Secretary, Department of Education v Harm - [2025] NSWPICPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v Harm [2025] NSWPICPD 13
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Meral Harm
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-W8175/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	20 February 2025
ORDERS MADE ON APPEAL:	1. If necessary, leave to appeal the Member’s order remitting the respondent’s claim for whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 to the President for referral to a Medical Assessor is granted. 2. The Member’s Certificate of Determination dated 4 March 2024 is revoked. 3. The matter is remitted to a different non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – failure to determine a substantial clearly articulated argument – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Balendra, counsel
Bartier Perry Lawyers
Respondent:
Mr C Lehmann, solicitor
Gerard Malouf & Partners
DECISION UNDER APPEAL:	Harm v Secretary, Department of Education [2024] NSWPIC 101
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	4 March 2024

INTRODUCTION AND BACKGROUND

Ms Meral Harm (the respondent) suffered an injury in the course of her employment as a classroom teacher with the Secretary, Department of Education (the appellant). The injury was diagnosed by her treating surgeon, Associate Professor Daniel Novakovic, ear, nose and throat surgeon, as muscle tension dysphonia with vocal fold inflammation (a speech/voice disorder). Liability for the injury with a deemed date of injury of 13 October 2017 was accepted by the appellant.
The respondent subsequently developed a major depression with anxiety, which both parties accepted was caused by the stress associated with her speech/voice disorder and by the loss of the respondent’s employment and was thus a secondary psychological condition.
The respondent also developed a sleep/arousal disorder, otherwise described as insomnia.
On 13 October 2022, the respondent, through her legal representatives, made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 21% whole person impairment, consisting of 10% whole person impairment in respect of the voice/speech disorder and 12% whole person impairment resulting from the sleep/arousal disorder.
The appellant issued a Notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for the claim. The basis for the dispute was that:
(a) the respondent’s whole person impairment in respect of the voice/speech disorder was less than 11% and was thus below the threshold to be entitled to a lump sum claim,[1] and
(b) the claim in respect of the sleep disorder for 12% whole person impairment could not be brought because the sleep/arousal disorder was consequent upon the respondent’s psychological injury, which was secondary to the voice/speech disorder.
[1] Section 66(1) of the 1987 Act.
The appellant referred to s 65A(1) of the 1987 Act, which provided that no compensation was payable for permanent impairment that resulted from a secondary psychological condition.[2]
[2] Application to Resolve a Dispute (ARD), pp 10–16.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) and the dispute proceeded to arbitration. The Member issued a Certificate of Determination dated 4 March 2024 in which she found in favour of the respondent and remitted the claim to the Commission’s President for referral to a Medical Assessor for assessment of the whole person impairment.
The appellant appeals the Member’s decision. The respondent also appealed the decision (appeal A2-W8175/23), however her appeal was lodged outside of the 28 day time frame within which an appeal can be lodged so she sought an extension of time to lodge the appeal before her appeal can proceed.
As both appeals are interrelated, my decision in this appeal should be read together with my decision in Harm v Secretary, Department of Education.[3]
[3] [2025] NSWPICPD 14 (Harm).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined on the basis of the documentary evidence and their written submissions. I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents and their submissions. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The parties have indicated that the decision is not interlocutory in nature, so that leave to appeal is not required.
Section 352(3A) of the 1998 Act provides that there is no appeal from an interlocutory decision unless the Commission is of the opinion that determining the appeal is “necessary or desirable for the proper and effective determination of the dispute”. A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined. It is thus necessary to determine whether the Member’s orders and determinations, including the referral of the claim for a lump sum for assessment by a Medical Assessor, are interlocutory in nature.
In Licul v Corney,[4] Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutoryis to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[5]
[4] [1976] HCA 6 (Licul).
[5] Licul, [11].
The observations of Gibbs J as to what constitutes an interlocutory order need to be considered in the context of the legislative and procedural framework of the Commission. In this case, the Member made a determination in relation to whether the respondent suffered injury.
In my view, it is clear that the Member’s finding as to injury finally determined the rights and liabilities of the parties and was thus final and not interlocutory. The respondent’s lump sum entitlement pursuant to s 66 of the 1987 Act however is yet to be determined and, in those circumstances, the order referring that claim to the Medical Assessor may be interlocutory in nature.[6]
[6] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, per McColl JA, [12].
Given that this appeal in any event involves a consideration of whether the Member erred in her final determination as to injury, if that determination is erroneous the referral to a Medical Assessor would be futile. I am of the view that leave to appeal the order to refer the lump sum claim for assessment of the respondent’s whole person impairment, if necessary, should be granted.

THE EVIDENCE

The respondent’s statement evidence

The respondent provided a statement dated 12 September 2023.[7] She advised that she commenced working with the appellant as a teacher in 2004 and in June 2014 commenced teaching at Hoxton Park Public School (Hoxton Park). She was employed on a full-time basis, although in 2017 she worked on reduced hours while she was on part-time maternity leave.
[7] ARD, pp 17–22.
The respondent said that during 2014 and from 2018 to 2019 she was required to teach two classes in one open classroom and there were several difficult and demanding students in the class. She stated that while performing her teaching duties she was required to raise her voice and speak loudly for extended periods of time which significantly strained her voice box and vocal cords. The respondent said that in 2017, because she had a difficult and unsettled class, she asked for additional staff support, however, that was not forthcoming. She explained that, as an example, two male students in the class started to fight, attempting to strangle each other. She stated that she had to raise her voice to attempt to get them to stop. She added that one of the students was very disruptive and she would have to raise her voice to him often.
The respondent advised that when she requested an additional staff member, the school principal (the principal) accused the respondent of obviously having lost her passion for teaching. She indicated that she had to constantly raise her voice so that the class could hear her but mainly it was to maintain control of the classroom. She reported that as the teaching year progressed, her voice and throat deteriorated. She described the principal as angry, aggressive, belligerent and rude, disrespectful and abrupt. The respondent indicated that she felt enormous emotional stress because of this victimisation and other issues at the school.
The respondent indicated that by the end of the third term, her throat was constantly sore and her voice raspy and husky. She consulted her general practitioner, Dr Muhammad Yaseen Memon, who advised her that her voice and vocal tract issues were a consequence of her teaching duties, but she continued to work through the fourth term. She said her vocal condition deteriorated to the point that she was unable to continue her duties, and her general practitioner certified her as having no capacity for work. The respondent said that she formally reported her injury on about 13 October 2017 to the deputy principal and made a claim for workers compensation, which was accepted.
The respondent advised that she was referred to Dr Nirmal Ananda, ear, nose and throat specialist, who found that her vocal tract nodules were very swollen and diagnosed her as suffering laryngitis. She reported that her condition improved over the school holidays, and she returned to teaching in 2018, working reduced hours with the help of a job share teacher. She advised that the job share teacher then took time off, so she had to work for five days per week for most of term 1.
The respondent stated that in term 3 of 2018, she was provided with a microphone which gave her some relief, but the issue with her voice and throat continued to deteriorate.
The respondent reported experiencing continuing interpersonal difficulties with the principal, who, she said, called her into her office late in term 4 of 2018, about a week after she had submitted a certificate of capacity, and questioned the validity of the certificate and made criticisms about how one could produce a certificate in order to avoid duties. The respondent said that she consulted a counsellor on the last day of term because she was so upset about the principal’s behaviour.
The respondent indicated that despite these difficulties, she returned to work at the school in 2019, working two days per week and using a microphone. She said that she made a formal application for a compassionate transfer to a different school on 29 March 2019 and worked at that school for a few casual days but was not given a transfer.
The respondent described the onset of symptoms of reflux in 2018 and 2019, causing her to have difficulties swallowing and experiencing dry retching and vomiting. She said that she had previously suffered reflux in 2015, which resolved after surgery, and the new symptoms were more regular and more severe. She was of the view that her vocal cords and the stress she was under caused the condition.
The respondent reported that she underwent surgery to her vocal tract at the hands of Dr David Pohl, ear, nose and throat surgeon, which improved her voice, but it did not recover to a normal level. She said she returned to teaching four days per week until 23 September 2019. She indicated that on that day she was teaching a very loud and noisy class and had to regularly raise her voice in order to keep the attention of the students. She said that by the end of the day she had lost her voice and her throat was burning, which caused her extreme distress. She stated that she then had to use a microphone again but her symptoms of a painful throat and an ability to only talk in a whisper continued.
The respondent advised that she consulted a speech therapist who recommended she consult A/Prof Novakovic, an ear, nose and throat specialist with expertise in vocal issues, who recommended that she cease work and performed surgery to her vocal tract. She indicated that following the surgery she was unable to speak for a time and then could only whisper, and her voice was husky and rough. She said that she was extremely upset and depressed. She said that she took leave in order to take up an easier teaching role with only eight students and in May 2020 applied for a scholarship to study online at Macquarie University. The respondent said that the scholarship was approved but it was subsequently withdrawn as she had a workers compensation claim. She stated that she was cleared to work five days per week in September 2020 and approached the principal about working in a support teacher role, but the principal advised that it was not an option. She said that she returned to work at both Hoxton Park but also at Greenway Park Public School (Greenway Park) which was a much more supportive and less challenging environment.
The respondent indicated that she was under stress as a result of her injury and she was taking medication that caused abdominal discomfort and severe reflux, and she underwent a repair of a hiatus hernia, gastroenterostomy and laparoscopy.
The respondent said that in 2021, she was advised that she was return to work at Hoxton Park in her substantive role. She said she requested that she be able to split her teaching by working three days at Hoxton Park and two days at Greenway Park, however ultimately, the principal of Hoxton Park responded and told the respondent she was required to return to her substantive school in her full-time role, or relinquish her position as a permanent employee. The respondent said that she had not been cleared to return to full-time work and she did not have the capacity to perform the full-time role, so she gave up her position and took up a temporary teaching role at Greenway Park during 2022 and 2023.
The respondent described her ongoing difficulties with her voice, particularly after a day of teaching, and reported that she was experiencing difficulties getting to sleep and staying asleep, and she had become anxious and depressed. She said that losing her voice and her teaching career had a huge impact on her and she had developed chronic anxiety and periods of deep depression.

The medical evidence

Dr Muhammad Yaseen Memon, general practitioner

The clinical notes recorded by Dr Memon of the All Care Carnes Hill Medical Centre commence from 14 October 2017.[8] Relevantly the notes disclose that:
(a)    the respondent attended Dr Muhammad Yaseen Memon, general practitioner, on 18 November 2018 complaining of shortness of breath, being constantly tired and snoring at night;[9]
(b)    on 14 March 2019, the respondent attended Dr Memon, reporting that she was stressed and angry, “the boss” made her feel incapable, she was losing sleep, teary and had lost confidence;[10]
(c)    on 24 March 2019, the respondent reiterated her complaints, Dr Memon created a mental health plan and he referred her for psychological treatment;[11]
(d)    on 20 August 2020, the respondent attended Dr Memon to discuss the results of a sleep study undertaken on 3 August 2020 but also complained of anxiety, losing sleep, crying, and stress and anxiety related to work in that she could not perform classroom teaching duties. Dr Memon prescribed antidepressants;[12]
(e)    the respondent attended Dr Memon on 22 February 2021 complaining of insomnia and difficulty sleeping, and of experiencing anxiety issues and issues with the principal;[13]
(f)    the respondent continued to complain of sleep issues on 14 March 2021, 21 March 2021 (when the respondent reported that the symptoms arose after her resignation from her appointment and the principal refused to allow her to work in accordance with her certificate of capacity), and on 22 March 2021 and 29 March 2021,[14] and
(g)    the respondent complained of anxiety issues on 29 March 2021 and Dr Memon referred the respondent to a psychiatrist.
[8] ARD, p 205.
[9] ARD, p 224.
[10] ARD, p 226.
[11] ARD, p 227.
[12] ARD, pp 251–252.
[13] ARD, p 261.
[14] ARD, pp 262–265.
Dr Memon was requested by the appellant to provide information in relation to the respondent’s sleep disorder. He responded on 3 December 2022.[15] He indicated that the respondent first complained of sleep disturbance on 22 February 2021. He said that she reported ongoing sleep issues and was trialling different medications to address the issue. He advised that the respondent was experiencing anxiety and depression, and the sleep issues were related to that disorder.
[15] Respondent’s Reply to Application to Resolve a Dispute (reply), pp 28–30.

Associate Professor Daniel Novakovic

The respondent commenced consulting A/Prof Novakovic in October 2019. It is not necessary to record a summary of all of the treating doctor’s medical reports directed to the respondent’s various general practitioners of the All Care Carnes Hill Medical Centre, given the limited issues on appeal. It is relevant, however, to observe that on 17 March 2021, A/Prof Novakovic reported to the respondent’s general practitioner, Dr Shabana Bokhari as follows:
“This lady was reviewed by Telehealth consultation today. She reports that our recommendations of small group and one-on-one teaching in order to prevent further damage to her voice were not implemented by her principal coming into the new school year and that she was advised [a] return to full classroom teaching was required. Accordingly she felt it was necessary to resign from her position for fear of aggravation of her medical condition.
She has been working elsewhere in a one-on-one teaching environment. For the most part her voice manages okay with this but there was a period where she was required to increase vocal load at the beginning of term and she has felt a deterioration in her voice accordingly.
She reports significant stress and anxiety about the way in which her work duties were managed with the previous employer and I have advised her to discuss this with her case manager in order to reach a satisfactory resolution. I would be happy to review her once again from the voice point of view to help guide further management and response to treatment. Maintenance speech therapy is indicated.”[16]
[16] ARD, p 55.
On 17 June 2021, A/Prof Novakovic reported to Dr Bokhari that the respondent had been prescribed Amitriptyline to be taken nightly to assist with her sleep. He advised that he “certainly” supported a trial of increasing the dose to help with the respondent’s laryngeal hypersensitivity.[17]
[17] ARD, pp 53–54.

On 15 February 2022, A/Prof Novakovic reported to Dr Memon that the respondent continued to work in a small group teaching environment and at the end of the day, her voice would tighten, and she was also struggling with her vocal issues outside of the school environment. He noted that the respondent was “currently not taking amitriptyline and her sleep quality has also deteriorated. She is having some cyclical thoughts about losing her voice and losing her teaching role.”[18]
[18] ARD, p 51.

Dr Ken Howison, ear, nose and throat surgeon

The respondent’s legal representatives arranged for her to be medically examined by Dr Howison. Dr Howison provided a report dated 23 November 2021.[19] He took a history of the respondent’s employment as a teacher, which included year 6 face to face teaching, and teaching dance and acting at Hoxton Park. He noted that the respondent was diagnosed with muscle tension dysphonia and vocal fold inflammation, with a deemed date of injury of 13 October 2017 and that the respondent’s claim for compensation in respect of that condition was accepted.
[19] ARD, pp 44–47.
Dr Howison reviewed the treatment provided to the respondent and recorded that the respondent’s condition worsened on 23 September 2019 after teaching four days per week face to face in an open classroom, which prompted a referral to A/Prof Novakovic.
Dr Howison confirmed the diagnosis of muscle tension dysphonia and chronic vocal fold scar tissue and opined that the respondent’s employment was a substantial contributing factor to the injury. He advised that the respondent suffered from insomnia and anxiety, which she attributed to her vocal problems. He declined to comment on those issues because he considered they were outside of his expertise.
In a separate report of the same date, Dr Howison provided an assessment of the respondent’s whole person impairment. He assessed the respondent’s whole person impairment arising from her voice/speech injury to be 10%, in accordance with Table 11-9 of Chapter 11 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fifth Edition (AMA 5 Guides).

Dr Thandavan B Raj, otolaryngologist and ear, nose and throat surgeon

Dr Raj was asked by the appellant’s legal representative to examine the respondent and provide an opinion in respect of the appellant’s liability as well as to provide an assessment of the respondent’s whole person impairment in respect of her vocal issues. He reported on 15 December 2022.[20] He took a consistent history of the respondent’s teaching background and the onset of the respondent’s vocal difficulties. He reviewed the treatment provided to the respondent and assessed the respondent’s current symptoms.
[20] ARD, pp 25–32.
Dr Raj diagnosed muscle tension dysphonia, resulting from the requirements of her teaching duties. He assessed the respondent’s voice audibility, intelligibility and functional efficiency and assessed the respondent as having 12% impairment of voice and/or speech.
Following receipt of Dr Raj’s report, the appellant’s legal representatives corresponded with Dr Raj, indicating that while he assessed the respondent as suffering 12% impairment, in accordance with Table 11-9 of Chapter 11 of the AMA 5 Guides, the assessment, when converted to whole person impairment, would be either 4% or 5%. In correspondence dated 15 February 2023, Dr Raj corrected the assessment to read between 4% and 5 % whole person impairment.

Dr Iftikhar Ahmad, psychiatrist

The respondent was referred to Dr Ahmad by Dr Memon. Dr Ahmad reported to Dr Memon on 8 April 2021.[21] He noted that the respondent had worked as a permanent teacher for 17 years but since 2018 had experienced difficulties with her vocal cords, including having to undergo two surgeries in 2019. He further noted that the difficulties caused the respondent to reduce her teaching load, but she received little support from the school or the appellant. Dr Ahmad said that the respondent advised that the principal could have offered her a different role but had refused to implement the available options, which caused the respondent to resign her position on 25 January 2021.
[21] ARD, pp 65–68.
Dr Ahmad took the history that on 15 January 2021, the respondent received a telephone call from the appellant, in which she was told that she must return to class teaching duties and from that time she experienced sleep disturbance. Dr Ahmad noted that the respondent then found a position with the appellant as a support teacher in a kindergarten class for ten weeks, which she enjoyed, however, she continued to experience disturbed and interrupted sleep (which was of concern for her), anxious mood, lack of enjoyment, low motivation, and concern as to her future. Dr Ahmad said that the respondent was ruminating about her future and the way she was treated by the appellant and was cursing herself for resigning.
Dr Ahmad observed that the respondent had no past psychiatric history. He recommended a treatment regime and diagnosed the respondent as suffering from a Major Depressive Disorder with anxiety symptoms.
Dr Ahmad reported to Dr Memon again on 10 June 2021, when the respondent presented for review of her treatment and medication. He confirmed that the respondent continued to experience low mood, sadness and difficulty with speech, and as a consequence was struggling with her school duties.[22]
[22] Reply, pp 43–44.

Dr Charbel Sandroussi, upper gastrointestinal hepatobiliary and transplant surgeon

On 16 January 2023, Dr Sandroussi wrote to the respondent’s legal representatives in the following terms:
“[The respondent] has been a patient of mine since 2019. At the time, she was having major problems with her voice, and significant dysphonia, as a consequence of her work at school, in the classroom. She was under extreme amounts of stress, and this caused fairly significant problems with her gastrointestinal function, and upper abdominal pain. She had a trial of endoscopic treatment, which did not improve her symptoms, and she has subsequently undergone surgery to fix the intestinal problem. The ongoing treatment and the problem is probably related to some of the stressful situation that she had at the time of her initial throat issues, and I hope that you can consider these as part of her worker’s compensation claim.”[23]
[23] ARD, p 50.

Dr Geoff Williams, respiratory and sleep medicine physician

Dr Williams performed an ambulatory sleep study report on 3 August 2020. He concluded that the respondent was suffering from a mild Obstructive Sleep Apnoea.[24]
[24] ARD, p 72.

Dr David Freiberg, respiratory and sleep medicine physician

Dr Freiberg was asked to examine the respondent and provide a report. He reported to the respondent’s legal representatives on 20 May 2022.[25] Dr Freiberg recorded a history of the respondent’s variations in weight since 13 October 2017. He noted that she was a non-smoker and that she had no history of lung disease. He took a detailed summary of the respondent’s difficulties with her voice and vocal cords. He observed that:
“As a result of her inability to continue working in the previous capacity she lost her permanent position which she had held since 2004 which caused a great deal of stress, depression and anxiety. She has also undertaken extensive speech pathology and psychological counselling.
Her psychiatrist, Dr Iftikar Ahmad, diagnosed her with major depressive disorder with anxiety symptoms.”[26]
[25] ARD, pp 33–36.
[26] ARD, p 34.
Dr Freiberg noted that by 2020, and particularly after the respondent resigned from work, the respondent developed significant sleep difficulties, with her worst night providing her with only two to three hours of sleep. He recorded details of the difficulties and said that the respondent experienced constant thoughts of work and the distress those thoughts caused. Dr Freiberg observed that the respondent’s Epworth Sleepiness Scale prior to her work injury was 0/24, at the sleep study performed on 3 August 2020 it was 14/24 and on the day of assessment was 16/24. He considered that the two most recent scores were consistent with a moderately severe hypersomnolence and “the sleep study [confirmed] frequent awakenings during the night and difficulty initiating and sustaining sleep consistent with the history that she describes. As a consequence of this the next day is that she is significantly hypersomnolent.”[27]
[27] ARD, p 35.
Dr Freiberg expressed the view that the respondent had reached maximum medical improvement in relation to her major depression and anxiety, which had impacted the respondent’s overall health and sleep. He noted that there were no pre-existing factors contributing to the respondent’s impairment, which resulted from her sleep and arousal disorders and assessed the respondent as having 12% whole person impairment as a consequence of her fragmented and disturbed sleep, which in turn resulted from the injury.

Dr Anthony Johnson, respiratory and sleep physician

Dr Johnson provided an opinion on liability at the request of the appellant’s legal representatives. He examined the respondent on 5 December 2022 and reported to the appellant on 30 December 2022.[28] He took a consistent history of the respondent’s employment, the development of dysphonia and vocal cord nodules and the subsequent surgeries.
[28] ARD, pp 37–43.
Dr Johnson recorded that the respondent resigned her position on 27 January 2021 because the principal insisted that she was to teach a classroom in the upcoming year, which was contrary to her treating doctor’s advice. He noted that as a consequence of her resignation, the respondent lost her permanent post, which she had attained in 2014. He reported that the respondent was able to secure casual teaching work, working with small groups and individual students, however, the respondent felt stressed and experienced low mood after losing her permanent position and she began to experience insomnia at that time. Dr Johnson noted that the respondent had no history of sleep problems prior to the injury.
Dr Johnson observed that in June of 2022 when the respondent travelled overseas, her sleep improved, she was able to cease medication and to return to casual teaching. He said, however, that in November 2022 the respondent’s insomnia returned in the context of being unsure of whether she would get work the following year.
Dr Johnson reviewed the opinions of Dr Howison, Dr Ahmad and particularly that of Dr Freiberg. He expressed the view that the respondent suffered from insomnia secondary to her anxiety and depression, which in turn resulted from the loss of her permanent position because of her vocal cord injury. He noted that the respondent did not have a sleep disorder prior to that event. Dr Johnson considered that the respondent’s prognosis was guarded, and it was likely that the respondent’s insomnia would be ongoing unless she secured a permanent position.
Dr Johnson formed the view that he could not provide an assessment of the respondent’s whole person impairment because he did not believe that her condition had reached maximum medical improvement as it was likely that her condition would improve over the following twelve months. He commented that Dr Freiberg had assessed the respondent prior to her overseas trip, the respondent’s depression and anxiety had improved, and that resulted in a marked improvement in her sleep. He concluded that the respondent had not reached maximum medical improvement, and if she were to be assessed, the assessment would be less than that provided by Dr Freiberg.

THE MEMBER’S REASONS

The Member noted that the appellant accepted liability for the respondent’s injury to her voice/vocal tract. She referred to the respondent having commenced employment with the appellant in 2004 and having suffered an injury to her vocal tract causing dysphonia and vocal cord nodules. She recorded that the respondent reduced her working load and resigned from her permanent position on 27 January 2021 but continued to work as a casual teacher with small groups of students from April 2021.
The Member observed that the respondent became stressed at losing her permanent position, developed insomnia in 2021, had counselling and consulted a psychiatrist, who diagnosed the respondent as suffering a major depression with anxiety. The Member said that by June 2022, the respondent’s condition had improved.
The Member said that the respondent suffered from hypersomnolence.
The Member summarised the issues in dispute as follows:
(a) the appellant disputed that the respondent’s hypersomnolence arose as a result of an injury which was separate to the vocal tract injury;
(b) the appellant disputed the respondent’s claim for whole person impairment on the basis that the respondent suffered a secondary psychological injury and she was therefore precluded by s 65A of the 1987 Act from making a claim, and
(c) the respondent asserted that she suffered two separate injuries, namely a vocal tract injury and hypersomnolence, so that she was entitled to an assessment of her whole person impairment.
The Member summarised the submissions made by the respondent. She noted that the respondent alleged she had suffered two injuries, the first consisting of an injury to her vocal tract, diagnosed by Dr Howison as muscle tension dysphonia and chronic vocal fold scar tissue, which had been assessed pursuant to s 66 of the 1987 Act as 10% whole person impairment. The Member observed that as the assessment was less than 11%, the respondent had no entitlement to lump sum compensation for that loss.
The Member described the “second injury” as “hypersomnolence”. She referred to the evidence of Dr Freiberg, who she said assessed the respondent as having 12% whole person impairment as a consequence of “this injury”.
The Member noted that the respondent sought compensation in respect of 21% whole person impairment on the basis of the assessments of Dr Howison and Dr Freiberg “arising from what [the respondent] submits are two separate injuries.”[29]
[29] Harm v Secretary, Department of Education [2024] NSWPIC 101 (reasons), [16].
The Member listed the documents that were made available to Dr Freiberg. She quoted from Dr Freiberg’s conclusion that:
“This woman has experienced significant difficulty initiating and sustaining sleep and frequent awakenings as a result of the stress of her work related injury. This has caused significant hypersomnolence the following day.
She appears to have reached maximal medical improvement in regard to her major depressive disorder with anxiety which has had such an impact on her overall health and sleep.”[30]
[30] Reasons, [18].
The Member further quoted from Dr Freiberg’s reasons as to why he assessed the respondent as suffering from 12% whole person impairment.
The Member said that the respondent submitted that “there is no opinion from a psychiatrist that the [respondent’s] claim for hypersomnolence arises from a secondary psychological condition despite the [respondent] having suffered from some significant depression and anxiety arising from her circumstances.”[31]
[31] Reasons, [19].
The Member said that the appellant’s submission was that the respondent’s sleep disorder arose from a secondary psychological condition and that the respondent was therefore precluded from receiving lump sum compensation by operation of s 65A of the 1987 Act.
The Member noted that Dr Johnson diagnosed the respondent as suffering from insomnia. She quoted from Dr Johnson’s summary and assessment and reproduced s 65A of the 1987 Act.
The Member said that she considered the respondent’s work history was relevant to the determination of whether the respondent suffered a second injury, which led to the development of hypersomnolence. The Member noted that the respondent had been able to cease her medication, had travelled overseas, her sleep improved, and she returned to work. The Member observed that there was no evidence provided by a psychiatrist of an underlying secondary psychiatric condition and said that the respondent had recovered from that condition when she returned to work.
The Member referred to the evidence from Dr Johnson that the respondent’s sleep difficulties reoccurred because of her concerns that she may not be offered a permanent position, and she was unsure as to whether she would find a casual position. She noted that the respondent was having difficulty falling asleep, was waking frequently and was only getting four to five hours’ sleep per night.
The Member observed that the respondent may have been vulnerable to a recurrence of her injury, however, she was “persuaded that it was her new concerns that separately injured the [respondent].”[32] The Member concluded that she was satisfied that the respondent suffered a second injury in her employment in the nature of the development of hypersomnolence when she returned to work in 2022.
[32] Reasons, [26].
The Certificate of Determination issued on 4 March 2024 records:
“The Commission determines:
1. The [respondent] was injured by developing hypersomnolence whilst in the employ of the [appellant] after recommencement of employment in casual positions in 2022, arising from her concerns about ongoing secure employment rising from her previous vocal tract injury.
The Commission Orders:
2. The lump sum claim is remitted to the President for a referral to a Medical Assessor to assess permanent impairment as follows:
(a)dates of injury: 17 October 2017 and 13 October 2022;
(b)body systems: voice and hypersomnolence;
(c)method of assessment: whole person impairment, and
(d)documents to be referred: Application to Resolve a Dispute and attachments, Reply and attachments.
A brief statement is attached setting out the Commission’s reasons for the determination.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a)    Ground One: Jurisdictional error by finding that the respondent suffered an injury for the second time in the appellant’s employ in circumstances where that was not a matter in issue;
(b)    Ground Two: error of fact by:
(i)(a) failing to find the respondent suffered from a psychiatric condition in circumstances where that was conceded by the respondent, and
(ii)(b) determining that the respondent had a second injury in circumstances where there was no basis for the finding.
(c)    Ground Three: error of law by:
(i)(a) taking into consideration an irrelevant matter on the question of injury, namely that a determination that a worker has recovered from an incapacity was relevant to whether the respondent had recovered from any psychiatric injury;
(ii)(b) failing to consider a relevant consideration, namely the medical opinions of the medico-legal experts relied upon by the parties, and
(iii)(c) failing to give reasons or adequate reasons for finding that hypersomnolence was an injury.
It is relevant to note that the respondent, in Ground One of her appeal, also raised allegations of error of law on the part of the Member by misidentifying the central issues for determination, namely:
(a) whether the respondent’s sleep/arousal disorder was causally related to and consequential to her accepted speech/vocal cord injury, and
(b) whether the respondent was precluded from permanent impairment compensation for her sleep disorder due to the operation of s 65A of the 1987 Act.
and, in Ground Three asserted error of law, fact and discretion on the part of the Member in finding that the sleep/arousal disorder suffered by the respondent was a separate injury.
It is also relevant to note that in the respondent’s appeal, the appellant did not oppose either of those grounds of appeal, except for the respondent’s assertion that there was an unbroken chain of causation between the accepted voice/speech injury and the respondent’s sleep/arousal disorder.

LEGISLATION

Section 65A of the 1987 Act relevantly provides:
“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.
…
(5)     In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injuryincludes 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.”

SUBMISSIONS

For the reasons set out below, it is not necessary to summarise all of the Grounds of Appeal brought by the appellant. It is sufficient to summarise and address the submissions made by the parties in respect of Ground One and Ground Two (b) of this appeal.

As to Ground One

The appellant’s submissions

The appellant submits that whether the respondent suffered a second injury or suffered an injury when she returned to work were not matters at issue in the proceedings. The appellant submits that the only issue for the Member to determine was whether the respondent’s hypersomnolence arose as a result of an injury separate to the voice/speech injury. The appellant submits that by making a finding that a separate injury occurred in circumstances where that was not the subject of submissions or a matter the subject of consideration by the medical experts constitutes jurisdictional error.

The respondent’s submissions

The respondent agrees that the Member fell into jurisdictional error by finding that the respondent suffered a separate injury when she returned to work in 2022 and developed hypersomnolence. The respondent relies upon her submissions made in respect of her appeal, matter number A2-W8175/23, in which the respondent reproduced the matters in dispute listed in the Notice issued pursuant to s 78 of the 1998 Act, and made submissions that:
(a)    it was accepted that the respondent suffered a speech disorder injury;
(b) the issues requiring determination were whether the respondent’s sleep/arousal disorder was consequential to her voice/vocal cord injury and whether the respondent’s claim pursuant to s 66 of the 1987 Act in respect of the sleep/arousal disorder was precluded by operation of s 65A of the 1987 Act;
(c)    the finding that the respondent was injured for a second time constitutes error of law because it was not in issue and there was no evidence to support it;
(d)    the respondent’s speech disorder may have improved at times but never resolved and the appellant did not make the submission that it did resolve, and
(e) the Member failed to deal with the issue of whether the respondent was precluded from claiming compensation for her sleep/arousal disorder because of the operation of s 65A of the 1987 Act.
The respondent acknowledges that there may have been some confusion arising out of her submission at arbitration that there were two “injuries” and submits that the submissions made at arbitration should be read as referring to “condition” rather than injury.

As to Ground Two (b)

The appellant’s submissions

The appellant refers to the evidence of Dr Freiberg and Dr Johnson and submits that both doctors effectively are in agreement that Ms Harm suffered from hypersomnolence as a result of disturbed sleep, and she suffered from disturbed sleep as a result of her psychological symptoms. The appellant says that it was clear that there was no evidentiary basis for the Member’s finding that the respondent suffered a separate injury for the “second time in the [appellant’s] employ when she returned to work in 2022 and developed hypersomnolence”.[33]
[33] Reasons, [27].

The respondent’s submissions

The respondent agrees that the Member fell into error by determining that the respondent suffered a second injury and that there was no evidentiary basis for such a finding.

CONSIDERATION

It is necessary to examine the transcript of proceedings in order to determine how this dispute was presented to the Member. The respondent’s relevant submissions to the Member were as follows:
“The issue in dispute here is a rather, I won’t say simple one but an issue of very narrow focus and really revolves around the question as identified in section 65A of the Workers Compensation Act as to whether an impairment – a permanent impairment results from a secondary psychiatric injury or psychological injury.
Now, you’ll be familiar, Member, with the fact that the [respondent] claims that she suffered two injuries, each of which have resulted in a separate permanent impairment which, when combined, at least on her own evidence, comes to a whole person impairment of 21 percent. Now, those two individual injuries are a vocal tract injury which has been assessed by Dr Howison, an ENT surgeon, with a 10 per cent whole person impairment and a condition known as hypersomnolence diagnosed by Dr Freiberg, a sleep disorder physician, which has attracted a whole person impairment of 12 per cent whole person impairment.
The vocal tract injury, it’s accepted, is not greater than 10 per cent so there is no entitlement, no path forward to claim lump sum compensation in respect to that physical injury. The [respondent’s] claim is that based upon Dr Freiberg’s opinion that she has suffered another – a physical injury, hypersomnolence, she’s entitled to move forward and there is a pathway for her to claim lump sum compensation on the basis of these two physical injuries and they may be combined to bring about an assessment which is greater than 10 per cent.
So the issue the [respondent] is asking you to find here today or to determine here today is whether the hypersomnolence that Dr Freiberg has diagnosed is caught by section 65A and I say that because that’s the argument I apprehend that the [appellant] will make here today and it's certainly done so in the past as I understand it and I understand and apprehend that the [appellant’s] argument is, well, this sleep disorder results from a secondary psychological injury and we accept that there is evidence before you which does suggest that the [respondent] has suffered a secondary psychological injury, some evidence.”[34]
And:
“… the 12 per cent [whole person impairment] as assessed by Dr Freiberg, is an impairment that relates or, rather, results from not a secondary psychological injury but a physiological injury of its own and that condition is, as I mentioned in my introduction, hypersomnolence.”[35]
[34] Transcript of proceedings, Harm v Secretary, Department of Education [2024] NSWPIC 101, (T), T1.32– T.2.31.
[35] T3.35–T4.5.
Dr Freiberg did not diagnose the respondent as suffering from a physiological condition of hypersomnolence. His opinion was that the respondent suffered 12% whole person impairment in respect of her sleep/arousal disorder in accordance with Table 13-4 on page 317 of the AMA 5 Guides, and hypersomnolence was a symptom of that disorder. The only provision in the AMA 5 Guides that provides for an assessment of the whole person impairment resulting from hypersomnolence itself is where the hypersomnolence is idiopathic.[36] Dr Freiberg was of the view that the hypersomnolence was attributable to the respondent’s sleep/arousal disorders which in turn resulted from the injury.[37] Dr Johnson acknowledged that the respondent experienced “excessive daytime sleepiness.” He diagnosed the respondent as having developed insomnia and was of the opinion that the insomnia was secondary to the respondent’s depression and anxiety related to the loss of her permanent position which in turn resulted from the respondent’s vocal cord injury.
[36] Example 13-18, AMA 5, p 318.
[37] ARD, pp 35–36.
The cause of the hypersomnolence was clearly identified by both of those medical experts as resulting from the respondent’s sleep/arousal disorder and in turn the voice/speech disorder. The symptom of hypersomnolence could not thus be considered “idiopathic” and thus was not an assessable disorder under the AMA 5 Guides.
The question the Member was required to determine was whether the sleep/arousal disorder resulted from a secondary psychological condition so that the respondent was precluded by s 65A of the 1987 Act from claiming a whole person impairment for the sleep/arousal disorder, or was not so precluded because it was causally related and consequential to the respondent’s accepted voice/speech injury. The respondent’s submissions at the arbitration that the Member was required to determine whether the respondent suffered a “second (separate) injury” were misleading and, as submitted by the appellant at arbitration, were “entirely misconceived and appears to arise from a misunderstanding or misreading of Dr Freiberg’s report.”[38]
[38] T5.34–T6.1.
After being led down the garden path of determining whether a second injury occurred, the Member concluded:
“The [respondent] may have been vulnerable to a reoccurrence but I am persuaded that it was her new concerns that separately injured the [respondent].
I am satisfied that this is when the [respondent] was injured for the second time in the [appellant’s] employ when she returned to work in 2022 and developed hypersomnolence.”[39]
[39] Reasons, [26]–[27].
There was no medical or other evidence to support the conclusion that the respondent suffered a new injury in 2022 and as both parties have pointed out, there was no submission to that effect.
In any event, the Member did not address the central and critical issue before her as to whether the respondent’s claim for compensation in respect of her sleep/arousal disorder was precluded by the operation of s 65A of the 1987 Act, which was plainly in issue. The issue was acknowledged by the respondent in its submissions to the Member,[40] clearly identified in the s 78 Notice disputing liability,[41] and succinctly but sufficiently addressed by the appellant in its submissions to the Member.[42] Both parties are ad idem that this was the central issue that required determination.
[40] T3.6–T4.5.
[41] ARD, p 12.
[42] T5.32–T7.32; T8.9–11.
A failure to respond to a substantial, clearly articulated argument relying upon established facts is at least a failure to accord the party natural justice,[43] and constitutes an error of law. While the appellant does not assert a denial of natural justice in either Ground One or Ground Two (b) of the appeal, it nonetheless asserts that jurisdictional error (an error of law) has occurred. The respondent joins with the appellant in asserting error of law on the part of the Member by her failure to determine the appellant’s substantial, material argument that the respondent was precluded from claiming compensation because of the operation of s 65A of the 1987 Act. It follows that the appellant has established error on the part of the Member, and Grounds One and Two (b) of the appeal succeed.
[43] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.
It is thus not necessary to determine the remaining grounds of appeal. The Member’s Certificate of Determination is affected by error of law and is revoked.
Given the unsatisfactory state of the submissions made at first instance by the respondent (the applicant below) and the constraints placed on a Presidential member by s 352(5) of the 1998 Act in respect of re-determining a dispute, I am of the view that it is not appropriate for me to re-determine this dispute. I therefore remit the matter to a different non-presidential member for re-determination.

DECISION

If necessary, leave to appeal the Member’s order remitting the respondent’s claim for whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 to the President for referral to a Medical Assessor is granted.
The Member’s Certificate of Determination dated 4 March 2024 is revoked.
The matter is remitted to a different non-presidential member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

20 February 2025