1. There was controversy as to the findings of Olsson DCJ, particularly as to credit. The respondent submitted that the credit findings against the applicant by Olsson DCJ, essentially as to the entirety of the applicant's own evidence by way of statements and in cross examination, and the resulting rejection of medical reports in those proceedings, should be accepted in these proceedings.
2. I do not accept the respondent's submissions in this regard, on the basis that:

(a) the parties could not take me to authority which requires the Commission to accept or apply in these proceedings credit findings made in another Court or tribunal;

(b) section 105 of the 1998 Act gives the Commission exclusive jurisdiction to determine this matter. It follows that the Commission has exclusive jurisdiction to make credit findings in this matter, and

(c) the MAC in these proceedings is conclusively presumed to be correct.[4] That MAC recorded and relied upon a history provided by the applicant, which was apparently not challenged in the proceedings in the Workers Compensation Commission. It seems to me to be an artificial construction to consider that only the WPI assessed in the MAC is conclusively presumed to be correct, and not the causal and evidentiary foundation on which it is based. The medical dispute in question was the degree of permanent impairment of the applicant. In any event, a finding in the District Court proceedings that psychological injury suffered by the applicant in the course of his employment was transient in nature is at odds with the MAC, which assessed 20% WPI as a result of injury dated 17 February 2015 (for nature and conditions of employment). In my view, the MAC, and the history recorded therein, is conclusively presumed to be correct in these proceedings.

1. It was the respondent's submission that the applicant's history of deterioration of his psychological condition should not be accepted in these proceedings on the basis of the credit findings in the District Court proceedings. I do not accept this group of submissions as:

(a) reference was made to Department of Immigration and Border Protection visa application documents, with particular reference to what was said to be the applicant's inconsistent history given that he sustained psychological symptoms as a result of the visa process. The District Court decision did not identify the relevant document and did not elaborate upon the words and context of this aspect. The respondent's submission identified page 485 of its documents as the relevant material, but on my review of that document there was no such remark recorded. Rather, it was noted that the applicant referred to his psychological condition and symptoms without more at one part of the document, and in another it was recorded that he was pursuing workers compensation claims against the respondent for a back injury dated 9 November 2015 and a primary psychiatric condition dated 7 January 2015. Notwithstanding what I regard as an inconsequential and understandable date error in unrelated proceedings, this in my view supports the applicant's history;

(b) this is further supported by another handwritten document at page 477 of the respondent's documents, which was attached to a document signed by him, and which in my view is the applicant's document, in which he again specifically referred to post traumatic stress disorder following harassment by co-workers in February 2015, as well as awaiting back surgery;

(c) as it stands on the evidence to which I have referred, it seems that the adverse meaning given to this evidence has been incorrectly attributed. Even if there was a document which supports these contentions, to which I was not referred, it is difficult to see how the weight to be given to the adverse document would be sufficient to outweigh the documents to which I have referred;

(d) reliance was placed in the findings on credit and in submissions as to the remarks of Ms Peters and Dr J Phillips in respect to self reported psychological questionnaire answers by the applicant, and reported comment, as noted above. However, in my view a reading of the full reports and opinions of Ms Peters and Dr J Phillips does not support an adverse finding on credit. Ms Peters concluded following adverse comment as to psychometric testing that the applicant's psychiatrist should be consulted to investigate into both delusional and malingering thinking;

(e) Dr J Phillips noted Ms Peters' report and was critical of the psychometric testing methodology adopted by Dr P Phillips, psychologist, mounting in my view a powerful and persuasive critique of psychometric testing, which should not be preferred over careful clinical and diagnostic psychiatric methodology. Dr J Phillips noted the adverse commentary and proceeded to assess permanent impairment. It is not preferable or persuasive, in my view, to rely on Ms Peters and Dr J Phillips for an adverse credit finding in this context. It is not clear whether Olsson DCJ had the benefit of the 2022 report of Dr J Phillips. It would seem not. This is another matter pointing against accepting those credit findings;

(f) while it is the case that an adverse assessment of credit pointed to the comment of Ms Peters as to the applicant expressing concern that psychological improvement may not assist his workcover arrangements, I note Ms Peters subsequent caution in seeking to consult psychiatric opinion. Further, there is substantial contrary context in the applicant's repeated hospitalisation for psychological symptoms and his further treatment over many years, with his treating psychiatrist, Dr Sazhin, rejecting the possibility of malingering. Dr Sazhin in his reported opinion was persuasive in my view;

(g) there was non acceptance by the District Court of the applicant's evidence of a caged area. First, the MAC specifically recorded this history. In my view the respondent cannot rely on this aspect in proceedings in the Commission where the MAC is conclusively presumed to be correct. This is not a matter for credit in these proceedings, in my view. Second, the evidence noted by the District Court indicates a question of degree, which in my view need not be accepted in these proceedings. That is, the finding was embellishment, not deceit or deliberately misleading evidence. This is a matter of weight as to the extent to which the applicant's evidence should not be accepted. Given my view of the other credit evidence discussed above, in my view this falls a long way short of supporting a finding that the applicant's evidence should not be accepted at all or in part. This is a matter which relies upon the specific assessment of answers to questions in different Court proceedings, and in my view caution should be adopted in considering this aspect;

(h) in addition to matters noted above, Ms Hirst and Dr J Phillips both pointed to language and cultural barriers as matters that do not support the opinion of Dr P Phillips. This is persuasive reasoning, in my opinion;

(i) Dr Jones concluded there was malingering on the basis of acceptance of the credit findings of the District Court. He had earlier expressed the view that this was a nuanced matter. I have not accepted the credit findings of the District Court. It follows that Dr Jones' opinion is not persuasive, in my view, as to diagnosis, causation and deterioration, and

(j) the respondent pointed to agreement between the parties in these proceedings as to conduct of this matter without cross-examination. I do not make adverse finding as to lack of cross-examination in these proceedings. This is not a matter relied upon by me in these reasons.

1. The respondent pointed to a lack of evidence supporting deterioration. It is correct that the applicant's statement did not describe deterioration and was limited in time to 2022. However, I do not accept the respondent's submissions as:

(a) Dr Sazhin described and opined deterioration in his report of 10 March 2025 when he said that in 2020 the applicant's condition deteriorated because his depression and post-traumatic stress disorder became worse, requiring prompt hospitalisation in 2020 and was commenced on stronger antidepressant and post-traumatic stress disorder medication. Dr Sazhin noted that the opinion of

Dr Phillips in 2020 of 26% WPI was evidence of the deterioration following the MAC assessment of 20% WPI. He said that later on the symptoms stabilised and resulted in a consistently higher WPI score;

(b) this is further supported by Ms Hirst, who commented in her report of

4 February 2025 that they had been a deterioration of psychological state with symptoms since the COD of loss of confidence, clarity of thought, cognitive acuity, emotional regulation and social capacity, and

(c) commentary as to stabilisation of injury and symptoms, such as by Dr J Phillips, should be seen in the context of stabilisation for the purpose of assessing permanent impairment at the time of report, not as opinion as there being no deterioration. Dr Sazhin explained this in his opinion, noted above.

1. In my view, deterioration of the applicant's psychological condition has been established. It is a matter for a Medical Assessor to consider whether this has resulted in greater permanent impairment, if the applicant were to be successful.
2. In my view, the principle of finality of litigation is not necessarily determinative in these circumstances, having regard to the significant psychological injury suffered by the applicant as a result of his employment with the respondent, and a significant assessment of permanent impairment in the MAC, with evidence of deterioration since that time.
3. However, it is also necessary for me to weigh these competing factors, including the reasons for delay, in considering doing justice between the parties. I am not able to undertake this exercise in the absence of sufficient reasons being provided by the applicant. The onus is on the applicant, in bringing these proceedings, to provide sufficient reason for me to undertake that exercise. As noted above, the applicant has not provided sufficient reasons. The applicant has not discharged its onus. I decline to exercise my discretion to reconsider the COD.

[2] [2024] NSWCA 120.

[3] [2006] NSWWCCPD 141.