Shahin v Plaspro Enterprises Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shahin v Plaspro Enterprises Pty Ltd [2024] NSWPIC 698
APPLICANT:	Shariff Shahin
RESPONDENT:	Plaspro Enterprises Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	13 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 65(5); determination of secondary psychological injury where disputed prior to referral to Medical Assessor for assessment of permanent impairment; State of New South Wales (NSW Department of Education) v Kaur; Secretary, Department of Education v Egan; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd; Held – the applicant sustained a primary psychological injury in the course of his employment with the respondent and a secondary psychological injury consequent on physical injuries.
DETERMINATIONS MADE:	The Commission determines: Findings: 1. The question of whether the applicant sustained a secondary psychological injury is a liability issue for determination by a Member and must be determined where these is a dispute. 2. The applicant sustained a primary psychological injury in the course of his employment with the respondent on 23 November 2021. 3. The applicant also sustained a secondary psychological injury consequent on physical injuries sustained on 23 November 2021. Orders: 4. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 23 November 2021 Body systems referred: psychiatric and psychological disorders Method of assessment: whole person impairment 5. The documents to be referred to the Medical Assessor to assist with their assessment are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondent’s Application to Admit Late Documents dated 22 November 2024.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained an injury to his left upper extremity on 23 November 2021 when using a blow moulding machine in the course of his employment with the respondent. His left forearm was penetrated by a blunt metal rod, with the mould crushing down on his left wrist.
It is undisputed that resulting from this incident on 23 November 2021 the applicant also developed a primary psychological condition diagnosed as post-traumatic stress disorder.
The applicant brings a claim for lump sum compensation with respect 18% whole person impairment resulting from the primary psychological injury pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim was disputed by the respondent’s insurer on the basis the extent of the applicant’s permanent impairment falls below the threshold prescribed by s 65A(3) of the 1987 Act. The applicant has thus commenced these proceedings in the Personal Injury Commission (Commission).
While the respondent does not dispute the applicant is suffering from a primary psychological injury, the respondent asserts that the applicant is also suffering from a secondary psychological condition. The respondent further asserts, where there is a dispute as to the existence of a secondary psychological condition, that s 65A(1) of the 1987 Act operates such that this is a liability dispute requiring determination by a Member of the Commission rather than falling within the jurisdiction of a Medical Assessor in assessing the degree of permanent impairment resulting from an injury.
These threshold issues require determination prior to the claim being referred to a Medical Assessor to assess whole person impairment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether it is necessary for the Commission to determine whether the applicant is suffering from a secondary psychological injury prior to refer to a Medical Assessor, and
(b) whether the applicant developed a secondary psychological injury.
There is no dispute that the applicant is suffering from a primary psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing before me on
2 December 2024 in Sydney. Mr Adhikary of counsel appeared for the applicant instructed by Ms Frisch of Carroll & O’Dea Lawyers. The applicant attended by telephone. The respondent was represented by Mr Tanner of counsel instructed by Ms Whiting of Lee Legal Group. A representative of the respondent’s insurer was also in attendance during the conciliation.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attachments, and
(c)    respondent’s Application to Admit Late Documents dated 22 November 2024.
Counsel were reminded at the commencement of the arbitration hearing that they should refer in submissions to any documentary evidence that should be considered by the Commission, as now required by r 67D(2) of the Personal Injury Commission Rules 2021.

Oral evidence

There was no application to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Is it necessary for the Commission to determine the issue of secondary psychological injury prior to referral to a Medical Assessor?

Applicant’s submissions

The applicant submits that it is not necessary for a finding with respect to secondary psychological injury to be made or for such findings to be reflected in the referral.
The applicant notes that the respondent relies upon a Supreme Court decision of State of New South Wales (NSW Department of Education) v Kaur.[1] The applicant relies on a decision of Acting Deputy President Parker in Secretary, Department of Education v Egan.[2]
[1] [2016] NSWSC 346 (Kaur).
[2] [2022] NSWPICPD 45 (Egan).
The applicant submits in Egan, at first instance the Member refused to make a referral to the Medical Assessor because there was an accepted primary psychological injury and the Medical Assessor can only assess impairment resulting from the primary injury. The employer subsequently sought leave to appeal bringing the matter before the Presidential Unit.
The applicant submits there is no need for a finding of secondary psychological injury to be made for the following reasons (relying predominately of the remarks of the Acting Deputy President in Egan):
(a)    there is an accepted injury and the medicolegal experts, particuarly the respondent’s, have deliniated between primary and secondary conditions so there is no need for a finding to be made now;
(b)    the respondent and the applicant retain rights to appeal should the Medical Assessor make findings that go beyond impairment from the accepted primary injury;
(c)    the parties rights are not determined finally by the Medical Assesor and the issue can be resolved later;
(d)    there is no dispute that the applicant sustained an accepted primary psychological injury and that is the only matter that the Medical Assessor can assess the impairment arising from. There is therefore no reason for consideration to be given to a secondary impairment because the Medical Assessor can only assess impairment arising out of the primary injury;
(e)    there is no authority for the medical assessor to assess the secondary psychological injury, and
(f)    there is no dispute regarding primary pshsycological injury.
The applicant submits that for all these reasons it is not necessary for a finding with respect to secondary psychological injury to be made or for the referal to reflect whether I find a secondary psychological condition or not.
During submissions I raised with counsel for the applicant how I reconcile the applicant’s position with what was said by Campbell J in Kaur[3] as well as the Court of Appeal in Bindah[4] that determination of liability issues, including disentitling provisions, falls exclusively within the jurisdiction of a Member of the Commission, rather than a Medical Assessor.
[3] [22].
[4] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] – [111].
The applicant submitted that the issues are going to be determined in exactly the same way regardless of what finding I may make. The primary psychological injury, which is accepted, is the only matter that the Medical Assessor can look at. The impairment has to result from that injury. With respect to the disentitling provision (s 65A of the 1987 Act), the applicant submitted that the Medical Assessor will have erred if they assess matters which are not related to the primary psychological injury but rather the secondary psychological injury. There is no reason for a determination to be made with respect these matters as the Medical Assessor is required to assess impairment according to law and does not have to do anything other than that.
The applicant submits that if the Medical Assessor goes beyond his or her jurisdiction then both parties have appeal rights. The disentitling provisions don’t apply as they might in other matters because the applicant is only seeking to refer the accepted psychological injury.
I asked counsel for the applicant how the Medical Assessor can determine the extent of impairment resulting from the primary psychological injury without considering whether or not there was a secondary psychological injury which contributes to the overall level of impairment. The applicant submitted that this was relevant to the jurisdiction of the Medical Assessor and not the referral. The Medical Assessor has to assess impairment based on common law principles of causation and assess impairment accordingly to law.

Respondent’s submissions

The respondent submits that the operation of s 65A of the 1987 Act is critical. It addresses the liability question that no compensation is payable under the division in respect of permanent impairment that results from a secondary psychological injury. The respondent notes a secondary psychological injury is defined as being a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.
The respondent submits that the question of causation arising from s 65A of the 1987 Act is a matter for the Commission. If a medical assessment was to proceed without a determination, a Medical Assessor who purported to make a finding as to secondary psychological injury would be acting in error and it is therefore in the interests of the parties that the issue be determined prior to a referral to a Medical Assessor.
The respondent submits that I would make a finding that the applicant sustained a primary psychological injury, and that I can do so on the basis that that is not in contest between the parties, and also make a finding that in addition to the primary psychological injury he has suffered a secondary psychological injury.
The respondent submits that the referral to the Medical Assessor would be in the terms of a primary psychological injury sustained on 23 November 2021 and as a matter of clarity contain a notation that in addition the applicant sustained a secondary psychological condition.
When I queried this with counsel for the respondent, it was conceded that it would be sufficient that the referred documents included my certificate of determination and statement of reasons.
The respondent submits that the decision in Kaur is the relevant authority and that the findings made by the Commission are primary and instrumental to the scope of the assessment that a Medical Assessor undertakes.
The respondent conceded in submissions that the Medical Assessor may not find that the secondary condition resulted in any impairment and that the extent of any impairment resulting from the accepted injury remains within the exclusive jurisdiction of the Medical Assessor.

Applicant in reply

In reply the applicant submitted that the decisions of Kaur and Egan need to be considered in their relevant context.
The applicant further submitted that my findings with respect to a secondary psychological condition cannot restrict the Medical Assessor in undertaking their statutory task.

Consideration

Section 65A of the 1987 Act provides as follows:
“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)     …
(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.”
The applicant’s submissions rely predominately on what was said by Acting Deputy President Parker in Egan, particularly at [37] to [47]. It is important to note that in Egan the Acting Deputy President was not dealing with the merits of any argument but rather whether it was appropriate to grant leave to appeal an interlocutory decision under s 352(3A) of the 1998 Act. The decision was confined to the application for leave and did not make any determination of the substantive appeal.[5]
[5] Egan at [50].
The applicant submitted that Egan must be considered in its context. That context is the question as to whether leave to appeal should be granted under s 352(3A) of the 1998 Act. This context limits the weight of what was said by the Deputy President in Egan to that issue alone.
As submitted by the respondent, the matter was considered in some detail in Kaur where Campbell J said the following at [22]:
“Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] – [111] by Emmett JA, with Meagher and Ward JJA agreeing. At [111] his Honour said:
‘It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act [1987 Act]. The Commission must always determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act [1998 Act]. However, that jurisdiction is subject to the restriction contained in s 65(3) in the Compensation Act [1987 Act], which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that the medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act [1987 Act] in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7 [of the 1998 Act].’ [Original emphasis]
[23] Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, ‘a disentitling provision’. This is made clear in my view by the language "no compensation is payable" at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as ‘disentitling provisions’. It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. 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 assessing permanent impairment for a primary psychological injury it is necessary, in complying with their statutory obligations and functions under s 65A of the 1987 Act, for a Medical Assessor to have no regard to any impairment resulting from a secondary psychological condition. It is implicit in this that consideration must be had by the Medical Assessor as to whether there is or is not a secondary psychological condition. I adopt what was said by Campbell J in Kaura. Where there is a dispute on this issue, as there is in the present case, s 65A(1) operates as a disentitling provision creating a liability issue for determination by a Member and does not form part of the medical dispute.
In reaching this conclusion, I am mindful that any finding made by a Member does not impinge on the jurisdiction of a Medical Assessor to determine, as a medical dispute, the extent of any impairment resulting from an injury.
For these reasons I find it is necessary for me, in the context of the current dispute, to make a finding as to whether the applicant has developed a secondary psychological condition prior to the matter being referred to a Medical Assessor.

Did the applicant develop a secondary psychological injury?

Having reached the conclusions which I have with respect to the first issue, it is necessary to make findings with respect to the second issue, being whether the applicant developed a secondary psychological injury.

Applicant’s submissions

Counsel for the applicant submits that the applicant has not sustained a secondary psychological injury and that this is supported overwhelmingly by the available evidence, both treating evidence and qualified medical opinions.
Counsel referred to his statement evidence dated 10 July 2023 where he sets out the incident that occurred on 23 November 2021, including physical injuries to his left forearm and wrist and refers to the circumstances of the physical injury. He outlines the treatment that he underwent.
The applicant states that about a week after the accident he returned to work and around this time started to experience symptoms of anxiety including panic attacks, shortness of breath, heart palpitations, excessive worrying and hyperventilating. He lost sleep as he would dream of the incident and feared the same thing would happen again. He also sets out his perceptions of the workplace when he returned and the way he felt his was treated.

The applicant sets out his view that his symptoms were brought on due to the trauma of the incident and aggravated by the lack of support in the workplace.
Counsel also referred to the supplementary statement of the applicant dated 1 July 2024. The statement largely responds to the dispute notice issued by the respondent and the evidence relied on by the respondent in issuing that notice. He responds that while he was worried following retrenchment about future financial and career prospects, he did not consider this was the cause of his psychological condition and he was already experiencing significant symptoms prior to the retrenchment. He also commented on the report of Dr Virk, qualified on behalf of the respondent.
Counsel submits that the applicant’s lay evidence sets out his lay opinion that he is not suffering from a secondary psychological condition.
Counsel referred to the report of Dr Chow dated 2 January 2024. Counsel submitted that
Dr Chow expressed the opinion that the applicant sustained a primary psychological injury. It is not that he sustained a secondary psychological injury. Counsel referred to Dr Chow’s opinion that the applicant had been traumatised by the work accident and suffering from psychological symptoms of trauma and depression. He had been engaged with psychological treatment and continued to have significant symptoms to warrant a diagnosis of post-traumatic stress disorder.
Counsel referred to the report of Ms Viviana Lee, the treating clinical psychologist dated
23 August 2024. Ms Lee diagnosed the applicant with post-traumatic stress disorder with anxiety and depression. She expressed the opinion that she does not believe the symptoms are a secondary condition resulting from the work place injury and that the presence of re-experiencing symptoms indicate an acute condition (post-traumatic stress disorder) rather than a secondary condition.
Counsel referred to the further opinion expressed by Ms Lee which was as follows:
“With regards to a secondary diagnosis of Major Depression, I concur that this is appropriate given that his symptoms meet criteria for this psychiatric condition, and are experienced concurrently to the PTSD.”
Counsel for the applicant submits that this does not support a finding of secondary psychological condition. Counsel submits that Ms Lee is speaking about a secondary diagnosis rather than a secondary condition. I queried with counsel how this analysis of
Ms Lee’s opinion can be reconciled with further comments made by Ms Lee that where there is an improvement in daily functioning this could lead to an improvement in general mood. Counsel submitted that this has not been borne out on the records of the general practitioner’s records and that when read as a whole the report of Ms Lee does not support a finding of a secondary psychological condition.
Counsel referred to the clinical records of Reid Clinical Psychology and highlighted the preponderance of the notes detail the applicant sustained a post-traumatic stress disorder injury.
Counsel referred to the correlation between the physical symptoms and referred to the records of the general practitioner from 23 May 2022 where it is recorded “Shariff’s anxiety has flared up. Physically things are improving but psychologically things are worsening – having panic attacks”. Counsel for the applicant submits this is not consistent with a secondary psychological condition.
The applicant submits that the opinion of Dr Virk (found in reports dated 23 February 2023,
7 May 2024 and 21 May 2024) is the only opinion that supports a finding of a secondary psychological condition and should not be accepted. The applicant submits it is not consistent with the opinion of Dr Chow, Ms Lee or the applicant’s lay evidence. Further, the reasons for the change in his opinion between the initial opinion that it was secondary to the further opinion that it is now a post-traumatic stress disorder injury are not cogent.
The applicant submits I would not accept Dr Virk’s opinion and would not make a finding with respect to a secondary psychological injury.

Respondent’s submissions

The respondent concedes there is no dispute that the applicant sustained a primary psychological injury. However, the presence of post-traumatic stress disorder does not exclude other condition and other factors which are causative of the aggregate symptoms experienced by the applicant.
The respondent referred to aspects of the applicant’s the statement evidence which the respondent submitted detailed concerns which were secondary in nature.
The respondent submits that when the applicant stated “I didn’t really want to be there, but I felt pressured to return to work”, this does not emanate from his trauma but rather his need to support his family.
The respondent further refers to the following aspects of the applicant’s evidence:
(a)    “I felt a shift in the workplace when I returned – they denied that the incident even occurred and had put up cameras to monitor the floor. I had no one to talk to and was not offered any help or counselling”;
(b)     “… aggravated by the lack of support in the workplace”, and
(c)    “It wasn’t until I was really struggling with my hand that I spoke to the dayshift supervisor”
The respondent submits these might be legitimate concerns but they are factors unrelated to the psychological trauma. The evidence of struggling with his hand introduces a further secondary issue.
The respondent submits, echoing an exchange between myself and counsel for the applicant during the applicant’s submissions, that the primary and secondary conditions were not mutually exclusive and both can co-exist.
The respondent referred to the applicant’s supplementary report which is responding to the respondent’s dispute notice and the report of Dr Virk and the respondent states:
“In his reports, Dr Virk noted that I presented with marked anticipatory anxiety about my future employment prospects as well as depressive symptoms in the context of chronic pain and limited mobility as a consequence of my left arm injury. He doesn’t seem to take into account in the initial report that I was experiencing symptoms of Post-Traumatic Stress Disorder at all.”
The respondent submitted that the applicant may have a legitimate complaint with respect to Dr Virk’s approach to the primary condition. However the first sentence is not challenged by the applicant and provides the foundation for a finding of a secondary psychological injury.
The respondent referred to the evidence of the applicant that he was “struggling to maintain these hours due to the pain in my left arm, as well as my ongoing psychological condition” and submitted this was a classic example of an underlying physical condition which gives rise to a secondary condition.
The respondent submits Dr Chow’s opinion is of no assistance to the applicant because he does not deal with the question of a secondary psychological injury and does not provide a basis for a medicolegal foundation for a finding that there is no secondary condition, as advanced by the applicant.
Further, the respondent submits that Dr Chow’s report raised “clues” that a secondary condition ought to have been considered. This includes where Dr Chow records “He still has ongoing pain and restriction over time. He is not able to do physically demanding work with the left hand.” The respondent submits that it follows as a matter of common sense that the applicant would be distressed by that lack of function.
The respondent referred to the history recorded by Dr Chow that “He gradually became more anxious at work, especially he felt there was a lack of support from work. He felt being monitored as well. He lasted at work until February 2022. He could not cope and went off work”. The respondent submitted that this might give rise to a different primary psychological injury but it is not consistent with the trauma that is the subject of this claim.
The respondent submitted that Dr Chow recorded “Over time, he still has ongoing pain and restriction. He is not able to do physically demanding work with his left hand but is able to attend to self-care and domestic chores” but did not come back to this to consider what the psychological effects of this history may have been.
The respondent referred to the report of Ms Lee, treating psychologist dated 23 August 2024 who recorded the following history:
“He has re-experienced pain symptoms on his left hand and arm. He has been experiencing the following symptoms of worries, low mood, difficulty with sleep, pain from physical injury, unable to engage in previously enjoyable activities such as building classic cars, he used to love fishing and now cannot fish anymore, experience of anxiety/panic attack like symptoms, irritability, lack of concentration, brain fog and lack of confidence.”
The respondent submits that many of these symptoms are manifestly consequential in nature. The respondent concedes that anxiety/panic attack like symptoms come from the primary injury and that irritability, lack of concentration, brain fog and lack of confidence may come from both the primary and secondary conditions.
The respondent referred to the diagnosis provided by Ms Lee of “PTSD with anxiety and depression” and that she sets out the basis, following the DSM-5 criteria for reaching that conclusion including that she did not believe that these symptoms are secondary.
The respondent then referred to the following comment made by Ms Lee:
“With regards to a secondary diagnosis of Major Depression, I concur that this is appropriate given that his symptoms meet criteria for this psychiatric condition, and are experienced concurrently to the PTSD.”
The respondent referred to Ms Lee’s opinion, responding to the question posed as follows:
“Due to the specific nature of the DSM-5 diagnostic symptom, whilst there is overlap of symptoms between diagnoses there can be differentiation between them. In Sharrif's presentation, depressive symptoms are experienced within both the diagnoses of PTSD and MDD. However, on the journey of recovery, as symptoms resolve, Shariff may recover from one of these psychiatric conditions before the other.
For example, as recovery is made from active trauma symptoms, depressed mood due to the occurrence of intrusive symptoms or fear of associated cues may resolve. Alternatively, there may be improvement in daily functioning, leading to an improvement in general mood, however mood can still be affected by trauma related cues.
Disentangling can be difficult but depending on the case different diagnoses this can be possible. Another consideration if there are specific ruminations leading to an affective state, for example if cognitions revolve around the trauma event or around loss of work or insecurity of income.”
The respondent submits that Ms Lee’s response is on the basis that there is indeed a secondary condition which requires disentanglement.
The respondent also referred to the clinical notes of the original treating psychologist
Ms Bartley and Ms Lee which are in evidence.
The respondent referred to the three reports of Dr Virk and submitted that while Dr Virk’s original report diagnosed an “adjustment disorder with mixed anxiety and depression secondary to his left upper limb injury” he subsequently found the further diagnosis of post-traumatic stress disorder.
The respondent submits there was a traumatic event being a frank incident which explains the diagnosis of post-traumatic stress disorder but there is also a variety of symptoms which are not in dispute which are pain related and would be consistent with a secondary condition and which Ms Lee has accepted as being major depression.
The respondent seeks a finding that the applicant has suffered, in addition to the accepted primary injury, a secondary psychological condition and that the referral needs to be drafted in a manner which alerts the Medical Assessor to these findings.

Consideration

Section 65A(5) defines a “secondary psychological injury” as “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
There is no dispute that the applicant sustained significant physical injuries to his left wrist and forearm, and a primary psychological injury diagnosed as post-traumatic stress disorder, resulting from the traumatic nature of the incident.
I have considered the applicant’s statement evidence. There has been no issue taken with the credit of the applicant nor any suggestion that he is exaggerating or embellishing his symptoms. The applicant is best placed to describe the symptoms that he is suffering from.
I accept that on returning to work the applicant started to experience symptoms of anxiety, panic attacks with shortness of breath, heart palpitations, excessive worry and hyperventilation. I further accept that he did not want to return to work but felt pressure to return. It is understandable given the circumstances of the incident together with his physical and psychological symptoms that he did not want to return to work.
It is also clear from the applicant’s evidence that in addition to the symptoms resulting from his traumatic experience he also perceived changes and difficulties in the workplace.
I accept that in his supplementary statement, the applicant does not take issue with the finding by Dr Virk that he presented with marked anticipatory anxiety about future employment prospects and depressive symptoms in the context of chronic pain and limited mobility. The applicant takes issue with the fact that Dr Virk did not find a diagnosis of post-traumatic stress disorder in his initial report however the applicant does not dispute the history of anticipatory anxiety or that he is experiencing chronic pain.
I appreciate that the applicant has expressed an opinion with respect to the causation of his symptoms and their attributability. Attributability of psychological symptoms, as set out by
Ms Lee, is a complex medical issue on which I do not accept the applicant has the relevant expertise and I cannot place any weight on these aspects of his statements.
I have considered Dr Chow’s report of 2 January 2024. I accept that Dr Chow records a history consistent with post-traumatic stress disorder as a primary psychological condition. I note however that in addition to difficulty sleeping, flashback nightmares and being triggered by machines Dr Chow records a history that “He feels guilty, worthless and hopeless at times. He was the sole provider for the family for over 10 years. His wife now needs to go back to work”. He notes a history of ongoing pain and restriction over time (with respect to his physical condition).
These are symptoms which may be attributable to either the post-traumatic stress disorder with associated depression or secondary to the effects of the physical injury he sustained which Dr Chow takes a history is also ongoing. Dr Chow’s report does not demonstrate that he has turned his mind to the question as to whether the applicant may also be suffering from a secondary psychological injury arising from or secondary to the physical injury. It was not an issue that it appears he was asked to address in his report. For these reasons, I do not find it to be of significant probative value on the issue of secondary injury.
The report of Ms Lee, the treating psychologist, dated 23 August 2024 is considered and
Ms Lee has had the benefit of an ongoing therapeutic relationship with the applicant. She has been asked to and engages meaningfully with the issue of a secondary psychological injury.
Ms Lee sets out detailed analysis, with reference to the DSM-5 criteria, for her conclusion that the applicant’s primary condition is post-traumatic stress disorder. She was asked:
“Do you consider the diagnosed condition is a primary condition resulting from the incident on 23 November 2021, or a secondary condition resulting from the effects of the physical workplace injury?”
She then responds (having listed the symptoms of post-traumatic stress disorder) “I do not believe that these symptoms are a secondary condition resulting from the workplace injury”.
That is, Ms Lee was asked whether the applicant’s overall psychological condition was primary or secondary and she responded that the post-traumatic stress disorder was primary. This is consistent with all the evidence and is not in dispute.
Ms Lee was then asked:
“We ask you to review the report of Dr Virk and advise whether you agree or disagree with the diagnosis of a secondary major depressive disorder resulting from his physical injuries. If so, why?”
Ms Lee sets out the basis for her finding of post-traumatic stress disorder where Dr Virk did not and then provides the following opinion:
“With regards to a secondary diagnosis of Major Depression, I concur that this is appropriate given that his symptoms meet criteria for this psychiatric condition, and are experienced concurrently to the PTSD.”
Ms Lee has had the benefit of reading the opinion of Dr Virk, which is clear that he considered the depressive symptoms were secondary to the physical injuries. She has disagreed with part of his opinion (that is that the applicant did not meet the diagnostic criteria for post-traumatic stress disorder) but then concurs, that is agrees, with Dr Virk with respect to the secondary diagnosis of major depression, experienced concurrently to the post-traumatic stress disorder.
The applicant submitted that the above opinion should be interpreted on the basis that
Ms Lee supported a secondary diagnosis of major depression, not that it was secondary to the physical injury. I agree that such an analysis is open from Ms Lee’s response. However when the opinion is considered in the context of the questions being asked and the opinion of Dr Virk to which Ms Lee was being asked to respond, on balance I find that Ms Lee was of the opinion that the depressive condition was secondary to the physical injury.
My finding in this regard is further supported by Ms Lee’s response to the final substantive question:
“In the event the worker has a secondary psychological condition as well as a primary psychological condition, whether these symptoms can be differentiated, i.e., whether the symptoms can be disentangled such that some symptoms or impairments can be attributed to one disorder and some to the other.”
Ms Lee does not respond, as was open to her on the question, by stating that the applicant does not suffer from a secondary condition. Instead she responds as follows:
“Due to the specific nature of the DSM-5 diagnostic symptom, whilst there is overlap of symptoms between diagnoses there can be differentiation between them. In Sharrif's presentation, depressive symptoms are experienced within both the diagnoses of PTSD and MDD. However, on the journey of recovery, as symptoms resolve, Shariff may recover from one of these psychiatric conditions before the other.
For example, as recovery is made from active trauma symptoms, depressed mood due to the occurrence of intrusive symptoms or fear of associated cues may resolve. Alternatively, there may be improvement in daily functioning, leading to an improvement in general mood, however mood can still be affected by trauma related cues.
Disentangling can be difficult but depending on the case different diagnoses this can be possible. Another consideration if there are specific ruminations leading to an affective state, for example if cognitions revolve around the trauma event or around loss of work or insecurity of income.”
It is evident from Ms Lee’s analysis with respect to disentangling symptoms that some may result from trauma and some from difficulties with daily functioning.
I find that Ms Lee’s analysis and reasoning behind her opinions are carefully explained and I place significant weight on her opinions in reaching the findings which I have.
The applicant submitted that Ms Lee’s opinion that an improvement in daily function may improve mood was not borne out in the records of the general practitioner. This is so but that does not take away from Ms Lee’s opinion. Rather, it is a matter that goes to the extent of the impairment attributable to the primary psychological injury. That falls clearly within the jurisdiction of the Medical Assessor.

The records of Ms Hartley (who saw the applicant before Ms Lee) and which were available to Ms Lee, confirm the treating psychologists were well aware of the physical issues and pain which were being experienced by the applicant.
Dr Virk, psychiatrist, first provided a report dated 23 February 2023. He did not consider at that time the applicant met the diagnostic criteria for post-traumatic stress disorder and diagnosed him with an adjustment disorder with mixed anxiety and depression.
However, when Dr Virk examined the applicant again on 4 March 2024 (culminating in a report of 7 May 2024) he considered the criteria for post-traumatic stress disorder had been met and provided a secondary diagnosis of a major depressive disorder with anxious distress. He expressed the opinion that the anxiety and depressive symptoms had progressed. I do not accept that the applicant’s submission that the basis for Dr Virk diagnosing post-traumatic stress disorder in his second report are not cogent. Dr Virk explains that the symptoms have progressed such that they now meet the diagnostic criteria. This basis for the change in his opinion is clear.
It is evident from the history taken by Dr Virk in both his first and second report that the applicant was suffering from chronic pain and functional limitations due to the left arm injury. This is supported by the records of Ms Hartley, the report of Ms Lee and the general practitioner. Dr Virk, based on this history, expresses the opinion, which I accept, that the applicant has also developed a secondary psychological injury that has occurred secondary to chronic pain and functional limitations with the left arm.
Section 65A(1) is a disentitling provision, essentially a defence, and as such the respondent carries on onus of establishing a secondary psychological injury as defined in s 65A(5). I put it counsel for the respondent, who agreed, that this requires the application of a commonsense evaluation of causation.[6] I also invited the applicant to address on this issue.
[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Having regard to the evidence which I have discussed above, I am satisfied that the applicant suffers from a secondary psychological injury consequential to the physical injuries to his left arm. In reaching this finding, I have placed significant weight on the opinion of
Ms Lee which is supported by the opinion of Dr Virk and the treating records confirming ongoing pain and restriction in the left arm. Dr Chow’s opinion did not deal with the issue of a secondary psychological injury and did not assist me.
In finding a secondary psychological condition, I do not make any finding with respect to the extent of impairment resulting from the accepted primary injury.

SUMMARY

For the reasons set out above I make the findings and orders set out in the Certificate of Determination.
The claim for lump sum compensation pursuant to s 66 of the 1987 Act is referred to the President for referral to a Medical Assessor in accordance with those orders.

[2024] NSWPIC 698

13 December 2024