain extremely anxious and depressed. I develop very high anxiety if there is some suggestion that I might need to travel within the municipality. I try to avoid leaving the house altogether if I can and if I had my way I would stay inside the house all day.”
By the statement of 4 December 2023, the applicant says that he continues to see Dr Shen, who treats him with Fluoxetine and Luvox. He states that there has been no real change in his condition.

Dr Smith

Dr Smith saw the applicant audio visually on 4 May 2023 and provided a report of that date. He recorded that the applicant’s depressive symptoms developed “gradually over around 18 months from around 2019”. He commenced to experience nightmares and intrusive memories of an accident in 2019 when he was required to clean up after a fatal accident. He also recorded a history of conflict with a colleague consistent with the account in the applicant’s statement.
After recording the applicant’s involvement in bushfire fighting from November 2019, Dr Smith recorded the following:
“Mr Moore reported that in the context of accumulation of the workplace stressors, he started to feel anxious and depressed but he continued to work until late December 2021. He said that he went on leave and he was due to return to work on 6 January 2022, ‘I had a breakdown and went to the doctor’”.
After carrying out a mental state examination and considering the applicant’s background and current symptomatology, Dr Smith diagnosed post-traumatic stress disorder and Major Depressive Disorder with anxious distress. He attributed the post-traumatic stress disorder to cumulative exposure to traumatic incidents, including fatalities and the risk of death during the bushfires in his work for the respondent. He opined that the applicant:
“…reported the development of anxiety and depressive symptoms in the context of post-traumatic anxiety.”
While the applicant’s pre-existing anxiety may have made him more vulnerable to the development of significant anxiety and depressive symptoms, the applicant’s employment was the main contributing factor to the development of his psychiatric condition.
Dr Smith expressed the opinion that the applicant was unfit for work, had reached maximum medical improvement and assessed him as suffering 22% WPI on the Psychiatric Injury Rating Scale (PIRS) prescribed by Chapter 11 of the SIRA Guidelines for the Evaluation of Permanent Impairment.

Dr Nagesh

Dr Nagesh saw the applicant initially on 16 March 2022, by telehealth and provided a report of 24 March 2022. Dr Nagesh also recorded a history of the applicant’s exposure to danger while engaged in the suppression of bushfires and on attending a fatal accident to clear debris off the road and to maintain road safety. He also recorded a history of conflict with his fellow supervisor, receiving multiple complaints from members of the public, and working long hours without a break. The doctor noted that the respondent did not accept the entirety of the applicant’s history including that it was his task to remove parts of dead bodies or that it was his role to deal with complaints from members of the public.
After carrying out a mental state examination and recording an account of the applicant’s current symptoms, Dr Nagesh diagnosed adjustment disorder with depressed and anxious mood. He continued:
“These symptoms are in the context of multiple alleged incidents at work which include being exposed to motor vehicle accidents, verbal abuse from colleagues, excessive workload, being exposed to bushfires, verbal abuse from customers.”
He accepted that the applicant’s employment was the main contributing factor to the adjustment disorder and that the applicant was unfit for work.
Dr Nagesh saw the applicant again on 26 October 2022, and provided a report of that date. At this consultation he had the advantage of a report from the applicant’s treating psychiatrist, Dr Shen. After updating the applicant’s history and recent treatment Dr Nagesh stated that:
“Mr Moore while working for Queanbeyan Palerang Council in the role of maintenance supervisor has alleged to have been verbally abused by customers. He alleges to have been exposed to fatal motor vehicle accidents, alleges having had to work non-stop shifts where he had to work 46 hours non-stop, being exposed to bushfires and where he found it hard to escape and while working from the bushfires he had been abused by people on the phone. He also alleges that he was verbally abused by co-worker ME and bullied and harassed by him.”
After recording the applicant’s current symptoms, Dr Nagesh re-iterated his opinion that the applicant suffered from an episode of adjustment disorder with depressed mood. He thought that he remained incapacitated for work and further treatment was necessary.
Dr Nagesh saw the applicant again on 19 July 2023, and provided a report of that date. Following his examination, the doctor addressed the question of whether the applicant suffered a definable psychiatric disorder or diagnosis under DSM-5-TR[TR1] . He said this:
“In my opinion, the worker meets the criteria for post-traumatic stress disorder and chronic major depressive disorder. the worker has been exposed to multiple traumatic incidents while working for Queanbeyan Council, in addition he alleges being bulled, harassed, there was increased workload and verbal aggression from customers on a day-to-day basis. In the context of the above alleged stresses, he has developed the following symptoms.”
In contrast to his earlier reports, after stating the relevant criteria, the doctor diagnosed post-traumatic stress disorder and MDD.
The doctor opined that the applicant had reached medical improvement and had no capacity for work. He assessed him as suffering 19% WPI in accordance with the PIRS scale. He thought that a deduction of one tenth should be made pursuant to s 323(2) of the 1998 Act as the applicant’s pre-existing agoraphobia contributed to his impairment.
Dr Nagesh also reviewed the report of Dr Smith and stated:
“I agree with the diagnosis provided by Dr Smith which is PTSD, Major Depressive Disorder and I also agree with causation. However, I respectfully disagree with Dr Smith with regard to the PIRS category, particularly the category of self-care and personal hygiene, where I am of the opinion that Mr Moore can live independently.”
Dr Nagesh provided a further supplementary report dated 23 October 2023, by which he provided an opinion on the basis of an assumption that the employer’s reputation of aspects of the applicant’s history was accepted. Unsurprisingly, Dr Nagesh expressed the opinion that if the employer’s case was accepted then there was no factual basis to relate the applicant’s post-traumatic stress disorder to his employment or to conclude that the applicant’s WPI resulted from an employment injury.

By a further report dated 16 January 2024, Dr Nagesh specifically considered the witnesses statements from the respondent’s witnesses. He concluded that it was probable that the applicant had been exposed to the aftermath of a serious motor vehicle accident and had worked for long hours assisting the Rural Fire Service to suppress fires which had devastated the local community. However, he concluded that the employer’s evidence refuted the allegation of bullying and harassment.
On this basis, Dr Nagesh reconsidered his opinion. He expressed the view that:
“The worker suffers from post-traumatic stress disorder as a result of multiple traumatic incidents while at work.”
However, he now expressed the opinion that the applicant’s Major Depressive Disorder was unrelated to the workplace injury as he accepted the employer’s evidence on this issue. The doctor continued:
“In my opinion, 30% of his impairment is attributable to his Major Depressive Disorder and 70% to his post-traumatic stress disorder.”

Dr Smith’s response

By a report dated 4 March 2024, Dr Smith commented on the reports of Dr Nagesh. After noting their agreement on the diagnosis of post-traumatic stress disorder, Dr Smith said this:
“I disagree with Dr Nagesh’s distinction of causation because PTSD and Major Depressive Disorder are frequently comorbid and post-traumatic anxiety is a substantial contributing factor to the development of depressive symptoms. The bullying and harassment also likely contributed to Mr Moore’s Major Depressive Disorder but he would likely have suffered from symptoms of Major Depressive Disorder because of his PTSD symptoms, even without the additional bullying and harassment.”
In answer to a question posed by the applicant’s solicitor as to whether post-traumatic stress disorder and Major Depressive Disorder were separate and distinguishable medical pathologies the doctor said this:
“The diagnoses of post-traumatic stress disorder (PTSD) and Major Depressive Disorders are separate and distinguishable psychiatric diagnoses, with separate criteria according to DSM-V-TR. They are frequently comorbid, however, and it is very common for PTSD and Major Depressive Disorder to be diagnosed together in response to exposure to traumatic incidents. This is because the post-traumatic anxiety experienced in PTSD contributes substantially to the additional development of depressive symptoms.
In Mr Moore’s case his Major Depressive Disorder was caused by the PTSD and also contributed to by the bullying and harassment.”

Further reports of Dr Nagesh

Dr Nagesh provided two further reports dated 20 April 2024 and 6 June 2024. In responding to Dr Smith’s opinion, the doctor conceded that there was comorbidity between post-traumatic stress disorder and Major Depressive Disorder “with approximately half of people with PTSD also having a diagnosis of MDD”. He continues:
“Yes, post-traumatic anxiety can give rise to Major Depressive Disorder, however, it is highly likely that the claimant would not have developed his Major Depressive Disorder if not for the alleged bullying and harassment. Hence, I am of the opinion that his Major Depressive Disorder is not entirely due to his post-traumatic stress disorder.” (My italics.)
Subsequently, the doctor reiterates that 50% of people with post-traumatic stress disorder also develop MDD. He continues:
“Why the other 50% do not develop comorbid Major Depressive Disorder is not possible to predict. It is highly likely in the claimant’s case, the Major Depressive Disorder was not due to his post-traumatic anxiety and due to some other cause and hence I respectfully disagree with Dr Smith.”
The remainder of the doctor’s report is difficult to understand but he concludes by stating that the applicant has 13% WPI as a result of his post-traumatic stress disorder.
By the report of 8 June 2024, the doctor addresses specific questions raised by the respondent. He says that post-traumatic stress disorder and MDD are two different psychological and psychiatric disorders. He sets out the DSM-5-TR criteria for both these conditions. He reiterates that while 50% of people with post-traumatic stress disorder also develop MDD in the case of the applicant this was not the case. Rather, it was highly likely that it was due to abuse by customers.
The respondent also asked the doctor to reconsider his opinion that its witnesses had refuted the allegation that the applicant and his team were under-resourced and overworked. It stated:
“In this regard, we note the employer’s witnesses have in fact generally accepted and confirmed, in their statements, the allegation of the worker and his team were under-resourced and overworked. Accordingly, the assumption you relied on in your last report was incorrect.
(a)In these circumstances we ask that you please acknowledge in your forthcoming supplementary report that your previous assumption that the allegations of the worker being overworked and under-resourced were refuted was incorrect.”
The doctor responded to this as follows:
“Having reviewed the new evidence, I accept that my previous assumption that the allegation of the worker being overworked and under-resourced were not refuted by the employer’s representative and my assumption was incorrect and I have accepted the fact that the worker was subject to increased workload.”
Further, the doctor accepted that this gave rise to the applicant’s MDD. However, it did not constitute a stressor which contributed to the post-traumatic stress disorder. He concluded thus:
“In my opinion, 70% of the worker’s whole person impairment is attributable to his PTSD condition which resulted from coming into contact with bushfires and witnessing the aftermath of multiple motor vehicle accidents. The impairment resulting from his PTSD amounts to 12%.”
In respect of the MDD, he stated:
“The Major Depressive Disorder which resulted from being overworked and under-resourced and/or being the subject of verbal abuse by members of the public and any other relevant causative factors including interpersonal conflict with the other team member, Martin, has resulted in 30% of the overall impairment, hence the impairment resulting from the Major Depressive Disorder is 5%.”

LEGISLATION

Section 322 of the 1998 Act, insofar as it is relevant, is as follows:
“(1)    The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note : Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.”

DISCUSSION AND FINDING

The Application also contains reports from the applicant’s treating doctors and one of his treating psychologists. Dr Shen, the treating psychiatrist, took a history consistent with the applicant’s evidence. He made several different diagnoses. These were post-traumatic stress disorder, major depressive disorder with major depressive episode associated with generalised anxiety disorder, panic disorder with agoraphobia, social anxiety disorder, and insomnia. The doctor was not asked to comment on whether these several diagnoses gave rise to separate pathologies or whether they should be assessed separately.
It is uncontroversial that that for a worker to establish an entitlement to compensation, he must establish that he suffered an injury as defined in s4 of the 1987 Act. He can do that by proving injury simpliciter or that employment caused or aggravated a disease. The former requires proof of a distinct physiological change.[7] The latter may involve the aggravation of any illness including a psychological illness.[8]
[7] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (11 May 2016).
[8] Kitto J Federal Broom Co Pty Ltd v Semlitch10 CLR 626 at [384].
Section 11A (3) states that:
“…‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
There can be no doubt in that a worker may suffer distinct psychological injuries in different incidents at different times in his working life. They may occur in the same or different employment and involve different insurers. They may exhibit different psychiatric symptomatology giving rise to quite different diagnoses under DSM-5-TR. Gurnhill and AP are examples of such injuries.
Injuries may cause or contribute to an impairment. Compensation is payable for permanent impairment in accordance with Division 4 of Part 3 of the 1987 Act. The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition define impairment as:
“…a loss, loss of use, or derangement of any body part, organ system, or organ function.”
Where more than one injury occurs in the same incident or where an injury gave rise to separate impairments s 322 of the 1998 Act requires that they be assessed together for the purpose of determining impairment. Edmed addresses the meaning of “injury” in s 322(2) holding that injury in this statutory context means “pathology”. As the recent case law makes clear, however, Edmed did not abrogate common law concepts of causation.
In both Ozcan and Secretary, New South Wales Department of Education v Johnson[9] the Court of Appeal reaffirmed that where subsequent injuries result from or arise out of an earlier injury, they should be assessed together for the purpose of determining impairment.
[9] [2019] NSWCA 321.
It is the respondent’s contention that the separate diagnoses made by the three psychiatrists who have examined the applicant prove, or, at least, suggest the existence of separate and distinct psychiatric pathologies. As “pathology” can be equated with “injury” for the purpose of s 322(2), the injuries must be referred for assessment separately.
The evidence does not establish that diagnoses made in accordance with DSM-5-TR can be equated with psychological injury or that they constitute separate injuries for the purpose of the Workers Compensation Acts. It is also difficult to accept that the functioning of the mind can be compartmentalized in the way that is common in physical injuries. Psychiatric conditions are diagnosed under DSM-5-TR largely by reference to symptom complexes. There is often overlap between the symptoms that describe different diagnoses. Frequently, multiple diagnoses are made. Equally, there are often differences of specialist medical opinion in respect of which diagnosis is applicable. Finally, during the course of an illness one diagnosis may metamorphose into another, or several other, diagnoses.
DSM V to which I was referred specifically states that it cannot be assumed that each of the many classifications of psychiatric illness is a discrete entity with absolute boundaries dividing it from other mental disorders or no mental disorder.
But even accepting the respondent’s contention at its highest, I conclude that the various incidents pleaded in the application should be referred for one assessment of WPI in the circumstances of this case. That is because I accept the evidence of Dr Smith that the diagnosed conditions of post-traumatic stress disorder and MDD are causally related. I prefer the evidence of Dr Smith on this point to the evidence of Dr Nagesh.
It is accepted that the diagnoses of post-traumatic stress disorder and MDD may be comorbid. Both Dr Nagesh and Dr Smith accept that fifty per cent of patients diagnosed with post-traumatic stress disorder also develop MDD caused by anxiety associated with post-traumatic stress disorder. Dr Smith argues the applicant developed MDD as a result of his post-traumatic stress disorder, but aspects of his employment also made a material contribution to the former condition. Given that fifty percent of patients with post-traumatic stress disorder develop MDD’s this is not a surprising conclusion.
Aspects of Dr Nagesh’s evidence support a contrary conclusion, but his opinion is not always uniform. In his report of 20 April 2024, Dr Nagesh states that, as the applicant would not have developed MDD if not for the bullying, it was not “entirely due” to the post-traumatic stress disorder. This leaves open the distinct possibility that Dr Nagesh accepted that his MDD was partly due to post-traumatic stress disorder and there was a causal relationship.
It is trite law that if an injury causes increased vulnerability to further injury there is sufficient causal connection to permit a finding that the second injury resulted from the former. Dr Nagesh’s formulation in the report of 20 April 2024 is not inconsistent with such a finding in this case. While he expresses an apparently different view in his subsequent reports, he does not state that he has abandoned his earlier opinion.
There are other difficulties with the doctor’s opinion. He initially diagnosed an adjustment disorder. By his report of 19 July 2023, he revised his diagnosis to agree with the opinion of Dr Smith that the applicant suffered from post-traumatic stress disorder and MDD. He stated specifically that he agreed with the opinion of Dr Smith on both diagnosis and causation. He assessed post-traumatic stress disorder and MDD as giving rise to one WPI which encompassed both diagnoses. It is difficult to reconcile this approach with his subsequent stance that they should be assessed separately. In my opinion he gives no cogent reason to support his contention that the applicant’s MDD is unrelated to post-traumatic stress disorder bearing in mind the statistical evidence on comorbidity.
Dr Nagesh has also altered his opinion on several occasions on the relationship of the applicant’s MDD to his employment. By his report dated 26 July 2024, he concluded that the applicant’s allegations of being overworked and under resourced had not contributed to his psychological condition or to his in MDD. He reached this conclusion as these allegations had been “refuted by the employer’s representative.” He stated, however, that he would “attribute 10% of his impairment to the verbal abuse by the public”. He accepted that this verbal abuse had contributed to the diagnoses of MDD and post-traumatic stress disorder. This is a peculiar approach to the determination of causation in a compensation case.
By his report of 19 July 2023, Dr Nagesh accepted that his previous assumption that the respondent’s witnesses had refuted the allegation that the applicant was overworked and under resourced during the latter period of his employment was incorrect. He also accepted that it contributed to his MDD. Conversely, he renounced his previous opinion that the verbal abuse had contributed to the applicant’s post-traumatic stress disorder. Once again, there is little explanation for a significant change in the doctor’s opinion.
The opinion of Dr Nagesh is riddled with inconsistencies. The doctor does not appear to understand the concept of causation in the context of the workers compensation legislation which I have adumbrated above. It is for these reasons that I reject his opinion. It is probably unnecessary to go further in the circumstances of this case. But I briefly address another issue arising out of the respondent’s submission.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta[10] Roche DP held that it was open to a worker to make a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act based on multiple injuries provided that there was medical evidence that the injuries contributed to a single impairment and that the claim did not offend the legislative command in the section that there be only one claim for compensation in respect of an injury. The reasoning is similar to that of that of Brennan J Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd[11] where he said at [5]:
“Liability to make weekly payments or to pay a lump sum is imposed on any employer liable in respect of any injury which caused or materially contributed to the incapacity. In Bushby v. Morris (7) (1980) 1 NSWLR 81 at 87.) the Privy Council said in reference to the New South Wales Workers' Compensation Act 1926:
‘It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in of in the legal sense, operating concurrently. ...
There is no room for an artificial rule of law that, in such a situation, one or other accident must necessarily be selected as the cause of the incapacity, apparently on an entirely arbitrary or capricious basis.’”
[10] [2015] NSWWCCPD 35 (15 June 2015).
[11] [1994] HCA 68.
Applying the reasoning in Barnes, a worker could claim permanent impairment compensation based upon several psychological injuries in one or more employments. It would be unnecessary for the worker to prove that the pathology caused by each injury was identical. Of course, it would be necessary to prove a single impairment of the mind flowing from the injuries. Since since the decision of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors[12] it has been open to insurers or employers to seek an apportionment of their liability where they have been found liable for the entirety of an award for weekly or permanent impairment compensation.
[12] (1996) 12 NSWCCR 716.
This is not a case, however, where the applicant’s psychological condition can be readily attributed to one or more distinct injuries. Rather, from 2019, over a period of 18 months, the applicant was exposed to trauma fighting bushfires, and attending to make safe roads after serious motor vehicle accidents. Simultaneously, he experienced an accumulation of stressors resulting from interpersonal conflict with a colleague, a lack of resources to perform his work, and the requirement to work long hours. Irrespective of the DSM-5-TR diagnosis, these facts do not establish a distinct pathological or psychological change occurring at a particular time. Rather, they suggest the onset of a disease that was either caused or aggravated by multiple stressors in the course of employment. If aspects of the disease can be described differently for the purpose of DSM-5, the different diagnoses are interrelated as the post-traumatic stress disorder contributed to the MDD.
The Commission and its statutory predecessors have treated these types of injuries as a disease for several decades. It is unnecessary in the circumstances of this case to set out in the caselaw relevant to this issue.
As the parties have not addressed on whether the proven facts attract s 4 (b) (I) or (II) it is inappropriate to determine which applies in the circumstances. To avoid confusion, I intend to order that the matter be remitted to the President to be referred for assessment of permanent impairment in the form of the referral by his delegate dated 2 April 2024. In addition to the documents referred to therein, the Medical Assessor is to have access to the Application to Admit Late Documents dated 11 June 2024 and a copy of these reasons.

[TR1]As abbreviated in [3] above

[2024] NSWPIC 368

9 July 2024