Hays Specialist Recruitment (Australia) Pty Limited

1. The Certificate of Determination dated 10 June 2025 is amended to remove from Order 1 the reference to the right knee and to revoke Orders 3 and 4, but is otherwise confirmed.
2. The matter is remitted to another Member for determination of whether there is consequential injury to the right leg and to determine whether the worker has incapacity.

WORKERS COMPENSATION - fact finding by Member - alleged injury to right knee - whether Member erred in finding the worker suffered a right knee condition - whether there was support in the evidence to make that factual finding - materiality of error - Mars Australia Pty Limited v Knight [2025] NSWCA 229 and Fisher v Nonconformist Pty Limited [2024] NSWCA 32; 114 NSWLR 1 discussed and applied

Akbawy v Hays Specialist Recruitment (Australia) Pty Ltd [2025] NSWPIC 257

1. This is an appeal from a determination of a Member of the Personal Injury Commission (Commission) made 10 June 2025.
2. The respondent sustained injury on 2 August 2023 when he stepped on a conduit whilst carrying a handrail and fell. It was accepted that the respondent sustained some injury(s) as a result of the event. The contest before the Member was whether the respondent sustained injury to the right knee, psychological injury and a condition of GORD. In addition, there was a dispute as to the respondent's capacity.
3. The Commission determined:

"1. The [respondent] suffered right knee and psychological conditions as a result of injury to his left knee, cervical spine, thoracic spine and lumbar spine on 2 August 2023 in the course of his employment with the [appellant].

1. The [respondent] has not discharged his onus in respect of the claimed GORD condition
2. The [respondent] has, and has had, no capacity for work as a result of injury on 2 August 2023.
3. Pursuant to s 37(1) of the Workers Compensation Act 1987 (the 1987 Act), the [appellant] is to pay the [respondent] $1,185.57 per week (and as indexed) from 19 February 2024 to date and continuing, in respect of pre-injury average weekly earnings of $1,481.96 (and as indexed).
4. General order pursuant to s 60 of the 1987 Act that [the appellant] pay the [respondent's] reasonably necessary medical and treatment expenses as a result of injury on 2 August 2023."
5. The appeal challenges the finding that the respondent suffered injury to the right knee and psychological injury.
6. For the reasons that follow, the appeal is allowed and the matter remitted for allocation to a member to be redetermined in accordance with these reasons. Although there is no challenge to Order 3, the finding that the respondent has and has had no capacity for work the outcome of the Appeal necessitates the consequential revocation of Orders 3 & 4.
7. The matter is remitted to another Member for determination of whether there is consequential injury to the right leg and to determine whether the worker has incapacity

1. On 2 August 2023, the respondent was working at the Children's Hospital car park at Westmead. He said the area was not well lit and he had difficulty seeing his surroundings clearly. He was carrying a heavy handrail when he slipped on a discarded piece of conduit on the floor. He tried to regain his balance, his back seized and he fell backwards onto the concrete.
2. The respondent felt severe pain in the neck, mid-back, lower back and left knee. An ambulance was called and he was taken to Westmead Hospital Emergency Department.
3. There is no dispute the respondent sustained injuries to the neck, middle back, lower back and left knee. In the matter before the Member, the respondent alleged that due to his compensating for the left knee injury he sustained a consequential injury to the right knee and that, due to the ingestion of medication, he sustained "GORD". The Member inferred that this was an acronym for Gastro-Oesophageal Reflux Disease. The respondent also alleged that he sustained psychiatric injury as a result of the subject accident.
4. A Discharge Summary from Westmead Hospital recorded injuries to the neck, thoracic back and left knee pain. A CT scan of the brain/cervical spine and an X-ray of the pelvis, lumbosacral spine and left knee were performed. These did not show any fracture or other pathology.
5. A physiotherapist's certificate prepared by Mr Nguyen dated 8 August 2023 noted low back pain, bilateral neck pain, left anterior knee pain. He noted a very guarded presentation by the respondent and severe pain.
6. On 8 August 2023, general practitioner, Dr Kako's clinical notes recorded pain in the lower back with radiculopathy, pain in the neck, upper back, both knees, left worse than the right, insomnia and acute stress disorder. The respondent was also very stressed and suffering from insomnia.
7. Dr Kako issued a certificate with a diagnosis of work-related injury in which he recorded, relevantly for the proceedings, "Bilateral knee, worse in left knee ... Insomnia ... Acute stress disorder - worse when moving with pain."
8. On 28 September 2023, Dr Kako provided a referral in which he identified acute stress disorder post-fall, with severely low mood and anxiety, suicidal thoughts due to the severity of pain and insomnia.[1]
9. An email from Dr Kako to the case manager noted the respondent's symptoms to be very severe and further that the respondent had expressed suicidal ideation but had not acted upon it. The doctor noted the severity of the respondent's symptoms and his mental health deterioration.[2]
10. On 15 November 2023 Dr Kako continued to note bilateral pain worse in the left knee. The Member noted that the clinical note included "persistent pain" and "right side compensating".[3]
11. The respondent consulted Mr Hurmoz, a psychologist; the evidence included Mr Hurmoz's clinical notes. In a note dated 25 November 2023, Mr Hurmoz said the respondent had a "diagnosis of MDD". The Member inferred that MDD was an acronym for "Major Depressive Disorder".[4]
12. Dr Kako's letter referring the respondent to Dr Blagoje Kuljic dated 14 June 2024 stated in part:

"Thank you for seeing Abather Akbawy, a 38 ... year old Male for opinion and management of severe depression, anxiety, stress disorder, panic disorder and self-harm ideation. Abather sustained significant pain in his back following a workplace injury and his mental health has since deteriorated. He continues to suffer from radiculopathy and reports severe insomnia, flashback and intrusive thoughts."

1. The Member, under the heading "Medical and related reports", considered the medical evidence. The respondent was treated by Dr Singh, orthopaedic and spine surgeon, who provided a number of reports commencing 20 December 2023. Dr Singh diagnosed L5/S1 disease and considered that L5/S1 decompression and fusion surgery were reasonably necessary.
2. The Member said:

"In his report dated 19 March 2024, Dr Singh noted continuous back and leg pain. Dr Singh stated that close to all nonoperative options had been exhausted, which was why he requested surgery. Dr Singh stated that the [respondent] was unable to work and he did not believe that the [respondent] had capacity to work for the foreseeable future due to the lumbar injury and the lower back pain with leg pain."[5]

1. On 23 July 2024 Dr Dias, consultant occupational physician, provided a report. On examination Dr Dias noted the respondent had a significant antalgic gait pattern favouring the left lower limb. Relevantly for the appeal, he diagnosed an acute soft tissue injury to the left knee and also acute soft tissue injury to the right knee.[6]
2. The Member said:

"Dr Dias attributed these injuries to the subject accident and was of the opinion that the [respondent's] employment with the [appellant] was the substantial contributing factor to the thoracic spine, shoulders and both knee conditions and subsequent incapacity. He was of the opinion that the [respondent's] employment with the [appellant] was a main contributing factor to the aggravation, acceleration and exacerbation of the cervical and lumbar spine conditions and he attributed 90% of the symptoms and disabilities to the work-related incident and the remaining 10% to the pre-existing degenerative changes."[7]

1. Dr Dias disagreed with the opinion of Dr Rimmer, orthopaedic surgeon qualified by the appellant.
2. The Member summarised the evidence of Dr Rimmer. When Dr Rimmer reported on 19 October 2023, he did not have the radiological investigations.
3. The Member noted:

"Dr Rimmer noted that the actual image of the MRI scan of the spinal column needed to be reviewed for the purpose of assessment. He diagnosed musculoskeletal strain of the cervical spine, thoracolumbar spine and abnormal illness behaviour, 'without the benefit of radiological investigations', which he said he needed to review the actual MRI scan to confirm diagnosis. He noted a 'tendency to over exaggeration'. Dr Rimmer was of the view that the [respondent] had become pain focused, demonstrating abnormal illness behaviour."[8]

1. On the basis of the history and examination, Dr Rimmer was of the opinion that the respondent had no capacity for work.[9]
2. Subsequently Dr Rimmer performed a file review noting a nuclear bone scan dated 6 November 2023 and an MRI scan report of the lumbar spine dated 25 August 2023.
3. The Member said:

"Dr Rimmer was of the opinion that given the normal imaging of the spinal column, his diagnosis was overwhelmingly abnormal illness behaviour/malingering. He was of the view that any soft tissue injury that had been sustained to the cervical or thoracolumbar region had 'well and truly resolved'. Dr Rimmer was of the view that all imaging of the spinal column showed no significant abnormality. He was of the opinion that there were gross inconsistencies between reported symptoms, demonstrated level of capacity and the objectively identified pathology which was that all imaging of the spinal column showed no abnormality."[10]

1. Dr Rimmer re-examined the respondent. He reported on 19 December 2024 that upon specific questioning of the respondent, the respondent said that he had no pain in either the left or right shoulders or right knee "either acutely or consequently".
2. Dr Rimmer diagnosed resolved musculoskeletal strains of the lumbar spine, thoracic spine and cervical spine. He stated that there was no diagnosis in respect of the right knee or either shoulder.[11]
3. Dr Rimmer said that "when the [respondent] was viewed informally in the waiting area he moved with relative ease which was in marked contrast to the commencement of the formal examination."
4. Dr Rimmer's opinion was that the respondent had not suffered right knee, right shoulder or left shoulder conditions separate to pre-existing injury. It was Dr Rimmer's final opinion that the respondent could return to the pre-injury duties.
5. The Member said:

"Dr Rimmer stated that the fundamental difference between his opinion and that of Dr Dias was that Dr Rimmer did not believe that the [respondent] had any genuine physical impairment."[12]

1. Under the heading "Reasons" the Member initially noted:

"The hearing was conducted on the basis that there was no dispute that there was injury in the course of employment on 2 August 2023 and that the [respondent] suffered injury to his neck, thoracic spine, lumbar spine and left knee."[13]

1. The appellant submitted that the respondent's evidence was unreliable because of a discordant history as to the mechanism of injury. The Member rejected the submission:

"I do not accept the [appellant's] submissions in respect of the [respondent's] reliability. In my view, such apparent inconsistency should be approached with caution, for the reasons outlined in Mason v Demasi. The records of Dr Kako and Mr Nguyen, on 8 August 2023, shortly after the incident, support the [respondent's] statement that he fell backwards."[14]

1. There is no challenge to the finding by the Member that the respondent's evidence was reliable.
2. The Member noted the appellant's submission that he could not accept that the respondent had sustained injury to the right knee in circumstances where there is no radiological evidence of any pathology in relation to the right knee.[15]
3. The Member rejected the appellant's submission with respect to the right knee. He said that Dr Kako's clinical note of 15 November 2023 supported the respondent's statement that due to difficulties (pain) with the left knee, he compensated on his right side and sustained right knee pain over time. The Member noted that Dr Kako had recorded bilateral knee pain, left worse than the right, since August 2023 but "it was the consultation in November 2023 that noted persistent pain as an issue arising from the previous consultation with reference to right-sided compensation."[16]
4. Dr Dias noted significant antalgic gait patterns favouring the left lower limb. He noted the right knee was tender to palpation. After noting that Dr Dias' report needed to be read as a whole, the Member said:

"Dr Dias' findings on examination included a notation of a significant antalgic gait pattern favouring the left lower limb, which in [the Member's] view is in accordance with the [respondent's] evidence that he favoured his left knee by compensating for his right knee. This notation on examination by Dr Dias is also in accordance with the clinical note of Dr Kako of 15 November 2023."[17]

1. The Member said that the relationship between the right knee symptoms and the left knee injury, that is, the overcompensation of the right knee as a result of the pain in the left knee, is in the circumstances of the matters noted above such an obvious connection that it requires no further explanation by Dr Dias.[18]
2. The Member made the point that it was not determinative that there were no radiological findings of pathology in the right knee and, after referring to Kooragang Cement Pty Limited v Bates,[19] the Member directed himself that what was required was a "common sense" evaluation of the causal chain.
3. The Member reasoned the causal chain as: following injury to the left knee, the respondent complained of bilateral knee pain. On 15 November 2023 "it was noted in accordance with the [respondent's] statement" that there was right-sided compensation. Further, Dr Dias noted a significant antalgic gait pattern favouring the left lower limb.
4. The Member said that Dr Rimmer's observations were not in accordance with the clinical and medical evidence. At reasons [76] he summarised the evidence which persuaded him that the respondent's complaints of pain were genuine.
5. The Member said the matters identified at [76] supported "continuing complaints of right knee pain, contrary to the history recorded by Dr Rimmer." The Member concluded that he did not prefer the opinion of Dr Rimmer either as to the right knee or generally.[20] The Member found the respondent had sustained an injury to the right knee.
6. The appellant submitted the only evidence that the respondent sustained a psychological injury was the respondent's statement and some notes from a psychologist. There was however no expert report. It was submitted that there was no diagnosis and nothing to suggest a psychological injury aside from a mere description of psychological symptoms. The appellant's submission was that there was no medical evidence to support a diagnosis of psychological injury from a psychiatrist.
7. The Member rejected the appellant's submissions. He said that the initial certificate showed acute stress disorder after the subject injury and that the certificate of 24 October 2023 recorded that on 24 August 2023 there was severe insomnia, frustration and panic attack.
8. Mr Hurmoz, the treating psychologist, recorded a similar history and provided a diagnosis of "MDD". Dr Kako's referral letter diagnosed severe depression, anxiety, stress disorder, panic disorder and self-harm ideation.
9. The Member concluded there was no merit in the appellant's submission that the onus was on the respondent to establish whether the psychological injury was primary or secondary. In the Member's opinion that distinction was only relevant to claims for lump sum compensation, whereas the present matter was a claim for weekly benefits.[21]
10. The Member concluded with respect to the psychological condition as follows:

"On the evidence before me, the letter of referral dated 14 June 2024 by Dr Kako pointed to the stated psychological diagnoses resulting from pain in the lumbar spine sustained as a result of the injury on 2 August 2023. Having regard to the principles arising from Kooragang and as discussed in Moon and Kumar, in my view the [respondent's] psychological symptoms, as identified by Dr Kako, resulted from the injury of 2 August 2023."[22]

1. In relation to the alleged GORD condition, the Member accepted the appellant's submission that there was a lack of evidence. The Member concluded that he was not satisfied that the respondent had discharged his onus of establishing the GORD condition had any relationship to the subject injury. There was no medical evidence to support what the respondent said in his statement as to the onset and nature of the claimed GORD condition.
2. There is no challenge to that finding on the part of the Member.
3. The Member considered the evidence and submissions with respect to the respondent's capacity. He said this:

"97. In my view, these findings are not inconsistent with those recorded by Dr Singh, who noted pain in the lower and upper back, with the back pain being noted as continuous and significant. By 19 March 2024, Dr Singh was of the opinion that the [respondent] was unable to work because of the lumbar injury and lower back pain with leg pain.

1. I do not accept the [appellant's] submissions that there was a marked contrast between the examination findings of Dr Dias and Dr Singh. The former examined and considered all injuries, while the latter examined and considered the back and lumbar spine, but Dr Dias's view that the [respondent] had no capacity due to the injuries he considered does not exclude the conclusion that a subset of those injuries, that is the back and lumbar spine, has alone resulted in there being no capacity for work, as opined by Dr Singh.
2. While Dr Dias found marked restriction of range of movement in the lumbar spine, and Dr Singh in his initial report did not, it is necessary to consider all of the reports of Dr Singh. The range of motion findings by Dr Singh, were initially noted as normal in December 2023, and were not noted in later reports. Dr Singh attributed significant and continuous pain to disc herniation in the lumbar spine, and he assessed capacity as noted above. In my view, consideration of the opinion of capacity provided by Dr Singh should have regard to the totality of his reports, and should not be limited to the range of motion findings on initial examination."
3. After further discussion of Dr Dias' reports, the Member concluded with respect to incapacity as follows:

"103. In my view, the above evidence also supports my finding that in respect of all of the injuries and conditions that have been accepted or found as resulting from the injury of 2 August 2023, all such injuries and conditions have continued to date.

1. The opinions of Dr Singh and Dr Dias support my finding that the [respondent] has, and has had on a continuing basis since 2 August 2023, no current work capacity as a result of injury sustained in the course of employment on 2 August 2023. I find that the [respondent] is not able to return to work, either in his pre-injury employment or in suitable employment."

1. The respondent concedes that the appeal satisfies the monetary thresholds required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in that the amount of compensation at issue on appeal exceeds $5,000.

1. The appellant submits that the matter is one which can appropriately be dealt with on the papers. The respondent has not offered any submissions but has ticked "yes" to the question in the Notice of Opposition with respect to that issue.
2. I am satisfied that the materials and submissions with which I have been provided are sufficient to enable me to determine the appeal on the papers. I propose to take that course.

1. The jurisdiction I exercise under s 352(5) of the 1998 Act is to correct error of law, fact or discretion. It is not a review. Nevertheless, if after making appropriate allowance for the advantages enjoyed by the Member I would reach a different conclusion on a question of fact, I should give effect to it.[23]
2. It goes without saying that I am required to correct errors of law or discretion provided those errors are demonstrated.
3. In Mars Australia Pty Limited v Knight,[24] Stern JA (Adamson and Ball JJA agreeing) gave further guidance at [74]-[77]. Her Honour, after referring to passages from Fisher v Nonconformist Pty Limited[25] and Culhana at [92]-[93], said this:

"77. In circumstances in which there is nothing in the judgment of Leeming JA to suggest that his Honour was intending to reflect a test for materiality different from that identified by Kirk JA in Fisher v Nonconformist (which reflected, in turn, well established authority as to the threshold for materiality in other contexts), I would read the words 'would make a difference' in the last sentence of [92] of Culhana as nothing more than shorthand for the materiality threshold as set out in Fisher v Nonconformist at [50]. Contrary to Mars' submission before this Court, I also do not read Culhana at [93] as suggesting that a different approach should be taken to the issue of materiality depending upon whether or not the error of law was in applying the wrong standard of appellate review. The issue of materiality should, in all cases, be approached in the manner explained by Kirk JA in Fisher v Nonconformist. Where, however, the appellate court finds that there is only one legally correct conclusion on a particular legal or factual issue, that finding may be of determinative significance on the issue of materiality if the substantive outcome in the case depends upon that particular issue."

1. The issue of materiality presents itself as a particular difficulty in the context of this matter where the appellant has not challenged the Member's findings with respect to capacity as I shall explain subsequently.

Ground 1: The Member made a factual error in finding that the respondent worker suffered a right knee condition when such a finding was not supported on the evidence.

Ground 2: The Member made an error of fact/law in finding that the respondent worker suffered a psychological injury in circumstances where the medical evidence did not support it.

Ground 3: The Member erred in unreasonably rejecting the opinion of Dr Rimmer.

Ground 1: The finding that the worker suffered a right knee condition when such a finding is not supported on the evidence

1. The appellant identifies the relevant findings in the Member's reasons at paragraphs [63]-[78].
2. The appellant refers to Kooragang and to Grant v Dateline Imports Pty Limited.[26]
3. It is submitted that there is an absence of expert opinion supporting the proposition that the respondent's right knee symptoms were consequent upon the left knee injury. The appellant submits:

"Importantly Dr Dias' report did not ascribe symptoms in the right knee to overcompensating. Instead Dr Dias provides the same diagnosis in relation to both knees, that of chronic knee pain 'stiffness and discomfort, secondary to an acute soft tissue injury'".[27]

1. The appellant submits that Dr Rimmer did not agree that there was an injury to the right knee.
2. The appellant submits that the Member, in finding that there was a consequential right knee condition, did not conduct a commonsense evaluation of the causal chain. He imported a diagnosis of overcompensation to the right knee as a result of the pain in the left knee in circumstances where the evidence in the form of expert opinion (as required in Kooragang and Grant) did not provide for this conclusion.
3. The appellant contends that the Member erred in finding that the respondent worker had suffered a consequential injury to his right knee.

1. The respondent submits that the appellant's submissions are misleading speculative and without substance. The respondent quotes from his statement dated 3 December 2024 at paragraphs [26]-[27].
2. The respondent refers to the Member's reasons at paragraph [25] where the Member quotes Dr Kako's clinical note of 15 November 2023, which includes "right side compensating". He quotes the reasons at paragraph [71] referring to the authority of Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited,[28] discussed in Moon v Conmah Pty Limited.[29] After referring to the Member's reasons at paragraph [73], the respondent submits:

"The above reasoning is entirely consistent with the NSW Court of Appeal decision in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, in which the Court emphasised that judges (or tribunal members) must reach their own conclusion on causation, even when expert opinions conflict."[30]

1. The respondent then sets out a passage from that decision which provides that an inference as to causation may be drawn when all of the evidence is considered, even though the individual pieces of evidence alone would be insufficient to support a finding of causation.
2. The respondent submits that the Member's finding was supported by the evidence provided by the respondent's general practitioner, Dr Dias, and his own written statement. In any event and to the extent the above is disputed, the Member was entitled to draw an inference as to causation based on a proper consideration of the totality of the evidence before the Commission.

1. The respondent's evidence at paragraphs [26]-[27] of his statement of 3 December 2024 cannot amount to a statement of causation in a medical sense. Paragraph [26] is a statement of fact but to the extent that [27] expresses a conclusion, it can only be the respondent's belief as to the mechanism.
2. The Member in finding in favour of the respondent with respect to the right knee condition relied on the following matters:

(a) He accepted the respondent's evidence as reliable.[31]

(b) He regarded Dr Kako's note of 15 November 2023 as supporting the respondent's statement that due to difficulties with the left knee he compensated on his right side and sustained right knee pain over time.

(c) Dr Dias on examination noted significant antalgic gait pattern favouring the left lower limb.

(d) Dr Dias noted the right knee was tender on palpation.

(e) Dr Dias' finding of stiffness in the right knee should be accepted as being due to "the subject injury".

"The relationship between the right knee symptoms and the left knee injury, that is the overcompensation of the right knee as a result of the pain in the left knee, is in the circumstances of the matters noted above such an obvious connection that it requires no further explanation by Dr Dias."[32]

1. The matters identified above do not support the Member's conclusion of an "obvious connection" between the pain in the left knee and the overcompensation in the right knee.
2. Firstly, the respondent's evidence merely describes what he did, it cannot be utilised to establish the consequence in a medical sense of what he did.
3. Secondly, the Westmead Discharge Summary diagnosed soft tissue injury with a concern for the possibility of a head strike resulting in a CT scan of the brain and cervical spine.
4. Thirdly, Dr Kako's note of the first attendance upon him by the respondent dated 8 August 2023 included a note "reviewed with local GP in Wentworthville ... Reports severe radiculopathy in the lower back travelling to left leg. Reports neck, bilateral shoulder and upper back pain. Reports also bilateral knee and ankle pain in particular left knee and ankle."[33] There is thus bilateral knee pain, including the right knee pain, within six days of the original trauma.
5. Fourthly, Dr Kako's notes of November 2023 record bilateral knee, worse in the left knee. The note of 15 November 2023 under the heading "Agenda" includes a note "right side compensating". It is not at all clear what that very brief note means, if anything. It falls well short of an opinion as to causation. Furthermore, there is no further explanation in any of the other entries of November 2023.
6. Fifthly, in contrast to Dr Dias, Dr Singh examined the respondent on 20 December 2023 and recorded normal gait.
7. Sixthly, the submission that Dr Dias does not say the right knee pain is due to overcompensating for the left knee injury is correct. Dr Dias gives the same diagnostic opinion with respect to both the left and right knees, namely, chronic pain, stiffness and discomfort secondary to acute soft tissue injury.[34]
8. Seventhly, the clinical findings by Dr Dias recorded at p 17 of the ARD for both the left and right knees are essentially the same.
9. Eighthly, whilst Dr Dias noted "a significant antalgic gait pattern favouring the left lower limb", he does not indicate the significance in terms of causation of the right knee pain from the circumstance of an antalgic gait.
10. Ninthly, when Dr Dias provides a whole person impairment his assessment of the right knee is zero percent.[35]
11. I accept the appellant's submission that there is an absence of necessary expert opinion supporting a finding that the right knee pain/injury was a consequence of the injury to the left knee or was otherwise caused by the events of the 2 August 2023.
12. Adopting the approach which I am instructed to adopt having regard to Culhana, the Member's conclusion with respect to the right knee, namely that the respondent suffered an injury to the right knee as a consequence of compensating for an injury to the left knee, cannot be sustained.
13. Ground 1 of the appeal is made out.

Ground 2: The Member made an error of fact/law in finding that the respondent suffered psychological injury in circumstances where the medical evidence did not support it

1. The appellant asserts that the Member found the respondent to be suffering from a psychological condition based on the clinical records of Dr Kako and his referral letter, as well as the letters of Mr Hurmoz who provided a diagnosis of MDD.
2. The appellant submits that the diagnosis by Mr Hurmoz did not indicate the cause of the condition diagnosed.
3. The appellant submits that the referral letter does not relate the psychological symptoms to the workplace injury. The appellant submits the letter does not provide an exact diagnosis nor does it attribute any of the symptoms to the injury at work.
4. The appellant's submission is that the Member's attribution of the various psychological conditions mentioned in the referral letter to the workplace incident is not supported by the actual contents of the letter and therefore has no evidentiary basis.
5. The passage at [86] of the reasons cannot be supported because the psychologist's notes provide several alternative instances of major trauma.
6. The Member was wrong to regard the distinction between primary and secondary psychological injuries as being of relevance only to permanent impairment compensation. The appellant submits that the respondent in making a claim for weekly compensation also relied on a psychological injury affecting his capacity for work.
7. As the Member accepted that the respondent's claimed psychological injury contributed to the respondent's incapacity for work, the respondent was required to establish that his psychological injury resulted from a work injury entitling him to weekly compensation.
8. The appellant submits there is a material difference between an acute stress disorder or a panic disorder caused by an initiating event itself, as opposed to other conditions such as major depressive disorder which might allegedly be caused by physical pain (as diagnosed by Mr Hurmoz and noted at [82] of the reasons). The respondent worker bears the onus of establishing that either he suffered psychological injury due to the specific incident itself, which would require evidence that the employment was a substantial contributing factor (s 9A of the 1987 Act), or that a psychological condition was caused or materially contributed to by the initial physical injury which, again, required evidence to establish the nature of the condition and why/how it had been caused by the physical injury.
9. The respondent adduced no expert evidence explaining the necessary causal connection for either proposition.
10. It was not open to the Member to fill in the gaps in the medical evidence based only on his analysis or experience.[36]

1. The respondent submits that the appellant's submissions with respect to Ground 2 amount to speculation unsupported by evidence. The respondent submits that the fact that the respondent served as an American Army interpreter in Iraq, arrived in Australia by boat or spent time in detention, does not of itself establish that any psychological condition from which he may suffer was caused by those events.
2. The respondent notes that Mr Hurmoz said the respondent did not have any injuries or problems before the injury the subject of the present claim.
3. The respondent quotes from Mr Hurmoz's notes dated 11, 18 and 25 November 2023, 16 January 2024 and 3 February 2024, in support of the proposition that the evidence specifically linked the respondent's psychological health to the work accident, not to his military service or immigration history.
4. The respondent refers to r 73 of the Personal Injury Commission Rules 2021 which states that evidence based on speculation or unsubstantiated assumptions is unacceptable.
5. The Member was entitled to make a determination based on the available evidence, that being clinical notes of the respondent's general practitioner and his psychologist, Mr Hurmoz.
6. The respondent refers to the appellant's submission at paragraph [13] where the referral letter to Dr Kuljic is the subject of submissions. The respondent submits that the appellant has only partially quoted from the letter. The respondent emphasises that the letter contains the following:

"Multiple Soft Tissue injury with lumbar radiculopathy. Acute stress disorder ..."

"9. Acute stress disorder - worse when moving with pain."

"Abather sustained significant pain in his back following a workplace injury and his mental health has since deteriorated."

1. The respondent submits that "when the referral is read in its entirety and considered through a logical cognitive process, it is readily apparent that the psychological symptoms are attributed by Dr Kako, GP to the workplace injury."[37]
2. The respondent submits that the appellant has failed to demonstrate error of fact/law in the finding that the worker suffered a psychological injury. Furthermore, the respondent submits there is ample evidence to support the finding.

1. The Member's determination favourable to the respondent that he sustained psychological injury is based upon his conclusion with respect to a number of factors.
2. Firstly, the initial certificate provided for acute stress disorder related to the injury. On 24 August 2023 the respondent was complaining of "severe insomnia, frustration and panic attack."
3. Secondly, the clinical records note a history of acute stress disorder, severely lowered mood and anxiety, deterioration in mental health.
4. Thirdly, Dr Kako's referral letter of 14 June 2024 contains a diagnosis of severe depression, anxiety, stress disorder and self-harm ideation related to severe pain.
5. Fourthly, the respondent was prescribed SNRI, an antidepressant medication.
6. Fifthly, the Member was persuaded that there was no contradictory evidence and the symptoms of acute stress disorder were noted immediately by Dr Kako who recorded subsequent mental deterioration and severe pain. The GP's diagnosis was supported by Mr Hurmoz.[38]
7. The appellant submits that the diagnosis found in Mr Hurmoz's notes does not provide any explanation for causation. Mr Hurmoz simply provides a diagnosis of "MDD". But the respondent is correct in requiring Mr Hurmoz's opinion to be read in the context of his other notes.
8. When this is done, particularly having regard to the acceptance of the respondent's evidence as reliable which necessarily requires acceptance of his history of an absence of any prior mental health concerns, the conclusion that Mr Hurmoz regarded the MDD to be caused by the events of 2 August 2023 is correct.
9. The appellant submits that the referral letter does not relate the listed psychological symptoms to the workplace injury. However, the quoted passage from the referral letter does not support the appellant's submission.
10. The referral letter provides "Abather sustained significant pain in his back following a workplace injury and his mental health has since deteriorated. He continues to suffer from radiculopathy and reports severe insomnia, flashback intrusive thoughts. I have advised him to present to ED if TOSH, TOS, TOHO."[39] Although the passage does not provide a clinical diagnosis, it plainly relates the respondent's mental health symptoms to the significant pain in his back following the workplace injury.
11. I reject the appellant's submission that "[t]he Member's attribution of the various psychological conditions mentioned in the referral letter to the workplace incident is not supported by the actual contents of the letter and therefore has no evidentiary basis."[40]
12. The appellant's complaint that the Member disregarded the submission concerning the distinction between the primary psychological injury and a secondary psychological injury is likewise rejected. The respondent bore the onus of establishing that his psychological injury resulted from the work injury. But the conclusion from the referral is that the deterioration in the respondent's mental health was caused by the response to the pain resulting from the injury. It follows that the deterioration in the mental health resulted from the work injury.
13. The appellant is not correct in its proposition that there was no expert evidence explaining the necessary causal connection between the psychological condition and the physical injury.
14. The letter of referral, the evidence of Mr Hurmoz, plus acceptance of the respondent's evidence that he did not previously suffer from any mental ill health, are sufficient to establish causation between the physical injury and the psychological condition, at least in the absence of any contradictory medical evidence.
15. Ground 2 of the appeal is rejected.

Ground 3: Unreasonably rejecting the conclusions of Dr Rimmer

1. The appellant quotes Singh v Minister for Immigration and Ethnic Affairs[41] for the proposition that to disbelieve the assertion of important facts without reason amounts to a failure to take a relevant consideration into account.
2. After recording the passage in part from paragraph [76] of the reasons, the appellant submits that the Member selectively adopted aspects of the medical evidence "only where it would provide support for the conclusions of Dr Dias as opposed to Dr Rimmer".
3. The appellant submits that "for instance" Dr Singh is more supportive of Dr Rimmer's findings than Dr Dias'. Likewise Mr Nguyen, the physiotherapist, recorded radiating pain down the left leg but no complaints in relation to the right or left knee, and Mr Hurmoz and Dr Kako's clinical records "were records of the complaints made by the Respondent without an opinion of the doctor."
4. Finally, the appellant submits that in rejecting Dr Rimmer's opinion because it was allegedly inconsistent with the clinical material, the Member overlooked that Dr Rimmer had specifically recited and considered the objective radiological scans which form an important part of the clinical material. The rejection of Dr Rimmer's opinion as lacking medical or clinical support in circumstances where similar criticisms could be levelled at Dr Dias' opinion amounts to an unreasonable rejection of the opinion of Dr Rimmer.

1. The respondent refers to the decision of Hendrix v Accuro Home Care Pty Limited[42] that the Commission as an expert tribunal is entitled to rely on its expertise to understand the evidence before it and draw appropriate inferences.
2. The respondent refers to the Member's reasoning in paragraphs [76]-[78] and in [93]. He submits that those passages demonstrate that there was ample evidence upon which the Member could reasonably prefer to accept the medical opinion of Dr Dias and reject the alternative view. In doing so he did not commit appellable error.

1. The textual difference in the grounds of appeal which refers to Dr Rimmer's "opinion" and the heading to the submissions which refers to Dr Rimmer's "conclusions" is of no significance.
2. The Member clearly identified those factors which persuaded him to reject the evidence of Dr Rimmer.
3. The appellant's complaint is that the material identified by the Member was selectively extracted from the body of the available evidence. However, there is no complaint that the Member did not accurately select the parts of the evidence that he relied upon, nor is there any complaint that in relying upon those parts of the evidence the conclusion reached was erroneous. In other words, it is not as if the complaint is that the Member misunderstood the evidence, rather the appellant submits that a different conclusion should have been reached.
4. The reasons provided by the Member are intended to explain his reasoning process. He was required to extract those matters which he regarded as persuasive in forming his conclusion that the evidence of Dr Rimmer should not be accepted. He was not required to adumbrate those parts of the evidence which he did not find persuasive.
5. The fact that Dr Dias' opinion may be subject to criticism, including criticism similar to that adopted by the Member in rejecting Dr Rimmer's report, does not establish that the Member erred in rejecting Dr Rimmer's report.
6. The complaint that the Member overlooked that Dr Rimmer had specifically considered the objective radiological scans is incorrect.
7. The Member explicitly said:

"In a 'file review' report, Dr Rimmer noted a nuclear bone scan report dated 6 November 2023. Dr Rimmer also noted an MRI scan report of the lumbar spine dated 25 August 2023 showing no abnormality, and that he disagreed with that report.

Dr Rimmer was of the opinion that given the normal imaging of the spinal column, his diagnosis was overwhelmingly abnormal illness behaviour/malingering. ... Dr Rimmer was of the view that all imaging of the spinal column showed no significant abnormality. He was of the opinion that there were gross inconsistencies between reported symptoms, demonstrated level of capacity and the objectively identified pathology which was that all imaging of the spinal column showed no abnormality."[43]

1. In view of the fact that there is no express challenge to Order 3 of the Certificate of Determination, I directed that submissions be made as to whether in the event that one or more grounds of the appeal were upheld there would be any material effect on the outcome of the proceedings before the Member or on appeal.
2. The appellant submits that in the event that Grounds 1 and/or 3 were upheld, the result would be that Order 1 of the Certificate of Determination would be revoked and that an additional order would be made that the respondent worker had not discharged the onus of establishing a consequential right knee condition, that there would be a finding that there be no medical expenses or weekly compensation payable for the right knee condition and that Orders 3, 4 and 5 would be revoked because the extent that the right knee factored into the Member's findings on incapacity and entitlement to medical expenses would need to be redetermined. The appellant submits that the position it had adopted was that the respondent worker was not incapacitated for work and accordingly there would be no order in favour of weekly compensation.
3. The appellant submits that if Ground 2 of the appeal is upheld, Order 1 would be revoked, that there would be an additional order that the respondent has not discharged his onus of establishing a consequential psychological condition, there should be no medical expenses for a psychological condition and Orders 3, 4 and 5 should be revoked because the psychological condition factored into the Member's findings on incapacity and those orders would need to be redetermined.
4. The respondent submitted that in the event that I upheld both grounds of appeal it would have a material effect on the outcome of the proceedings. However, if only one of the two grounds were upheld, this "arguably" would not materially affect the outcome noting that both injuries supported the award of weekly payments.

1. The appellant has established error in Ground 1 of the appeal.
2. The Member was in error in finding that the respondent suffered a consequential right knee condition. I am persuaded that that error makes a material difference to the outcome of the proceedings before the Member and on appeal because although Order 3 of the Certificate of Determination is not challenged and is supported by other evidence which is likewise not challenged, it is plain from paragraphs [102] to [104] of the Member's reasons that he relied on the contribution of all the nominated areas of injury to support the worker's entitlement to weekly compensation.
3. The position with respect to the right knee and the psychological injury is in contrast to the finding in relation to GORD where Member expressly concluded at [94] that "[t]here was no evidence ... to suggest the [respondent] had sustained incapacity as a result of a GORD condition", a conclusion that is not challenged. The Member's finding with respect to capacity depended on his findings with respect to all of the injuries. It follows that where the finding with respect to one of the injuries is disturbed, the capacity finding needs to be reconsidered. Further the respondent accepts in his submission on this issue that upholding the appeal with respect to one ground would only "arguably" affect the outcome.
4. The Member's error is material and the appeal is allowed.[44] The matter is remitted for allocation for rehearing.

1. The Certificate of Determination dated 10 June 2025 is amended to remove from Order 1 the reference to the right knee and to revoke Orders 3 and 4, but is otherwise confirmed.
2. The matter is remitted to another Member for determination of whether there is consequential injury to the right leg and to determine whether the worker has incapacity.

[1] Akbawy v Hays Specialist Recruitment (Australia) Pty Ltd [2025] NSWPIC 257 (reasons), [23].

[19] (1994) 35 NSWLR 452 (Kooragang), 464.

[23] State of New South Wales v Culhana [2025] NSWCA 157, [91].

[24] [2025] NSWCA 229 (Knight).

[25] [2024] NSWCA 32; 114 NSWLR 1 (Fisher).

[26] [2022] NSWPICPD 3 (Grant), [76].

[28] [2002] FCAFC 157, [88]-[89].

[29] [2009] NSWWCCPD 134, 49.

[33] Application to Resolve a Dispute (ARD), p 48.

[36] Citing ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) v The WorkCover Authority of New South Wales [2004] NSWCA 55, [227].

[41] (1987) 15 FCR 4, 10.

[42] [2023] NSWPICPD 48.

[44] Fisher; Knight, [75]-[77].