Barden v Walgett Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barden v Walgett Shire Council [2024] NSWPIC 276
APPLICANT:	Christopher Dale Barden
RESPONDENT:	Walgett Shire Council
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	24 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Matter remitted from Presidential Unit after appeal by each party; claim for weekly benefits for psychological injury; respondent submitted that Member’s award of weekly benefits for a closed period had been revoked by Deputy President and required re-determination; applicant submitted that only the period in respect of which Member had made an award for the respondent required re-determination; respondent had paid weekly benefits in accordance with Member’s determination; applicant sought to amend application to close the period of the claim in written submissions in reply; respondent opposed amendment but did not submit it would suffer prejudice if amendment allowed; neither party able to rely on independent medical evidence that post-dated Member’s determination; applicant relied mainly on his statement evidence and clinical records; consideration of section 42 of the Personal Injury Commission Act 2020; Personal Injury Commission Rules 2021; Held – amendment to application allowed; award of weekly benefits was revoked by Deputy President and required re-determination; applicant had no work capacity during the period claimed; award for the applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987; respondent to have credit for payments made.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to claim weekly benefits from 13 April 2021 to 11 October 2023. 2. There is an award for the applicant of weekly benefits as follows: (a) from 14 April 2021 to 13 July 2021, pursuant to s 36 of the Workers Compensation Act 1987, at the rate of $1,067.72 per week; (b) from 14 July 2021 to 30 September 2021, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $899.14 per week; (c) from 1 October 2021 to 31 March 2022, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $909.84 per week; (d) from 1 April 2022 to 30 September 2022, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $926.58 per week; (e) from 1 October 2022 to 31 March 2023, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $957.80 per week; (f) from 1 April 2023 to 30 September 2023, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $997.46 per week, and (g) from 1 October 2023 to 11 October 2023, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $1,021.10 per week. . 3. The respondent is to have credit for payments of weekly benefits made.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christopher Dale Barden (Mr Barden) was employed by the respondent, Walgett Shire Council (the Council), as an urban maintenance worker.
The applicant sustained psychological injury on a date that has been deemed by the Member at first instance to be 14 April 2021 (the first date of incapacity).
Liability for the applicant’s claim was disputed by the council’s insurer, StateCover Mutual (StateCover).
The applicant lodged an Application to Resolve a Dispute (the Application) on
2 February 2022. He claimed weekly benefits from 13 April 2021 to date and continuing, and medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) of $666.15.
The respondent lodged its Reply on 24 February 2022.

ISSUE FOR DETERMINATION

The following issue remained in dispute:
(a) the applicant’s capacity for work from 14 April 2021 to 11 October 2023.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing before a member of the Personal Injury Commission (Commission), initially on 29 April 2022.
Due to difficulties with the Teams platform, the matter was listed for in person hearing on
17 June 2022. The applicant gave oral evidence and was cross-examined.
Following the hearing on 17 June 2022, directions were made for the provision of written submissions, the last of which were provided on 19 July 2022.
Having reviewed the evidence and submissions, the Member issued a further direction dated 8 August 2022. The Member had found the evidence of a witness on behalf of the respondent, Mr George Masoudi, to be “untruthful, unreliable, and self-serving”. His preliminary view was that the Commission would reject that evidence where it conflicted with that of the applicant.
The Member therefore afforded both parties the opportunity to address the Commission in relation to Mr Masoudi’s evidence. The opportunity was provided to accord procedural fairness, in accordance with Finney Pty Limited t/as Cut Price Car Rentals v Chequer.[1]
[1] [2021] NSWPICPD 13.
The matter was then listed for further arbitration hearing on 29 September 2022. Mr Masoudi was called to give oral evidence and was cross-examined.
In fairness to Mr Masoudi, it should be noted that, having heard his oral evidence, the Member retracted the preliminary view he had expressed in respect of Mr Masoudi’s evidence.
On 29 September 2022, the Member directed the respondent to lodge an Application to Admit Late Documents (AALD). The AALD was lodged on 6 October 2022.
The parties were directed to provide further written submissions, the last of which was dated 20 October 2022. The applicant did not object to the respondent’s AALD, and it was therefore admitted into evidence.
On 8 December 2022, the Member issued a Certificate of Determination (COD), accompanied by his reasons.
The Member determined that the applicant had contracted a psychological “disease” injury, deemed to have occurred on 14 April 2021.
The Member also determined that the respondent had failed, pursuant to s 11A of the 1987 Act, to establish that the applicant’s injury was wholly or predominantly caused by its reasonable action with respect to discipline, termination, or the provision of employment benefits.
The Member awarded the applicant weekly benefits, pursuant to ss 36 and 37 of the 1987 Act, from 14 April 2021 to 17 September 2021; and made an award for the respondent in respect of the claim for weekly benefits from 18 September 2021. He also made an award for the applicant in respect of medical and treatment expenses pursuant to s 60 of the 1987 Act.
The applicant lodged an appeal (File Number A1-W585/22) against the Member’s decision, in respect of the finding that he was not entitled to payment of weekly benefits after 17 September 2021.
The respondent lodged an appeal (File Number A2-W585/22) against the Member’s decision that the applicant’s injury was not wholly or predominantly caused by its reasonable action.
Both appeals were determined by Deputy President Wood on 14 December 2023.
In Barden v Walgett Shire Council,[2] Wood DP amended the COD to revoke the Member’s determination that the applicant had failed to establish that he had been incapacitated for work as a result of psychological injury since 18 September 2021.
[2] [2023] NSWPICPD 80.
Wood DP also revoked the following orders made by the Member:
“(a) There will be an award that the respondent pay the [appellant] weekly compensation pursuant to s 36(1) of the Act from 14 April 2021 to 13 July 2021, at the rate of $1,067.72 (as adjusted if necessary to apply relevant indexing) per week.
(b) There will be an award that the respondent pay the [appellant] weekly compensation pursuant to s 37(1) of the Act from 14 July 2021 to 17 September 2021, at the rate of $899.14 (as adjusted if necessary to apply relevant indexing) per week.
(c) There will be an award for the respondent in relation to the [appellant’s] claim for weekly compensation payments from 18 September 2021.”
Wood DP said at [63]:
“The Member has erred in respect of his reasons for rejecting the appellant’s medical evidence as to his capacity for work. It is not necessary to consider the remaining grounds of appeal and it is not appropriate for me to determine issues as to whether the Member erred in respect of the weight afforded to the medical evidence or the acceptance or otherwise of the appellant’s own evidence as to capacity. The matter requires re-determination of the appellant’s capacity for work and in the circumstances, it is appropriate to remit the matter for re-determination by a different non-presidential member. The Member’s findings involved an evaluation of all of the medical evidence and the Member came to various conclusions about the weight to be afforded to that evidence. The Member’s entire findings and orders relevant to the claim for incapacity are therefore revoked in order to provide the different Member with the ability to make an uninhibited assessment of the evidence.” (Emphasis added).
In Walgett Shire Council v Barden,[3] Wood DP confirmed the Member’s decision, as amended by her decision in Barden v Walgett Shire Council.
[3] [2023] NSWPICPD 81.
The matter was listed for conciliation/arbitration hearing on 16 April 2024, on the Teams platform. Mr Stockley of counsel, instructed by Ms Barras, appeared for the applicant, who was present. Mr Doak of counsel, instructed by Ms Ralph, appeared for the respondent.
Mr Underwood of StateCover also attended.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,123.92 per week.
The applicant sought to rely on an AALD dated 9 April 2024, which attached a report of
Dr Michael Demtschyna, general practitioner (GP), dated 3 April 2024 and clinical records attached to that report; and a report of Dr Glen L Smith, consultant forensic psychiatrist, dated 27 March 2024.
The respondent did not object to the admission of Dr Demtschyna’s report and attachments. It objected to the admission of Dr Smith’s report, as offending cl 44 of Workers Compensation Regulation 2016 (the Regulation).
The applicant conceded that, in view of cl 44 of the Regulation, he was not entitled to rely on Dr Smith’s report.
The respondent sought to rely on a report of Dr Jeff Bertucen, consultant psychiatrist, dated 27 February 2024, which had been served on the applicant at 2:30pm on 16 April 2024, the day of the conciliation/arbitration hearing. The applicant objected to the admission of the report on the basis that he was prejudiced by its late service and was not in a position to respond to it.
The respondent conceded that it was unable to, and did not, press the admission of
Dr Bertucen’s report.
Due to the time taken in conciliation and preliminary matters, it was not possible to complete the matter in the time available. Mr Stockley made oral submissions on behalf of the applicant; and directions were made for the provision of written submissions on behalf of the respondent and submissions in reply, should the applicant wish to respond. The parties were advised that the matter would be determined at the conclusion of the time allowed for submissions.
In his submissions in reply dated 6 May 2024, the applicant sought to amend the Application to close his claim for weekly benefits on 11 October 2023. He reserved his right to agitate a claim beyond that date, should evidence to support it become available.
On 20 May 2024, I caused the following email to be sent to the parties:
“Member Haddock notes that, in his submissions dated 6 May 2024, the applicant seeks to close his claim on 11 October 2023.
The respondent is requested to advise by 5pm on 22 May 2024 whether it has any objection to the Application to Resolve a Dispute being amended to close the claim on 11 October 2023.”
At 4:42pm on 22 May 2023, the Commission received the following email from the solicitors for the respondent (omitting formal parts):
“The respondent objects to the amendment to the pleadings.
The respondent’s position is that the amendment should have been made on the date of the arbitration hearing or at least before the applicant’s counsel concluded his oral submissions on that date and before the respondent’s written submissions had been filed. The pleadings and evidence are generally closed once submissions begin.
Further the proposed amendments to the ARD, to amend the pleading of the weekly compensation claim, has not been made in compliance with rule 20 of the PIC Rules and is also objected to on that basis.”
I note that the respondent had been on notice of the proposed amendment since
6 May 2024. There is no evidence that it notified the applicant of its objection until after the Commission requested on 20 May 2024 that it advise its position.
Rule 19 of Personal Injury Commission Rules 2021 (the Rules) provides:
“19 Leave to amend documents
(1)     The Commission may, on the application of a party to applicable proceedings, give the party leave to amend a document lodged by the party in the proceedings if the Commission considers the amendment to be necessary to avoid an injustice.
(2)     However, the Commission must not give leave to amend a document if the amendment would have the effect of substantially altering the parties to the proceedings unless the Commission considers the amendment to be necessary in the interests of justice.
(3)     An amendment may be made during the proceedings, including after the commencement or purported commencement of the proceedings, and on any terms the Commission thinks fit.
(4)     This rule does not apply to the amendment of information or a document that is required to be lodged by rule 67.”
The respondent relied on rule 20 of the Rules, which provides:
“20   Amendment of documents
(1)     An application by a party to applicable proceedings for leave to amend a document lodged by the party must be in writing and fully set out the grounds for the application.
(2)     The party seeking the amendment must lodge and serve the application on the other parties.
(3)     A party who wishes to object to the amendment must, within 2 working days of being served with the application—
(a)lodge written notice of the objection with reasons, and
(b)serve the notice of objection on the other parties.
(4)     If the application is made before the Commission is constituted to deal with the proceedings, the President is to determine the application, subject to subrule (8)(b).
(5)     If the application is made after the Commission is constituted to deal with the proceedings, the Commission is to determine the application.
(6)     An application may be determined solely on the basis of the written application and any written notice of objection.
(7)     Without limiting subrule (6), the President or Commission may, when considering an application, seek further oral or written information from a party.
(8)     The President may, when considering the application—
(a)list the application for hearing before the President, or
(b)refer the application to a member for determination.
(9)     The Commission may, when considering an application, list the application for hearing before the Commission.”
However, rule 19 (3) allows an amendment after the commencement of the proceedings, and on any terms the Commission thinks fit.
Rule 6 of the Rules provides:
“6   Dispensing with requirements of Rules
(1)    The Commission may, by order, dispense with a requirement of these Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so.
(2)    The President may, by order, dispense with a requirement of these Rules in relation to particular applicable proceedings, or particular kinds of applicable proceedings, if satisfied it is appropriate to do so.
(3)    The power given to the President by subrule (2) extends to a requirement of Part 5 of the Act applied to applicable proceedings, other than Commission proceedings, by a provision of these Rules.
(4)    A requirement may be dispensed with under this rule before or after the occasion for compliance with the requirement arises.”
Furthermore, rule 3 of the Rules provides:
“3 Object of Rules
The object of these Rules is to give effect to the guiding principle for the PIC Act and the Commission rules in their application to proceedings in the Commission.
Note—
Section 42 of the PIC Act provides that the guiding principle for the PIC Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
The reference to the PIC Act is to the Personal Injury Commission Act 2020.
The “real issue” in these proceedings is the applicant’s entitlement, or otherwise, to weekly benefits. The matter has been the subject of a protracted hearing before a Member, appeals by each party, remitter for the matter to be re-determined, and a hearing before me.
The respondent has not submitted it would suffer prejudice should the amendment be allowed. Its submissions have addressed the applicant’s claim for weekly benefits for the period up to 11 October 2023. It would not facilitate the “just, quick and cost effective resolution” of the real issue should the amendment not be allowed.
I have considered the respondent’s objection. However, in my view, it is appropriate to dispense with the requirement of rule 20 and allow the amendment.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s AALD dated 22 April 2022 and attached documents;
(d)    respondent’s AALD dated 6 October 2022 and attached documents;
(e)    applicant’s AALD dated 29 January 2024 and attached documents;
(f)    applicant’s AALD dated 9 April 2024 and attached documents, excluding
Dr Smith’s report dated 27 March 2024, and
(g)    respondent’s wage schedule.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Much of the evidence is now uncontroversial, given the appeal decisions of Wood DP, and the remaining matter in dispute.

Evidence of the applicant, Christopher Dale Barden

Mr Barden’s first statement is dated 31 May 2021 and 3 June 2021.
On 3 May 2021, he saw his regular doctor, Dr Julian White at RaRMS Health (Rural and Remote Medical Services Pty Ltd – RaRMS) and Dr White issued a certificate of capacity (COC) until 17 May 2021. He was referred for counselling, which he did by phone with the Employee Assistance Program (EAP) and had seen a psychologist in Walgett.
Dr Wright issued a further COC on 20 May 2021, until 17 July 2021.
He had been taking anti-depressants since January 2021. In about March 2021, he told the doctor they were not working, and he told him to increase the dose.
While he had been off work, he had been trying to keep himself busy by doing things with his kids, such as going to their football, football training, and camping. He has seven children, who gave him a lot of hope and actually made him better.
Mr Barden’s next statement is dated 15 November 2021.
Since going off work on 14 April 2021, he had continued to see Dr White and psychologist
Mr Williams. He had also spoken once to a person he understood to be a psychiatrist, “Warren”, via telehealth. He had been prescribed anti-depressant medication and sleeping medication.
He felt incapable of doing any work at that time. He was despondent. He felt he had been the subject of a campaign to get rid of him that he did not understand. He was being supported by the United Services Union.

The applicant’s next statement is dated 24 March 2022.
His medical condition was unchanged since his previous statement. He continued to feel extremely depressed. He had feelings of worthlessness. He felt unable to concentrate and organise his life well. He felt he could not interact with people very easily. He was always wary of people. He had lost motivation. He continued to have difficulty sleeping. He did not believe he would be able to maintain enough concentration and motivation to stay in any job for any length of time.
It was very difficult to access medical treatment in Collarenebri, and his GP had been stuck in New Zealand. For this reason, he was not able to obtain an updated medical certificate for a period through late 2021 and early 2022.
The applicant’s final statement is dated 17 January 2024.
Since 24 March 2022, he had remained off work at all times. He continued to feel deeply depressed about his circumstances, with feelings of worthlessness. He continued to have difficulties with concentration and motivation. He did not believe he would have any ability to return to the workforce in any role.
He had had difficulty obtaining medical treatment in the area where he lived. Dr White left the area in mid-2022. He became aware of another medical practice at the Collarenebri Hospital, and after that he managed to obtain regular consultations with various GPs at the Ochre Medical Centre (Ochre). The doctors moved in and out of the practice and there had not been any doctor he had seen consistently.
He also attended psychologist Will Grech of Walgett Aboriginal Medical Service (AMS), whom he had seen quite often in 2023.

Medical evidence

Given that the period in respect of which the applicant claims weekly benefits has been closed at 11 October 2023, I have not discussed all of the medical evidence post that date.

Medical evidence

Rural and Remote Medical Services Pty Ltd (RaRMS)

On 28 January 2021, Dr White recorded stress at work. “Can’t stop and wind down, seems very anxious and thinks about work all the time.” The diagnoses were recorded as bipolar 2 disorder and anxiety.
On 14 April 2021, Dr White recorded that the applicant was under stress at work. The reason for the visit was “anxiety/depression”. The applicant was issued with “medical sick certificate”. It certified him as unfit for his normal work duties from 12 April 2021 to
16 April 2021 inclusive.
On 19 April 2021, Dr White recorded sleep issues, low self-esteem. The applicant was tearful, and his memory and concentration were not good. He had anxiety/depression and needed to stay on leave. He was attending a counsellor, “all related to the work situation he find[s] himself in.”
A mental health care plan was completed. Dr White recorded that the applicant was very depressed, “K10 score very high. No suicidal idealation [sic]. Supportive family.” The applicant was certified as unfit for his normal work duties from 16 April 2021 to 3 May 2021 inclusive.
On 3 May 2021, Dr White recorded bullying at work. The applicant had been advised to get a workers compensation certificate and medical certificate from when it started in January. His depression was slightly better. He was certified as unfit for his normal work duties from 27 January 2021 to 17 May 2021 inclusive.
On 7 May 2021, Dr White responded to a questionnaire from StateCover.
Dr White opined that “obviously it’s a major depressive disorder in DSM 5”. “All I know the bullying at work has given him a major depressive disorder”.
The applicant had been started on Effexor. Getting counselling there was difficult, but
Dr White wanted him to go to psychologist, (Will) Grech, in Walgett eventually.
The applicant was unfit to work. Dr White was unsure of his prognosis for recovery.
On 20 May 2021, the applicant was issued with a COC by Dr White, with a diagnosis of anxiety/depression, due to “workplace bullying by supervisor and superiors”. He was certified with no current work capacity from 17 May 2021 to 17 July 2021. The review date was greater than 28 days as “NO doctor in Collarenebri for 6 weeks.” (Capitalisation in original).
There is a COC that certified the applicant with no work capacity from 17 July 2021 to
17 August 2021, while at the same time recording the next review date as 17 July 2021 (which may be an error). It was once again noted there was no doctor in Collarenebri for six weeks.
On 29 July 2021, Dr White reported that in his opinion the applicant was suffering severe anxiety[/]depression.
When Dr White initially saw the applicant, he was very withdrawn, with poor sleep, memory, and concentration, which were all symptoms of anxiety and depression. He scored 42 on the K10 depression score, which signified severe depression.
Dr White opined that this had been caused exclusively by the applicant’s employment. He was “certainly not fit at present to go back to work”, and Dr White was unsure when he would be fit to start work again.
On 18 August 2021, the applicant had a phone consultation with Dr White. He was continuing with similar symptoms and signs.
The applicant was issued with a COC certifying him with no current work capacity from
17 August 2021 to 17 September 2021. Once again, it was noted that there would be no doctor in Collarenebri for six weeks.
On 22 September 2021, Dr White recorded the reason for the visit as workers compensation certificate.
On 13 October 2021, Dr White recorded workers compensation certificate, “bullying”.
On 1 November 2021, Dr White recorded sleep disorder and bipolar 2 disorder. The applicant was still having issues secondary to work issues.
On 11 November 2021, Dr White recorded “stressed to the max [medications] are not making sleep.” A workers compensation certificate was issued.
On 2 December 2021, Dr Vandhana Chetty recorded a telehealth consultation regarding the prescriptions for the applicant’s antidepressant and sleeping tablets.
On 3 March 2022, Dr Chetty recorded another telehealth consultation. The applicant had forgotten to ask about a COC before, and also Dr White was on leave. Dr Chetty advised that she could not backdate the COC but could write that he forgot to ask for it at the last visit. He stated that he still had anxiety and could not work at all.
Dr Chetty then recorded that she had gone through the file. She could not find counsellor letters and rang the applicant back.
They discussed a psychiatry referral as the applicant had been on his current medication and was not improving – “agreeable.”
The applicant had seen a “shrink” at the AMS, Dr Williams. He did not like it, as he kept talking about going back to work, and the applicant did not think he could.
The applicant did not go out for shopping. He got nervous in case he saw his co-workers. His ex-wife did the shopping. He occasionally went out to pick up the “kids”.
Dr Chetty recorded “stresses”. The applicant went to bed at 3am and got up at 7am. He played with his granddaughter, sat outside, mowed his lawn, and pulled weeds.
Dr Chetty advised the applicant to walk 40m daily. Even if he did not go back to work, as he found the people toxic, they needed to improve his mood so he could do other things.
On 6 April 2022, Dr Amanda Hume recorded that the applicant requested a COC, “ran out on Friday”. He could not get an earlier appointment.
Dr Hume recorded that the applicant was not sleeping well, “things going through my head.” He could not get to sleep and stayed up until he felt tired. He tried to do breathing and be positive. He felt frustrated. “You don’t know what I’ve been through”.
The applicant did a lot of walking, mowed the lawn, weeded, and played with his granddaughter, who lived next door.
Dr Hume recorded that the applicant denied self-harm/suicidal ideation/intent. He talked about his family. His mood was depressed. There was good rapport, which improved during the consultation.
The applicant was chatty, with reasonable insight and judgment. He talked about playing “footy” and cricket. He used to play professionally and had been an amateur boxer.
On 19 April 2022, Dr White recorded that the reason for the visit was workers compensation certificate. “Back dated cert – need it for the lawyer in – some sort of employment court.”
Dr White issued a COC dated 19 April 2022. He certified the applicant with no current work capacity from 11 November 2021 to 3 March 2022.
On 28 April 2022, Dr White recorded COC.
On 31 May 2022, Dr White recorded tooth pain, and COC. “Going to court re workers comp 17/6/22.”
On 12 July 2022, Dr White recorded that the applicant was awaiting the hearing result. A COC was issued.
On 2 August 2022, Dr White issued a COC. “No real change re claim.”
On 22 August 2022, Dr White recorded (by telephone) that the applicant was in Tasmania and requesting scripts.
On 14 September 2022, Dr White recorded that the applicant’s depression was “about static no better no worse.” There was no suicidal ideation. “Is good when grandkids see him.”
On 10 October 2022, Dr White issued a COC after a telehealth consultation.
On 11 October 2022, Dr White recorded workers compensation paperwork. “Rejected workers comp claim re workforce bullying.”
On 4 November 2022, Dr White issued a COC. “Patient still going through workers comp court process.”
On 7 December 2022, Dr White issued a COC.
On 12 January 2023, Dr White issued a COC. He discussed with the applicant “results of past workers comp claim stemming back to April 21 and has been consistent throughout with claim.”
On 6 February 2023, Dr White issued a COC.
On 7 March 2023, the applicant’s medical records were transferred to Ochre.

Dr Jeff Bertucen – consultant psychiatrist

Dr Bertucen was qualified by the respondent and reported on 20 July 2021.
Dr Bertucen recorded that the applicant was still employed by the Council, but his last active day of work was 14 April 2021. He felt incapable of returning to work due to claimed symptoms of distress and anxiety generated by the perception of bullying and persecution, and fear of dismissal.
The applicant complained of ongoing sleep disturbance, anxious ruminations, and sweating. He tried to distract himself by engaging with his children, coached an under-15 rugby team two days a week, and umpired on weekends. He also went fishing most weekends, on his own, had withdrawn from socialising, and had few visitors beyond immediate family.
The applicant largely avoided Walgett and family members did his shopping. His appetite had declined, but he weighed the same. He was very happy at the imminent birth of his first grandchild in the next month or so.
Mr Barden self-scored his mood as “4/10” on average. He denied any self-harming ideation or actual deliberate self-harm but regarded January-March 2021 as a “dark time”. He was very pessimistic regarding the prospects of returning to work for the Council and did not feel psychologically capable of returning to alternative employment. He believed his employment prospects had been affected by the recent workplace issues, as “my name has been slandered all over the town.”
Dr Bertucen opined that the applicant had suffered what could be regarded as an adjustment disorder with features of depressed mood and anxiety. He would benefit from at least five to six sessions with the EAP psychologist, regular GP review, and continuation of antidepressants for another four to six months. Beyond that, Dr Bertucen was not persuaded that he required any other treatment.
Dr Bertucen opined that the applicant was not incapacitated for work from a psychological perspective. He was making a conscious decision to avoid returning to work out of concern that he may be subject to further discipline or dismissal.
Dr Bertucen was asked whether he believed the applicant was psychologically fit for his full-time pre-injury duties, and the approximate date from which he would have been fit. He answered, “Yes”. He opined that the applicant was fit to work full time as a cleaner; parks and gardens worker; stores officer; labourer; farm worker; fruit picker; packer; storeman; fast food delivery driver; uber driver; or retail assistant.
The applicant told Dr Bertucen he was motivated to return to his maximum work capacity, but believed he was prevented from doing so due to claimed “bullying and harassment” by his manager.
Dr Bertucen referred to the evidence of Mr Raju Ranjit. He opined that there did not appear to be evidence to suggest the applicant had been targeted or made the subject of harassment to which another worker who had committed the same irregularities would not have been exposed.

Dr Frank Chow – psychiatrist

Dr Chow was qualified by the applicant and reported on 14 October 2021.
Dr Chow recorded a history that Mr Barden’s supervisor wanted to sack him after various incidents, and started to harass him, criticise him unfairly, and make false allegations against him. He had intermittent time off, and eventually ceased work on 15 April 2021.
The applicant had seen his doctor with regard to work difficulties since last year. He was prescribed antidepressants and sleeping tablets.
Over the last five months, since he had been off work, the applicant continued to have difficulty sleeping, fluctuating low mood, and anxiety. He managed to kick the ball with his children and mow the lawn. His appetite had remained poor. He was not currently suicidal. He had not been referred to a psychologist or psychiatrist. He received support from friends and family.
Dr Chow recorded that the applicant showered regularly and wore clean clothes. He rarely engaged in house chores. He attended to grocery shopping and was able to drive by himself. He engaged in fishing before COVID-19. He took his children to activities and maintained contact with friends and family.
Dr Chow diagnosed the applicant with adjustment disorder. He would need ongoing psychological and psychiatric treatment. Dr Chow opined that he had no capacity for work, and his condition was likely to remain ongoing.
Dr Chow opined that the applicant should consult a psychologist fortnightly and a psychiatrist monthly for 12 months and continue medication for at least two years.

Ochre Health Medical Centre – Collarenebri

Dr Zeeshan Akram recorded on 6 March 2023 that the applicant was a new patient, who needed his COC renewed. He had requested that his records be transferred from RaRMS. “Handy to have last certificate and Claim number to do a new one.”
On 7 March 2023, Dr Akram issued a COC.
On 13 April 2023, Dr David Gaskell issued a COC. He recorded “no records on file”. The applicant disclosed “workplace bullying” at Walgett Shire two years ago, since when he had not returned. He was not having counselling.
Dr Gaskell recommended a GPMHP (GP Mental Health Plan) “and to go from there.”
On 5 May 2023, Dr Gaskell recorded depression, bipolar 2 disorder, and anxiety. He updated the GPMHP, to send to the Dubbo MH (Mental Health) team.
On 20 June 2023, Dr Mardiha Bakar recorded that the applicant was there for ongoing COC. “Workplace bullying in Jan 2021.” He was not getting paid, and “fighting for it with solicitor’s help.”
The applicant reported improvement. He was seeing a mental health worker every two weeks. “Getting benefits”. He had some fleeting suicidal thoughts, but no active plan. He was doing things he enjoyed, fishing, eating out “etc – encouraged.”
A new COC was done. The worker requested it for two months, “which is reasonable”. He had “good support from mental health service anyway.”
On 23 August 2023, Dr Charles Chihumbiri recorded that the applicant sought renewal of COC. He had not seen the counsellor for a while. He was advised to book with the counsellor in Walgett for an update.
On 19 September 2023, Dr Aloysius Achusiogu recorded that the applicant needed a referral to a psychologist, Will Grech, and had an appointment on 4 October 2023. The applicant was not suicidal.
On 11 October 2023, Dr Phillip Jolly recorded that the applicant was “still receiving care for the WC bullying and subsequent depression.”
On 23 October 2023, Dr Ashraf Sorial recorded that the applicant attended for renewal of COC. He had been seeing a counsellor and his next appointment was on 1 November 2023.
Dr Sorial certified the applicant with no current capacity for work from 21 October 2023 to
11 November 2023. Factors affecting his recovery were “residual (unresolved) mental health issues”.
On 3 April 2024, Dr Demtschyna reported to the applicant’s solicitors.
Dr Demtschyna had seen the applicant for the first time that day. In providing his report, he had relied on the information provided by Mr Barden and the clinical records of Ochre from
6 March 2023, which was an incomplete record.
A “significant impairment” in producing the report was that serial locums attended the practice, so there was a lack of continuity of care. Dr Demtschyna had accordingly included all relevant clinical notes.
Based on the applicant’s presentation and his perusal of the notes, Dr Demtschyna opined that it appeared the applicant was suffering from anxiety, depression, and possibly PTSD (post-traumatic stress disorder).
Based on the same evidence, it appeared that the applicant’s psychological conditions were the direct result of his experiences at the Council. The applicant told Dr Demtschyna he was psychologically well prior to commencing employment and had been unable to attend work since 2021 as a consequence of his workplace experiences.
Dr Demtschyna opined that the applicant appeared unfit for any employment, with significant unresolved symptoms. He did not see this situation resolving until the applicant’s issue with the Council was resolved.
The applicant’s prognosis was at best guarded, due to the unresolved issues of his claim. His recovery had been blunted and impaired, thus his long term prognosis could not be clearly determined. It was likely that, once this impediment to his recovery was resolved, he would be able to make progress towards returning to some employment, albeit not at the same workplace.

Strong Minds Western – psychologist

There is a phone intake assessment report dated 27 April 2023.
Ms Joanne Lockie, senior intake and assessment officer, had spoken to the applicant. He reported feeling unmotivated, with no energy, due to workplace bullying. He had been off work for two years “and won’t return to same workplace.”
The applicant was not looking for work as he was not feeling week [sic: assumed to mean “well”] enough within himself. He was not sleeping well, even with medication. He was not eating well.
It was noted that the presenting problem was “mild to moderate”, and “chronic/persistent” (the problem being greater than six months).
The applicant had seen an AMS counsellor twice and did not find it helpful.
The applicant had no current thoughts of ending his life. “Previously two years ago.”
The goals for short term intervention were recorded as “Learn strategies to improve mood and get back to enjoying life and back to work.”
On 22 May 2023, Ms Sophie Heathcote, senior clinician mental health, recorded a phone call. The applicant was not able to attend as he was busy at home. He was “going OK”. His speech sounded normal. He stated he was safe from harm to himself or others and would like to re-book.
The applicant attended an appointment with Ms Heathcote on 5 June 2023.
The background information was that the applicant had been referred by Dr Gaskell, for “depression in the context of work issues, changed finances, and no work.” The applicant had been depressed for two years following bullying at work, with an ongoing legal matter.
Ms Heathcote recorded that the applicant was fidgety and “tears often”. He was cooperative and keen to feel better.
The applicant’s mood/affect was very low and lifted with antidepressants and the birth of his granddaughter. There were many thoughts of worthlessness and not contributing to the family.
Ms Heathcote recorded the applicant’s suicide risk as medium, noting a previous attempt two years ago.

The applicant stated that his granddaughter and the other children were his protective factor. He was looking forward to more grandchildren and was often responsible for his granddaughter’s care.
The applicant was given the MH number and was aware that he may go to the hospital and talk to the GP, “Fiona”, mother-in-law, and brother.
On 13 June 2023, Ms Heathcote recorded a phone conversation in which the applicant said he had had a good weekend. His mood was reasonable. He was not anhedonic. He had enjoyed the family visiting on the long weekend.
On 19 June 2023, Ms Heathcote recorded the applicant’s affect was congruent with mood, times of sadness and grief. There was some avoidant behaviour, as the shire buildings were opposite his house. He was not able to walk past the buildings.
He was taking medication for sleep and sleeping well. His appetite was good, and he was gaining weight. There were thoughts of his finances, concern that he was a burden, and how he would pay his bills. There was a warm connection with his family.
The applicant was not sure what he would do for work, as “few positions in Collarenebri”, his partner was working, and he was also keen to support the family.
On 17 July 2023, Ms Heathcote recorded that the applicant was walking for exercise, there was connection with his children and grandchildren. He was eating well, had insight and strong judgment.
The applicant had had all the children home for the school holidays and enjoyed their company. He was mending his vehicle. He was taking his medication.
On 31 July 2023, Ms Heathcote recorded that the applicant had insight into some avoidant behaviour. He was connecting with his family, had the support numbers, and spoke to the GP.
The applicant was considering his work options. He was not keen to return to the shire and had no external financial support. He was avoiding seeing his old workmates, who were not supportive, was not walking past the shire yard, and aimed to continue that.
The applicant did not attend on 30 August 2023 or 26 September 2023. On
26 September 2023, he told Ms Heathcote by phone that he was managing reasonably and would like another appointment in Collarenebri.
On 9 October 2023, Ms Heathcote recorded that there were some tears in the session. There was distress regarding work and past issues at work. The applicant was eating reasonably, taking some alcohol at a family gathering, connecting with, and close with, family.
The applicant was ruminating on work matters “and recent meeting and tension contact” with colleagues. He continued to ruminate on financial issues. He had some insight and avoidant behaviours.
The applicant had an appointment shortly with Mr Grech.
The applicant was often not keen to discuss the distress he felt, “very gently bringing this rumination to the fore”.
On 23 October 2023, Ms Heathcote recorded that the applicant was smiling and chatty. His mood was improving. He was taking effective medication and eating well. He denied daily alcohol. He was connecting with family.
The applicant was beginning to acknowledge steadily past issues at work. He was not working and there was some avoidant behaviour. He was keen for change.
The applicant was not seeking work, with some avoidance continuing regarding the worksite and fear of meeting colleagues.
On 24 October 2023, Ms Heathcote reported to Dr Gaskell that the applicant had completed six therapy sessions.
The applicant had presented with depression in the context of bullying and an ongoing legal matter. He was experiencing avoidant behaviour with ongoing fearfulness.
The applicant had participated and responded well. His initial K5 score was 21, indicating extremely severe distress, and at the last session it was 9 – low to moderate distress.
Ms Heathcote opined that the applicant would likely benefit from further sessions to support him, with no outcome yet of the legal matter. She planned to continue with a further six sessions and provide a report at the completion of therapy.

SUBMISSIONS

The primary submissions of counsel for the applicant have been recorded, and a transcript is available; and the submissions of counsel for the respondent and for the applicant in reply have been provided in writing. I will therefore summarise them briefly.

Applicant

The applicant submitted that the matter for determination, in both medical and monetary terms, was the quantification of his capacity beyond 17 September 2021. He submitted that the Member’s finding on capacity until that date remained undisturbed by the decision of Wood DP. All that was required of the Commission was “to take up the story at that time.”
The applicant pointed out that, due to the interlocutory applications, neither party had a medicolegal opinion that had come into existence in the period since the publication of the Member’s decision on 8 December 2022.
The applicant submitted that my assessment of his capacity beyond September 2021 would be entirely referable to what he said, and what could be gleaned from the clinical material.
The applicant referred to the clinical records of RaRMS. He acknowledged that saying he could not work at all was a doctor recording what he had told them, rather than expressing an opinion.
The applicant submitted that there was a reasonably constant pattern of conduct and consistent reporting of symptoms. He had “ups and downs” but they were not significant. He obviously got comfort from the proximity of his children and grandchildren.
The applicant submitted the records were reasonably up to date, running out on
25 January 2024.
The applicant also relied on the records of Strong Minds Western. He submitted their forensic value was more in what he told those who were helping him than in expressions of opinion. The overall clinical picture seemed to be of a chronic state of psychological distress that continued.
The applicant referred to his statement dated 17 January 2024, which he conceded was to some extent self-serving. He had mentioned the difficulty he had in maintaining continuity of medical supervision, assessment, and treatment.
The applicant referred to COCs that certified him with no current capacity, the last being dated 29 January 2024.
The applicant also referred to the records of Ochre. He submitted that a clinical note of an improvement in symptoms was not necessarily supportive of a finding of incapacity, but it gave some insight into the candour with which he engaged with his medical professionals.
The applicant submitted that in respect of a psychiatric or psychological claim, the account of the patient is paramount, so a reliable historian is an important ingredient in a confident decision.
The applicant submitted that Dr Demtschyna’s report, in terms of a busy country medical practitioner, constituted a fairly detailed opinion, but in medicolegal terms it was fairly succinct. It was not a reasoned scientific analysis, but the GP had been asked for his opinion, and that is what it was.
Dr Demtschyna had observed the complication presented by the applicant’s unresolved WorkCover claim. At the time the report was sought, the applicant was not in receipt of weekly compensation, and there was an appeal and cross-appeal pending. He submitted that had been unhelpful. Dr Demtschyna had opined that once these things were “laid to rest”, it may bode well for recovery, albeit not with the Council.
The applicant submitted that the clinical records showed that he continued to consult the doctors for the same symptoms and conditions that had troubled him throughout.
The applicant submitted that the material supported a finding of incapacity that dovetailed back to the Member’s findings as to capacity up to September 2021. Nothing had changed. Some of that material was not before the Member, but probably existed, and I now had the benefit of it.
The applicant submitted that there was no basis on which I could find any sufficient improvement in his psychopathology for a finding other than that he was without capacity throughout the period claimed.
The applicant submitted that Wood DP did not revoke the Member’s finding of no capacity to 17 September 2021, which remained binding on the parties and would be confirmed by me.
The applicant confirmed his reliance on all the material before the Commission, including
Dr Chow’s report dated 14 October 2021, which he submitted was in a forensic sense quite helpful to him. It expressed a view about his capacity at that date, and nothing had changed.
In reply to the respondent, the applicant conceded that he could not point to a current expression of expert opinion that he was likely to have no current work capacity indefinitely. He therefore elected to amend the Application to limit the claim to close on 11 October 2023. He reserved his right to agitate a claim beyond that date should evidence to support it become available.
The applicant submitted that the respondent’s investment in the opinion of Dr Bertucen was futile in the face of the fact that his opinion on incapacity had already been rejected by the Member as not being an expression of expert opinion. Wood DP accepted that the proposition was mere speculation.
The applicant submitted there was no coherent or persuasive body of evidence to rebut his evidence on incapacity.

Respondent

The respondent submitted that the last sentence in paragraph [63] of the determination of the appeal made it clear that Wood DP intended to revoke the whole of the Member’s findings about incapacity. That was consistent with her orders revoking orders 7 and 8 made by the Member, awarding the applicant weekly benefits from 14 April 2021 to 17 September 2021.
The respondent submitted that as the award for those periods was revoked, given the statement by Wood DP at [63], it must follow that the finding or determination of the Member was also revoked, and the failure to refer to the determination was an oversight.
The respondent relied on the opinion of Dr Bertucen in his report dated 20 July 2021. It submitted that Dr Bertucen’s opinion was consistent with the clinical records of RaRMS, which referred to the applicant attending to request medical certificates based on his assertion that he was unable to work. As he had conceded, his opinion about his fitness to work was self-serving and therefore of limited evidentiary weight.
The respondent submitted that the applicant’s statement on 17 January 2024 that he felt he was not capable of returning to the workplace was clearly a statement of his present and future opinion and did not refer to the period up until the date of the statement.
The respondent submitted that Dr Chow did not provide any reasoning for his opinion that the applicant was totally incapacitated, contrary to the basic requirements for weight to be given to expert opinion in a non-evidence based jurisdiction.[4]
[4] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA at [82]; Brannigan v Elbon Consulting Services Pty Limited [2021] NSWPICPD 27 at [136] (the subject of a non-publication order).
The respondent submitted that the rationale for the reasoning process behind the opinion expressed by an expert witness is illustrated by the statement of principle in Rolleston v Insurance Australia Ltd.[5]
[5] [2017] NSWCA 168 at [32].
The respondent submitted that the opinion of Dr Bertucen should be preferred to that of
Dr Chow.
The respondent submitted that the report of Dr White dated 29 July 2021 also failed to meet the basic requirements for expert evidence to be given any weight. Dr White’s opinion was contradicted not only by that of Dr Bertucen but also of Dr Chow, who did not make a diagnosis of severe anxiety and depression. It should be given no evidentiary weight and rejected.
The respondent submitted that the histories recorded in the medical records were of limited forensic value, as they merely referred to the applicant’s history about his asserted inability to work. The entries showing the applicant’s approaches to his treating medical practitioners seeking certificates without any focussed treatment supported Dr Bertucen’s opinion that he had made a conscious decision not to return to work and was not incapacitated.
The respondent submitted that on 20 June 2023, it was recorded that the applicant’s mental health had improved, which suggested he was likely to have greater capacity for work at that stage.
The respondent submitted that Dr Demtschyna did not appear to have access to the records of RaRMS. He opined that the applicant “appears unfit for employment at this time.” He did not express any view about the applicant’s capacity for employment prior to the date of his initial consultation on 3 April 2024. (Emphasis in original).
The respondent submitted there was little, if any, probative medical evidence to support a claim for past incapacity outside the periods covered by a limited number of medical certificates. There was none covering the periods prior to 21 October 2023 or after
29 January 2024.
The respondent submitted that the evidence did not support a finding of incapacity prior to
21 October 2023. Dr Bertucen’s evidence in July 2021 was that the applicant was fit for work. Dr Bertucen’s opinion should be preferred to the evidence of Dr Chow, who did not provide a proper foundation for his opinion that the applicant was unfit for work.
The respondent submitted that the only medicolegal report relied on by the applicant, that of Dr Chow, is more than 2.5 years old. There was no presumption of continuing incapacity.
The respondent submitted that the clinical records did not provide a proper basis on which a finding of incapacity for work could be made. They did not amount to much more than a record of the applicant’s opinions.
The respondent submitted that the Commission would not be persuaded that the applicant was unfit for employment until 21 October 2023, when he was certified unfit. The second entitlement period under s 37 of the 1987 Act expired on 11 October 2023. Therefore, the applicant was not to be entitled to weekly benefits under either s 36 or s 37 of the Act.
In relation to any purported claim for weekly compensation under s 38 of the 1987 Act from 12 October 2023, the respondent relied on the decision in Daher v Klassic Kleen Pty Ltd.[6]

SUMMARY

[6] [2023] NSWPIC 14 at [26] to [45].

The decision of Wood DP in Barden v Walgett Shire Council

The respondent submitted that it was an oversight on the part of Wood DP that she did not refer in her orders to revocation of the determination made by the Member in favour of the applicant for the period from 14 April 2021 to 17 September 2021 (Member’s determination [3]) in her decision in respect of the applicant’s appeal.
Wood DP revoked the Member’s determination that the applicant had failed to establish that he had been incapacitated for work since 18 September 2021 (determination [4]).
Wood DP also revoked the Member’s orders numbered [7], [8], and [9].
Paragraph [7] was that in which the member made an award in favour of the applicant for the period from 14 April 2021 to 13 July 2021, pursuant to s 36(1) of the 1987 Act.
Paragraph [8] was that in which the member made an award in favour of the applicant from 14 July 2021 to 17 September 2021, pursuant to s 37(1) of the 1987 Act.
Paragraph [9] was that in which the member made an award in favour of the respondent from 18 September 2021.
I have reproduced above [63] of Wood DP’s decision.
The applicant submitted that I was required only to “take up the story” as at the period after 17 September 2021.
In my view, when [63] of Wood DP’s decision is read with her orders, it was her intention that the entirety of the applicant’s claim for weekly benefits be re-determined on remitter; and that is what I propose to do.

Incapacity

The applicant relied for the most part on his own evidence and that of the clinical records. As he submitted, neither party was able to rely on updated independent medical evidence.
I have referred to the applicant’s evidence above.
In my view, the applicant’s evidence, the clinical records of RaRMS and the medical certificates and COCs issued by Dr White are sufficient to establish that the applicant had no capacity for work for the period from 14 April 2021 to 17 September 2021, as determined by the Member.
I do not accept Dr Bertucen’s opinion that, as at 6 July 2021, when he assessed the applicant, the applicant was not incapacitated for work, and had made a conscious decision not to return to work because of the fear of further discipline or dismissal.
Dr Bertucen recorded that the applicant felt incapable of returning to work due to “claimed” symptoms of distress and anxiety, generated by the “perception” of bullying and persecution, and fear of dismissal. The fear of dismissal is but one factor identified by Dr Bertucen.
At about the same time, Dr White, who had been treating the applicant since at least January 2021, opined that he was suffering severe anxiety and depression, and was “certainly” not fit to return to work.
The applicant submitted that Dr Bertucen’s opinion on incapacity was rejected by the Member as not being an expression of expert opinion, and Wood DP accepted that the proposition was mere speculation.
Wood DP said in Walgett Shire Council v Barden, at [214]:
“The appellant submits that it was likely that the respondent was motivated to avoid the meeting on 15 April 2021 because he believed he was to be dismissed…The appellant says that this was evidence that supported Dr Bertucen’s conclusion that the respondent feared dismissal from employment…If the appellant is asserting that the respondent was somehow feigning a disability, then that assertion is not made out in the evidence. The respondent consulted with Dr White on 14 April 2021, complaining of work related stressors and symptoms of a psychological condition. The respondent had been told that if he was unable to attend the meeting on 15 April 2021, he was to advise the appellant. The suggestion that the respondent was ‘engineering’ an avoidance of the meeting is not based on any satisfactory evidence and is mere speculation. Any observation made by Dr Bertucen to that effect, as the respondent submits, is not an expression of expert opinion, was not based on any evidence and was of no weight. Further, the proposition was not put to the respondent in cross-examination and the Member was not required to consider that submission or give reasons for rejecting it.”
Dr Bertucen’s opinion that the applicant was consciously avoiding returning to work for fear of discipline or dismissal was not based on evidence and was of no weight. I do not accept Dr Bertucen’s opinion as to incapacity.
Apart from Dr Chow’s report dated 14 October 2021, following his examination of the applicant on 29 September 2021, there is no other evidence from an independent medical examiner.
Dr Chow’s opinion as to incapacity was that the applicant had no capacity for work, and his condition was likely to remain ongoing. That is the extent of his opinion on incapacity.
I have found little assistance from Dr Chow’s report, which is now 2.5 years old.
I have therefore once again relied on the applicant’s evidence and the clinical records.
The clinical records show that the applicant at times reported some improvement in his mood. It appears to me that he was open with his treating practitioners. It is obvious that, in respect of a psychological condition, they are to a large extent reliant on a patient’s self-report.
The applicant has given evidence of doing things to try to keep busy, and the comfort provided by his children. It is clear that he has a supportive family and he found pleasure in the birth of his granddaughter. None of those matters necessarily meant that he had the capacity to return to work.
Dr White recorded ongoing symptoms and issued COCs certifying the applicant with no capacity until 11 November 2021, and Dr Chetty recorded a consultation about his prescriptions on 2 December 2021.

It appears that Dr Chetty conscientiously reviewed the applicant’s records when she was asked to provider a certificate on 3 March 2022. She declined to backdate a certificate but did not express any concern regarding the applicant’s incapacity.
Dr Chetty noted that the applicant did not appear to have had counselling, and he was not improving with medication. She opined that, even if the applicant did not go back to work, they needed to improve his mood. This does not suggest she believed at that stage that he was able to return to work but required additional treatment even to allow him to do other things.
Dr White issued a COC on 19 April 2022 that certified the applicant with no capacity from
11 November 2021 to 3 March 2022, the latter date being when Dr Chetty issued a COC. It does not appear likely to me that the applicant had capacity between November 2021 and March 2022, when he consulted Dr Chetty, and then again became incapacitated when
Dr White resumed his care.
Dr White continued to certify the applicant with no capacity for work. He recorded in September 2022 that the applicant’s depression was static, and in January 2023 that “has been consistent throughout with claim”.
Dr White certified the applicant with no capacity until March 2023, when the applicant began to consult GPs at Ochre.
The applicant consulted various practitioners at Ochre, and the reason for this has been explained by Dr Demtschyna in his report. That report is of limited value, but Dr Demtschyna had reviewed the records and appears to have provided a report to the best of his ability. He has referred to the unresolved issues of the applicant’s claim. Ms Heathcote also referred to that issue.
The applicant also appears to have been open with the GPs at Ochre. He reported some improvement, and benefit from counselling. He was doing things he enjoyed, which was appropriately encouraged by Dr Bakar in June 2023. Dr Bakar also recorded that it was reasonable to issue a COC for two months, noting that the applicant had support from the MH service.
Dr Achusiogu recorded in September 2023 that the applicant required a referral to Mr Grech. Unfortunately, there is no evidence from Mr Grech.
Dr Soral certified the applicant with no capacity on 23 October 2023, noting that residual mental health issues were affecting his recovery.
The applicant submitted that the records of Strong Minds Western were of value more from what he said than their expressions of opinion.
I have set out in some detail above the histories recorded by Strong Minds Western, which cover a period from April 2023 to October 2023.
In my view, the records show that the applicant was open with his counsellor. He was described as cooperative and keen to feel better.
The applicant again reported comfort from his family, and spending time with his children and grandchildren. At times he was “smiling and chatty”, but at other times was tearful.
Ms Heathcote reported to Dr Gaskell that the applicant initially presented with a K5 score that indicated extremely severe distress, but at his last session he had a score that indicated low to moderate distress. This suggests that he had benefited from the treatment, but it was significantly delayed, commencing about two years after the injury. Ms Heathcote believed he would benefit from further treatment.
It is unlikely in my view that a person in extremely severe distress had capacity for work. It may be that by the end of October 2023, the applicant was regaining some capacity, but he makes no claim for weekly benefits after 11 October 2023.
Having considered the evidence of the applicant and the medical evidence, I have concluded that in addition to having no capacity for work from 14 April 2021 to 17 September 2021, the applicant had no capacity for work from 18 September 2021 to 11 October 2023.
As I am of the view that the determination of the Member with respect to the period from
14 April 2021 to 17 September 2021 was revoked by Wood DP, it is necessary that I make an award for that period. The respondent has paid weekly compensation for that period, and I will order that it have credit for payments made.
The respondent has lodged a wage schedule setting out the appropriate indexed amounts pursuant to ss 36 and 37 of the 1987 Act, and I am grateful for its assistance.
As the date of injury has been deemed to be 14 April 2021, the award of weekly benefits commences on that date.
The Application claims medical expenses of only $666.15, in respect of consultations with a GP and psychologist. No submissions were made by either party regarding s 60 expenses, and the only evidence relating to this claim is a Medicare history statement dated
9 September 2021 and a declaration by the applicant dated 24 September 2021.
The Member made a general order for s 60 expenses on 8 December 2022, and that order was not revoked on appeal.
In the circumstances, I decline to make any order pursuant to s 60 of the 1987 Act.
I determine as follows:
(a)     the application by the applicant to close the period of the claim at
11 October 2023 is allowed; and the Application is amended accordingly;
(b)     the determination made by the Member in favour of the applicant for the period from 14 April 2021 to 17 September 2021 was revoked by Wood DP on
14 December 2023;
(c)     the applicant had no capacity for work from 14 April 2021 to 11 October 2023;
(d) the applicant is entitled to an award of weekly benefits, pursuant to ss 36 and 37 of the 1987 Act, from 14 April 2021 to 11 October 2023, and
(d)     the respondent is to have credit for payments made.
The orders are set out in the COD.

[2024] NSWPIC 276

24 May 2024