Samaan v Prime Family Dental Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Samaan v Prime Family Dental Pty Ltd [2023] NSWPIC 405
APPLICANT:	Erini Samaan
RESPONDENT:	Prime Family Dental Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	10 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” that may give rise to a claim for lump sum compensation for permanent impairment under section 66(1); Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A that may give rise to a claim for lump sum compensation under section 66(1).
determinations made:	The Commission determines: 1. The applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the Workers Compensation Act 1987 (the 1987 Act) that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act. The Commission orders: 1. The permanent impairment lump sum claim is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 11 September 2020. Body parts: psychological; lumbar spine; cervical spine, and ear, nose, throat and related structures. Method: whole person impairment. 2. The materials to be referred to the Medical Assessor include: (a) Application to Resolve a Dispute (ARD) and attached documents; (b) Reply to ARD and attached documents, excluding the entire report of Dr Yye Chong (Olivia) Lee; (c) Application to Admit Late Documents (AALD) by worker dated 12 July 2023, and (d) AALD by insurer dated 13 July 2023.

STATEMENT OF REASONS

BACKGROUND

Ms Erini Samaan (the applicant) claims permanent impairment compensation pursuant to
s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from physical injury and psychological injury.
The applicant was employed by Prime Family Dental Pty Ltd (the respondent) in a role which included administrative duties and she worked in an office at her home.
It is not in dispute that whilst working at her home on 11 September 2020, the applicant slipped and fell (the incident) and she suffered significant physical injuries.
The applicant made a claim for workers compensation by a Workers Injury Claim Form dated 6 October 2020.[1] The form stated that as a result of the incident, the applicant suffered fractures to her skull, right eye socket, internal brain haemorrhage, severe neck pain, ongoing constant severe headache and neck pain, vomiting and emergency caesarean section due to brain injury.
[1] ARD, page 7.
By letter dated 5 October 2022,[2] the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of 25% whole person impairment (WPI) for anosmia (loss of smell), forebrain injuries and orthopaedic injuries.
[2] ARD, page 16.
By letter dated 20 January 2023,[3] the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of 17% WPI for primary psychiatric injury. The letter stated that the applicant relies on s 65A(4) of the 1987 Act.
[3] ARD, page 19.
By notice dated 24 April 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for the claim for permanent impairment compensation in respect of psychological injury. The insurer did not agree that the applicant’s psychological condition was a primary injury pursuant to s 65A(2) of the 1987 Act and did not agree that the applicant had a psychological injury which resulted in at least 15% permanent impairment as required by
s 65A(3) of the 1987 Act.
On 8 May 2023, the applicant initiated proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (ARD).
On 23 May 2023, the respondent lodged a Reply to ARD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 18 July 2022, Mr Rohan De Meyrick, counsel, appeared for the applicant, instructed by Mr Richard Dababney of Turner Freeman Lawyers. Ms Kavita Balendra, counsel, appeared for the respondent, instructed by Ms Pradesha Thomas of Turks Legal.
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.

ISSUES FOR DETERMINATION

The parties agree that:
(a) the applicant sustained physical injury, with a date of injury of
11 September 2020, and
(b) the applicant has a psychological disorder.
The parties agree that the following issues remain in dispute:
(a) whether the applicant applicant’s psychological condition is a primary psychological injury that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act (or is a secondary psychological injury that is, by virtue of s 65A(1) of the 1987 Act, excluded from giving rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act), and
(b) the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation under s 66(1) of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply to ARD (Reply) and attached documents, excluding the entire report of
Dr Yye Chong (Olivia) Lee;[4]
(c)    Application to Admit Late Documents (AALD) by worker dated 12 July 2023, and
(d)    AALD by insurer dated 13 July 2023.
[4] Reply, page 47.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 3 May 2023.[5]
[5] ARD, page 1.
The applicant stated that she was 38 weeks pregnant whilst working at her home on
11 September 2020, when she slipped and fell as she went to attend her ringing phone which was charging outside of the room that she was in. The applicant stated that she recalls flying through the air and striking her head before losing consciousness. The applicant woke up for a few seconds in an ambulance and heard people talking but she could not understand what was happening and she thought it was a nightmare. The applicant woke up a second time for a few seconds and she heard people talking. She did not know at the time, but she now knows, that she was at Blacktown Hospital and the people were doctors discussing performing a caesarean section because she was bleeding and had a traumatic brain injury.
The applicant states that she was not conscious at the time, but she now knows that, she was subsequently transferred to Westmead Hospital and underwent an emergency caesarean section and she also underwent another operation to drain blood and fluid from her head.
The applicant states that she woke up and saw a clear hose draining blood and fluid from her head. The applicant states that she had no idea what was happening and her first thoughts were “freaking out”. Her first reaction was of distress and confusion and she tried to pull out the hose. After a few minutes, she again lapsed into unconsciousness.
The applicant states that when she woke up again, people (probably doctors or nurses) were speaking to her and saying “This is your baby”. She does not remember seeing the baby but she was later told that her baby was put in front of her. She again lost consciousness.
The applicant states that at some point she woke up again and her sister was trying to explain what was happening and her sister was crying.
The applicant states that she felt “petrified” and she thought she was dying. She also thought that her baby was in danger or also dying. Her fear and confusion felt overwhelming.
The applicant states that she remained in hospital for about three weeks and during that time all that she could think about it was that she would die and that her baby would also not make it. The doctors explained to her that her injuries could be permanent and catastrophic and she was scared that her baby would die because he was not full term and her injuries were serious. She did not want to get attached to her baby for that reason.
The applicant stated that after she was discharged from hospital on 25 September 2020, the extent of the applicant’s physical injuries were confirmed. These included right orbit fracture, base of skull fracture and cerebral haemorrhage. The applicant stated that she suffered the following injuries as a result of the incident: constant headaches, neck and back pain; bleeding in the right-side of her brain; skull fractures; aneurysm on the left-side, emergency caesarean section, chest pains, high blood pressure, loss of her sense of smell and taste, post-traumatic stress disorder and mild neurocognitive disorder due to traumatic brain injury.
The applicant stated that she also “kept experiencing the psychological issues I had in hospital” and that they “probably worsened”. The applicant stated that she remains fearful of falling and dying and she has ongoing nightmares and intrusive thoughts about the incident and the days after the incident.
The applicant stated that she has received psychiatric and psychological treatment since the incident. The applicant stated that her psychological condition has significantly detrimentally impacted her living and relationships.

Factual investigation report

The evidence includes a factual report prepared by Insight Intelligence.[6]
[6] Reply, page 68.
In a statement of the applicant dated 22 October 2020 taken by Insight Intelligence,[7] the applicant stated that on 11 September 2020, when the applicant was 38 weeks pregnant, she was performing administrative work at her home for the respondent. She stated that when she walked through the office to the hallway to get her phone, she slipped. She stated that her last recollection was “flying through the air” and that she then awoke in an ambulance for a few seconds and then “blacked out” again.
[7] Reply, page 56.
The applicant stated that the second time that she woke up, she was in the hospital and a lot of doctors around her were talking about doing an emergency caesarean section because of bleeding. She was only awake for a few seconds and then lost consciousness again.
The applicant stated that the third time that she woke up, the doctors and nurses were trying to keep her awake and introduce her to her son. She stated that she was in shock and could not initially believe it.
The applicant stated that as a result of the incident she suffered symptoms which included constant headaches, neck and back pain, bleeding on the right-side of her brain, two skull fractures, caesarian section, chest pains, aneurysm and blood pressure.
The report also included a statement of the applicant’s husband (who is the respondent’s manager).[8]

Treating medical evidence

[8] Reply, page 60.

Dr Richa Rastogi, consultant psychiatrist

In a report dated 23 November 2020,[9] Dr Rastogi diagnosed “Adjustment disorder in the context of traumatic brain injury and PTA”. Dr Rastogi recorded the history of the incident and injury. Dr Rastogi stated that on mental state examination, the applicant “reported grief and loss of her functioning and vocational uncertainty. She has lost smell and taste and feels waste and failure [sic]. She is not working and feels she has lost confidence”.[10]
[9] ARD, page 100.
[10] ARD, page 101.

Dr Mark Dexter, neurosurgeon

In a report dated 12 August 2022,[11] Dr Dexter stated that as a result of the incident on
[11] ARD, page 79.
[12] ARD, page 81.
12 September 2020, the applicant sustained a severe traumatic brain injury, anosmia, significant cognitive impairment and a lumbar disc injury.[12]
Dr Dexter also stated that the applicant’s “traumatic brain injury and the associated cognitive impacts have also resulted in a mood disorder”.[13] Dr Dexter also stated that the applicant “has a reactive depression associated with her significant traumatic brain injury and the impact that it has had upon her life and future employment prospects”. He noted that there was no antecedent history of a mood disorder prior to the incident and traumatic brain injury that was then sustained.[14]
[13] ARD, page 81.
[14] ARD, page 82.

Alethea Tomkins, clinical psychologist

In a report dated 11 July 2023,[15] Ms Tomkins stated that she treated the applicant from
[15] AALD by worker dated 12 July 2023, page 1.
May 2022 until March 2023.
Ms Tomkins stated that the applicant meets the criteria for post-traumatic stress disorder, mild neurocognitive disorder due to traumatic brain injury and adjustment disorder with mixed anxiety and depression.
Ms Tomkins stated that in her opinion the applicant arguably sustained both primary and secondary psychological injuries. Ms Tomkins noted that the applicant reported “ongoing flashbacks, increased anxiety, low mood, difficulty adjusting to her injury and new presentation, difficulties with attachment with her son, trauma around the birth, and difficulties with adjusting to her current work capacity”. She stated:[16]
“It appears that Ms Samaan sustained a primary psychological injury when sustaining a post-traumatic disorder as a result of the event, including the trauma surrounding the birth of her child. Ms Samaan presents with intrusive memories and dreams, avoidance of cues, psychological distress triggered by the impending birth of her second child, marked diminished interest – including with her son (first child), detachment from her son, reduced mood, and increased feelings of guilt. It is also important to note that posttraumatic stress disorder is not a normal sequelae of brain injury.
In addition, it appears that Ms Samaan also sustained a psychological injury secondary to sustaining the traumatic brain injury as a result of the accident. Ms Samaan presents with difficulties with adjusting to her brain injury, changes in circumstances, cognitive changes, changes in work capacity, and she is struggling to accept that she will not go back to her pre-injury work capacity. This difficulty with adjustment has let to reduced mood levels and increased anxiety presentation.
Ms Samaan is also further challenged by her cognitive impairments, and emotional regulation issues that diminish her capacity to reduce the impact of the trauma she is experienced leading to additional ongoing psychological distress. It is important to note that it appears that Ms Samaan is not struggling just due to the brain injury but the actual event/injury itself.”

Clinical records

[16] AALD by worker dated 12 July 2023, page 2.

Clinical records of Blacktown Hospital

A discharge summary dated 25 September 2020,[17] stated that the applicant had been admitted in Blacktown Hospital from 12 September 2020 to 25 September 2020, following a fall with a strike to the back of the head having slipped on a wet floor when she was 38 weeks pregnant. It stated that the applicant underwent caesarean section surgery.
[17] ARD, page 95.
The evidence also includes various other clinical records of the Blacktown Hospital in respect of the applicant’s treatment.[18]
[18] ARD, page 103.

Clinical records of Westmead Private Hospital

The evidence includes various clinical records of Westmead Private Hospital in respect of the applicant’s treatment.[19]
[19] ARD, page 223.
A discharge summary issued by Westmead Private Hospital dated 25 September 2020 recorded that the applicant was admitted as an inpatient from 12 September 2020 to
[20] ARD, page 95.
25 September 2020.[20] The summary states that the applicant, 38 weeks pregnant, presented with vomiting, severe neck pain and occipital headache after a fall with a strike to the back of the head having slipped on a wet floor. The summary records that the applicant suffered a traumatic subarachnoid hemorrhage with a traumatic right frontal haematoma. A CT scan of the brain showed extensive acute haemorrhage in sylvian fissures, basal cisterns and right frontal cerebral sulcit and likely traumatic right frontal haematoma with extension into the subarachnoid space and extra axial cerebrospinal fluid. Angiography showed a left trifurcation aneurysm with impression also of a small daughter sac/aneurysm projecting posteriorly. Bilateral small epidural haematomas were noted secondary to an undisplaced occipital fracture without dural venous sinus thrombosis. The applicant also had bilateral frontal bone fractures including ethmoid bones with a left mastoid effusion and intracranial gas, suggesting occult fracture, and undisplaced transverse fractures through the occipital bone. The applicant underwent caesarean section.

Clinical records of Dr Rastogi and psychologist

The evidence includes various clinical records of Dr Rastogi and a psychologist in respect of the applicant’s treatment.[21]
[21] ARD, page 237.

Clinical records of Dr Bishoy Marcus

The evidence includes various clinical records of Dr Marcus in respect of the applicant’s treatment.[22]
[22] ARD, page 299.

Clinical records of Dr Akram Moussad

The evidence includes various clinical records of Dr Moussad in respect of the applicant’s treatment.[23]
[23] ARD, page 345.

Clinical records of Dr Mark Dexter

The evidence includes various clinical records of Dr Dexter in respect of the applicant’s treatment.[24]
[24] ARD, page 429.

Clinical records of Dr Bishoy Marcus

The evidence includes various clinical records of Dr Marcus in respect of the applicant’s treatment.[25]

Rehabilitation reports

[25] AALD by insurer dated 13 July 2023, page 1.

Moore Rehab

The evidence included various reports by the rehabilitation provider, Moore Rehab.[26]
[26] Reply, page 90.

Pinnacle Rehab

The evidence included various reports by the rehabilitation provider, Pinnacle Rehab.[27]

Independent medical evidence

[27] Reply, page 116.

Dr David Kumagaya, consultant psychiatrist

Dr Kumagaya provided an independent medical opinion, qualified by the insurer.
In a report dated 23 December 2022,[28] Dr Kumagaya stated diagnoses of post-traumatic stress disorder and mild neurocognitive disorder due to traumatic brain injury. Dr Kumagaya stated that the applicant’s prognosis for a full recovery was guarded given the chronicity and enduring severity of her symptomatology.
[28] ARD, page 66.
In a separate report also dated 23 December 2022,[29] Dr Kumagaya stated that the applicant’s psychiatric injury is a primary injury, sustained during her course of work.
[29] ARD, page 74.
In a further report also dated 23 December 2022,[30] Dr Kumagaya stated that he assessed total 17% WPI in respect of psychological injury.
[30] ARD, page 71.
In a report dated 1 May 2023,[31] Dr Kumagaya expressly disagreed with the opinion of
[31] ARD, page 75.
Dr Modem that the applicant’s psychological/psychiatric injury is a secondary psychological injury and that the diagnosis is that of adjustment disorder with mixed anxiety and depression.
Dr Kumagaya stated that during assessment, the applicant had elaborated on a range of psychiatric symptomatology, which were correlative with the Diagnostic and Statistical Manual of the American Psychiatric Association, 5^th edition (DSM-5) diagnosis of post-traumatic stress disorder. Dr Kumagaya stated that the applicant met the required criteria “A” to “H” for post-traumatic stress disorder as follows:
(a)    criterion A was satisfied because the applicant reported that she was directly exposed to serious injury whilst at work as an oral health specialist for the respondent, and she slipped at her work desk and fell backwards, striking her head in the process. As a result of that fall, the applicant sustained serious injuries, which included a right orbital fracture, base of skull fracture, and cerebral haemorrhage and she was also required to undergo an emergency caesarean section;
(b)    criterion B was satisfied because the applicant subsequently experienced the onset of intrusion symptoms, being intrusive and distressing memories and dreams of the accident, psychological distress at exposure to cues that resembled the accident;
(c)    criterion C was satisfied because the applicant subsequently experienced avoidance symptoms, being avoidance of reminders of the accident;
(d)    criterion D was satisfied because the applicant subsequently experienced negative alterations in cognitions and mood, being negative emotional state, difficulty experiencing positive emotions, marked diminished interest and participation in significant activities;
(e)    criterion E was satisfied because the applicant subsequently experienced arousal symptoms, being hyper vigilance, an exaggerated startle response, sleep disturbance and concentration difficulties;
(f)    criterion F was satisfied because the duration of the disturbance was more than one month;
(g)    criterion G was satisfied because the disturbance resulted in clinically significant distress and impairment in social, occupational and other important areas of functioning, and
(h)    criterion H was satisfied because the disturbance was not attributable to the physiological effects of a substance or another medical condition.

Dr Kumagaya specifically addressed Dr Modem’s report dated 13 April 2003.
Dr Kumagaya stated that:[32]
[32] ARD, pages 77 – 78.
(a)    Dr Modem documented the applicant’s experience of “a severe head injury and loss of consciousness” whilst at work; which fulfils the post-traumatic stress disorder DMS-V criterion;
(b)    Dr Modem acknowledged the presence of post-traumatic stress disorder symptoms such as negative alterations in cognitions and moods (“These days, I cannot work more to support my family; my husband is the main breadwinner”, “feeling guilt from the head injury and the inability to hold her child”) in addition to arousal symptoms (“lot of the times [sic] she wakes up upset/crying”);
(c)    Dr Modem acknowledged the applicant’s notable improvement in her mental state at the point of her psychiatric assessment in the domains of her depressive and arousal symptoms (“improved appetite and health eating… improvement in her mood… she can think more clearly… energy levels and motivation have improved… improvement in her confidence… love for shopping – that has returned”);
(d)    Dr Kumagaya disagreed with Dr Modem’s opinion that the applicant did not report any symptoms suggestive of post-traumatic stress disorder rather than that of adjustment disorder with mixed anxiety and depressed mood;
(e)    Dr Kumagaya stated that the applicant’s ongoing physical injuries and their correlative functional impairments “are not causative of [the applicant’s] psychological injury, but rather, continue to act as reminders and cues of her workplace injury (posttraumatic stress disorder criterion B and C), which, in turn, contribute to a perpetuation of her symptoms of posttraumatic stress disorder”, and
(f)    Dr Kumagaya stated that:
“[The applicant’s] posttraumatic stress disorder does not arise as a consequense of, or secondary to, a physical injury. [The applicant’s] psychological injury, posttraumatic stress disorder, is not a secondary psychological injury. [The applicant’s] psychological/psychiatric injury is a primary psychological injury, sustained during the course of her employment with [the respondent].”

Dr Karthik Modem, psychiatrist

Dr Modem provided an independent medical opinion, qualified by the respondent.
In a report dated 13 April 2023,[33] Dr Modem stated a diagnosis of adjustment disorder with mixed anxiety and depression, which was “characterised by the development of emotional/behavioural symptoms in response to grief and loss issues from the sequelae of the head injury”.[34]
[33] Reply, page 30.
[34] Reply, page 37; see also page 41.
Dr Modem stated that in his opinion the applicant suffered from an adjustment disorder with mixed anxiety and depression following limitations in her cognitive and physical abilities and grief and loss issues on the background of the traumatic brain injury. He noted that she reported experiencing loss of independence, self-esteem, physical health, concentration, memory, function and role. On that basis, Dr Modem opined that the applicant had a secondary psychological injury.[35] Dr Modem stated:[36]
“... I believe that the psychological injury she suffered (adjustment disorder) is secondary to the brain injury. I believe the diagnosis is directly related to the head injury and the associated traumatic deliver that she underwent as a consequence of the head injury. If she did not sustain the head injury, it is unlikely that she would have gone through the traumatic postnatal period, resulting in postnatal depression.
The Acquired brain injury resulted in Ms Samaan experiencing neuropsychological issues, that is, cognitive and emotional issues. Anxiety and depression are common comorbidities following acquired/traumatic brain injuries. However, Ms Samaan has significantly improved her psychological symptoms following psychological therapy and a regular antidepressant. The residual psychological symptoms that she is experiencing are in the context of pain (physical pain) and limitations that are associated with the sequelae of the brain injury.”
[35] Reply, page 38.
[36] Reply, page 40.
Dr Modem assessed 8% WPI in respect of psychological injury.[37]
[37] Reply, page 43.
Dr Modem referred to Dr Kumagaya’s report dated 23 December 2022.[38] Dr Modem stated that the applicant’s reported symptoms meet the criteria for an adjustment disorder in the context of a traumatic brain injury. He stated that there was no record of symptoms which met DMS-5 criteria for a post-traumatic stress disorder. Dr Modem also disagreed with
[38] Reply, pages 43 – 45.
Dr Kamagaya’s assessment of WPI.

Dr Mark Sabaz, clinical neuropsychologist

Dr Sabaz provided an independent medical opinion, qualified by the respondent.
Dr Sabaz recorded that the applicant reported symptoms including loss of long-term memory, which he stated “is seen in psychogenic fuge states or that the Diabnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5) calls dissociative amnesia”.
Dr Sabaz diagnosed a significant traumatic brain injury on 11 September 2020 and ongoing neurological deficit. Dr Sabaz was unable to provide further objective opinion on the nature and extent of any residual cognitive impairment following that injury. Dr Sabaz stated that there were aspects of the applicant’s subjective report which were inconsistent with an organic, neurological presentation. He stated that her subjective report is more like what is seen in a psychogenic fugue state or what is now diagnosed as dissociative amnesia. He stated that the applicant’s test performances were strongly indicative of a performance profile that is suboptimal. He also stated that the applicant demonstrated a pattern of psychometric test performances that does not make neuropsychological sense. On that basis, Dr Sabaz concluded that the applicant’s neuropsychological impairments could not be objectively known.[39] Dr Sabaz stated that potential dissociative amnesia (which needs diagnosis by a psychiatrist) “may relate to the subjective report of her elevated anxiety levels post-injury”.[40]
[39] Reply, pages 25 – 26; see also pages 28 – 29.
[40] Reply, page 29.

Dr Joseph Scoppa, ear, nose and throat physician

Dr Scoppa provided an independent medical opinion, qualified by the applicant.
Dr Scoppa diagnosed traumatic anosmia (total loss of the sense of smell), which he believed was caused by the incident.[41] Dr Scoppa assessed 5% WPI in respect of loss of smell.[42]
[41] ARD, page 28.
[42] ARD, page 33.

Dr Thandavan B Raj, ear nose and throat physician

Dr Thandavan provided an independent medical opinion, qualified by the respondent.
Dr Thandavan diagnosed hyposmia (decreased sense of smell), which he believed was caused by the incident and head injury.[43] Dr Thandavan assessed 6% WPI, calculated on the basis of 3% for hyposmia and 3% for loss of taste.[44]
[43] Reply, page 17.
[44] Reply, page 19.

Associate Professor Paul Darveniza, neurologist

Dr Darveniza provided an independent medical opinion, qualified by the applicant.
Dr Darveniza diagnosed a severe head injury with mild cognitive dysfunction, with some frontal lobe features and the total loss of the sense of smell.[45]
[45] ARD, page 37.
Dr Darveniza assessed 13% WPI, calculated on the basis of 10% WPI in respect of impairment of the forebrain and 3% WPI in respect of sleep and arousal disorders.[46]
[46] ARD, page 40.

Dr Grant Walker, neurologist

Dr Walker provided an independent medical opinion, qualified by the respondent.
Dr Walker diagnosed traumatic brain injury.[47] Dr Walker agreed with Dr Darveniza’s assessment of WPI.[48]
[47] Reply, page 12.
[48] Reply, page 13.

Dr Eugene Gehr, orthopaedic surgeon

Dr Gehr provided an independent medical opinion, qualified by the applicant.
Dr Gehr recorded a history that the applicant “has a reactive depression associated with her significant traumatic brain injury and the impact that it has had upon her life and future employment prospects”.[49]
[49] ARD, page 44.
Dr Gehr diagnosed severe brain injury following the incident and cervical spine soft tissue injury with guarding and dysmetria.[50]
[50] ARD, page 61.
Dr Gehr assessed 8% WPI in respect of the cervical spine and lumbar spine.[51]
[51] ARD, page 65.

Dr Stephen Rimmer, orthopaedic surgeon

Dr Rimmer provided an independent medical opinion, qualified by the respondent.
Dr Rimmer diagnosed musculoskeletal strain of the cervical spine and the lumbar spine. He considered that the incident was a substantial contributing factor to the applicant’s injury.[52]
[52] Reply, page 5.
Dr Rimmer considered that the applicant had made a complete recovery and he assessed 0% WPI in respect of the cervical spine and 0% WPI in respect of the lumbar spine.

SUBMISSIONS

Counsel’s submissions were recorded.

Applicant’s submissions

Mr de Meyrick’s submissions on behalf of the applicant may be summarised as follows:
(a) Mr Meyrick submitted that s 65A of the 1987 Act is a disentitling provision, which provides that no compensation is payable in respect of a secondary psychological injury, however the default position under that section is that a psychological injury is a primary psychological injury unless it is a secondary psychological injury;
(b)    Mr Meyrick stated that the applicant relied on the authorities of State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 and Bunce v Sydney Traffic Control [2022] NSWPIC 66;
(c)    Mr Meyrick submitted that the respondent’s assertion that there is a secondary psychological injury or condition is in the nature of a defence and the respondent effectively bears the onus of proof in that regard;
(d)    Mr Meyrick submitted that there is no reason to doubt the applicant’s evidence, which should be accepted. On that basis, the Commission should accept that in the incident the applicant sustained a devastating injury and suffered immediate psychological effects of the injury, which continue;
(e)    Mr Meyrick submitted that the evidence demonstrates that the applicant continues to experience ongoing psychological symptoms, which satisfy the criteria for post-traumatic stress disorder;
(f)    Mr Meyrick submitted that the evidence of Dr David Kumagaya is persuasive and should be accepted in relation to a diagnosis of a primary psychiatric injury, being post-traumatic stress disorder;
(g)    Mr Meyrick noted anomaly in the reports of Dr Richa Rastogi and submitted that Dr Rastogi’s second report recorded almost immediate psychological symptoms which are consistent with a diagnosis of a primary psychiatric injury, being post-traumatic stress disorder;
(h)    Mr Meyrick submitted that the evidence of treating clinical psychologist, Althea Tomkins also supports the diagnosis of a primary psychiatric injury;
(i)    Mr Meyrick submitted that the evidence of Dr Karthik Modem is not persuasive and should not be accepted because Dr Modem did not say that the applicant was asked about nightmares and the applicant’s evidence is that she did experience nightmares, and
(j)    Mr Meyrick submitted that the evidence as a whole supports a finding of a primary psychological injury and the matter should be referred to a Medical Assessor for assessment of WPI.

Respondent’s submissions

Ms Balendra’s submissions on behalf of the respondent may be summarised as follows:
(a)    Ms Balendra confirmed that, pursuant to Regulation 44 of the Workers Compensation Regulation 2016, the respondent does not rely on the report of
Dr Yye Chong (Olivia) Lee;[53]
(b)    Ms Balendra agreed that Mr Meyrick referred to appropriate law regarding the determination of the present matter;
(c)    Ms Balendra stated that the respondent acknowledges that the applicant sustained a significant accident and physical injury in the incident;
(d)    Ms Balandra referred to various parts of the evidence of Dr Modem and submitted that Dr Modem’s evidence is persuasive and should be accepted;
(e)    Ms Balendra submitted that Dr Rastogi’s evidence presented a “confused” diagnosis and should not be accepted, and
(f)    Ms Balendra submitted that the evidence of Dr Modem should be preferred to the evidence of Dr Kumagaya.
[53] Reply, page 47.

Applicant’s submissions in reply

Mr de Meyrick’s submissions in reply on behalf of the applicant may be summarised as follows:
(a)    Mr Meyrick submitted that the evidence of the treating doctors records psychological symptoms which are consistent with that described in the applicant’s evidence and there is no cogent reason why the applicant’s evidence should not be accepted in that regard;
(b)    Mr Meyrick submitted that the applicant’s psychological symptomatology is in keeping with that recorded by Dr Kumagaya and supports his opinion, and
(c)    Mr Meyrick submitted that the reported losses recorded by Dr Modem do not necessarily provide compelling evidence of causation being a physical injury rather than the trauma of the incident.

FINDINGS AND REASONS

The law

Section 9(1) of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the 1987 Act.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4     Definition of ‘injury’
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 66(1) of the 1987 Act states:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note –
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Section 65A of the 1987 Act makes special provision in relation to compensation for permanent impairment for psychological and psychiatric injury and relevantly states:
“65A Special provisions for psychological and psychiatric injury
(1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note –
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65(2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement to be determined by the Commission.
Note –
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injuries will be assessed together as one injury, but separately from any physical injury.
(5)     In this section –
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to a physical injury.”
Section 11A(3) of the 1987 Act defines “psychological injury” as follows:
“(3) A 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.”
In Kooragang, Kirby P (as he then was) stated at 463:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question of whether the dispute of incapacity or death ‘resulted from’ the work injury which is impugned.”
In RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44 (Watkins), Deputy President Roche stated:
“The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203].”
The meaning of primary psychological injury and secondary psychological injury in the context of s 65A of the 1987 Act was considered by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur):[54]
“I am of the view that the definition of secondary psychological injury in s 65A of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where “injury” appears in the phrases, “secondary psychological injury”, “primary psychological injury” and “physical injury” it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.”
[54] At [20].

In Kaur, Campbell J described s 65A(1) as a disentitling provision, as it uses similar language that appears in ss 9A and 11A. He stated:
“Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.”
In Bunce v Sydney Traffic Control [2022] NSWPIC 66 at [61], Member Wright accepted that the respondent’s assertion that there is a secondary psychological injury is in the nature of a defence and the respondent bears the onus of proof in that regard.

Consideration

The respondent accepts that the applicant has a psychological disorder.
Pursuant to 65A(5) of the 1987 Act “primary psychological injury” means an injury which is not a secondary psychological injury. Further, a “secondary psychological injury” means a psychological injury to the extent that it arises as a consequence of, or secondary to a physical injury.
In determining whether the accepted psychological disorder is a primary psychological injury, it is necessary to determine the cause of the psychological disorder and whether it arises as a consequence of, or secondary to, the physical injury.
The independent medical expert, Dr Modem, diagnosed a secondary psychological injury, being adjustment disorder with mixed anxiety and depression, which he considers to be in response to grief and loss issues from the sequelae of the head injury. Dr Modem stated that the acquired brain injury resulted in the applicant experiencing cognitive and emotional issues. Dr Modem stated that anxiety and depression are common comorbidities following traumatic brain injuries and that the applicant’s psychological symptoms had significantly improved following psychological therapy and a regular antidepressant. Dr Modem opined that the applicant’s residual psychological symptoms are in the context of physical pain and limitations that are associated with the sequelae of the brain injury. Dr Modem stated that the applicant’s reported symptoms meet the criteria for an adjustment disorder in the context of a traumatic brain injury. Dr Modem stated that there was no record of symptoms which met DMS-5 criteria for a post-traumatic stress disorder however he did not set out nor explicitly consider those DMS-5 criteria in detail.
However, the independent medical expert, Dr Kumagaya, diagnosed a primary psychological injury, being post-traumatic stress disorder in addition to a mild neurocognitive disorder due to traumatic brain injury. Contrary to Dr Modem’s assessment, Dr Kumagaya stated that during assessment, the applicant had elaborated on a range of psychiatric symptomatology, which were correlative with the DSM-5 diagnosis of post-traumatic stress disorder.
Dr Kumagaya explained in detail how he believed the applicant met each the required DMS-5 criteria “A” to “H” for post-traumatic stress disorder.
In relation to DSM-5 criterion A for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion A was satisfied because the applicant reported that she was directly exposed to serious injury in the incident when she slipped and fell, striking her head in the process and, as a result of that fall, the applicant sustained serious injuries, which included a right orbital fracture, base of skull fracture, and cerebral haemorrhage and she was also required to undergo an emergency caesarean section.
In that regard, the applicant’s evidence is not challenged and the factual circumstances of the incident is not in dispute. On that basis, I accept that on 11 September 2021, the applicant was 38 weeks pregnant and performing administrative work for the respondent at her home when she went to get her mobile phone which was charging in another room. The applicant slipped and fell on the floor, striking her head.
The treating medical evidence including Dr Modem, documented that the applicant sustained a severe head injury and loss of consciousness from the incident. It is clear from the consistent medical evidence, and not in dispute, that the applicant sustained significant physical injuries in the incident, which included traumatic brain injury, fractures to her skull and right eye socket, cerebral haemorrhage and emergency caesarean section.
The applicant’s consistent evidence is that her last recollection was flying through the air prior to striking her head. When the applicant woke up, she was in an ambulance and she was awake only briefly before she fell unconscious again. When the applicant woke up the second time, she was in hospital and a lot of doctors were around her and talking about performing an emergency caesarean section because of bleeding and she was again awake only briefly before she fell unconscious again. When the applicant woke up the third time, the hospital staff were trying to keep her awake and introduce her to her son. The applicant’s evidence is that, when she resumed consciousness immediately following the incident, she felt “petrified”, confused and overwhelmed and she then feared that she and her child would die.
It is not in dispute and I accept as a matter of common sense having regard to the circumstances of the incident, that the applicant would have experienced the incident as a deeply traumatic event and that she would have experienced significant confusion, overwhelm and fear for the safety of herself and her first child.
In relation to DSM-5 criterion B for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion B was satisfied because the applicant subsequently experienced the onset of intrusion symptoms, being intrusive and distressing memories and dreams of the accident, psychological distress at exposure to cues that resembled the accident.
In that regard, the applicant’s evidence is that she continues to experience the psychological issues that she felt in hospital and that they have worsened and that she continues to experience fear, intrusive thoughts and nightmares of falling and dying.
The applicant’s evidence in that regard is corroborated by the evidence of her treating clinical psychologist, Ms Tomkins, who provided regular clinical psychology therapy treatment over a period from May 2022 until 24 March 2023. Ms Tomkins recorded that the applicant reported ongoing flashbacks, intrusive memories and dreams and trauma around the birth of her son.
In relation to DSM-5 criterion C for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion C was satisfied because the applicant subsequently experienced avoidance symptoms, being avoidance of reminders of the accident. Again, this is consistent with the evidence of the applicant’s treating clinical psychologist, Ms Tomkins, who recorded that the applicant experienced avoidance of cues, difficulties with attachment of her first child and psychological distress triggered by the impending birth of her second child.
In relation to DSM-5 criterion D for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion D was satisfied because the applicant subsequently experienced negative alterations in cognitions and mood, being negative emotional state, difficulty experiencing positive emotions, marked diminished interest and participation in significant activities.
In that regard, the applicant’s evidence and the medical evidence consistently demonstrates that the applicant subsequently experienced negative mood and emotional state. Dr Modem acknowledged the presence of negative alterations in cognitions and moods.
In relation to DSM-5 criterion E for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated criterion E was satisfied because the applicant subsequently experienced arousal symptoms, being hyper vigilance, an exaggerated startle response, sleep disturbance and concentration difficulties. This is consistent with the evidence of Ms Tomkins who recorded that the applicant experienced dreams and nightmares and psychological distress triggered by the impending birth of her second child.
In relation to DSM-5 criterion F for diagnosis of post-traumatic stress disorder, Dr Kumagaya statet that criterion F was satisfied because the duration of the disturbance was more than one month. Again, this is consistent with the evidence of Ms Tomkins who treated the applicant for almost one year.
In relation to DSM-5 criterion G for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion G was satisfied because the disturbance resulted in clinically significant distress and impairment in social, occupational and other important areas of functioning. This is consistent with the applicant’s evidence and the evidence of Ms Tomkins in relation to the significant impact of the applicant’s psychological distress on her functioning.
In relation to DSM-5 criterion H for diagnosis of post-traumatic stress disorder, Dr Kumagaya stated that criterion H was satisfied because the disturbance was not attributable to the physiological effects of a substance or another medical condition. In that regard, I accept that there is no evidence of any relevance substance or other significant medical condition. There is no evidence that the applicant had a psychological condition prior to the incident.
Dr Kumagaya expressed the opinion that the applicant’s ongoing physical injuries and their correlative functional impairments were not causative of the applicant’s psychological injury, but rather, continue to act as reminders and cues of her workplace injury, which, in turn, contribute to a perpetuation of her symptoms of post-traumatic stress disorder.
Ms Tomkins expressed the opinion that the applicant meets criteria for both post-traumatic stress disorder and adjustment disorder with mixed anxiety and depression, in addition to mild neurocognitive disorder due to traumatic brain injury. Ms Tomkins made it clear that, in her opinion, the applicant’s psychological condition was caused by the actual incident itself and not just due to the brain injury. Ms Tomkins stated that in her view the applicant’s cognitive impairments and emotional regulation issues diminish her capacity to reduce the impact of the trauma that she sustained leading to ongoing psychological distress.
Consultant psychiatrist, Dr Rastogi, diagnosed adjustment disorder in the context of traumatic brain injury and “PTA”, which I understand to be an abbreviation for post-traumatic amnesia. Dr Rastogi recorded the applicant’s reported grief and loss of her functioning and vocational uncertainty, loss of sense of smell and taste, feeling of failure and loss of confidence. Dr Rastogi did not specifically address the various DSM-5 criteria for diagnosis of post-traumatic stress disorder.
Treating neurosurgeon, Dr Dexter treated the applicant’s traumatic brain injury and the associated aneurysm. Dr Dexter recorded that the applicant has a reactive depression associated with her significant traumatic brain injury and the impact that it has had upon her life and future employment prospects. Dr Dexter noted that formal neuropsychological assessments are not a component of neurosurgical practice and he did not specifically address the various DSM-5 criteria for diagnosis of post-traumatic stress disorder.
However, clinical neuropsychologist, Dr Sabaz, recorded that the applicant reported symptoms, including loss of long-term memory, are somewhat inconsistent with an organic, neurological presentation, and are more like what is seen in a psychogenic fugue state which is potentially indicative of dissociative amnesia.
Having regard to the evidence as a whole, I prefer and accept the evidence of Dr Kumagaya. As I have set out above, Dr Kumagaya provided a thorough and detailed consideration of the applicant’s psychological history in the context of her ongoing symptoms, which is consistent with the evidence provided by the applicant and her long-term treating clinical psychologist. Having regard to the deeply traumatic nature of the incident when the applicant was 38 weeks pregnant, I am satisfied that Dr Kumagaya’s opinion is consistent with a commonsense, logical and likely course of events as a result of the incident.
Having regard to the evidence as a whole, I am satisfied that the applicant does experience psychological symptoms of a post-traumatic stress disorder, related to the incident and in the context of the applicant’s experience of the incident as a traumatic event and I accept
Dr Kumagaya’s diagnosis of post-traumatic stress disorder.
On that basis, I accept that the applicant has a psychological injury within the meaning of
s 11A(3) of the 1987 Act of a post-traumatic stress disorder arising from the incident. I am satisfied that there is a causal chain between the incident and the psychological injury and that the psychological injury is a primary psychological injury within s 65A of the 1987 Act.
Accordingly, I am satisfied that the applicant’s psychological injury may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act.
The respondent accepts that the applicant sustained physical injury, with a date of injury of 11 September 2020.
In the circumstances, it is appropriate to remit the matter to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment.
I note that, as the applicant has sustained a primary psychological injury and a physical injury arising out of the same incident, s 65A(4) of the 1987 Act will apply in relation to the assessment of the degree of permanent impairment and the applicant’s entitlement to compensation.

SUMMARY

I determine that:
(a) the applicant’s psychological injury is a “primary psychological injury” pursuant to s 65A of the 1987 Act that may give rise to a claim for permanent impairment compensation under s 66(1) of the 1987 Act.
I order that:
(a) the lump sum claim is remitted to the President for referral to a Medical Assessor for assessment.

[2023] NSWPIC 405

10 August 2023