Wilson v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilson v Secretary, Department of Communities and Justice [2024] NSWPIC 187
APPLICANT:	Darren Wilson
RESPONDENT:	Secretary, Department of Communities and Justice
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application for leave to rely on un-notified matters pursuant to section 289A(4); respondent never issued dispute notice with respect to allegation of a psychological injury rather than a personal injury; respondent disputed that leave was required; in the alternative, leave sought to raise a dispute; Mateus v Zodune Pty Ltd t/as Tempo Cleaning, Federal Broom Co Pty Ltd v Semlitch, Zickar v MGH Plastic Industries Pty Ltd, Kennedy Cleaning Services Pty Ltd v Petkoska, Military Rehabilitation & Compensation Commission v May, AP v NSW Police Force, and Stone v Stannard Brothers Launch Services Pty Ltd discussed and applied; Held – particulars provided by applicant when notice of claim served; no explanation for delay; lack of merit and substance in the proposed dispute; respondent’s medical evidence lacking in probative value; prejudice to the applicant outweighed that of the respondent; leave to rely on un-notified matter refused; claim remitted to the President for referral to a Medical Assessor in respect of a psychological disease.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent’s application for leave to rely on un-notified matters pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act1998 is declined. The Commission orders: 2. I remit this matter to the President for referral to two Medical Assessors pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment as follows: Date of injury: 11 July 2023 (deemed) – disease Body systems / parts: Psychological/psychiatric disorder. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute with attached documents, and b. Reply with attached documents.

STATEMENT OF REASONS

BACKGROUND

Darren Wilson (the applicant) is 51-years-old and commenced employment with Secretary, Department of Communities and Justice (the respondent) in approximately 1994. When he ceased work in about August 2022, he was a Senior Assistant Superintendent at the Lithgow Correctional Centre.
There is no dispute that the applicant suffered a psychological injury during the course of his employment. Liability was accepted by QBE Insurance (Australia) Ltd (the insurer) on
9 November 2022 in respect of an incident that occurred on 15 July 2022.
On 11 July 2023, the applicant’s solicitor, Mr Dougall, served a claim for lump sum compensation in respect of 47% whole person impairment on the insurer. The date of injury and the quantum of the claim were not identified, although the permanent impairment claim form referred to the injury as “deemed”.
On 28 November 2023, the respondent’s solicitor, Mr Ainsworth, served a copy of a report of Dr Bisht dated 23 October 2023 on Mr Dougall. He advised that as Dr Bisht indicated that the applicant had not reached maximum medical improvement, the degree of impairment was not fully ascertainable. Therefore, the applicant was not entitled to lump sum compensation at this time. The insurer failed to issue a dispute a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of the lump sum claim.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 25 January 2024, the applicant claims lump sum compensation due to a psychological injury sustained on 11 July 2023 (deemed).
In the Reply filed on behalf of the respondent on 16 February 2024, Mr Ainsworth confirmed that the respondent maintained that the applicant’s impairment was not fully ascertainable as he had not reached maximum medical improvement. Further, the respondent considered that the applicant had sustained a personal injury, not a disease injury as alleged.

PROCEDURE BEFORE THE COMMISSION

On 19 February 2024, the Commission advised the parties that an appointment had been scheduled with a Medical Assessor. Later that day, Mr Ainsworth sent an email to the Commission and asked if the referral could be amended to reflect a personal injury sustained on 15 July 2022.
On 22 February 2024, Mr Dougall sent an email to the Commission and indicated that the date of injury was a deemed date, reflective of a disease injury and the date of the claim.
As the parties were unable to agree, a preliminary conference was scheduled on 27 March 2024. Mr Ainsworth requested that a conciliation conference and arbitration hearing be scheduled before then to deal with the discrete issue.
Given that an examination with a Medical Assessor had already been cancelled, I arranged for a preliminary conference to be convened on 29 February 2024 to discuss the matter and determine the best way forward.
At the preliminary conference on 29 February 2024, Mr Dougall, solicitor, appeared on behalf of the applicant and Mr Ainsworth appeared on behalf of the respondent.
The issue that had been raised in the Reply was discussed. Mr Ainsworth wanted to make submissions, but I declined to conduct an arbitration hearing due to time constraints. I indicated that the matter had only been listed for a preliminary conference at the respondent’s request to determine how the matter could best proceed.
As the matter could not resolve, I issued the following Direction:
“The Commission notes:
1.     The Application to Resolve a Dispute and attached documents and the Reply and attached documents are admitted into evidence.
2.     There will be no further evidence filed in these proceedings.
3.     The matters in dispute are:
a.whether the applicant’s psychological injury was a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed), being the date of the claim – ss 4(a) and 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act).

b.quantification of the applicant’s entitlement to lump sum compensation – s 66 of the 1987 Act.

4.     The applicant’s claim for lump sum compensation will be remitted to the President for referral to a Medical Assessor once the dispute identified in paragraph 3a above has been determined.
The Commission directs:
5.     The respondent is to file and serve written submissions by 6 March 2024.
6.     The applicant is to file and serve written submissions by 13 March 2024.
7.     Any submissions in reply are to be filed and served by 20 March 2024.
8.     At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’ by me or alternatively by a Member of the Commission.”.

Written submissions were filed by the respondent on 5 March 2024 and by the applicant on 12 March 2024.
When I was reviewing the evidence, I realised that the respondent had not sought leave to raise an unnotified matter pursuant to s 289A(4) of the 1998 Act. This issue needed to be dealt with first. Therefore, I issued a further timetable for submissions on 21 March 2024 as follows:
“The Commission notes:
1.     In the Reply filed on behalf of the respondent, the respondent’s solicitor submitted that the applicant sustained a personal injury on 15 July 2022, not a disease injury as alleged.
2.     On 29 February 2024, I issued a Direction that identified the matters in dispute. I set a timetable for the filing of submissions in respect of this issue.
3. Following the preliminary conference, I realised that the respondent had not sought leave to raise an unnotified matter pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998.
4.     An application for leave needs to be determined before I can deal with the issue as to whether the applicant’s psychological injury was a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed),
The Commission directs:
5.     The respondent is to file and serve written submissions as to whether it should be granted leave to rely on un-notified matters by 27 March 2024.
6.     The applicant is to file and serve written submissions as to whether the respondent should be granted leave to rely on un-notified matters by 5 April 2024.
7.     The respondent is to file and serve written submissions in reply to all of the applicant’s submissions by 12 April 2024.
8.     At the conclusion of the time allowed for submissions the dispute will be determined “on the papers” by me.”
Written submissions were filed by the respondent on 27 March 2024 and by the applicant on 8 April 2024.
Submissions in reply were filed on 12 April 2024.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the respondent requires leave to rely on un-notified matters, and if so, whether leave should be granted – s 289A(4) of the 1998 Act;
(b) whether the applicant’s psychological injury was a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed), being the date of the claim – ss 4(a) and 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), and
(c) quantification of the applicant’s entitlement to lump sum compensation – s 66 of the 1987 Act.
The parties agreed that irrespective of the outcome, the applicant’s claim should be referred to a Medical Assessor.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application with attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Given the discrete nature of the dispute and the submissions of the parties, I propose to focus my summary of the evidence relevant to this.

Statements

Unfortunately, I do not have a statement from the applicant that has been drafted for the purpose of these proceedings. The only document in evidence is the statement that the applicant gave to the police following the incident on 15 July 2022.
The applicant advised that on 15 July 2022, after informing an inmate that he would not be moved from segregation back to the normal accommodation unit, the inmate threw a cup of faeces though the door as he bent over to pick up his pen. He stated that he was covered in faeces from head to his foot. He moved away as two other officers attended and closed the outer door of the cell. He then showered and changed into clean clothes. He discarded the soiled clothes.
A statement provided by Nicole Wilson dated 8 December 2023 is of no assistance to the current dispute.

Reports and clinical notes of Dr Merchant

In the referral letter to Dr Malik dated 29 August 2022, Dr Merchant advised that the applicant had severe anxiety “following a recent assault on a background of previous incidents under the workers compensation scheme”.
In his report to the insurer dated 16 November 2022, Dr Merchant indicated that the applicant’s post-traumatic stress disorder, Major Depression and bruxism were related to his mental condition caused by his employment. He stated that the multiple incidents during his employment with the respondent since 1994 and the incident on 15 July 2022 brought the applicant to the tipping point when he experienced physical symptoms that included chest pain and bruxism.
The clinical notes of Dr Merchant commence on 7 May 2012 and conclude on 12 May 2023.
On 28 July 2022, the applicant presented with chest pain, left sided aching and reflux. The doctor reported that a person who was high on ice threw a “shit bomb” at the applicant on 15 July 2022. He noted that the applicant required blood tests for hepatitis B and C as well as HIV. He referred the applicant to a cardiologist for chest pain.
On 19 August 2022, Dr Merchant recorded:
“f/u
work stress
had incident 4 week ago-inmate threw shit bomb
since then anxious stress
DASS 21 - up
already lodge to victim services NSW
counselling offered
not coping well
emotional tear
insightful
not suicidal
chest pain…”
Dr Merchant issued a certificate and in which he confirmed that the applicant had identified the date of injury of 15 July 2022 when the inmate threw a “shit bomb”. The doctor’s diagnosis was “anxiety, increase in anxiety” and he noted that previous multiple incidents may have been relevant to the applicant’s condition or injury. He certified that the applicant had no current work capacity from 18 August 2022 to 16 September 2022. The doctor repeated these comments in subsequent certificates.
In a report to the insurer dated 21 September 2022, Dr Merchant advised that the applicant had been involved in a specific incident at work, namely an assault on 15 July 2022. He had anxiety, high blood pressure and chest pain. When asked if the applicant’s employment was the main contributing factors to his injury sustained on 15 July 2022, the doctor replied “Yes”.
On 29 August 2022, Dr Merchant diagnosed anxiety and he referred the applicant to a psychologist. Dareen Wilson, and a psychiatrist Dr Malik.
On 16 September 2022, Dr Merchant noted that the applicant had been prescribed Zoloft. The reason for the visit was described as CT coronary angiogram, anxiety, assault and a workers compensation certificate.
The remaining entries largely deal with the views of Dr Malik and the diagnosis of post-traumatic stress disorder and Major Depression. The entry on 9 December 2022 described the problems that the applicant was experiencing with daily activities.

Reports and clinical notes of Dr Malik

In his initial report dated 3 October 2022, Dr Malik noted that the applicant presented with a history of chronic-mixed mood anxiety symptoms comprising broken sleep, flash backs, depressed mood, apprehension, avoidance, isolative behaviour, exaggerated startle and panic attacks. This was on a background of exposure to many deaths, assaults and suicides at work.
Dr Malik diagnosed post-traumatic stress disorder, Major Depression and bruxism. He prescribed medication and confirmed that the applicant was unfit for work.
Dr Malik reported on a number of occasions in 2023, but his reports merely record a description of the applicant’s symptoms and his treatment.
In a report dated 12 February 2023, Dr Malik diagnosed post-traumatic stress disorder based on the criteria in DSM 5. He noted that the applicant had been exposed to multiple deaths, assaults, prison riots and serious physical injuries during the course of his employment as a prison officer and was persistently avoidant of the stimuli associated with traumatic events. The applicant also suffered from a Major Depressive Disorder and sleep related bruxism.
Dr Malik commented that the trigger for the applicant’s illnesses was his exposure to deaths and serious physical injures at work, and he believed that the post-traumatic stress disorder would not have manifested but for the exposure to traumas at work.
Dr Malik described the aetiology of post-traumatic stress disorder in the following terms:
"PTSD is a severe stress reaction that develops after exposure to actual or threatened death or serious physical injuries. It is challenging to treat and responds poorly to medications and/or psychotherapy. It generally leads to a depressive disorder. It may take many months to fully manifest and the sufferers may continue to function and ignore the symptoms till they are completely exhausted and cannot ignore the symptoms any more. His PTSD was chronic and was undiagnosed for years and eventually led to total incapacity. His psychological integrity was shattered and he constantly struggles with vivid images of deaths…”
In a report dated 12 December 2023, Dr Malik indicated that he was not anticipating that there would be any substantial improvement in the applicant’s mental health and he considered that he had reached maximum medical improvement.
Unfortunately the doctor’s handwritten clinical notes are illegible and are of no probative assistance.

Hospital discharge summary

The discharge summary from an unnamed hospital discloses the applicant attended on
22 July 2022 complaining of chest pain and shortness of breath. There was no history of the incident on 15 July 2022. It was noted that the applicant had contracted COVID there weeks earlier and had now developed some chest pain pressure. Tests proved to be normal and the applicant was discharged.

Reports of Dareen Wilson and Dr Fahmy

Dareen Wilson reported on 19 April 2023 in response to an enquiry by the insurer in respect of the applicant’s capacity to return to work. She indicated that the applicant was aware that he had developed chronic post-traumatic stress disorder and co-morbid Major Depressive Disorder, conditions that were long term and relapsing in nature. She stated that it was highly likely that these conditions would be triggered or activated by his work environment. She reported that the applicant’s treatment as aiming to address the accumulation of traumatic events experienced by the applicant at the respondent. Ms Wilson also agreed with the views of Dr Malik.
Dr Fahmy, cardiologist, reported on 6 September 2022 and 4 October 2022. He noted that the applicant had been experiencing some chest pain on the background of an incident at work. The applicant’s symptoms include anxiety, a lot of stressors and a family history of heart disease. He confirmed that the applicant’s chest pain was not cardiac in nature.

Report of Dr Glen Smith

Dr Smith reported on 13 June 2023. He recorded a history from the applicant that he had been exposed to numerous traumatic incidents throughout the course of his employment including “deaths in custody, suicides, slashing up and bleeding everywhere, inmates who have hung themselves and we had to cut them down, I’ve had inmates who had weights dropped on their heads”. He had been required to arrange forensic cleaning teams to clean cells that had been covered in blood. He was required to view footage and write recommendations about incidents, even those that he had not witnessed. He had been involved in riots and been responsible for authorising the use of various forms of control of violent inmates. He claimed that he frequently feared for his safety.
Dr Smith noted that on 15 July 2022, the applicant was hit with “a cocktail of bodily fluids”. He later found out that the inmate had another container ready for him and he also had a weapon. The applicant advised that since that incident he had experienced anxiety and depressive symptoms, panic attacks, diarrhoea and faecal incontinence, sleep disturbance and frequent nightmares of this and other incidents.
The applicant advised that he had seen a cardiologist for chest pain and had difficulty with self-care. He had been referred to a psychologist and a psychiatrist, who had prescribed medication. He worried about being attacked by former inmates. He no longer drove a car. His condition had impacted on his social and recreational activities, social functioning and concentration. He claimed that he experienced feelings of worthlessness, guilt and hopelessness. There was no history of any significant anxiety or depression in the past.
Dr Smith diagnosed post-traumatic stress disorder and a Major Depressive Disorder with anxious distress. This was in response to numerous traumatic incidents in his work with the respondent. The doctor felt that with the incident on 15 July 2022 was the final trigger to full post-traumatic stress disorder. He stated that after the applicant was assaulted on 15 July 2022, he had developed severe anxiety and depressive symptoms with recurrent, intrusive, distressing memories and nightmares of traumatic incidents.

Dr Smith confirmed that the applicant’s condition had developed in the context of repeated and cumulative exposure to traumatic incidents over the years with the final trigger being the assault in July 2022. He assessed 47% whole person impairment.

Report of Dr Bisht

Dr Bisht reported on 23 October 2023. He reported that the applicant had witnessed many traumatic scenes during the course of his employment such as suicides and instances of grievous harm from inmates to one another. He had managed riots, and reviewed video footage of incidents that did not involve him. On one occasion he had been involved in an incident where his own safety was under grave threat. The doctor noted that the applicant started to have substantial symptoms after the incident in July 2022.
Dr Bisht recorded a detailed account of the applicant’s symptoms that led to him ceasing work in August 2022. There was no history of any psychiatric condition in the past, and no other major psychological stressors in the past few years.
Dr Bisht diagnosed post-traumatic stress disorder and a Major Depressive Disorder and agreed with diagnosis of Dr Smith. He considered that the applicant had not reached maximum medical improvement and expected this to occur after mid-2024. In that respect, he disagreed with the views of Dr Smith.
Dr Bisht stated that the applicant had suffered a personal injury arising out of or in the course of his employment and he felt that the applicant’s employment as a substantial contributing factor to his injury. Further, the doctor indicated that the applicant’s condition was not a disease, and he did not identify any pre-existing condition that might have been aggravated.

RESPONDENT’S SUBMISSIONS

Does the respondent require leave to raise an un-notified matter, and if so, should leave be granted?

Mr Ainsworth submits that the respondent does not require leave to raise an un-notified matter.
Mr Ainsworth has made a series of submissions in respect of the SIRA Guidelines. I have reviewed the various Guidelines issued by SIRA since 2016. Mr Ainsworth has quoted page numbers and I have found that they correspond to the SIRA Guidelines for Claiming Workers Compensation (1 August 2016).
These Guidelines were replaced by the SIRA Workers Compensation Guidelines (December 2018), then the SIRA Workers Compensation Guidelines (October 2019) followed by the SIRA Workers Compensation Guidelines (17 April 2020) and finally the current version, the SIRA Workers Compensation Guidelines (1 March 2021) (the 2021 Guidelines). Although Mr Ainsworth has referred to the Guidelines from 2016, some of the submissions are still relevant regarding the 2021 Guidelines.
Mr Ainsworth submits that the applicant did not complete a claim form. According to the Guidelines, claim forms are only required in certain circumstances and an insurer can waive the requirement if there is sufficient information available.
I note that the current Guidelines do not require a worker to make a lump sum claim in writing and describe what the injury is, when it happened, details of any previous injury, condition or abnormality, and include a report from a permanent impairment assessor. Rather, the 2021 Guideline refers to the provision of relevant particulars as described in s 282(1) of the 1998 Act. This requires identification of the injury, all impairments and any previous injury or condition, information as to whether the degree of impairment will change and details of past employment of which the injury is or may be due. A medical report from a SIRA approved assessor is also required.
Mr Ainsworth submits that the applicant made a claim by submitting a medical certificate that identified a date of injury of 15 July 2022 and the cause being “inmate threw a shit bomb”. The insurer accepted liability without the requirement of a claim form.
Mr Ainsworth submits that when the applicant made the claim for lump sum compensation on 11 July 2023, the claim did not describe the nature of the injury or when it happened, contrary to the Guidelines (I note the requirements in s 282(1) of the 1998 Act and the 2021 Guidelines).
Mr Ainsworth submits that if it is accepted that the applicant identified a disease injury, this was the first notice of such an injury. According to the Guidelines, the applicant was required to set out the basis on which the injury met the definition of injury in s 4 of the 1998 Act, and he failed to do so (I note the requirements in s 282(1) of the 1998 Act and the 2021 Guidelines).
Mr Ainsworth submits that Dr Smith noted a date of injury of 15 July 2022 and obtained a history of injury that described the incident on 15 July 2022. He did not express an opinion that the applicant had contracted a disease or aggravated a disease for the purposes of the definition of injury at s 4 of the 1998 Act (I note the requirements in s 282(1) of the 1998 Act and the 2021 Guidelines).
Mr Ainsworth submits that the notice of claim dated 11 July 2023 did not identify a date of injury, a claim for a new injury or that the applicant sought compensation for a disease injury. The claim was based on the findings of Dr Smith.
Mr Ainsworth submits that there was no dispute raised in the matter, other than the suggestion that the degree of the applicant’s impairment was not fully ascertainable. Therefore, the respondent was not required to determine the claim in accordance with
s 281(2)(a) of the 1998 Act. The only dispute was that the applicant was not entitled to lump sum compensation at that time.
Mr Ainsworth submits that to the extent that leave is required in relation to the issue, such leave should be sought by the applicant as he did not identify in writing the nature of this dispute prior to commencing proceedings.
Mr Ainsworth submits that prior to commencing proceedings, the applicant had not made a claim for a disease injury for the purposes of s 4 of the 1987 Act contrary to the Guidelines, meaning that the only dispute was whether the applicant had reached maximum medical improvement in relation to his accepted injury sustained on 15 July 2022. The applicant should be granted leave to raise this issue and the parties can have the dispute determined by the Commission (I note the requirements in s 282(1) of the 1998 Act and the 2021 Guidelines).
Mr Ainsworth submits that when the respondent first became aware of the nature and alternate date of the injury on receipt of the Application, it raised the issue as soon as possible in its Reply.
Mr Ainsworth submits that if the respondent requires leave, leave should be granted. It would be contrary to the interests of justice and procedural and administrative fairness not to permit the respondent to raise this issue. The parties should be permitted to have the issue determined in these proceedings. The respondent will be prejudiced because it is arguable that the respondent was unaware of a claim for a disease injury and it had not received a claim specifying a date of any such injury prior to these proceedings being commenced.
Mr Ainsworth submits that neither party has challenged the Commission’s jurisdiction to determine whether the applicant sustained a personal injury or a disease injury and they wish that the issue be determined.
Mr Ainsworth submits that no dispute notice was issued pursuant to s 78 of the 1998 Act. The applicant was advised that his level of impairment was not yet fully ascertainable. In those circumstances, when a dispute had not materialised, the case law and the requirements of s 289A(4) of the 1998 Act must be approached with caution in the context of these proceedings.
Mr Ainsworth submits that just as a worker should not be forced to identify a dispute by reference to the evidence, an employer should not be required to identify a potential dispute by use of the word “deemed” without evidentiary support or clear particularisation of a disease injury[1], especially since the insurer had accepted liability for a psychological injury and no alternate date of injury or a disease diagnosis was provided.
[1] Department of Correctional Services v Bowditch [2007] NSWWCCPD 244, (Bowditch).
Mr Ainsworth submits that the only decision made in this case was that the applicant’s impairment was not fully ascertainable. As there was no dispute as to primary liability, the requirement to identify whether or not there was a personal injury or a disease injury was not required.
Mr Ainsworth submits that the issue was raised in the Reply as soon as possible after the date of injury was identified in the Application, so there is no relevant delay. Alternatively, any delay was due to the respondent’s failure to identify that the applicant was making a claim for a disease injury. The submissions regarding the merit and substance of the issue are relevant.
Mr Ainsworth submits that the applicant will suffer no prejudice if leave is granted. The applicant has made submissions and believes that he has all relevant evidence in order to establish that he sustained a disease injury. The respondent will be prejudiced if leave is not granted and the applicant is assessed on the basis of a disease injury.
Mr Ainsworth submits that the Commission is obliged to act in equity, good conscience, and with regard to the substantial merits of the case, and it should not make an administrative decision preventing the parties from airing the substantive dispute before it, in circumstances in which both parties clearly wish to do so. The conduct of the parties in filing submissions and in wishing to have this dispute determined supports the exercise of the discretion to grant leave and for the issue it to be determined by the Commission.

Is the applicant’s psychological injury a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed), being the date of the claim?

Mr Ainsworth submits that there is no statement from the applicant apart from that given to the police which only referred to the assault. The accepted injury was sustained on
[2] Jones v Dunkel [1959] HCA 8.
15 July 2022. The applicant bears the onus of proving a disease injury. He submits that one can assume that a statement from the applicant would not have advanced his case consistent with Jones v Dunkel.[2]
Mr Ainsworth submits that it is apparent from Dr Smith’s report that he was asked by the applicant’s solicitors to assume that the applicant had sustained a psychological injury arising from various assaults and incidents.
Mr Ainsworth submits that Dr Smith took a history of various incidents to which the applicant claims he was exposed and he noted that the applicant was frequently afraid for his safety in his work role. Under the heading “History of Injury”, Dr Smith reported the history of the assault on 15 July 2022. The application told the doctor that since the incident he had experienced anxiety and depressive symptoms, panic attacks, gastrointestinal symptoms and sleep disturbance.
Mr Ainsworth submits that in his summary, Dr Smith indicated that the applicant was exposed to numerous traumatic incidents in the course of his employment and after he was assaulted by an inmate in July 2022, he had developed severe anxiety and depressive symptoms with recurrent, intrusive, distressing memories and nightmares of traumatic incidents. He also commented that the applicant’s condition had developed in the context of repeated and cumulative exposure to traumatic incidents over some years with the final trigger being the assault in July 2022.
Mr Ainsworth submits that Dr Smith did not express an opinion on whether the applicant had sustained a personal injury or contracted or aggravated a disease.
Mr Ainsworth submits that the clinical records of Balance Springwood Family Practice Pty Ltd do not refer to the applicant’s mental health until 19 August 2022 which identified work stress, the incident four weeks earlier and since then anxious stress. There was also an attendance on 28 July 2022 in respect of chest pain and a history of the incident on 15 July 2022.
Mr Ainsworth submits that Dr Bisht took a history of the applicant experiencing many traumatic scenes in the course of his employment and he started to have substantial symptoms after the incident in July 2022. He was given no history of any psychiatric condition in the past and he considered that the applicant had suffered a personal injury, not a disease.
Mr Ainsworth submits that in responding to the insurer’s questions, Dr Merchant noted that there was an “assault - 15/7/2022” and symptoms of anxiety, chest pain and high blood pressure, and he later referred to symptoms related to the incident on 15 July 2022.
Mr Ainsworth submits that the hospital attendance on 22 July 2022 was associated with COVID and Dr Fahmy considered that the relevant background included anxiety and a lot of stressors, but the chest pain was not cardiac in nature.
Mr Ainsworth submits that a psychological condition can be a personal injury[3] and this concept was accepted in the Workers Compensation Commission.[4] Further, the High Court has held that a personal injury involves a “sudden or identifiable physiological change”,[5] but it has also found that suddenness was not required to find that there was an injury rather than a disease.[6]
[3] Yates v South Kirkby Collieries Limited [1910] 2 KB 538, (Yates) and Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3), (Giacomantonio).
[4] New South Wales Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill).
[5] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 (Zickar) and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 (Petkoska).
[6] Military Rehabilitation & Compensation Commission v May [2016] HCA 19 (May).
Mr Ainsworth submits that it is not disputed that the applicant has a compensable psychological injury, which was potentially due to the applicant’s exposure to trauma over the course of his employment together with the incident on 15 July 2022. This view is held by Drs Bisht and Smith express this view. He submits that the applicant did not suffer from any mental illness or symptoms of mental illness until the incident on 15 July 2022.
Mr Ainsworth submits that the fact that Dr Smith reported that the applicant had been frequently afraid of his safety does not suggest that there was any psychological condition at that time. This is consistent with the clinical records which show no complaints until 19 August 2022.
Mr Ainsworth submits that Dr Smith accepted that the applicant’s symptoms of anxiety and depression had commenced since the incident on 15 July 2022. The word “trigger” suggests something that led to an immediate and significant reaction resulting in the psychological injury. Prior trauma may have predisposed the applicant to this reaction, it does not prevent the sudden or identifiable physiological change from being a personal injury.
Mr Ainsworth submits that the applicant had chest pain shortly after the incident and Dr Merchant attributed this to a mental illness arising from the incident on 15 July 2022. Dr Bisht felt that the applicant had a personal injury and not a disease. This is the only medical opinion expressed on the issue and is consistent with the case law. Br Bisht stated that the symptoms started after the incident and Dr Merchant reported that the applicant had symptoms since the incident. This is evidence of a sudden or identifiable physiological change and therefore, the applicant suffered a personal injury.
Mr Ainsworth submits that the delay in the diagnosis of a psychological condition was because the initial symptoms were thought to be cardiac in nature. In the alternative, any such delay in the onset of symptoms is irrelevant as there was clearly an identifiable physiological change, such that the condition is properly identified as a personal injury.
Mr Ainsworth submits that the deeming provisions in ss 15 and 16 of the 1987 Act operate when it cannot be determined when a disease was contracted or aggravated. As the date of injury in the present case can be identified, the deeming mechanism does not apply as there is an identifiable physiological change and a personal injury. This is consistent with two decisions in the Compensation Court and the former Commission that determined that an aggravation of a disease could be characterised as a personal injury.[7]
[7] Hoani v Chubb Security Australia Pty Ltd [2000] 21 NSWCCR 242 and Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137.
Mr Ainsworth submits that the respondent seeks a finding that the applicant sustained a personal injury on 15 July 2022 and this should be reflected in the referral to the Medical Assessor.

APPLICANT’S SUBMISSIONS

Does the respondent require leave to raise an un-notified matter, and if so, should leave be granted?

The applicant’s counsel, Mr Tanner, submits that the respondent requires leave to rely on an un-notified matter and to dispute that the applicant suffered a disease with s deemed date of injury of 11 July 2023. The application is without merit and contrary to the evidence.
Mr Tanner submits that the claim made by the applicant on 11 July 2023 was based upon the opinion and assessment of Dr Smith dated 13 June 2023. It was clear that Dr Smith considered the applicant’s psychological condition to have been caused by repeated and cumulative exposure to traumatic incidents over some years during his work with CSNSW, with the final trigger being the assault in July 2022.
Mr Tanner submits that if the respondent wished to dispute the nature of the injury, it needed to secure countervailing evidence, and then raise a dispute pursuant to s 78 of the 1998 Act.
Mr Tanner submits that Dr Bisht recorded that the applicant had witnessed many traumatic scenes during the course of his work with the CSNSW. Further, he had nightmares and flashbacks of previous traumatic events.8
Mr Tanner submits that Dr Bisht agreed with Dr Smith’s diagnoses of post-traumatic stress disorder and Major Depressive Disorder, and he did not provide any opinion distancing himself from Dr Smith’s opinion as to the cumulative cause of the applicant’s condition. He did not record any conclusion of his own that exposure to traumatic events over the years had not caused the applicant’s psychological condition or opine that the condition was exclusively caused by the incident on 15 July 2022.
Mr Tanner submits that there is no dispute that the applicant witnessed many traumatic scenes during the course of his employment. It would follow that the applicant’s psychological condition as diagnosed by both Dr Smith and Dr Bisht resulted from exposure to such undisputed and repeated trauma. Dr Bisht did not provide an opinion that the condition was exclusively due to the incident on 15 July 2022.
Mr Tanner submits that the respondent relies on bald statements by Dr Bisht that the applicant suffered a personal injury, and that his condition is not a disease. No explanation was provided by Dr Bisht, which raises the possibility that Dr Bisht does not understand the statutory meaning of those terms.
Mr Tanner submits that if the respondent wanted wish to raise a dispute as to injury, it needed to do so within two months of receipt of the claim dated 11 July 2023. No explanation has been provided for the respondent’s failure to raise that unnotified dispute until the preliminary conference on 29 February 2024, over seven months following receipt of the claim.
Mr Tanner submits that that the applicant will be also exposed to prejudice in that it has been directed that there will be no further evidence filed in these proceedings. The applicant has therefore been deprived of the opportunity to lodge further expert evidence specifically addressing the un-notified issue. The respondent’s application for leave should be declined.

Is the applicant’s psychological injury a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed), being the date of the claim?

Mr Tanner submits that the traumatic episode on 15 July 2022 was but one of a variety of stressors experienced by the applicant during a period of 28 years as a prison officer, and which contributed cumulatively to his diagnosis of post-traumatic stress disorder. It would be erroneous, and contrary to the evidence, to treat the applicant’s post-traumatic stress disorder as having resulted solely from the incident on 15 July 2022, and to disregard the contribution of the variety of previous stressors to the condition which was diagnosed following the final stressor.
Mr Tanner submits that the applicant pleads his case as being subjected to traumatic events in the course of his employment and as these occurred on many different dates, the applicant has pleaded a deemed date of injury of 11July 2023 on the basis that the multitude of stressors constitute a disease in terms of s 4(b)(i) of the 1987 Act.
Mr Tanner submits that the medical reports confirm that the applicant’s condition results from a multitude of traumatic events and not one event. Dr Malik referred to the applicant being exposed to multiple deaths/assaults/prison riots and serious physical injuries as a prison officer. He also noted that the applicant was persistently avoidant of the stimuli associated with the traumatic events. The doctor referred to the trigger for the illnesses was the exposure to deaths and serious physical injuries at work, and post-traumatic stress disorder would not have manifested but for the exposure to workplace traumas. He also commented that the applicant’s post-traumatic stress disorder was chronic and was undiagnosed for years and eventually led to his total incapacity.
Mr Tanner submits that the comment that the applicant “struggles with vivid images of deaths” confirms the causal relevance of traumatic events preceding the final stressor in 2022, which did not involve a death.
Mr Tanner submits that Ms Wilson considered that the applicant’s post-traumatic stress disorder was chronic and long term and her treatment was aiming to address the accumulation of traumatic events.
Mr Tanner submits that Dr Smith reported that the applicant was exposed to numerous traumatic incidents throughout the course of his employment with the respondent and he noted the circumstances of the assault on 15 July 2022. He recorded a history of flashes, images of traumatic incidents and numerous deaths in custody. These symptoms were informed by the multitude of stressors experienced throughout the applicant’s employment, not solely the incident on 15 July 2022.
Mr Tanner submits that Dr Smith concluded that the applicant’s condition arose in the context of repeated and cumulative exposure to traumatic incidents over some years with the final trigger being the assault in July 2022.
Mr Tanner submits that Dr Bisht did not challenge Dr Smith’s diagnosis, or opinion as to the cause of the applicant’s condition. He agreed with Dr Smith’s diagnosis and provided no opinion questioning Dr Smith’s opinion as to the effect of the applicant’s cumulative exposure to traumatic incidents over some years.
Mr Tanner submits that Dr Bisht recorded a history of exposure to many traumatic events and noted that the applicant started to have substantial symptoms after the incident in July 2022. However, the majority of the stressors related to trauma before the incident. Dr Bisht also noted that the applicant had daily recollections of previous traumatic events.
Mr Tanner submits that Dr Bisht noted that the applicant stopped work in August 2022 because of his symptoms that included daily recollections of previous traumatic events. He submits that the respondent’s purpose in seeking to characterise the applicant’s injury as a frank incident in July 2022 is obviously to exclude the cumulative trauma and is designed to introduce the prospect of a deduction pursuant to s 323 of the 1998 Act.
Mr Tanner submits that Dr Bisht’s conclusion that the applicant’s condition is not a disease is a bare ipse dixit in that he has not explained the evidentiary basis for his opinion. It is unclear whether the doctor understands the legal nature of a “disease” as provided for in s 4 of the 1987 Act and he does not say that the condition is not attributable to a multitude of traumatic experiences. His history clearly reveals his understanding that the applicant’s condition is not exclusively attributable to one event in 2022.
Mr Tanner submits that in the circumstances, the assessment of impairment needs to proceed with reference to a deemed date of injury because the applicant’s injury results from cumulative trauma throughout his employment, and constitutes a disease as contemplated by s 4(b)(i) of the 1987 Act.

RESPONDENT’S SUBMISSIONS IN REPLY

Mr Ainsworth submits that the applicant has conflated the issue of causation with the definitions of personal injury and disease injury as those terms have been considered in the Commission and judicially. These definitions are concerned with the manner in which an injury presents, not the cause of an injury.
Mr Ainsworth submits that the legislature acknowledged this distinction when it introduced
s 9A of the 1987 Act after the High Court’s decision in Zickar. The applicant’s submissions as to what caused his injury are not pertinent to whether that injury is properly characterised as a personal injury or a disease injury.
Mr Ainsworth submits that the applicant has not substantially responded to the respondent’s submission that to the submission that leave to raise the dispute regarding a personal injury and a disease was not required.
Mr Ainsworth submits that to the extent that in response to the submission that the respondent ought to have known a claim was being made for a disease injury, the respondent refers to all of its submissions.
Mr Ainsworth submits that the submission regarding the prejudice to the applicant is inconsistent with the submission that the respondent’s argument is without merit and contrary to the evidence, and inconsistent with the applicant’s submissions of 12 March 2024.

Legislation

1987 Act

Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury-
(a) means a personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined”.

1998 Act

Section 4 of the 1998 Act contains a definition of “injury”. It provides:
“injury —
(a) means a personal injury arising out of or in the course of employment, and
(b) includes—
(i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration…”
Sections 78 and 79 of the 1998 Act require an insurer to give notice of a decision to a worker. They provide:
“78 Insurer to give notice of decisions
(1)     An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2)     Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3)     The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.
79 How notice of decision is given
(1)     A notice required by this Division must be given—
(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2)     The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3)     In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
(4)     The regulations may make provision for—
(a) the manner in which a notice under this Division is to be given, and
(b) the form of and other information to be included in or to accompany the notice.”
Section 281 of the 1998 Act deals with the insurer’s obligations when a claim for lump sum compensation is made. It relevantly provides:
“281 Liability to be accepted and settlement offer made
(1)     The person on whom a claim for lump sum compensation or work injury
damages is made must, within the time required by this section, determine
the claim by—
(a) accepting liability and making a reasonable offer of settlement to the
claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2)     A claim must be so determined—
(a) within 1 month after the degree of permanent impairment first becomes
fully ascertainable, as agreed by the parties or as determined by a
medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant
particulars about the claim,
whichever is the later.
Note—
Section 283 makes failure to comply with this section an offence. Section 78 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.
(2A) The determination of a claim cannot be delayed beyond 2 months after the
claimant has provided to the insurer all relevant particulars about the claim
(that delay being on the basis that the degree of permanent impairment of the
injured worker resulting from the injury is not fully ascertainable), unless the
insurer has within that 2-month period notified the claimant that the degree of
permanent impairment of the injured worker resulting from the injury is not fully
ascertainable.
(2B) When the person on whom a claim is made accepts or disputes liability, the
person must notify the claimant as to whether or not the person accepts that
the degree of permanent impairment of the injured worker resulting from the
injury is sufficient for an award of damages.
(3)     An offer of settlement is to specify an amount of compensation or damages or
a manner of determining an amount of compensation or damages….”
Section 282 of the 1998 Act deals with the obligation of a worker to provide relevant particulars. It provides:
“282 Relevant particulars about a claim
(1)     The relevant particulars about a claim are full details of the following, sufficient
to enable the insurer, as far as practicable, to make a proper assessment of the
claimant’s full entitlement on the claim—
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the Workers Compensation Guidelines may require.
(2)     If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.
(3)     The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.
(4)     In this section, injury is not limited by the meaning given by section 4.”
Section 289A of the 1998 Act sets out restrictions as to when a dispute can be referred to the Commission. It provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if:
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously un-notified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so”.

2021 Guidelines

Clauses 3.1 and 3.2 of Pt 3 of the 2021 Guidelines detail what is required for making a claim. They provide:
“3.1 Minimum requirements for a claim
As a minimum, a claim for compensation must provide the insurer with the following information:
·name and contact details of the worker
·name and contact details of the employer (individual or organisation)
·name and contact details of the worker’s medical practitioner
·if applicable, the name and contact details of any witnesses or witness statements, including details to identify any witnesses known to the worker if the incident was witnessed.
·description of the injury and how it happened
·information to support the medical expenses and other losses the worker is claiming.
3.2 Requirement for a claim form
Workers are able to complete and submit a claim form to an insurer at any time, subject to the time limits outlined in the 1998 Act. Claim forms are available from the SIRA website or insurers may have their own claim form.
An insurer must require a worker to complete a claim form when:
·a reasonable excuse notice has been issued, the worker is seeking weekly payments of compensation and the reasonable excuse is still relevant, or
·compensation is likely to be claimed beyond the provisional liability limits and the insurer determines that there is insufficient information to determine ongoing liability.
The insurer can waive the requirement for a worker to submit a claim form if they determine they have enough information to make a liability determination.”
Clauses 8.1 and 8.1.1 of the 2021 Guidelines detail what is required for making a lump sum claim. They provide:
“Part 8: Lump sum compensation
8.1 Relevant particulars about a claim
Section 282(1) of the 1998 Act states that ‘the relevant particulars about a claim’ are full details that enable the insurer (as far as practicable) to make a proper assessment of the claimant’s entitlement. Section 282(1)(g) allows these Guidelines to specify any further relevant particulars about a claim.
8.1.1 For injuries received on or after 1 January 2002
A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed.
The assessor’s report must include:
·a statement about whether the condition has reached maximum medical improvement
·an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)
·where the claim relates to hearing loss, a copy of the audiogram used for the medical report….”

Workers Compensation Regulation 2016 (the 2016 Regulation)

Regulation 38 of the 2016 Regulation sets out an insurer’s obligation to give notice. It provides:
“38 Notice of insurer decisions.
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b) a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c) a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d) details of the procedure for requesting a review of the decision,
(e) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f) the contact details for the Independent Review Officer,
(g) the street address and the email address of the Registrar of the Commission,
(h) a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute….”

REASONS

Does the respondent require leave to raise an un-notified matter, and if so, should leave be granted?

According to Mr Ainsworth, the respondent does not require leave to raise an un-notified matter. It accepted liability in respect of a personal injury on 15 July 2022. He has referred to the Guidelines and I have already commented on this above.
The applicant submitted a medical certificate that identified a date of injury of 15 July 2022 which corresponded with date of the assault. The insurer apparently had sufficient evidence to determine the claim and accepted liability. It did not require the applicant to provide any further particulars or complete a claim form.

On 11 July 2023, Mr Dougall served a claim for lump sum compensation in respect of 47% whole person impairment on the insurer. He did not identify a date of injury, the nature of the injury or quantum the value of the claim. This is an extremely poor practice and not expected from one with Mr Dougall’s extensive experience.
Whilst Mr Dougall failed to particularise the nature of the applicant’s the injury, the
relevant information identified in s 282(1) of the 1998 Act and cl 8.1 and cl 8.1.1 of the 2021 Guidelines was contained in the permanent impairment claim form and the report of Dr Smith. It could have been better described by Mr Dougall, but it does not mean that full particulars were not provided.
Mr Dougall did not refer to a disease or a deemed date of injury in the letter, but the permanent impairment claim form, whist lacking any great detail, identified a psychological/psychiatric injury, 47% whole person impairment and the date of injury as “Deemed”.
Dr Smith described the circumstances of the applicant’s injury, the impairment caused by the injury, details of his past history and he indicated that it was not likely that further treatment would result in a change greater than 3% impairment over the next year.
It is true that Dr Smith did not refer to the term “disease”, but on any proper reading of his report, it is clear that he attributed the applicant’s post-traumatic stress disorder and a Major Depressive Disorder to “numerous traumatic incidents in his work with CSNSW, with the incident on 15 July 2022, the final trigger to full PSTD”. Such a description would be more in keeping with a disease process caused by multiple traumatic events, rather than a single episode.
Therefore, there was information presented to the insurer as early as July 2023 that had the potential of identifying that the applicant relied on a deemed date of injury, which is usually associated with disease injuries, particularly those that concern a psychological condition. It had two months to determine the claim in accordance with ss 281(2)(b) and 281(2A) of the 1998 Act.
After receipt of the notice of claim, the insurer retained Mr Ainsworth. He qualified Dr Bisht on 23 October 2023. Dr Bisht stated that the applicant had post-traumatic stress disorder and a Major Depressive Disorder. In answer to a question posed by Mr Ainsworth, the doctor agreed that the applicant had suffered personal injury and the condition was not a disease. Therefore, the insured had medical evidence in its possession in late October 2023 to challenge the claim being made by the applicant.
When Mr Ainsworth wrote to Mr Dougall on 28 November 2023, he did not indicate that insurer disputed that the applicant was suffering from a disease. Rather, he advised that according to Dr Bisht, the applicant had not reached maximum medical improvement and the degree of impairment was not fully ascertainable. This was done more than four months after the claim was made and in contravention of s 281(2A) of the 1998 Act.
The Application that was filed in the Commission on 24 January 2024 identified a disease injury with a deemed date of 11 July 2023, consistent with the date of the notice of claim. The claim was quantified in the sum of $198,370, consistent with the deemed date.
The first time that the respondent raised an issue regarding the classification of the injury as a disease was in the Reply that was filed and served on 16 February 2024.
Mr Ainsworth’s submission that the insurer was not required to determine the claim in accordance with s 281(2)(a) of the 1998 Act ignores that fact that the applicant was relying on a disease with a deemed date of injury rather than a frank personal injury on 15 July 2022. The applicant does not need leave to plead an injury that might differ from the nature of the injury accepted by the insurer.
Further, the principles discussed by Deputy President Roche in Bowditch concerned the content of dispute notices and the obligation of an insurer to “clearly and plainly identify on its face the reason liability is disputed and the issues relevant to the decision”[8] do not apply to an injured worker, who is not required under the legislation to issue a dispute notice. A worker’s obligation relates to the provision of particulars and there was compliance with this as discussed above.
[8] Bowditch, [37].
According to the Reply, there had been no failure by the insurer to determine the claim. That may have been case with respect to the incident on 15 July 2022, but the insurer did not dispute the disease injury as required under the legislation. The only issues identified related to maximum medical improvement and the respondent submitted that the applicant had not suffered a disease injury. The respondent did not indicate that it proposed to seek leave to rely on an un-notified matters in accordance with s 289A(4) of the 1998 Act.
According to s 289A(4) of the 1998 Act, the Commission may hear or otherwise deal with a dispute relating to previously un-notified matter if it is in the interests of justice to do so.
In Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services,[9] Deputy President Roche stated:
“In exercising her discretion under section 289A (4) the Arbitrator considered the following factors at paragraph 18 of her Reasons:
(a) the degree of difficulty or complexity to which the un-notified issues give rise;
(b) when the insurer notified that it wished to contest any un-notified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.”[10]
[9] [2007] NSWWCCPD 227 (Mateus).
[10] Mateus, [38].
The Deputy President continued:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an un-notified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an un-notified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion, the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker, it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion”.[11]
[11] Mateus, [48].
When considering the relevant criteria in Mateus, the following observations can be made.
There is a degree of complexity regarding the dispute that the respondent now seeks to raise. Psychological injuries are normally classified as diseases, so to argue that all of the applicant’s problems stem from one incident requires both factual and medical evidence to confirm or refute such a dispute.
The insurer was on notice as early as July 2023 regarding the allegation of and claim in respect of a disease and did not issue a dispute notice. It failed to comply with its obligations under the 1998 Act, the Guidelines and the 2016 Regulation to determine the dispute regarding the disease injury when the claim was made in July 2023, or in October 2023 when it received Dr Bisht’s report or in November 2023, when it had the benefit of legal advice. There was no “concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision” set out in a dispute notice issued pursuant to s 78 of the 1998 Act.
One could not say that the insurer acted promptly to bring the matter to the attention of the Commission and all other parties. The insurer had ample opportunity to determine the claim that was made by the applicant and the first time that his was raised was in the Reply. Even then, there was no indication that leave would be sought to raise an un-notified matter. This was some seven months after the notice of claim was served.
It seems that the only explanation offered by the respondent is that the insurer had accepted liability for a frank psychological injury and the claim had not been properly particularised. In my view, that is not a valid explanation for the delay.
One needs to examine if there is any merit and substance regarding the issue that the respondent seeks to raise. In that regard, the respondent relies primarily on the evidence of Dr Bisht, who agreed that the applicant had suffered a personal injury and not a disease, but he failed to explain in any detail why he held that view. Therefore, there might well be little merit in the un-notified matter that the respondent now seeks to raise.
I do not agree with Mr Ainsworth’s submission that there is an inconsistency in the applicant’s submission regarding the merit and substance of the matter and the prejudice that the applicant would suffer. Both criteria need to be looked at individually. If there is no merit or substance, there might still be some prejudice if leave was granted.
Mr Ainsworth submits that it is in the interests of justice and procedural and administrative fairness not to permit the respondent to raise this issue. The respondent will be prejudiced because the respondent was unaware of a claim for a disease injury until these proceedings commenced. I have already made comments about the applicant’s claim above. A proper reading of the notice of claim and attachments would have alerted the respondent to the nature of the claim.
Mr Ainsworth submits that the applicant will not be prejudiced, but there is no merit in such a submission.
Clearly the applicant will be prejudiced if leave is granted to the respondent. Mr Dougall was unaware that the disease injury was disputed until receipt of the Reply, and accordingly did not ask Dr Smith for an opinion. If leave was granted in such circumstances, it would be highly prejudicial to the applicant.
If the respondent is successful in its dispute regarding a disease, the applicant will potentially be deprived of a higher amount of compensation, given the differing amounts payable at the two different dates of injury. It might also result in a significant deduction for previous injuries or conditions pursuant to s 323 of the 1998 Act, and this might impact adversely on any quantum of compensation and the applicant’s ability to bring a claim for work injury damages. I do note in passing that both solicitors declined my suggestion to obtain supplementary reports from their qualified specialists, so I noted in the Direction that no further evidence would be filed.
It is the objective of the Commission to provide a timely, fair and cost effective system for the resolution of claims. Sections 42 and 43 of the Personal Injury Commission Act 2020 provide that the Commission is to facilitate the just, quick and cost effective resolution of real issues and it is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
On the basis of the evidence currently before me, I am not convinced about the merit and substance of the respondent’s application.
In the interests of justice and having regard to the greater prejudice that the applicant will suffer, I decline to grant leave pursuant to s 289A (4) of the 1998 Act to allow the respondent to dispute that the applicant suffered a disease injury on 11 July 2023 (deemed), being the date of the claim.

Is the applicant’s psychological injury a personal injury sustained on 15 July 2022 or a disease injury sustained on 11 July 2023 (deemed), being the date of the claim – ss 4(a) and 4(b)(i) of the 1987 Act?

In the event that I am wrong in declining the respondent’s application for leave, I do not believe that the respondent would succeed in showing that the applicant suffered a personal injury rather than a disease for the following reasons.
In order to be satisfied that an injury has occurred, there must be evidence of a sudden
[12] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496.
[13] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422, at [429].
or identifiable pathological change,[12] and the word “injury” refers to both the event and the pathology arising from it”.[13]
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain.[14] The applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact.[15]
[14] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), at [463].
[15] Department of Education & Training v Ireland [2008] NSWWCCPD 134 (Ireland), at [89].
I do not agree with Mr Ainsworth’s submission that the issue as to what caused the injury is not pertinent as to whether that injury is properly characterised as a personal injury or a disease injury. The facts and circumstances that led to an injury will be relevant and will assist a doctor to formulate a diagnosis of the nature of the injury, be it a personal injury or a disease.
In this matter, there is no dispute that the applicant has sustained a psychological injury. All of the doctors and Ms Wilson agree that the applicant has post-traumatic stress disorder and Major Depression. What is in dispute is whether it is an injury simpliciter in terms of s 4(a) of the 1987 Act, or a disease injury in terms of s 4(b)(i) of the 1987 Act.
In the High Court decision of Federal Broom Co Pty Ltd v Semlitch,[16] Kitto J commented:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”.[17]
[16] [1964] HCA 34; 110CLR 626 (Semlitch).
[17] Semlitch, at [632].
However, a psychological condition, such as post-traumatic stress disorder, can also be a personal injury.[18]
[18] Gurnhill, at [70].
According to Yates and Giacomantonio, the event or events need to have had a physiological effect on the injured worker.
The High Court in Zickar confirmed that a personal injury was a “sudden or identifiable physiological change”.[19] In Petkoska, a personal injury was described as a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.[20]
[19] Zickar, at [716].
[20] Petkoska, at [39] per Gleeson CJ and Kirby J.
Any physiological change will depend on the nature and severity of the symptoms caused by a specific incident, or as a result of being exposed to multiple incidents.
In May, the High Court concluded that “‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense”,[21] but it is “often useful when there is a need to distinguish physiological change from the natural progress of an underlying (and in in one sense, closely related) disease”.[22] This was confirmed by Deputy President Snell in Ky v Blue Leaf Food Group Pty Ltd.[23]
[21] May, at [47].
[22] May, at [47].
[23] [2016] NSWWCCPD 55, at [55], (Ky).
The facts in AP v NSW Police Force[24] are similar to the present matter. The dispute centred on the cause of a police officer’s psychological condition, and whether it constituted a personal injury or a disease. The officer suffered a psychological condition as a consequence of the combined effects of a suicide of a work colleague and bullying and harassment by her superiors. The dispute was whether the officer suffered a frank injury when she found out about the suicide, or it was due to her exposure to multiple events over a period of time. An arbitrator determined that the injury was a disease as the medical evidence indicated that the condition had evolved gradually.
[24] [2013] NSWWCCPD 11, (AP),
On appeal, Deputy President Roche was satisfied that the evidence suggested that the officer suffered a physiological effect or injury when informed about the suicide of the work colleague, but he noted that the medical evidence of the applicant’s specialist and psychologist indicated that the officer’s symptoms evolved gradually into a more pathological state, suggesting it was contracted by multiple events. Therefore, he found that the officer was suffering a disease in terms of ss 4(b)(i) and 15 of the 1987 Act.
Unfortunately the statement that was given to the police by the applicant is of no assistance. It merely describes the nature of the incident on 15 July 2022.
The absence of a detailed statement from the applicant is unfortunate, but as the disease issue was only raised in the Reply, this is not surprising. When one has regard to the histories recorded in the medical evidence, I do not believe that I can draw an inference that a further statement from the applicant applicant’s evidence would not have advanced his case. In the circumstances, one needs to focus on the histories recorded by the doctors and clinicians who have examined and treated the applicant.
It is convenient to first consider the report of Dr Bisht, whose views form the primary support for the respondent’s position.
Dr Bisht recorded a similar history to that of Drs Smith and Malik, namely exposure to a variety of traumatic events such as suicides, assaults and riots. The respondent has not challenged that the applicant was exposed to such events during the course of his employment.
According to the doctor, “Darren denied [sic] any other major psychological stressors in the last few years outside of the realm of day to day stressors”. Although Dr Bisht obtained such a history, he did not engage with the applicant regarding the effect that the past traumatic incidents had on him. The use of the term “major” might still mean that the applicant was exposed to stressors of a lesser degree.
It is true that the doctor reported that the applicant had no history suggestive of any psychiatric condition in the past, but one would have expected the doctor to ask the applicant how he felt after witnessing the past traumatic events at work.
Dr Bisht recorded that the applicant started to have “substantial symptoms” after the incident in July 2022. Such a comment might be interpreted as an acknowledgment that the applicant had some symptoms before 15 July 2022, and they became significant after the incident. Further, the use of the term “after” sheds no light on a precise time frame. It could have been the same day, the next day or weeks later. This is where contemporaneous clinical notes might assist.
In answer to a question posed by Mr Ainsworth, Dr Bisht agreed that the applicant had suffered a personal injury arising out of or in the course of his employment and he felt that the applicant’s employment was a substantial contributing factor to his injury. He provided no explanation for this view.
In response to two other questions from Mr Ainsworth, the doctor indicated that the applicant’s condition was not a disease, and there had been no aggravation. Again, the doctor failed to explain why he came to that conclusion. It was, as submitted by Mr Tanner, a bare ipse dixit.

In my view, Dr Bisht does not provide a “fair climate” for his opinion.[25] Whilst he indicated that the applicant suffered a personal injury and not a disease, he did not explain how he came to his conclusion. He did not engage with the applicant regarding the effects of his exposure to the past traumatic events or the symptoms that he now experiences that include flashbacks and nightmares about previous traumatic events. Accordingly, his views carry little, if any, weight.
[25] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11, and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
Whilst there is an absence of any contemporaneous complaints in the clinical records of Balance Springwood Family Practice Pty Ltd, this does not necessarily mean that the applicant did not have symptoms. He merely may have not complained about them to Dr Merchant.
The first history recorded on 19 August 2022 referred to work stress and the incident four weeks earlier, followed by anxious stress. If the applicant was significantly traumatised by
the incident on 15 July 2022, one would have expected that he would have consulted Dr Merchant shortly after the incident and not four weeks later.
Of course the Court of Appeal has cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment and they rarely, if ever, represented a complete record of the exchange between a busy doctor and the patient.[26]
[26] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, Nominal Defendant v Clancy [2007] NSWCA 349, King v Collins [2007] NSWCA 122, Mastronardi v State of New South Wales [2009] NSWCA 270 and Mason v Demasi [2009] NSWCA 227.
It is true that Dr Merchant was asked by the insurer about a history and he referred to the incident on 15 July 2022, but he did not go into any detail in response to the insurer’s questionnaire. He commented that the applicant had anxiety, chest pain and high blood pressure and agreed that the symptoms may be related to the incident on 15 July 2022, but he did not give any explanation for that view.
Dr Merchant’s certificates indicated that previous multiple incidents may have been relevant to the applicant’s condition or injury. Although Mr Ainsworth submits that the certificates are evidence of a sudden or identifiable physiological change or a personal injury, I do not believe that a great deal of weight can be given to Dr Merchant’s evidence.
The fact that Dr Merchant referred to the assault and symptoms relating to the incident is not in my view fatal to the applicant’s claim. There is no doubt that this incident contributed to the applicant’s psychological condition, or as described by Dr Smith, it had a triggering effect.
It is difficult to conclude whether Dr Merchant attributed all of the applicant’s symptoms to the incident or to the multiple incidents during the course of his employment as it seems that the doctor was never asked his views on causation or whether the applicant suffered from a disease process that was related to multiple traumatic work incidents.
Dr Fahmy noted a history of heart disease, Covid, anxiety, a lot of stressors and a series of other health issues. He mentioned chest pain and an incident at work and concluded that the chest pain was not cardiac in nature. He did not address whether the incident on 15 July 2022 had caused the applicant’s chest pain. It would be highly speculative to conclude a causal connection on the basis of these two brief reports, or that the diagnosis of a psychological condition was delayed because the initial symptoms were thought to be cardiac in nature.
The hospital discharge summary sheds no light on the cause of the applicant’s chest pain and shortness of breath. The attendance was one week after the incident and one cannot draw any conclusions regarding the cause of these symptoms.
According to Dr Bisht, the applicant suffered symptoms as a result of the frank incident on
15 July 2022. I have already indicated that little weight can be given to his opinion.
Drs Merchant and Fahmy did not address the effects of exposure to multiple incidents, so their views are also of little assistance.
Dareen Wilson referred to chronic post-traumatic stress disorder and co-morbid Major Depressive Disorder that was highly likely triggered or activated by his work environment. She did not attribute the condition to one frank episode.
Mr Ainsworth made no submissions regarding the reports of Dr Malik. As the treating psychiatrist, who saw the applicant on a regular basis, his views carry significant weight.
According to Dr Malik, the applicant presented with a history of various psychological symptoms on a background of exposure to many deaths, assaults, riots and suicides at work. He believed that these events triggered the applicant’s post-traumatic stress disorder, and he commented that it could take many months to fully manifest. The doctor felt that the applicant’s post-traumatic stress disorder was undiagnosed for years and eventually led to total incapacity. This evidence corroborates the views of Dr Smith and strongly supports the applicant’s case.
According to Mr Ainsworth, the applicant’s solicitor asked Dr Smith to assume that the applicant had sustained a psychological injury arising from various assaults and incidents. In my view, there is no merit in such a submission. Mr Dougall did not ask Dr Smith to assume certain facts.
Although the letter of instructions to Dr Smith is not in evidence, the doctor included a quote from the letter of instructions. In my opinion, there is nothing sinister in a solicitor indicating to a doctor what a client had told him. The questions that he posed to Dr Smith were not controversial or leading. Dr Smith provided detailed responses to Mr Dougall’s questions, unlike the one line answers provided by Dr Bisht. Dr Smith also recorded a detailed history from the applicant, so he was not reliant on what Mr Dougall had advised.
It is true that Dr Smith was did not express an opinion regarding a personal injury or a disease. Had such an issue been identified by the insurer as soon as Dr Bisht’s report was received in late October 2023, Mr Dougall would most likely have sought an opinion.
Dr Smith attributed the applicant’s psychological condition to numerous traumatic incidents in his work with the respondent and the incident on 15 July 2022 was the final trigger. In other words, the incident was the final straw and not the only reason why the applicant ceased work.
The evidence of Dr Smith and Dr Malik support the gradual evolution of the applicant’s symptoms that arose as a result of multiple incidents into a more pathological state, culminating with the incident on 15 July 2022, which was the final straw. There was no sudden physiological change to suggest a personal injury. The only evidence to challenge the allegation of a disease is that of Dr Bisht, whose views I have discounted.
Accordingly, having regard to the common-sense test in Kooragang and the principles discussed in Ireland, I am satisfied that the applicant suffered a disease injury arising out of or in the course of his employment.
As there no evidence to suggest any other factor contributing to his condition, and consistent with the principles discussed in AV v AW,[27] I am satisfied that the applicant’s employment was the main contributing factor to his injury.
[27] [2020] NSWCCPDF 9, at [65]-[68].
Finally, consistent with Stone v Stannard Brothers Launch Services Pty Ltd,[28] the deemed date of injury is the date of the claim of 11 July 2023.
[28] [2004] NSWCA 277; (2004) 1DDCR701.

Quantification of whole person impairment

I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of the whole person impairment due to a psychological injury sustained on 11 July 2023 (deemed).

FINDINGS

The respondent’s application for leave to rely on un-notified matters pursuant to s 289A(4) of the 1998 Act is declined.

ORDERS

I remit this matter to the President for referral to two Medical Assessors pursuant to s 321 of the 1998 Act for assessment of the whole person impairment as follows:
Date of injury: 11 July 2023 (deemed) – disease
Body systems / parts: Psychological/psychiatric disorder.
The documents to be reviewed by the Medical Assessor are:
(a) Application with attached documents, and
(b) Reply with attached documents.

[2024] NSWPIC 187

15 April 2024