Petrovska v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Petrovska v Woolworths Group Ltd [2023] NSWPIC 317
APPLICANT:	Letka Petrovska
RESPONDENT:	Woolworths Group Limited
Member:	Cameron Burge
DATE OF DECISION:	4 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment compensation; accepted right shoulder injury; claimed cervical spine injury and left shoulder consequential condition disputed; applicant also claims primary psychological injury said to arise from her treatment at work after and resulting from her physical injury; respondent alleges psychological injury is secondary, and raises defence per section 11A; ; Held – the applicant suffered cervical spine injury by way of aggravation of a pre-existing condition in the accident at issue; the applicant suffered a consequential condition to her left upper extremity (shoulder) as a result of the accepted right shoulder injury; the claimed psychological injury is a primary psychological injury; although the applicant suffers a secondary psychological injury, It is separate and distinct injury from the primary injury claimed; all claimed body systems remitted to the President of the Personal Injury Commission for referral to appropriate Medical Assessors.
determinations made:	The Commission determines: 1. The applicant suffered an injury to her right upper extremity (shoulder and elbow) and cervical spine in the course of her employment with the respondent on 18 June 2017. 2. As a result of the injury referred to in [1], the applicant suffered a consequential condition to her left upper extremity (shoulder). 3. The applicant suffered a primary psychological injury in the course of her employment with the respondent with a deemed date of injury of 11 March 2019 as a result of her treatment by the respondent after her injury on 18 June 2017. 4. The claim for physical injuries 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: 18 June 2017. Body systems referred: Right upper extremity (shoulder and elbow), cervical spine, left upper extremity (shoulder) (consequential condition). Method of assessment: Whole Person Impairment. 5. The claim for 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: 11 March 2019 (deemed). Body systems referred: Psychological injury. Method of assessment: Whole Person Impairment. 6. The documents to be referred to the Medical Assessors 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; (c) Reply; (d) applicant’s Applications to Admit Late Documents dated 24 February 2023 and 24 March 2023, and (e) respondent’s Application to Admit Late Documents dated 24 January 2023.

STATEMENT OF REASONS

BACKGROUND

The applicant, Letka Petrovska brings proceedings claiming permanent impairment compensation for alleged injuries to her right upper extremity and cervical spine, along with a consequential condition to her left upper extremity as a result of an injury suffered in the course of her employment with Woolworths Group Limited (the respondent) on 18 June 2017. The applicant also claims a primary psychological injury said to have been suffered as a result of her treatment by the respondent after suffering her physical injuries.
The respondent admits liability in relation to a right upper extremity injury, however, the injuries to the cervical spine, consequential condition to the left upper extremity and the psychological injury are all disputed: the latter on the grounds it is a secondary psychological condition.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered injury to her cervical spine;
(b)    whether the applicant suffered a consequential condition to her left upper extremity (shoulder), and
(c)    whether the applicant’s psychological injury is primary or secondary in nature.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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.
The parties attended a hearing on 23 March 2023. At the hearing, the applicant was represented by Mr Morgan of counsel instructed by Mr Bell. The respondent was represented by Ms Goodman of counsel instructed by Mr Biscevic. In the time available following an unsuccessful attempt at conciliation, the parties made oral submissions in relation to the psychological injury.
At the conclusion of the hearing, the parties were directed to lodge written submissions on the physical injuries in issue. The last of those submissions were received on 18 May 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply;
(c)    applicant’s Applications to Admit Late Documents (AALD) dated 24 February 2023 and 24 March 2023, and
(d)    respondent’s AALD dated 24 January 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The injurious event

There is no issue that on 18 June 2017, the applicant was in the course of her employment when she was attempting to remove a heavy box of refrigerated chicken from a shelf located above head height. As she did so, a box fell, and in her attempt to arrest that fall, the applicant injured her right upper extremity (shoulder and elbow). As noted, she also alleges the incident caused injury to her cervical spine and a consequential condition to her lower extremity.
Additionally, the applicant alleges after the physical injury, she was subjected to bullying, harassment and disregard for her injury, as a result of which she was forced to carry out heavier duties than those which she was realistically capable of undertaking, as a result of which she alleges she suffered a psychological injury. The applicant contends these amounts to a primary psychological injury, whereas the respondent asserts the psychological injury is secondary to the physical.
At the time of the incident, the applicant described the following at [57] of her statement:
“[57] Instinctively, I attempted to stop the box from falling with my right hand and arm, which was still outstretched, and the heavy box made a jarring contact. In arresting its fall, I felt immediate and severe pain in my right shoulder, right elbow, entire right arm and the right side of my neck. I was full of fear and panic. I was very anxious about what could have happened, had the box landed on my chest or head.
[58] The sharp pain in my right shoulder and right elbow was overwhelming. I had pain in my neck, but it was nothing like the pain in my shoulder and elbow. I was focused on the pain in my shoulder, elbow and entire arm.
[59] I informed my line manager, Heather, but I continued to work with the pain. I was scared. I felt nauseous. I was shaking, but I continued to work as customers were waiting.
[60] At around 9:00 am, the store manager, Imran Zaki asked me why the chicken pieces were not yet ready. I advised him of my injury and told him that I could not even raise my hand to open the oven. Shortly after that, he called me into the office and logged a short report on the computer.
[61] I asked him though if I could go home to see a doctor due to the pain and distress I was experiencing. He said, ‘no’. He said he would send me to physio, however, around 12:00 pm, my line manager Heather allowed me to go home, and they called in two people to replace me to continue the work for that shift that they had expected me to do by myself.
[62] The following day, Imran was there again along with the second in charge manager, Chelsea. I do not know Chelsea’s surname. I asked again if I could see my doctor. She and Imran said, ‘no’. They said that they would send me to their physio the next day.
[63] Imran said he was very reluctant for me to see a doctor, lodge a claim, and/or obtain a WorkCover medical certificate or take any action. I became incredibly distressed”.

The cervical spine

For the following reasons, I am of the view the applicant suffered an injury to her cervical spine in the workplace incident on 18 June 2017.
The applicant has the onus of proving she suffered an injury, as that term is defined in s 4 of the Workers Compensation Act 1987 (The 1987 Act). The authorities relating to s 4 make it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”: see Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro).
Consistent with Castro, the decision in Trustees of the Society of St Vincent DePaul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure as a personal injury. That is because, without more, it is not a sudden and ascertain or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in ‘Castro’, without any accompanying lesion or pathological change”.
Relevant to this matter, an applicant is able to rely on injury simpliciter despite the existence of a disease, as was highlighted in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar). In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. The congenital condition could be characterised as a disease, however, that would not have satisfied the requirements of cl (b) of the definition in s 4 as it then was. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of a disease did not preclude reliance upon that event as a personal injury. As such, it can be seen the terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological or pathological change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
The relevance of that decision to the present matter is there is no question the applicant suffered preexisting changes to her cervical spine as a result of a motor vehicle accident which took place in 1997. The applicant’s case is the injurious event at issue caused an aggravation to her underlying problems, to which her employment was the main contributing factor (s 4(b)(ii)).
Ms Goodman rightly noted the requirement for a tribunal of fact to feel a sense of actual persuasion of a matter in issue, in this instance the presence of a cervical spine injury: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
In this matter, the applicant relies on a frank injury as having caused an aggravation to her cervical spine condition. The respondent submits the contemporaneous evidence did not support a finding of injury. Ms Goodman noted in her submissions the applicant saw her general practitioner (GP) Dr Oreb on the day after the injury and a history was taken injury only to the right shoulder and elbow, which required referral for ultrasound.
The respondent noted the first reference of any neck issue in the GP records was on 30 May 2018, in relation to a potential cervical spine CT being undertaken.
However, treating specialist, Dr Petchell, who had been seeing the applicant since August 2017 in relation to her shoulders, noted marked restriction of movement in the applicant’s neck on 10 April 2018, together with a positive Spurling’s sign and recorded a cervical spine MRI which he said “given she has not had any neck trauma at work” should be outside her workers compensation claim.
Whilst those submissions accurately summarise the initial recording of neck symptoms by Drs Oreb and Petchell, the records of the applicant’s physiotherapy practise, Prime Physiotherapy reveal a different story.
On 20 June 2017, just two days post-injury, the applicant attended her physiotherapist seeking “release of neck paraspinals”. On 22 June 2017, a further physiotherapy entry was made noting complaints of neck pain. Additionally, an entry on 26 June 2017 noted a further release of the paraspinal musculature, while additional releases were also carried out on 3 July 2017. On 10 July 2017, the physiotherapist recorded a history of the neck condition and reference was made to its impact on and contribution to the applicant’s shoulder and upper limb pain.
Further entries in relation to the applicant’s stated neck pain and treatment of the paraspinal muscles are found in the physiotherapy notes on 24 July 2017 and 5 October 2017.
The applicant then moved physiotherapy practises to Back in Motion, where no reference is made in the clinical records of neck pain. However, in the Back in Motion report dated 10 April 2018, the following history was taken:
“[The applicant] has been progressing very slowly with her chronic shoulder and elbow injury, she reports widespread pain on the right side of her neck, right shoulder, arm, and elbow pain. She is currently working her pre-injury hours, modified duties, however, reports she is compensating a lot for the left shoulder and fears that she will cause the same injury to the other side as well.”
There is no issue that the applicant had a prior neck injury as a result of a motor vehicle accident on 18 March 1997. She suffered a C5/6 disc lesion and C6 radiculopathy as a result of that injury. The respondent’s Independent Medical Examiner (IME), Dr Powell provided an opinion that the natural history of such pathology was gradual deterioration, and the applicant’s current condition was consistent with that deterioration over time. Dr Powell was of the view there was no frank neck injury or aggravation of the underlying condition caused by the work injury at issue.
The applicant underwent a CT scan of the cervical spine on 27 June 2018. It showed prominent spondylotic changes at C5/6 and disc bulges at C3/4 and C4/5 with left-sided foraminal narrowing at C4/5.
Persistent left shoulder and arm symptoms saw treating surgeon Dr Petchell recommend an MRI to exclude cervical cord compression. The applicant was then referred to Dr Bazina, neurosurgeon. In his report dated on 24 March 2020, Dr Bazina took a brief but consistent history of the injury at issue. He noted the applicant’s symptoms of paraesthesia in her arm had not resolved despite shoulder surgery after the workplace accident.
Dr Bazina indicated the cervical MRI showed degenerative osteophytes at C5/6 causing moderate to severe foraminal stenosis. He opined these changes were likely aggravated in the injury at issue. Dr Bazina also said:
“Her MRI scan also shows what appears to be an acute C4/5 disc herniation which is adjacent to the degenerated level. This is causing moderate left paracentral disc protrusion which is not consistent with the right upper limb pathology hence further treatment will be based on assessing the contribution of the C5/6 region.” (Emphasis added.)
Although the applicant had a prior cervical spine injury, the applicant satisfies me she was asymptomatic before the injury as event in issue. That much is accepted by the experts in the case and is borne out by the pre-injury clinical evidence. There is no suggestion of the applicant complaining of neck symptoms before the injury in 2017. In his report, the respondent’s IME, Dr Sheehy was asked his opinion in relation to the cause or causes of the C5/6 canal stenosis and nerve root compression and stated:
“She was asymptomatic with regard to neck and arm pain until after the incident when she twisted to catch a box of chicken and her symptoms are consistent with an exacerbation of an underlying degenerative change at C5/6 level with compression of the C6 nerve root…
She was asymptomatic with regard to pain and pins and needles radiating into the right arm and to a lesser extent to the left prior to the injury occurring in 2017 and as such, her condition is attributable to the alleged mechanism of injury.”
Although Dr Sheehy did not have a history of the prior motor vehicle accident, he did take into account the preexisting cervical spine pathology, and his observation the applicant was asymptomatic before the work-related injury at issue is consistent with her statement evidence, which I accept. At [50] of her statement, the applicant states:
“I injured my neck in a car accident in 1997. I had some short-lived shoulder pain. This had resolved well before my work accident, and I had no ongoing symptoms for many years. Prior to my injuries, my right and left shoulder were in good health, as was my right elbow. Psychologically, I had been stable and reasonably happy. I experienced some anxiety and panic attacks. I was referred previously to a psychiatrist, and I believe I saw Professor Dusan Kecmanovic once.”
At [155] of her statement, the applicant further says:
“The pain I experienced between 1997 and 1999 was quite different to the neck pain I felt from the injury. It was like there was something changed inside my neck, cutting and restricting me. It bore no comparison to the earlier neck pain.”
I also note the applicant worked without any apparent complaint of neck issues until the incident at issue.
Many of the respondent’s submissions in relation to the applicant’s neck injury rely on the alleged lack of complaint of symptoms in the immediate aftermath of the incident at issue. However, the physiotherapy records indicate this was not in fact the case. Moreover, the reports of Dr Petchell indicate the applicant’s treaters were previously concerned with her right arm, until the persistence of her symptoms even after surgery caused a change in emphasis, which in turn led to radiological investigation of the cervical spine where relevant pathology consistent with the applicant’s ongoing issues was discovered.
The respondent’s IME, Dr Powell was of the view there was insufficient evidence to establish the injury at issue was the cause of any aggravation to the applicant’s cervical spine pathology, and opined the symptoms were consistent with the degenerative changes present since the motor vehicle accident in 1997.
However, Dr Powell’s opinion does not, in my view, account for the applicant being asymptomatic before the injury at issue. While Dr Powell says the applicant’s symptoms are consistent with the natural history of underlying degenerative changes, he provides no satisfactory explanation to discount the fact the applicant had no such symptoms before the very injury of which she complains, or to explain the fact those symptoms have persisted since the injury at issue. As the applicant’s IME, Dr Dixon noted in his second report:
“There are two additional disc protrusions above and below what had been present on the MRI of the cervical spine on 28 March 1998. This is consistent with the claimant’s presentation…
While it is acknowledged that the claimant does have cervical spondylosis, those two additional lesions were not present in the third-party motor vehicle claim for the 9 March 1997 whiplash injury and although she had significant symptoms for three years after that, she was asymptomatic between 2000 and 2017 and was able to work without difficulty.
Because she was symptom free for many years, the neurosurgeon’s assessment of the circumstances is essentially correct, as well as his opinion of operative intervention. I agree with his opinion of operative intervention, although the claimant has declined to undergo this procedure at this stage.
In summary, while she did aggravate her neck as a result of her right shoulder injury and consequential left shoulder injury, as well as aggravating the old C5/6 disc lesion and cervical spondylosis, she has two new lesions, namely at C4/5 and C6/7 disc protrusions, which have not been taken into consideration.”

In my view, adopting a commonsense approach to the totality of the lay and medical evidence, I am persuaded on the balance of probabilities the incident at work on 18 June 2017 was and remains the main contributing factor to an aggravation of the applicant’s underlying cervical spine pathology and that she suffered an injury to that body system in the incident at issue. I also accept Dr Dixon’s opinion as to the presence of significant disc pathology at C4/5 and C6/7 which was not present after the 1997 motor vehicle accident, and which in my view was also caused by the incident at issue.
Accordingly, the claim for cervical spine injury will be remitted to the President for referral to a Medical Assessor.

Consequential condition to the left arm

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether an injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At [35] and following, Roche DP stated:
“[35] By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
[36] The President has considered claims of this kind in several decisions… and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
At [55] in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon), a matter involving a compensable injury to the right shoulder allegedly resulting in a consequential condition to the left, Roche DP described at [44]-[46] what is required to establish a consequential condition:
“[44] The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted for his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder.
[45] It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. …
[46] The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7).”
In this matter, the applicant alleges she suffered a left upper extremity consequential condition as a result of being unable to properly use her right arm and shoulder. The respondent’s IME, Dr Powell was of the view the applicant’s left shoulder issues were degenerative and common for a person of her age, having developed when she was on light duties.
With respect, I did not accept that opinion. Firstly, it ignores the simple fact that the applicant had no symptoms until after the right shoulder injury. There was no suggestion of degenerative changes causing her problems until she, consistent with her statement evidence which I accept, began increasingly using it after the right shoulder injury. As the decisions referred to above made clear, it is not necessary for the applicant to establish pathological change in order to satisfy the requirement for a consequential condition.
Moreover, the applicant’s statement evidence, which is uncontradicted, and which I accept, establishes she was in fact under significant pressure by the respondent to carry out her duties despite the restrictions to her right arm. The applicant details the pressure applied to her by the respondent’s managers in her statement, and there is no evidence put forward to contradict that evidence. It is apparent on the balance of probabilities that the applicant was required to overuse her left shoulder as a result of the right shoulder injury, and that whilst she may have at face value been on light duties, she was in fact required to carry out more onerous duties than her restrictions required.
As noted, on balance, I do not prefer Dr Powell’s opinion. I prefer the views of Dr Dixon that the applicant suffered a consequential condition to her left shoulder as a result of the accepted right shoulder injury. That view is supported by the applicant’s statement evidence and by the reports of Dr Petchell, who noted the onset of left shoulder symptoms in a report dated 10 April 2018 and another in July 2019, the latter some 4.5 months post-right shoulder surgery.
I am therefore satisfied on the balance of probabilities that the totality of the evidence supports a finding the applicant suffered a consequential condition to her left shoulder as a result of the accepted right shoulder injury, and the applicant’s left upper extremity (shoulder) will therefore be remitted to the President from referral to a Medical Assessor to determine the whole person impairment arising from that consequential condition.

Psychological injury

The applicant alleges that from the date of her physical injury up to and including 11 March 2019, she was subjected to harassment and isolation at work. There is no issue the applicant suffered a pre-existing psychological injury, and had from time to time suffered panic attacks. She deposes to such a condition and those panic attacks in her statement.
By s 78 notice dated 7 March 2022, the respondent disputed liability on two bases, namely that the applicant’s psychological condition was secondary to her physical injuries and that in any event the injury was wholly or predominantly caused by its reasonable conduct with respect to the applicant’s dismissal from employment.
For the applicant, Mr Morgan conceded there is a secondary psychological condition caused by the applicant’s physical injuries, however, he submitted there was also a primary psychological condition brought about by the applicant’s treatment from the date of her physical injury until her termination. He submitted the respondent’s s 78 notice was misconceived, as the injury brought about by the manner in which the applicant was treated after her physical injury is a separate and distinct injury from that physical injury and from the pre-existing psychological condition.
The applicant sets out her treatment by her managers following her physical injury in her statement from [59] onwards. She states that she asked her managers whether she could leave work, but she was denied permission to do so. There is no evidence put forward by the respondent to contradict the applicant’s contention that her manager, Imran, said he was reluctant for her to see a doctor, lodge a claim and/or obtain a WorkCover medical certificate or take any action.
The applicant further sets out issues in relation to her post-injury treatment at [68], [70],
[72]-[78], [113]-[114], [123]-[115], [145], [177], [192], [199] and [201] of her statement.
In light of this evidence, which is uncontested and to which the respodnent makes no substantive reply, I have little difficulty in accepting the applicant was under great pressure to go to work and get back to her normal duties after her physical injuries. In my view, that finding is supported by the clinical records of her treating psychiatrist, Dr Kuljic. In entries some six months after the physical injury, the worker told Dr Kuljic she was afraid of losing her job and was terrified by that prospect. Similar entries were found in February 2018 and April 2018. On 18 April 2018, the applicant attended Dr Kuljic with her husband who told the doctor the applicant gets panicky when she has to go to work, up to 24 hours beforehand and she was not like that before her physical injury and her treatment afterwards.
Similar entries outlining the applicant’s ongoing fear of losing her job and her treatment at work are set out on 23 May 2018, at which time the applicant states “they push me too hard, I think they want to make me leave, that is bullying, they stressed me purposely, they asked me to lift more than I can.”
Dr Kuljic provided a report dated 13 March 2021. He recorded a decline in the applicant’s functioning throughout 2018, culminating in an attendance on 19 December 2018 where the applicant reported she had been bullied and stressed at work but continued presenting there because staying at home would increase the fear she might lose her job, which would in turn trigger even more anxiety attacks. Dr Kuljic concluded the applicant had suffered a work-related psychological injury as a result of the bullying by her managers.
The respondent provided a report from IME, Dr Kneebone. He described his findings on mental state examination as consistent with her self-reported depressive symptoms and that the applicant was suffering from a major depressive disorder, a single episode of severe severity, together with panic disorder and agoraphobia. Dr Kneebone described the cause of the applicant’s psychological condition as follows:
“The main contributing factor to her panic disorder and agoraphobia, however, was said to be her employer’s decision to terminate her employment after she did not return to work following her shoulder surgery in March 2019. The latter was said to aggravate her depressed mood and sharply heightened her anxiety about her future precipitating panic and agoraphobic avoidance.”
Dr Kneebone’s view, however, does not account for the treating notes of Dr Kuljic which reveal the applicant spiralling into a psychological condition before she was terminated and as a result of her treatment at work. As noted, the respondent offers no evidence to contradict the applicant as to the manner in which she was treated by her managers. In a report dated 10 October 2022, Dr Kneebone acknowledged the alleged harassment from the applicant’s former managers following her physical injury, “whilst a significant causative factor was not thought to be the main cause of her current psychiatric condition.”
Mr Morgan submitted, and I accept, that the harassment from the applicant’s former managers which precipitated a psychological reaction constitutes an injury. There is no suggestion that an injury of that nature cannot sit side by side with other psychological injuries caused by different considerations such as previous motor vehicle accident or indeed a reaction to her physical pain. I accept Mr Morgan’s submission that the relative contributions to the applicant’s overall psychological picture brought about by these separate injuries is a matter for a Medical Assessor to determine, with appropriate deductions being made for both a secondary psychological injury and for any pre-existing condition.
For the respondent, Ms Goodman noted the applicant had a significant psychological history. I accept this is the case. However, if one accepts that a panic and depressive disorder were pre-existing, then there can still be an injury by way of aggravation. Ms Goodman accepted this was the case, and that acceptance is entirely appropriate.
The question then becomes, what is the predominant cause of that aggravation. However, my view is the first question to be determined is whether the aggravation caused secondary to the physical injury is the only aggravation, or whether it sits side by side with one caused by the applicant’s treatment after her physical injury.
In my view, it is the latter.
A distinction must be drawn between a psychological condition which develops as a consequence of physical pain and loss of function (a secondary psychological injury) and a psychological condition which results from an injurious event, being the manner in which the applicant was treated by her employer on her return to work. As was noted in Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 at [103]:
“s 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition.”
In State of NSW (Department of Education) v Kaur [2016] NSWSC 346, Campbell J noted a question of whether an injury is a primary or secondary psychological injury is one for the Commission to determine, and not one which arises as a medical dispute.
I have little difficulty accepting the applicant suffered a secondary psychological injury. However, it is also apparent from the contemporaneous clinical material that she was also greatly concerned by the manner in which she was being treated after her physical injury. In my view, that is a separate and distinct injury from the secondary psychological injury and is a primary one. Accordingly, the Commission will make orders referring the psychological injury to a Medical Assessor for determination of any whole person impairment arising from it.
The respondent also raised a defence under s 11A. The respondent bears the onus of proof in relation to that defence, and in this matter, it offers no evidence to support it. There is no evidence which the respondent puts forward to suggest it is firstly that the applicant’s termination was the whole or predominant cause of her injury as opposed to her treatment before it, nor is there any lay evidence put forward which sets out the reasonableness or otherwise of any conduct relied upon.
In Hamad v Q Catering Limited [2017] NSWWCCPD 6, Deputy President Snell held that in cases where a course of conduct is said to have caused given rise to a defence under s 11A, there ought to be medical evidence in support of the respondent’s defence. However, the respondent’s IME, Dr Kneebone’s view was that the applicant’s condition was, in all likelihood, “largely a secondary condition arising from the physical injury she sustained during the course of her employment.” In short, there is no medical evidence to support the respondent’s contention that the defence under s 11A is made out.
On balance, I am of the view the clinical and medico-legal evidence together with the applicant’s own uncontested statement evidence supports a finding on the balance of probabilities that she suffered a primary psychological injury as a result of her treatment at work by the respondent from the date of her physical injury up to the date of her termination. That injury is, in my view, a separate and distinct one to her secondary psychological injury. In so finding, I did not discount the applicant’s pre-existing psychological injury, however, I note that she was able to work before her physical injury and her treatment afterwards without requiring time away from work and was able to function very capably. It was only since her treatment at work after the physical injury that her condition deteriorated.
Accordingly, the psychological injury will also be referred for assessment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 317

4 July 2023