Beckett v State of NSW (Department of Climate Change, Energy, the Environment and Water)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Beckett v State of NSW (Department of Climate Change, Energy, the Environment and Water) [2025] NSWPIC 185
APPLICANT:	Nicola Beckett
RESPONDENT:	The State of NSW (Department of Climate Change, Energy, the Environment and Water)
MEMBER:	John Turner
DATE OF DECISION:	5 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 33, 37 and clause 2 of Schedule 3 considered; accepted psychological injury; whether claim incapacity results from the accepted psychological injury; dispute as to incapacity; applicant “acting” at time of injury in a different position to her substantive position; dispute in respect to the application of clause 8C of the Workers Compensation Regulations 2016 (Regulations) and as to the meaning of “ongoing nature”; Project Blue Sky Inc v Australian Broadcasting Authority; Secretary, Department of Communities and Justice v Farrugia considered and applied; Held – applicant’s incapacity is due to the accepted injury; applicant has an entitlement to weekly compensation pursuant to section 37(3)(a); respondent is to pay the applicant’s reasonably necessary medical and treatment expenses for the psychological injury pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended as follows: (a) the date of injury is amended to 14 August 2023 deemed; (b) the type of injury is amended to disease, and (c) the injury description/cause of injury is amended by deleting “18 October 2024” and inserting in place thereof “14 August 2023”. 2. That the applicant’s accepted work injury has continued and continues, and that the applicant’s incapacity is due to that accepted injury. 3. That the applicant has had the capacity to earn $609 per week gross ($40.60 x 15 hours per week) from 24 July 2024 to 5 December 2024 and $639.90 per week ($42.66 x 15 hours per week) from 6 December 2024 to date and continuing. 4. That the applicant has not returned to work for 15 hours per week or more and that s 37(3)(a) of the Workers Compensation Act 1987 (1987 Act) is the applicable provision to be applied in calculating the weekly compensation to be paid to the applicant. 5. That the applicant has an entitlement to weekly compensation pursuant to s 37(3)(a) of the 1987 Act from 24 July 2024 to date and continuing. 6. That in respect to the calculation of the applicant’s “pre-injury average weekly earnings” (PIAWE) the relevant earning period for the applicant is to be adjusted in accordance with this clause 8C of the Workers Compensation Regulations 2016 (Regulations) by excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor. 7. The parties are ordered to agree within seven days a PIAWE, with indexation, excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor in accordance with cl 8C of the Regulations together with an agreed schedule of the compensation to be paid in accordance with s 37(3)(a) of the 1987 Act in accordance with this determination for the period 24 July 2024 to date. 8. If the parties are unable to agree the PIAWE and/or the compensation to be paid pursuant to s 37(3)(a) in accordance with order 7 the parties are to provide submissions in respect to the calculation of such a PIAWE and a calculation of the compensation which they submit is payable in accordance with s 37(3)(a) from 24 July 2024 to date together with a schedule of the PIAWE, with indexation, and a schedule of the compensation which it is submitted is payable as follows: (a) applicant’s submissions to be lodged and served by 5.00pm on 28 May 2025; (b) respondent’s submissions to be lodged and served by 5.00pm on 4 June 2025, and (c) applicant’s submissions in reply by 5.00pm on 10 June 2025. 9. There will be an order that the respondent pay weekly compensation to the applicant from 24 July 2024 to date and continuing pursuant to s 37(3)(a) of the 1987 Act following the receipt of the agreed PIAWE, with indexation, with an agreed schedule of the compensation to be paid in accordance order 7 or there will be a determination on the papers following the close of submissions in accordance with order 8. 10. The respondent is pursuant to s 60 of the 1987 Act to pay the applicant’s reasonably necessary medical and treatment expenses for the psychological injury sustained on 14 August 2023. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Nicola Beckett (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that as a result of various facts and circumstances which occurred in the course of her employment with the State of NSW (Department of Climate Change, Energy, the Environment and Water) (respondent) between 6 March 2023 and
14 August 2023 she suffered a primary psychological injury with a deemed date of injury of 14 August 2023.
The applicant had relied on a period of employment of 6 March 2023 to 18 October 2024 with a deemed date of injury of 28 July 2023, however at the arbitration hearing on
28 March 2025 the applicant applied to amend the Application to Resolve a Dispute (ARD). The proposed amendments were not opposed by the respondent and the applicant’s application to amend the ARD was granted.
The applicant claims weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) from 24 July 2024 to date and continuing as well as medical and treatment expenses pursuant to s 60 of the 1987 Act.
It is not in dispute that the applicant suffered a primary psychological injury as alleged.

ISSUES FOR DETERMINATION

During the arbitration hearing Mr Loukas advised that the only disputes which were being maintained and pressed by the respondent were whether the applicant had/has, due to the accepted injury, an incapacity during the period for which weekly benefits compensation is being claimed and if so the extent of that incapacity, the correct assessment of the applicant’s pre-injury average weekly earnings (PIAWE) and whether the medical and treatment expenses claimed pursuant to s 60 of the 1987 Act are reasonably necessary as a result of the accepted injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
28 March 2025. Mr Ty Hickey, counsel, instructed by Mr William Langler, solicitor, appeared for the applicant, who was present. Mr Bill Loukas, counsel, instructed by Mr Danny Khoshaba, appeared for the respondent. The proceedings were conducted via TEAMS. 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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 25 February 2025 and 20 March 2025;
(d)    documents attached to ALAD’s lodged on behalf of the respondent dated
25 February 2025 and 24 March 2025, and
(e)    Wages Schedule lodged by the respondent dated 24 March 2025.
The applicant objected to the following documents which are contained in the documents attached to the Reply being admitted into evidence:
(a) document titled “Record of workplace discussions regarding potential conflict of interests” (record of discussions), and
(b) document titled “Procare Desktop Investigation Report” (desktop investigation) dated 18 July 2024.
I admitted both documents into evidence advising at the time of admission that I would provide written reasons for the admission which I now do.
The applicant submitted in respect to the desktop investigation that it contains little of assistance and that any weight that could be given to it is minimal.
In respect to the record of discussion the applicant submitted that the document is unsigned and undated, that it is unclear who authored the document.
In respect to the desktop investigation the respondent submitted that it may assist with peripheral matters, and it was a matter of the weight which was to be given to it.
In regard to the record of discussions it was submitted on behalf of the respondent that it is a business record of the respondent. In the respondent’s submission it is clear that the document was authored by the applicant’s supervisor, Clare Kitley, and a Team Leader. That the document refers to matters that occurred in March/April/June 2024 being events that the applicant refers to in her statement evidence. That the document is important in terms of providing a timeline and in providing a factual matrix being relevant to the cause of the alleged incapacity with the events referred to in the record of discussions occurring after the injury relied upon by the applicant with the cause of the incapacity being in dispute.
In the applicant’s submission the document does not satisfy the requirements of the Commission that evidence should be logical and probative, relevant to the facts in issue and issues in dispute. In the applicant’s submission the respondent had indicated that it would rely on the applicant’s evidence and the respondent can do that without relying on the record of discussions. In the applicant’s submission if the document was of importance to the respondent, then it could have been put in statement form or adopted as an annexure to a statement.
In my view the desktop investigation does contain evidence that is potentially relevant to the proceedings. The applicant’s capacity for work after ceasing duties with the respondent is an issue in dispute between the parties. It is the applicant’s evidence that post injury and after ceasing duties with the respondent she has worked in a café. The desktop investigation contains information in respect to the café and the applicant’s activities which may be relevant to the dispute in respect to the applicant’s capacity.
The record of discussions as a piece of evidence does suffer from some significant flaws that greatly impact upon the weight that can be given to significant portions of the document. The document is unsigned. Whilst the respondent submitted that the document would have been authored by Ms Kitley and a Team Leader, I am of the view that it cannot be ascribed to any person as there is no clear evidence as to who authored the document. It is also not known when the document was created or whether it was created over time. It is also not known for what purpose the document was created. However, the document is the respondent’s document and is relevant and of assistance in that it goes to the respondent’s acceptance that certain incidents did occur to the extent that the document confirms the applicant’s evidence. The weight which can otherwise be attached to the document is in my view minimal.
During the course of the respondent’s submissions the respondent sought to have clinical records produced by Dr McMahon in response to a Direction for Production admitted into evidence. By this stage the applicant had completed its submissions save for submissions in reply. Counsel for the respondent was operating under the mistaken belief that the documents were in evidence even though the documents to be admitted into evidence had been gone through prior to the commencement of the submissions in the substantive matter.
The applicant objected to the documents being admitted into evidence observing that the applicant’s submissions had been prepared and put on the basis of the documents lodged with the Commissions and served in the form of the ARD, Reply and the various ALAD’s with their attachments. In the applicant’s submission the admission of the clinical records of
Dr McMahon would delay the case and put the applicant in the position that it may need to consider putting further evidence on in response and redo its submissions.
The respondent’s application was rejected. The documents had been available to the parties for some time and could have been served and lodged with the Commission as late documents. The applicant was not given notice that the respondent intended to rely on the documents and therefore had not prepared its case and its submissions on that basis. The admission of the document’s would have prejudiced the applicant as their submissions had been completed save for submissions in reply. The applicant would have to reconsider her submissions and whether further evidence was required. The admission of the documents would have considerably delayed the proceedings.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Incapacity

It is not disputed that the applicant suffered the alleged psychological injury. The respondent however disputes that the alleged injury is the cause of any incapacity during the period for which weekly compensation is claimed. In summary the respondent submits that there have been a number of other stressors in the applicant’s life unrelated to the accepted work injury which are the cause of the incapacity noting that the applicant only relies on the period of employment from 6 March 2023 to 14 August 2023 as the cause of the injury.
Mr Hickey submitted on behalf of the applicant that it is plain that the applicant remained symptomatic at all times following the accepted work injury being sustained but nevertheless returned to work attempting to deal as best she could with a restricted role. A role that was less than she was previously involved in and on reduced hours and duties. It was submitted on behalf of the applicant that when one works their way through the medical evidence, it is clear that the applicant was at all times struggling to maintain the façade of being able to continue her role. In the applicant’s submission we have the original work related condition continuing throughout.
Mr Hickey submitted on behalf of the applicant that the applicant has continued to consult her general practitioner (GP) with a continuing set of symptoms that appeared to be deteriorating and which were not remitting.
In the applicant’s submission it is clear from the evidence that the applicant has since sustaining the accepted work injury continued to seek treatment for it, that the accepted injury has clearly remained symptomatic, that the applicant clearly continued to discuss her accepted work injury and its deterioration with her GP and that the GP clearly noted the deterioration of the accepted work injury.
The applicant does not deny that there have been other stressors but submits that they are not the cause of her incapacity.
In the applicant’s submission there is no intervening event or other stressors that result in the incapacity. That there is no evidence, medical or other, to support such a proposition. In the applicant’s submission the condition and the incapacity which flows from it is all a manifestation of the accepted work injury. The mere fact of deterioration is not evidence of another causative event. It has to be demonstrated with evidence, and the evidence demonstrates a continuation of the original condition. To the extent that there may be additional stressors, but for the original accepted work injury, consistent with what the GP is at all times asserting and with the only medicolegal opinion the applicant was labouring away under the original injury.
The respondent submits that following a short period off work following the accepted injury the applicant returned to work and was able to perform her work duties. Meanwhile she had a fall at work on 13 February 2024 sustaining physical injuries, she opened a café and experienced a large number of other stressors after she had returned to work and long after the accepted work injury was sustained. In the respondent’s submission these other stressors after 14 August 2023 are the cause of any incapacity.
I accept the applicant’s submissions for the following reasons.
The applicant was employed by the respondent as a part-time Administrative Support Officer, her substantive role. The applicant commenced acting as a Visitor Centre Supervisor on or about 7 March 2023. As an acting Visitor Centre Supervisor she reported to Ann Walton, the Visitor Experience Team Leader. The acting Visitor Centre Supervisor role was a full-time position.
It is the applicant’s evidence that there were a number of issues with one of the staff members which were under her supervision in her role as Visitor Centre Supervisor. As injury is not in dispute I will not go into detail as to the events leading to the accepted injury. In very brief summary issues arose in respect to the management of this particular staff member which caused the applicant to suffer the accepted psychological injury.
It is the applicant’s evidence at [46] of her statement of 15 September 2023 that on
14 August 2023, the deemed date of the accepted injury, she consulted Dr Matthew Hansen of Dorrigo Health and Wellbeing.
The clinical records of Dorrigo Health and Wellbeing confirm that the applicant consulted
Dr Hansen on 14 August 2023. The clinical record of the consultation records a history of the workplace events leading to the injury. In respect to the applicant’s symptoms Dr Hansen recorded stressed “+++”, not sleeping and very teary, anxiety leading to chest discomfort, elevated stress and tension which had resulted in significant myalgia and that the applicant had suffered a decrease in mental and physical function. Overall, the applicant was not coping, unable to function at work and reported that the stress and tension was affecting her home life. The doctor prescribed a trial of Suvorexant to help reduce ruminating and permit sleep. The doctor also prescribed Temazepam.
On 14 August 2023 Dr Hansen provided the applicant with a general medical certificate (non-Workcover) which certified the applicant unfit for work from 14 August 2023 to
20 August 2023 due to a “medical condition”. At the same time Dr Hansen provided the applicant with a certificate of capacity which records a diagnosis of “stress/anxiety” and a date of injury of 28 July 2023. The applicant was certified with no current capacity for any work from 14 August 2023 to 20 August 2023 with the applicant being able to return to her pre-injury duties on 21 August 2023.
On 28 August 2023 the applicant again consulted Dr Hansen who recorded in the clinical record of the attendance that the applicant presented with workplace stress and situational anxiety, was anxious and uncertain, that the stress/anxiety was causing muscle tension “+++” resulting in chest discomfort. The doctor noted that acupuncture had assisted with her muscle tension and observed that physiotherapy would also assist.
The applicant reported to Dr Hansen that she was back at work and was fulfilling the requirements of her job description and was capable of fulfilling her working hours with appropriate supports in place.
In respect to the symptoms that the applicant was suffering Dr Hansen recorded elevated anxiety levels, poor sleep, ruminating thoughts over the situation and culture within the workplace.
Even though the applicant was back at work Dr Hansen considered that the applicant’s condition warranted referral to a psychologist, referring the applicant to Ken Love on
28 August 2023.
On 28 August 2023 Dr Hansen also provided the applicant with a certificate of capacity which again recorded a diagnosis of stress/anxiety with a date of injury of 28 July 2023. The applicant was certified as having capacity for some type of work from 21 August 2023 to
12 September 2023 for eight hours per day, five days per week. Dr Hansen did however record in the certificate of capacity that the applicant was not coping with the workplace situation.

In my view the evidence is to the effect that whilst the applicant had returned to her pre-injury full-time duties as an acting Visitor Centre Supervisor, she was still highly symptomatic and required support to perform her work duties. The applicant’s ruminating thoughts over the situation and culture within the workplace would become a consistent and ongoing theme in the clinical records.
The applicant again consulted Dr Hansen on 1 September 2023. The clinical record of the attendance records for the first time a diagnosis of adjustment disorder with anxiety recording the applicant’s physical and emotional symptoms as being tired but unable to sleep, feeling anxious, agitated and trapped, body aches and soreness to the point where she is feeling sick, feelings of hopelessness, crying easily, trouble with concentration, lacking of energy and enthusiasm, loss of self-esteem, feeling overwhelmed and stressed on occasion, tension headaches, flushing, chest tightness and heart palpitations and sweating hands.
Dr Hansen noted that the applicant was continuing to take Suvorexant to help reduce ruminating thoughts, decrease sleep latency and assist in achieving adequate sleep.
On 13 September 2023 the applicant again consulted Dr Hansen. The clinical record of the attendance records that the applicant presented with an acute stress disorder with anxiety. The doctor observed that the applicant was suffering from insomnia secondary to her stress/ruminating. The applicant reported to Dr Hansen that she was worn out with increased malaise/fatigue, drained of energy, starting to feel physically as well as psychologically worn down. The applicant reported that that she felt that the culture at her place of employment was never going to change and was counting down the days until she goes on holiday.
On 13 September 2023 Dr Hansen provided the applicant with a certificate of capacity in which whilst again noting that the applicant was not coping with the workplace situation certified the applicant with capacity for some type of work from 13 September 2023 to
16 October 2023 for eight hours per day, five days per week. The factors affecting recovery were recorded as ongoing workplace stress causing increased anxiety levels.
On 16 October 2023 the applicant consulted Dr Dorothea Eburn of Dorrigo Health and Wellbeing. The clinical record of the attendance records a diagnosis of adjustment disorder with anxiety. Dr Eburn noted that the applicant had seen the psychologist Mr Love and would go back which the doctor encouraged as the applicant needed help with insomnia and ruminating thoughts around work stresses. The doctor records that the applicant was suffering from interrupted sleep, ruminating thoughts, irritability, loss of tolerance, constantly tense which had caused muscle tightness for which she was seeing a physiotherapist, not feeling much enjoyment and anxious but the applicant reported that she did not feel depressed.
The applicant was continuing to take Suvorexant to help reduce ruminating thoughts, decrease sleep latency and assist in achieving adequate sleep.
On 16 October 2023 Dr Eburn provided the applicant with a certificate of capacity in which the doctor recorded the diagnosis of adjustment disorder with anxiety and the date of injury as 28 July 2023. The applicant was certified fit for pre-injury work from 21 August 2023. However, the doctor noted that the situation at work remained difficult.
On 25 October 2023 the applicant attended a telephone consultation with Dr Eburn. The clinical note of the attendance records ongoing insomnia as stress at work “++”. Dr Eburn prescribed the applicant Melatonin.
It is the applicant’s evidence at [18] in her statement dated 18 October 2024 that she resumed her substantive part-time Administrative Support Officer role on 31 October 2023.
In my view the evidence supports that at the time that the applicant returns to her part-time substantive role she remained highly symptomatic as a result of the accepted work injury presenting with ongoing insomnia, ruminating thoughts, irritability, loss of tolerance, constantly tense which caused muscle tightness for which she was seeing a physiotherapist, not feeling much enjoyment and anxious. She was continuing to take Suvorexant and had been prescribed Melatonin and it was recommended that she continue to consult a psychologist.
The applicant was, in my view, clearly still suffering from the accepted work injury and clearly not well, continuing to be diagnosed with an adjustment disorder with anxiety. The applicant was also continuing to have ruminating thoughts around work stresses. At this point in time no other significant stressors apart from those leading to the work injury had presented themselves.
In my view the evidence does not support that the applicant had returned to her pre-injury duties as an acting Visitor Centre Supervisor and recovered from her accepted work injury rather it indicates that the injury was continuing and that whilst she had performed her pre-injury duties she had struggled to do so.

It is the applicant’s evidence at [20] in her statement dated 18 October 2024 that following her return to her substantive role she had a number of unpleasant and personally challenging encounters at work which she summarises as follows:
(a)    in January 2024 she was accused of agreeing to loan out a cat trap and therefore putting two other staff members in a compromising position;
(b)    in April 2024 she was accused of being "unkind & disrespectful" to someone in the area office;
(c)    in May 2024 she was accused of talking on her personal phone on loudspeaker to her partner at work about recording her supervisor, and
(d)    in June 2024 she was twice accused of being unethical and dishonest by undertaking personal business while working for the respondent.
It is the applicant’s evidence at [21] of her statement of 18 October 2024 that these accusations made her increasingly anxious. That she had many sleepless nights. That they made her extremely nervous about arriving at work each day as she felt that another accusation would be made against her workplace professionalism. It is the applicant’s evidence at [22]-[23] that she developed a dry mouth, started sweating excessively, suffered from muscle tightness, felt tense and experienced head, neck and back pain, that her short-term memory and concentration suffered and that she struggled to focus on any task at hand, both professionally or in a private family situation.
On 15 November 2023 the applicant consulted Dr Hansen. The clinical record of the consultation records that the applicant had returned to her previous role. The clinical record indicates that there had been some improvement in the applicant’s symptoms with reduced muscle spasms and chest discomfort as well as improved stress levels. The doctor observed that setting boundaries appeared to have helped with her stress levels. However, the applicant was still experiencing tension in her back, insomnia with ruminating thoughts “++” and difficult winding down.
On 13 December 2023 the applicant attended on Dr Hansen. The clinical record of the consultation records that the applicant had been trialling eye techniques with her psychologist, Mr Love. Since moving back into her original position both Mr Love and the applicant had made an informed decision that the applicant would attempt to stand up for herself with a physically intimidating and bullying peer.
Dr Hansen noted that the applicant had regressed physically, taking on protective posturing exacerbating her myalgia secondary to tension and stress. Dr Hansen observed that the applicant standing up for herself had bought everything to the fore. The applicant felt the way it was handled was wrong. She was pulled into the office where the alleged bully was yelling and accusing. Yelling in the applicant’s face. The applicant felt brushed aside by her manager. The applicant felt that the inappropriate behaviour of the alleged bully was not addressed at all. However, the applicant felt good for having stood up to her, but the workplace environment remained toxic.
On 13 December 2023 Dr Hansen provided the applicant with a certificate of capacity in which the doctor again recorded the diagnosis as stress/anxiety and the date of injury as
28 July 2023. The certificate again noted that the applicant was not coping with the workplace situation whilst certifying the applicant with capacity for some type of work from
14 December 2023 to 10 January 2024 for eight hours per day, five days per week. The factors affecting the applicant’s recovery were identified as ongoing workplace stress causing increased anxiety levels.
In my view whilst the applicant’s condition did appear to have improved in November 2023 the condition arising out of the accepted work condition was still present and the applicant was still significantly symptomatic. The applicant continued to receive treatment from the psychologist and trialled different techniques and strategies to assist with her condition. It was the utilisation of one of these strategies, standing up for herself, that appears to have led to the confrontation with a bullying colleague. Whilst this appears to have caused some regression in the applicant’s physical posturing the applicant felt good about standing up for herself. The incident does not appear to have impacted on the applicant’s capacity as
Dr Hansen assessed it, with the doctor continuing in December to certify the applicant with capacity for some type of work for eight hours per day, five days per week. The applicant continued to ruminate on the culture in the workplace.
On 2 January 2024 the applicant was examined by Dr Sue Morgans, psychiatrist, who provided a forensic report to the respondent dated 16 January 2024. Dr Morgans took a history of the events whilst the applicant was acting as the Visitor Centre Supervisor which is consistent with the applicant’s evidence.
Dr Morgans noted that the applicant had returned to work in her part-time substantive position. However, the applicant reported continuing symptoms, albeit with attenuated severity.
Dr Morgans diagnosed an adjustment disorder with anxiety, as had Dr Hansen and Dr Eburn.
In the opinion of Dr Morgans, the applicant had demonstrated a partial improvement in symptoms, however, not to resolution. The prognosis in the doctor’s opinion was hopeful but guarded for full resolution of symptoms.
Significantly, in the opinion of Dr Morgans, the psychological complaints made by the applicant and her resulting incapacity for work were the reasonable and direct result of the workplace injury.
Dr Morgans noted that the applicant was performing her part-time substantive role which the doctor appeared to view as appropriate. In the opinion of Dr Morgans, the applicant did not have the capacity to perform the acting Visitor Centre Supervisor role that she was performing at the time of injury. Dr Morgans noted that the applicant was reportedly considering work in roles such as at a school or a volunteer role which Dr Morgans considered a reasonable reflection of the extent of the applicant's work capacity.
In the opinion of Dr Morgans, the treatments which the applicant was undertaking of psychological therapy, work with an injury management worker, and engaging with her nominated treating doctor were reasonably necessary treatments for the work injury.
Dr Morgans provided a supplementary forensic report, without further clinical examination, to the respondent dated 15 March 2024 in which Dr Morgans confirmed her opinion that the applicant had the capacity to act in her substantive role however that she did not have the capacity to return to the duties of the pre-injury managerial position.
In the opinion of Dr Morgans, the reason the applicant had ongoing residual symptoms given that the alleged workplace stressors were no longer an issue, as she was no longer working with the alleged perpetrator, was because once a psychological work-based stress had occurred, the residual symptoms do not automatically resolve once the precipitating stress has been removed. ln addition to this, the applicant was reportedly subjected to multiple stresses including the additional stress of the perceived lack of support from the employer in the matter of managing the alleged perpetrator. ln the doctor’s opinion the applicant had residual symptoms related to the alleged work-based stress, however at an attenuated level of severity.
Dr Morgans observed, when asked whether other non-work factors had contributed to the applicant’s stress and anxiety and impacted on her current status, that the evidence with which she had previously been provided did not indicate that the applicant had reported other non-work-related factors at home which had contributed to her stress and anxiety.
Dr Morgans noted that the absence of reported non-work related factors had been taken into consideration when providing her opinion.
I accept the opinion of Dr Morgans. The opinion is consistent with the evidence as previously discussed and as a specialist psychiatrist I prefer her opinion as to the applicant’s capacity for work to that of Dr Eburn and Dr Hansen. The opinion of Dr Morgans as to work capacity is also consistent with the clinical records which indicated that the applicant was struggling with the Visitor Centre Supervisor role following her accepted work injury. It is also significant that at the time of Dr Morgans examination of the applicant there appears to have been few in the way of additional stressors impacting on the applicant and in particular the evidence referred to at [20] of the applicant’s statement dated 18 October 2024 had not yet occurred at the time that the applicant was examined by Dr Morgans.
On 8 January 2024 the applicant consulted Dr Hansen who provided the applicant with a certificate of capacity in which the doctor recorded a diagnosis of stress/anxiety (Dr Morgans had seen the applicant six days prior and diagnosed an adjustment disorder with anxiety) and the date of injury as 28 July 2023. The certificate noted that ongoing workplace stress was causing increased anxiety levels and certified the applicant with capacity for some type of work from 8 January 2024 to 5 February 2024 for eight hours per day, five days per week. The factors affecting recovery were recorded as ongoing workplace stress causing increased anxiety levels.
On 29 January 2024 the applicant consulted Dr Eburn. The clinical record of the consultation records a diagnosis of adjustment disorder with anxiety and noted “extreme stresses at work in addition to family stresses” and that the applicant was taking Kava to relax however her sleep was still interrupted waking at 2-3.00am. The applicant was making mistakes, easily distractable, upset and teary all the time, had low energy, which was worse at night, anxiety “++”, ruminating thoughts, irritable, loss of tolerance, feelings of constant tension leading to muscle tightness with not much enjoyment of life. She was feeling worse than in December. The applicant stated that “everything is getting worse.” The doctor questioned whether the applicant was sliding into depression.
Dr Eburn noted that the applicant was continuing to receive treatment in the form of acupuncture to release muscle tension and control tension headaches, physiotherapy to help maintain stretching/exercise regimen to control muscle tension, assist with mood and avoid deterioration in mental health and see a psychologist. The applicant was continuing to take Suvorexant to help reduce ruminating thoughts, decrease sleep latency and assist in achieving adequate sleep.
On 29 January 2024 Dr Eburn provided the applicant with a certificate of capacity in which the doctor recorded a diagnosis of adjustment disorder with anxiety with a date of injury of
28 July 2023. Dr Eburn certified the applicant as fit for pre-injury work from 21 August 2023.
On 30 January 2024 the applicant consulted Dr Hansen. The clinical record of the consultation records in respect to work stress that after confrontation with her peer it had improved however the applicant felt that the workplace remained poor, hated her job. The clinical record also noted that the applicant’s partner was working “++++” and was drinking again, that her daughter hated her, that her son was locking himself in his room and playing computer games, that she had lost $2,300 in a scam, financial stress “+++”, had still hadn’t heard anything from Workcover.
The applicant was recorded as being very teary, crying “+++”, low mood and “not coping with everything that is going on”. The applicant felt that she was deteriorating. The applicant was to trial Sertraline at 50mg daily. The doctor diagnosed an anxiety disorder.
On 26 February 2024 the applicant consulted Dr Hansen. The clinical record of the consultation records that the applicant was working three days per week and that she was still struggling but felt that the workplace was improving. Less anxiety, commencing Sertraline 50mg daily had helped.
The applicant felt that her job was the “least stressful part of her job”. Her partner was earning less than half his previous salary, he was in the middle of home renovations, he was drinking intermittently, it appears that he was having to take over half of their investment commercial property and the applicant’s relationship with her daughter was tenuous. The doctor noted that Sertraline had helped “immensely” with managing her stress.
On 26 February 2024 Dr Hansen provided the applicant with a certificate of capacity in which the doctor again recorded a diagnosis of adjustment disorder with anxiety and the date of injury as 28 July 2023. The certificate noted that the situation at work remained difficult and that the applicant required psychological and physiotherapy support. The applicant was again certified fit for pre-injury work from 21 August 2023.
On 22 March 2024 the applicant consulted Dr Lachlan Campbell. The clinical record of the consultation records that the applicant complained of pain in her left knee and right wrist as well as chronic lower back pain. The applicant had suffered a fall at work that Wednesday.
On 26 March 2024 Dr Mohd Awang provided a certificate of capacity to the applicant in respect to work related low back, right wrist and neck injuries sustained in a fall on
13 March 2024. The applicant was certified with capacity for some type of work from
26 March 2024 to 3 April 2024 on normal hours.
On 27 March 2024 the applicant consulted Dr Campbell. The clinical record of the consultation records that the applicant had suffered a fall at work injuring her hand. On reflection the applicant felt that the pain in her right hand was longstanding. The applicant felt that the pain in her hand was vastly improved by the osteopath. The applicant also had ongoing chronic lower back pain for which she had surgery.
The applicant and the doctor also talked about biopscyhosocial management of competing mental health stressors, related to work and social life.
It is the applicant’s evidence at [28] of her statement of 18 October 2024 that on 5 April 2024, with her partner she registered Dorrigo & Beyond as a partnership.
On 22 April 2024 the applicant consulted Dr Hansen. The clinical record of the consultation substantively relates to the fall at work on 13 March 2024.
On 22 April 2024 Dr Hansen provided the applicant with a certificate of capacity in respect to a right wrist strain sustained on 13 March 2024. The certificate is a little unclear as to the certification however appears to certify the applicant as fit for pre-injury work from
22 April 2024 for eight hours per day, three days per week.
It is the applicant’s evidence at [29] of her statement of 18 October 2024 that on
30 April 2024, she accepted a meeting invitation from Ann Walton, (Team Leader Visitor Centres, the applicant’s supervisor's manager), for the next day, to discuss " what your plans maybe so if there is any process or protocol we need to cover off from NPWS work we can start those discussions". It is the applicant’s evidence at [31] of her said statement that on
1 May 2024 she had the meeting with Ms Walton. The applicant describes the meeting at [31]-[32] of her said statement. From the applicant’s description the meeting appears to have been supportive and without conflict.

On 6 May 2024 Dr Hansen provided the applicant with a certificate of capacity in respect to the right wrist strain. Ther applicant was certified fit for pre-injury work from 22 April 2024 for eight hours per day, three days per week.
On 24 May 2024 the applicant consulted Dr Campbell. The clinical record of the consultation relates to the wrist injury. On 24 May 2024 Dr Campbell provided the applicant with a certificate of capacity in respect to the right wrist strain sustained on 13 March 2024. The applicant appears to have been certified fit for pre-injury work from 22 April 2024 for eight hours per day, three days per week.
It is the applicant’s evidence at [34] of her statement of 18 October 2024 that when she got to work on 11 June 2024 she was greeted with an invoice and voice to text phone messages printed out on a clipboard. She was accused of being dishonest and unethical at work and asked to justify her actions and behaviour. At [35] that she was informed by her supervisor Clare Kitley that there would be formal disciplinary action taken against her for a technological glitch (a receipt for items purchased using Apple Pay on the applicant’s iPhone for the café on Saturday 8 June 2024 had been automatically emailed to the shared work email address).
It is the evidence of the applicant at [38] of the said statement that concerned about the latest and most serious accusations being made against her, she requested a meeting with Ms Walton in order to complete the Conflict-of Interest Declaration they had discussed during their meeting on 1 May. The applicant’s supervisor Ms Kitley was also present during this meeting and stated that all ordering responsibilities would be removed from the applicant’s duties, despite being a major component of her role. Ms Kitley also suggested that the applicant cut back a day and that her job-share colleague Michele Kellett was ready to pick up more work. Although the applicant said she would discuss this with her partner and get back to her before the staff meeting on Thursday (two days later), that afternoon an email was sent by Ms Kitley to Ms Walton and Ms Kellett, suggesting that this was the intention going forward.
It is the applicant’s evidence at [39] that during this meeting it was also raised that it was inappropriate for the applicant to be taking two days recreation leave to attend a school camp in a paid capacity. The applicant was informed that it would have been different if she had been doing this as a volunteer, but this was not questioned when she requested the leave to go on the camp. It is the applicant’s evidence that she was confused by the distinction made between being a volunteer or being paid and had not completed a new Secondary Employment Declaration as this offer of work was very last minute, and the first offer of Secondary Employment since taking up the full-time acting Visitor Centre Supervisor role. The applicant apologised for not having updated her Secondary Employment Declaration prior to this camp and promised to complete it as a priority.
It is the applicant’s evidence at [40] that on Thursday 13 June 2024, during a staff meeting, and without any notice, the applicant was asked to explain (in the staff meeting) what she was doing with the café. Ms Kitley informed everyone that "to protect my reputation I would no longer be doing any ordering". The applicant was instructed to update all staff using the respondent’s Teams channel of what was happening with the café business "so that they could support me with this". It is the applicant’s evidence that this request caused her great anxiety and confusion as Ms Kitley did not acknowledge that she had been provided with regular verbal updates and that they had discussed strategies to prevent any conflict of interest. The applicant was concerned that it appeared to the rest of the staff that she had been doing something “underhanded”.
It is the applicant’s evidence at [41]-[42] that as far as she is aware no other staff member had ever been required to provide staff updates on their personal business in this type of forum. That she was made to feel like she was behaving unethical and had done something wrong.
It is the applicant’s evidence at [43]-[44] that after all the accusations that week she felt like she was now on trial by her colleagues, completely unrespected both professionally and personally and that the respondent was actively trying to get rid of her. That she was in an extremely anxious state after this. The applicant had a Workcover phone appointment with Dr Richard McMahon that afternoon and whilst the doctor advised the applicant that she was capable of work, it would need to be from home in order to avoid "interpersonal conflict and triggering". However, since the applicant could not even face speaking to her supervisor on the phone without crying and feeling extremely anxious, she realised that she wasn't capable of working with the Dorrigo Rainforest Centre, even if from home. The applicant last performed active work duties for the respondent on 13 June 2024.
On 13 June 2024 Dr McMahon provided the applicant with a certificate of capacity in which the doctor records a diagnosis of anxiety secondary to alleged interpersonal conflict at work with a stated date of injury of August 2023. The applicant had first been seen at
Dr McMahon’s practice in respect to the injury on that day, 13 June 2024.
Dr McMahon recorded in the certificate of capacity that the applicant had been seeing another doctor up to then who had been giving the applicant workers compensation certificates for the psychological case since August 2023. That the applicant’s previous doctor had been certifying her as fit for normal duties.
Dr McMahon copied into the certificate of Capacity an excerpt from a recent email which the applicant had sent to the insurer in which the applicant wrote:
"l think I need to seek counselling associated with my other Workcover claim. I have experienced another sleepless night after my fourth experience of victimisation at work in less than 6 months. After the last instance, I explained to my supervisor’s manager that despite being on anti-anxiety medication as a result of work-related stress for much of this year, each time I opened the door to work I was nervous about what I was going to face.
Yesterday my supervisor removed one of my main work tasks and suggested I drop a day. I feel like I am being ousted from the workplace. Funnily enough, when l was acting in the supervisor role last year, that is what management wanted me to facilitate for a casual staff member I was managing at the time. The toxic nature of the workplace then is what resulted in that initial Workcover claim.
My next Workcover doctor's appointment isn't until next Thursday 20th but I have copied them into this email so that they are aware of the situation. I will try and phone the Employee Assistance Program to seek advice in the meantime."
By way of background Dr McMahon noted that the applicant was starting a business with her partner. That the applicant worked part-time for the respondent. That the applicant was required to sign numerous documents regarding conflict of interests and secondary employment. That the applicant had been accused of ordering products/stock for her own business through the respondent. That the respondent had been allegedly suggesting that the applicant had been spending her time at work setting up her own business and using the respondent’s suppliers. That the applicant had told the doctor that she was going to close the psychological claim recently because all that was being done was that she was prescribed anxiolytic medication. She had been working throughout the claim however the latest conflicts had led her to feel she cannot go into work and that she has told the respondent that she is going to go to Fair Work. However the applicant told the doctor that she would go and work for the new business tomorrow.
Dr McMahon certified the applicant with capacity for some type of work from 13 June 2024 to 11 July 2024 normal hours noting that the applicant could work normal hours from home. The doctor recorded - administration work to be provided to do at home - this avoids the interpersonal conflict and triggering and will help control stress and anxiety.
It is the applicant’s evidence at [64]-[65] of her statement of 18 October 2024 that for most of the month after she stopped working for the respondent she avoided going out and mostly stayed at home. She stopped going to her weekly yoga and group physio exercise classes, the supermarket and the main street. She asked her mother to accompany her to her children's sports so that she could avoid interacting with any of the other parents. She did not socialize at all and avoided all musical events in town that she would usually make a point of going to.
On 20 June 2024 the applicant consulted Dr Campbell. The clinical record of the consultation records that the applicant had been accused her of being dishonest, that requests had been made to check her phone records and that there were also intercurrent concerns with respect to her daughter with her daughter being currently suicidal. It appears that the applicant’s dose of Sertraline was increased from 50mg to 100mg.
It is the applicant’s evidence that she opened her café with her partner on 1 July 2024.
On 1 July 2024 Dr Richard McMahon provided the applicant with a certificate of capacity in which the doctor recorded a diagnosis of anxiety secondary to alleged interpersonal conflict at work with a stated date of injury of August 2023. Dr McMahon repeated the background recorded in his earlier certificate of capacity.
Dr McMahon certified the applicant with capacity for some type of work from 1 July 2024 to 29 July 2024 normal hours noting that the applicant could work normal hours from home. The doctor again recorded that administration work to be provided to do at home as this avoids the interpersonal conflict and triggering and will help control stress and anxiety.
Dr McMahon noted that the applicant was transferring back to her local doctor.
On 2 July 2024 the applicant consulted Dr Campbell. The clinical record of the consultation records that the applicant was suffering from low back pain which was impacting her sleep and work. The doctor diagnosed non-specific lower back pain. The applicant’s partner was noted to be drinking again.
In respect to the applicant’s mental health Dr Campbell noted ongoing organisational stressors recording that the applicant reported "Every 6 weeks a new allegation against me" and that the applicant had not attended work since 13 June. That the applicant felt that she was being put on trial by colleagues and that there had been requests to check her phone calls.
The doctor noted that the applicant was struggling to be in public, paranoid and anxious.
On 18 July 2024 the applicant consulted Dr Campbell. The clinical record of the consultation records in respect to the applicant’s mental health that she was taking Melatonin for sleep issues and was waking at 3.00am, was feeling like a zombie and that there were serial complaints in the workplace. The doctor noted that the applicant had not worked for over a month.
On 23 July 2024 the applicant consulted Dr Campbell. The clinical record of the consultation records that the applicant reported feeling anxious and tired, fear of judgment, struggling with her memory. The doctor diagnosed an anxiety disorder. The applicant was working at the café every now and again.
On 23 July 2024 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded a diagnosis of adjustment disorder with anxiety and a date of injury of
28 July 2023.
Dr Campbell certified the applicant with capacity for some type of work from 18 July 2024 to 23 August 2024 at eight hours per day, three days per week. Dr Campbell recorded that the applicant had suffered an acute flare of anxiety on the background of a sense of ongoing workplace bullying.
On 23 July 2024 Dr Campbell referred the applicant to Yvette Greenhalgh, psychologist.
On 25 July 2024 the applicant attended on Ms Greenhalgh. The clinical record of the attendance relevantly records that the applicant presented with work related stress and anxiety as well as back pain and a wrist injury. In respect to the applicant’s current functioning Ms Greenhalgh recorded that the applicant was anxious, paranoid, struggling to cope, was waking early, had difficulty returning to sleep, avoided social interactions and public places, was exhausted and had constant fatigue. In respect to her family the applicant had concerns about her daughter’s mental health.
Ms Greenhalgh recorded that the applicant had been on leave from the respondent since
13 June 2024 and that she had recently opened a café with her partner.
Ms Greenhalgh recorded in respect to the history of the presenting problem(s) that the applicant’s work related stress began in July 2023 when managing performance issues with a staff member. She experienced chest pain, anxiety and body aches. The applicant returned to her substantive position at the end of October 2023. There were ongoing workplace issues, including allegations of unethical behaviour. That the applicant sustained a wrist injury at work in March 2024 and that she had a recent onset of back pain.
Ms Greenhalgh relevantly noted that the applicant was taking Sertraline 100mg daily.
On examination the applicant was noted to be anxious, stressed, tearful at times, worried about future, financial concerns, the applicant reported her memory and concentration to be poor.
Ms Greenhalgh identified the following precipitating factors – workplace conflict, performance management issues, allegations of unethical behaviour. Ms Greenhalgh identified the following perpetuating factors – ongoing workplace stress, financial concerns, uncertainty about Workcover claim.
Ms Greenhalgh diagnosed an adjustment disorder with anxiety.
On 30 July 2024 the applicant consulted Dr Campbell. The clinical record for the attendance records that the applicant was acutely worried about the ongoing workplace bullying that had not been satisfactorily addressed in her view. The doctor noted that the applicant would be interested in working in another division e.g. education department which is Sydney based. Dr Campbell recorded that the applicant was working 15 hours per week in the café.
On 30 July 2024 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded the diagnosis as adjustment disorder with anxiety and the date of injury as 28 July 2023. The applicant was certified with capacity for some type of work from
30 July 2024 to 30 August 2024 for 15 hours per week
The doctor recorded that the applicant had an acute flare of anxiety on the background of a sense of workplace bullying and that the applicant was working at the café as outlet for stress. The applicant had no capacity for work at her former workplace whilst ongoing issues were not addressed.
On 26 August 2024 the applicant attended on Ms Greenhalgh. The clinical record of the attendance relevantly records that the applicant presented with severe anxiety, stress and mood issues with multiple stressors being work conflict, financial concerns, café, relationship strain, attention, concentration, and memory impairment, sleep disturbance with middle insomnia.

The clinical note records that the applicant was on leave from the respondent. That the applicant’s partner was working at the hospital on much lower pay.
On examination the applicant was anxious, overwhelmed, irritable, preoccupied with multiple stressors.
The clinical note records that there were multiple stressors contributing to anxiety being work conflict, workers compensation legal proceedings, financial stress (café struggling), relationship strain with partner, daughter with mental health issues, son refusing to go to school, upcoming trip and feeling overwhelmed managing a café with no prior experience.
Ms Greenhalgh recorded a diagnosis of adjustment disorder with anxiety.
On 27 August 2024 the applicant consulted Dr Campbell. The clinical recorded of the consultation records that the applicant was feeling grief at the loss of her job, that contact with colleagues was triggering and that the café was financially stressed. The applicant had worked as a casual teacher’s aide and was able to cope with the demand. The doctor diagnosed an adjustment disorder relating to workplace stress, potentially antagonised by “perimenopausal Sx”. The dose of Sertraline which the applicant was taking was increased to 150mg.
On 27 August 2024 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded a diagnosis of adjustment disorder with anxiety with a date of injury of
28 July 2023. The doctor recorded that the applicant would be willing to work in a different department with the respondent and that she would take any casual work through the local school up to a manageable level given her current stressors.
The doctor certified the applicant with capacity for some type of work from 30 July 2024 to
30 September 2024 for 15 hours per week. The doctor again noted acute flare of anxiety on the background of a sense of workplace bullying was still ongoing.
On 3 September 2024 the applicant attended on Dr Campbell by telephone. The clinical record of the attendance records that the applicant reported feeling triggered by repeat contact from the workplace and claims management.
On 3 September 2024 Dr Campbell provided the applicant with a non-workers compensation medical certificate which certified the applicant unfit for work with the respondent from
27 August 2024 to 15 October 2024 due to a “medical condition”.
On 12 September 2024 the applicant attended on Ms Greenhalgh. The clinical record of the attendance relevantly records that the applicant presented with ongoing stress related to her work situation and café management.
The applicant was stressed, overwhelmed, had racing thoughts, difficulty concentrating and reported memory issues.
Ms Greenhalgh recorded the issues in the applicant’s life which included in respect to the café, issues with a member of the café staff, difficulty with bookkeeping and administrative tasks, financial pressures. Issues with the work injury claim and issues with her children which included school avoidance with one child and the older child considering dropping out of school.
The session summary records that the applicant presented with ongoing stress related to work situations and café management. Experiencing sleep difficulties and increased alcohol and caffeine intake. Struggling with memory and concentration issues which were affecting work performance. Financial pressures due to unpaid leave since July. Upcoming family trip causing additional stress.
On 9 October 2024 Ms Greenhalgh reported to the applicant’s solicitors. Ms Greenhalgh records a history of the events during the course of the applicant’s employment as the acting Visitor Centre Supervisor and that the applicant had also reported further difficulties at work with the respondent when she was accused of a conflict of interest buying different products of a brand stocked by the respondent for her cafe. The applicant reported that she became unfit for work due to work-related stress and had not worked since 13 June 2024.
Ms Greenhalgh records that the applicant became more distressed, stressed and anxious about what had occurred at work. The applicant also reported that she continued to experience panic attacks, poor sleep, concentration, attention and memory. The applicant found her usual tasks, such as bookkeeping difficult, withdrew from friends and family, avoided going anywhere she could run into staff members from work. The applicant reported that her mental health had declined, she had more difficulty engaging with her children in the way she would like and felt less motivated.

Ms Greenhalgh noted that the Depression, Anxiety and Stress Scale was administered on
23 July 2024 which was consistent with the applicant’s presentation on all three occasions that the applicant had attended on Ms Greenhalgh on 25 July 2024, 26 August 2024 and
12 September 2024. The applicant’s depression factor was in the normal range, however her anxiety factor score fell within the moderate range, and her stress factor score fell in the severe range.
Ms Greenhalgh noted that the applicant had presented at all three appointments as teary and distressed.
Ms Greenhalgh observed that the applicant’s complaints had remained the same. She was also stressed about the café, which was not going well and placed her under further financial stress since she had no money coming in from the respondent.
Ms Greenhalgh diagnosed an adjustment disorder with anxiety (chronic).
Ms Greenhalgh agreed with Dr Morgans diagnosis and that the applicant’s mental health disorder had developed as a result of her work with the respondent.
ln the opinion of Ms Greenhalgh the applicant is unlikely to be able to return to a supervisor role with the respondent. ln time, she may be able to resume her substantive role with a graded return to work if she is located away from her previous workplace. However, it was unclear if the applicant could return to the respondent.
In respect to the extent of any continuing incapacity for employment Ms Greenhalgh observed that the applicant was organising staff and produce for her cafe, performing limited hours and feeling overwhelmed most of the time.
The applicant consulted Dr Campbell on 15 October 2024. The clinical record of the consultation records that the applicant was being subjected to a line of questioning by the respondent which she found distressing and was being accused of doing other work in work time. The applicant was working at the café in a “menial role”.
On 15 October 2024 Dr Campbell provided the applicant with a certificate of capacity which records a diagnosis of adjustment disorder with anxiety with a date of injury of 28 July 2024. The applicant was certified with capacity for some work from 15 October 2024 to
15 December 2024 for 15 hours per week.
The certificate again records that the applicant would be willing to work in a different department with the respondent and would take any casual work through the local school up to a manageable level given current stressors. The certificate also again recorded acute flare of anxiety on the background of a sense of ongoing workplace bullying and that the applicant was working at the café as an outlet for stress.
On 15 November 2024 Dr Hansen reported to the applicant’s solicitors that the applicant first attended on 13 August 2023 at which time her presentation was tense and psychologically distressed. The applicant reported an inability to focus resulting in poor concentration, interrupted sleep and deteriorating relationships with immediate family members as a result of her increasing anxiety and stress levels.
The applicant reported an ongoing lack of support within the workplace despite informing her manager(s) of how she was feeling.
The applicant was diagnosed with an adjustment disorder with anxiety.
The applicant reported that since she had attempted to engage with her workplace hoping to change the bullying culture within the organisation she had been continually victimised. She had managed to fulfill her role under duress up until 13 June 2024. The applicant reported that during that time “13 August 2024” (this appears to be a typographical error and should refer to 13 August 2023) to 13 June 2024 she was continually bullied and harassed by management and as of 13 June 2024 the applicant’s mental health had declined to the point where she was unable to physically attend or interact with anyone from her workplace.
Dr Hansen records that at examination on 15 November 2024 the applicant demonstrated ongoing anxiety and significant distress levels when discussing her role within the respondent. She suffered ongoing problems with poor concentration, elevated anxiety and difficulty in communicating with others (including her husband and children). She suffered from fatigue and an interrupted, disrupted sleep. She was managing to work in her café for up to 15 hours per week though she reported she “feels more in the way then she is being helpful and working.”
Given the applicant’s level of distress Dr Hansen agreed with Dr Campbell in regard to the applicant having no capacity to continue to work with the local branch of the respondent.
Dr Hansen felt that the applicant was capable of finding alternative employment in the future but suggested that she seek ongoing mental health assistance.
In the opinion of Dr Hansen, the workplace was a significant contributing factor to the applicant’s current health which was also being expressed in physical fatigue.
In the opinion of Dr Hansen, the prognosis was patient and situation dependant. If her case was prolonged, then he did not see full resolution of the applicant’s condition with the potential for further deterioration secondary to the ongoing stress of having to revisit the trauma. With appropriate support and working on mental health coping strategies with a psychologist Dr Hansen felt she would see it through and with the negative experience behind her Dr Hansen felt she would be able to build her life and relationships.
The applicant consulted Dr Campbell on 3 December 2024. The clinical record of the attendance records that the workplace conflict was ongoing, that the applicant was avoiding her parents and angry over a stressful trip, that the applicant was working Monday to Thursday in her café as well as working one day as a student learning support officer, that she was losing it with her children who were losing it with her. The applicant felt that her concentration had diminished.
On 3 December 2024 Dr Campbell provided the applicant with a certificate of capacity which records a diagnosis of adjustment disorder with anxiety with a date of injury of 28 July 2023. The applicant was certified with capacity for some type of work from 15 October 2024 to
3 January 2024 for 15 hours per week.
The certificate again recorded that the applicant would be willing to work in a different department of the respondent and would take any casual work through the local school up to manageable level given current stressors.
The applicant consulted Dr Campbell on 3 January 2025. The clinical record of the attendance records that the café was making a loss, that in respect to the respondent there was an allegation of using the workplace account to purchase wholesale items for her shop, that there was a meeting on 14 January with the Commission, that there was financial stress, concerns in respect to the health of her partner who was under a lot of pressure running the café and working full time and the applicant’s daughter was not coping following the suicide of her friend.
On 3 January 2025 Dr Campbell provided a certificate of capacity to the applicant which records a diagnosis of adjustment disorder with anxiety with a date of injury 28 July 2023. The certificate records that the applicant had ongoing stressors with former workplace not recognising earlier claim for bullying as trigger for mental health deterioration. The applicant was certified with capacity for some work from 15 October 2024 to 3 February 2025 for
15 hours per week.
On 3 January 2025 Dr Campbell referred the applicant to Ms Amanda Akers, psychologist.
Ms Akers reported to Dr Campbell on 10 January 2025 that the applicant had attended her first appointment. The applicant presented with acute stress following her daughter’s friend’s recent suicide. The applicant’s daughter had not coped well, and the applicant had suffered the loss to, as she also knew the young person well.
The applicant continued to suffer from stress from bullying at her previous workplace and also at her current workplace, her own coffee shop. She also reported financial stress.
The applicant consulted Dr Campbell on 31 January 2025. The clinical record of the attendance records that the applicant was finding the investigation process in respect to her workers compensation claim highly invasive. The applicant felt that the approach was persecutory and delegitimised her mental health issues triggered by her workplace. The clinical note also records that the café was in crisis. The applicant reported being tired and struggling to cope. That the stress was extreme. The applicant was actively seeking gainful employment.
The applicant’s dose of Sertraline was increased from 100mg to 150mg per day.
On 31 January 2025 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded the diagnosis as adjustment disorder with anxiety with a date of injury of 28 July 2023. The applicant was certified with capacity for some type of work from 15 October 2024 to 3 January 2025 (3/3/2025 added by handwriting from an unknown source) for 15 hours per week. The certificate again recorded that the applicant would be willing to work in a different department with the respondent and that she would take any casual work through the local school.
On 3 February 2025 Ms Akers reported to the respondent advising that the applicant was currently in a significantly fragile psychological state and that she had been attending therapy on a weekly basis as well as having telephone support between sessions.
On 4 February 2025 the applicant consulted Dr Campbell. The consultation record records that the applicant requested an exemption from participating in a workers compensation fitness for work assessment. It appears that the applicant felt that it would be exacerbating.
On 13 February 2025 the applicant attended on Dr Campbell. The clinical note of the consultation records that the applicant had been repeatedly contacted “all Friday” in respect to “work forensic psych assessment” with a hearing in the Commission on 4 March. That there was no work at the school and that the applicant felt unable to work at the school at that time due to being emotionally distress by the maelstrom of social issues in her life which appears to have included the café, concerns in respect to her daughter. There are references to wanting to walk into traffic, of googling ways to kill herself without pills however it is ambiguous as to whether this related to the applicant or her daughter, but it appears that it related to her daughter given the structure of the clinical record and that the applicant was recorded as denying suicidal ideation. Son wanting to be home schooled. Partner drinking heavily.
The applicant appeared washed out bedraggled, tearful, stressed about family and work. Applicant felt that she was at breaking point.
On 13 February 2025 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded the diagnosis as anxiety with a date of injury of 28 July 2023. The applicant was certified with no current capacity for work from 13 February 2025 to
13 March 2025.
The applicant consulted Dr Campbell on 13 March 2025. The clinical record of the consultation records that the consultation was related to her work related complaint of bullying. The applicant had a strong sense of procedural unfairness and also felt grief about the loss of her job and her reduced income. Also reference to the workers compensation proceedings being traumatising. Reference to the applicant suffering from pain in her knees and back, her partner drinking heavily, one child being socially isolated and not wanting to go to school and ongoing issues with the other child.
The applicant was working at the café two days per week (10 hours per week). She had recently run the café by herself which she had found “incredibly” stressful and struggled to manage.
On 13 March 2025 Dr Campbell provided the applicant with a certificate of capacity in which the doctor recorded the diagnosis as anxiety with a date of injury of 28 July 2023. The applicant was certified with capacity for some work from 13 March 2025 to 13 April 2025 for 10 hours per week.
The evidence in my view does support that the applicant was exposed to a number of different stressors from January 2024 onwards. The applicant does not deny that she was exposed to these stressors but submits that they are not the cause of her incapacity. In the respondent’s submission these stressors are the cause of any incapacity.
The evidence in my view does not support that the applicant has at any time recovered from the subject work injury. The applicant’s treating psychologist, Ms Greenhalgh, in her report of 9 October 2024 records a history of the events leading to the accepted work injury, as well as the difficulties which the applicant had with the respondent following the accepted work injury whilst also treating and assessing the applicant in July, August and September 2024 following the applicant ceasing work with the respondent and at a time when the applicant complained of multiple stressors. Ms Greenhalgh diagnosed an adjustment disorder with anxiety as had Dr Hansen, Dr Eburn and Dr Morgans. Ms Greenhalgh providing her opinion in October 2024 also agreed with Dr Morgans that the applicant’s mental health disorder had developed as a result of her work with the respondent.
The opinion of Ms Greenhalgh is supportive of the applicant’s work related injury continuing and being the current subject injury which is also consistent with the observation that
Dr Hansen makes in his certificates of capacity that the applicant had suffered an acute flare of anxiety on the background of a sense of ongoing workplace bullying which has been a consistent theme for the applicant.
I accept the opinion of Ms Greenhalgh who had both an understanding of the history of the accepted work injury as well as knowledge of subsequent events and stressors and who had the opportunity to treat, examine and assess the applicant during a period when the applicant was complaining of these additional stressors.
I therefore accept the applicant’s submission and find that the applicant’s accepted work injury has continued and continues, and that the applicant’s incapacity is due to that accepted injury.
I now turn to a consideration of the applicant’s incapacity.
The applicant claims weekly compensation from 24 July 2024 ongoing pursuant to s 37 of the 1987 Act.
Mr Hickey submitted on behalf of the applicant that her capacity for work after ceasing duties with the respondent has fluctuated. In the applicant’s submission it is the 80% that should be applied given the fluctuations in the applicant’s capacity to work. That is that the applicant has a current capacity to work and has returned to work for less than 15 hours per week.[1]
[1] Section 37(3)(a) of the 1987 Act.
On 23 July 2024 Dr Campbell noted that the applicant was working in the café every now and again and certified the applicant with capacity for some type of work from 18 July 2024 to 23 August 2024 at eight hours per day, three days per week. On 30 July 2024
Dr Campbell noted that the applicant was working in the café 15 hours per week and that the applicant was interested in working in another division of the respondent. Dr Campbell certified the applicant with capacity for some type of work from 30 July 2024 to
30 August 2024 for 15 hours per week. On 26 August 2024 the applicant attended on
Ms Greenhalgh who recorded that the applicant felt overwhelmed managing a café with no prior experience.
On 27 August 2024 Dr Campbell recorded that the applicant had worked as a casual teacher’s aide and was able to cope with the demand. The applicant also appeared to be continuing to work in the café. The doctor recorded that the applicant was willing to work in a different department with the respondent and that she would take any casual work through the local school up to a manageable level given her current stressors. Dr Campbell certified the applicant with capacity for some type of work from 30 July 2024 to 30 September 2024 for 15 hours per week.
On 9 October 2024 Ms Greenhalgh in her report to the applicant’s solicitors observed in respect to the extent of any continuing incapacity for employment that the applicant was organising staff and produce for her cafe, performing limited hours and feeling overwhelmed most of the time.
On 15 October 2024 Dr Campbell recorded that the applicant was working at the café in a “menial role”. Dr Campbell provided the applicant with a certificate of capacity which record a diagnosis of adjustment disorder with anxiety with a date of injury of 28 July 2023. The applicant was certified with capacity for some work to 15 December 2024 for 15 hours per week. The certificate of capacity again records that the applicant would be willing to work in a different department with the respondent. It also records that she would take any casual work through the local school up to manageable level given current stressors.
On 15 November 2024 Dr Hansen reported to the applicant’s solicitors that she was managing to work in her café for up to 15 hours per week though she reported she “feels more in the way then she is being helpful and working”.
Dr Campbell on 3 December 2024 recorded that the applicant was working Monday to Thursday in the café as well as working one day as a student learning support officer.
Dr Campbell certified the applicant with capacity for some type of work from 15 October 2024 to 3 January 2024 for 15 hours per week. The certificate again recorded that the applicant would be willing to work in a different department of the respondent and would take any casual work through the local school up to manageable level given current stressors.
Dr Campbell on 3 January 2025 again certified the applicant with capacity for some work for 15 hours per week.
Dr Campbell on 31 January 2025 certified the applicant with capacity for some type of work from 15 October 2024 to 3 January 2025 (3/3/2025 added by handwriting from an unknown source) for 15 hours per week. The certificate again recorded that the applicant would be willing to work in a different department with the respondent and that she would take any casual work through the local school.
On 13 February 2025 the applicant attended on Dr Campbell at which time she was certified with no current capacity for work from 13 February 2025 to 13 March 2025.
Dr Campbell on 13 March 2025 record that the applicant was working at the café two days per week (10 hours per week). She had recently run the café by herself which she had found incredibly stressful and struggled to manage. Dr Campbell certified the applicant with capacity for some work from 13 March 2025 to 13 April 2025 for 10 hours per week.
It is the applicant’s evidence at [52]-[53] of her statement of 18 October 2024 that whilst she has been trying to work in the café 15 hours per week she has struggled to deliver quality customer service as a barista and waitress due to her lack of focus and memory loss providing examples of failing to add coffee when making coffee’s, forgetting customer orders, forgetting customer orders that were in the microwave.
It is the applicant’s evidence at [66]-[69] of her statement of 18 October 2024 that sometimes when she does errands and appointments, she gets overwhelmed, panics and doesn’t know what to do. That she has avoided social events and struggled working in the café with customers. That she is often short with her partner, parents, and children which puts a strain on relationships. That sometimes she finds it so hard to focus on the task at hand and that she ignores her children's needs and arguments, which often leads to family fights. That her short-term memory has been badly affected and she struggles to focus.
It is the applicant’s evidence at [71] of her statement of 18 October 2024 that she wants to explore the option of working as a Student Support Officer in a local school but considering her current mental state she did not think she was ready for this. She had worked 3 shifts as a casual Student Learning Support Officer (Teacher's Aide) at Dorrigo High School since August 2024 and had agreed to take on any additional work that they have available.

It is the applicant’s evidence at [74] of her statement of 18 October 2024 that she had been paid $450 for her 15 hours per week in the café (15 x $30 per hour) when the business takings permitted. The applicant believed that she was working at the limit of her capacity.
It is the applicant’s evidence in her statement of 18 February 2025 that since her statement of 18 October 2024 she has tried to maintain the work she had been doing at the café. She had also had intermittent casual work with the local High School as a Student Learning Support Officer for which she is paid an hourly rate of $35.36.
It is the applicant’s evidence in her statement of 19 March 2025 that since her previous statement of 18 February 2025 she has continued to try to maintain her work at the café however she was finding this difficult due to her anxiety and depression. It is the evidence of the applicant’s partner, George Bradford, that he would not employ the applicant in the café if he had a choice, as she has not been very effective or efficient in this role compared to a trained barista or waitress.
The evidence in my view supports that the applicant’s condition has remained highly symptomatic since ceasing duties with the respondent. That the condition has and does result in an incapacity for work relevantly affecting her emotional stability, her concentration and focus, memory, sleep and energy levels in particular. I also accept the applicant’s submission that the applicant’s condition has fluctuated.
Whilst the applicant’s condition has fluctuated during the period for which compensation is claimed the applicant has repetitively been certified fit to work 15 hours per week with the occasional downgrade. It is the applicant’s evidence that she has been working up to 15 hours per week in the café. The applicant also appears to have at times worked in excess of 15 hours per week, working up to four days a week in the café as well as working as a Student Learning Support Officer.
I am of the view that the evidence supports that the applicant has since 24 July 2024 had the capacity to work 15 hours per week. The applicant has worked as a Student Support Officer a role which she has indicated that she has been able to cope with. I therefore find that the applicant has the capacity to work as Student Support Office 15 hours per week. The payslips in evidence from the applicant’s work as a Student Support Officer record that the remuneration for that role was $40.60 per hour to 5 December 2024 and from
6 December 2024 $42.66 per hour.
I therefore find that the applicant has had the capacity to earn $609 per week gross ($40.60 x 15 hours per week) from 24 July 2024 to 5 December 2024 and $639.90 per week ($42.66 x 15 hours per week) from 6 December 2024 to date and continuing date.
Whilst the applicant has returned to some work the applicant does not appear to have returned to work for 15 hours per week or more with the applicant’s evidence being that she has worked up to 15 hours per week in the café. It would appear that there have been weeks in the relevant period when the applicant may have worked greater than 15 hours, when the café work has been combined with her duties as a Student Support Officer, however it is unclear on the evidence as to when this occurred and any such occasions have been isolated and rare in nature. I therefore find that s 37(3)(a) of the 1987 Act is the applicable provision to be applied in calculating the weekly compensation to be paid to the applicant and that the applicant has an entitlement to weekly compensation pursuant to s 37(3)(a) of the 1987 Act from 24 July 2024 to date and continuing.

PIAWE

Section 37(3)(a) of the 1987 Act states:
“(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,…”
Clause 2 of schedule 3 of the 1987 Act defines “pre-injury average weekly earnings” and states:
“2 Meaning of “pre-injury average weekly earnings”
(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note.
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2)Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Clause 8C of the Workers Compensation Regulations 2016 (Regulations) states:
“8C   Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1)    The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2)    The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
The applicant was employed by the respondent as a part-time Administrative Support Officer, her substantive role. Due to the Visitor Centre Supervisor, George Bradford, taking an acting Team Leader position there was a vacancy available for an acting Visitor Centre Supervisor until Mr Bradford returned.
The applicant was successful in applying for the acting Visitor Centre Supervisor position which she commenced performing on 7 March 2023. The applicant was initially appointed to act in the role until 30 June 2023 however Mr Bradford continued to act in the Team Leader role and the applicant again applied and was successful in being reappointed in the position of acting Visitor Centre Supervisor position until 27 October 2023.
It is the applicant’s evidence that Mr Bradford never returned to the Visitor Centre Supervisory role and as such the respondent needed to continue to fill that position on an ongoing basis. It is the applicant’s evidence that but for her work injury she would have continued to apply for that position.
It is the evidence of Mr Bradford that that he did not return to his substantive role of Visitor Centre Supervisor and in fact resigned from the respondent which meant that the respondent needed to fill the full time Visitor Centre Supervisor position.
An email from Ms Walton dated 2 March 2023 records that the applicant was to be in that role for four months until Mr Bradford returned. A document by the respondent titled “Change in Hours” records that the reason for the change in the applicant’s hours of work was that the applicant was required full-time as an “Acting VC Supervisor”. In a respondent document titled “Temporary Assignment Allowance” the role was described as “Relieving”.
In the applicant’s submission the PIAWE should be calculated in accordance with cl 8C of the Regulations. The applicant submits that “there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings” of the applicant. That being the applicant’s promotion to act as a Visitor Centre Supervisor and that the relevant earning period should be adjusted by excluding from the period any period before she became an acting Visitor Centre Supervisor.
On the evidence there is no dispute that the applicant stepping into the role of Visitor Centre Supervisor resulted in a “financially material change” to the applicant’s earnings.
In the applicant’s submission “ongoing nature” in cl 8C does not mean “permanent”. I agree with this submission and note that the respondent also accepted this proposition.
In the respondent’s submission the applicant was “acting” as a Visitor Centre Supervisor. In the respondent’s submission the use of the terms “acting” and “relieving” clearly refers to the position being temporary and not “ongoing”.
In the applicant’s submission the dictionary definition for “ongoing” is continuing to exist or develop or happening at the present moment. In the respondent’s submission at the time of the injury on 14 August 2023 (deemed) the applicant’s position as a Visitor Centre Supervisor was “ongoing”. At that time the position was continuing and happening at the present moment.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) McHugh, Gummow, Kirby and Hayne JJ said:
“…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (at 384, footnotes omitted)
“Ongoing” is defined in the revised third addition of the The Macquarie Dictionary as “1. In progress: ongoing project. 2. Continuing to exist: ongoing bad health.” I accept the applicant’s submission that the adjective “ongoing” refers in the temporal sense to what is occurring at the relevant time which for present purposes is the time at which the injury was sustained, 14 August 2023. The position may be temporary, but it was “ongoing” at the time that the injury was sustained.
In Secretary, Department of Communities and Justice v Farrugia [2023] NSWWPICPD 75 (Farrugia) Perry ADP considered cl 8C stating:
“33.   The text of cl 8C needs to be read with the context and purpose of the provision in mind. Sch 3, cl 2(3) of the 1987 Act authorises the primary “relevant earning period” of 52 weeks in Sch 3, cl 2(2) to be adjusted by extending or reducing that period. Clearly enough, it does so in an attempt to ensure the PIAWE calculation properly reflects what an injured worker would have been paid but for the injury and this is its purpose. This is not new.
34.   In Lismore City Council v Garland, Kirby P detailed the legislative history of the “provision for the calculation of weekly compensation for a worker incapacitated for work as a result of a compensable injury” in the versions of the 1987 Act going back to the Workers’ Compensation Act 1926. His Honour concluded that the:
‘... policy which lay behind the introduction of the present approach to the requirement under s 36 of the Act [is] that, during the first twenty-six weeks of incapacity, the worker should be paid his or her ‘current weekly wage rate as defined by s 42. That policy I take to be thatthe worker should, during such incapacity, be paid the ordinary rate which would have been paid as wages had there been no compensable injury’ (emphasis added).
35.    Garland is not perfectly analogous to the present situation as the provisions for payment of weekly compensation have of course changed since both 1926 and 1992, and the first 26 weeks of incapacity had long expired in the present case. Nevertheless, the core principle, that a worker should be paid weekly compensation at a rate which would have been paid as wages had there been no injury (subject to statutory modifications), is sufficiently analogous for present purposes. This is consistent with Sch 3, cl 2(1) of the 1987 Act, in outlining the meaning of PIAWE, referring to earnings ‘at the time of the injury’.”
I am of the view that the grammatical meaning of “ongoing” as previously discussed is consistent with the meaning that the legislature intended for the clause. The term that has been used in the clause is “ongoing” not “permanent”. As discussed by Perry ADP in Garland the core principle is that a “worker should be paid weekly compensation at a rate which would have been paid as wages had there been no injury”. If the respondent’s submission were accepted, then this would not occur directly following an injury as the workers PIAWE would not be assessed on the basis of the role that they held at the time of injury.
Whilst the respondent would submit that that the temporary nature of the role could lead to a worker being paid compensation in excess of the wages which would have been received but for the injury the PIAWE is calculated at the time of injury. If the temporary nature of the position held at the time of injury was brought into consideration questions would arise as to what is temporary. Would a contract for five years be temporary? There are a multitude of factors that could arise after an injury is sustained that could affect whether the compensation to be paid is representative of the wages lost due to injury such as the length of the period of incapacity against the length of time in which the worker was intended to fill any temporary role and whether any temporary period was extended or made permanent. There could be endless speculation as to what could or may have occurred after an injury was sustained. However, it is by calculating the PIAWE based on the “ongoing nature” of what is occurring at the time of injury that the intention of the legislature is best satisfied.
For the above reasons I find that the relevant earning period for the applicant is to be adjusted in accordance with this cl 8C of the Regulations by excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor.

The parties agreed the PIAWE in the event that cl 8C did not apply however the parties did not provide an agreed PIAWE if cl 8C is to be applied as I have found. There is no submission by either party as to the PIAWE calculated subject to the application of cl 8C. Whilst the applicant has lodged wages schedules and provided calculations that appear to calculate a PIAWE based on the application of cl 8C the deemed date of injury was amended at the time of the arbitration hearing which may mean affect those calculations.
The parties are therefore ordered to agree within seven days a PIAWE, with indexation, excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor in accordance with cl 8C of the Regulations together with an agreed schedule of the compensation to be paid in accordance with s 37(3)(a) of the 1987 Act in accordance with this determination for the period 24 July 2024 to date.
If the parties are unable to agree the PIAWE and/or the compensation to be paid pursuant to s 37(3)(a) the parties are to provide submissions in respect to the calculation of such a PIAWE and a calculation of the compensation which they submit is payable in accordance with s 37(3)(a) from 24 July 2024 to date with a schedule of the PIAWE, with indexation, and a schedule of the compensation which it is submitted is payable as follows:
(a)    applicant’s submissions to be lodged and served by 5.00pm on 28 May 2025;
(b)    respondent’s submissions to be lodged and served by 5.00pm on 4 June 2025, and
(c)    applicant’s submissions in reply by 5.00pm on 10 June 2025.

Medical and treatment expenses

As I have found that the applicant’s accepted injury is continuing there will be a general order in respect to the payment of the applicant’s medical and treatment expenses pursuant to s 60 of the 1987 Act.

SUMMARY

I find that the applicant’s accepted work injury has continued and continues, and that the applicant’s incapacity is due to that accepted injury.
I find that the applicant has had the capacity to earn $609 per week gross ($40.60 x 15 hours per week) from 24 July 2024 to 5 December 2024 and $639.90 per week ($42.66 x 15 hours per week) from 6 December 2024 to date and continuing date.
I find that the applicant has not returned to work for 15 hours per week or more and that s 37(3)(a) of the 1987 Act is the applicable provision to be applied in calculating the weekly compensation to be paid to the applicant.
I find that the applicant has an entitlement to weekly compensation pursuant to s 37(3)(a) of the 1987 Act from 24 July 2024 to date and continuing.
I find in respect to the calculation of the PIAWE that the relevant earning period for the applicant is to be adjusted in accordance with this cl 8C of the Regulations by excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor.
The parties are ordered to agree within seven days a PIAWE, with indexation, excluding from the period any period before the applicant commenced to act as a Visitor Centre Supervisor in accordance with cl 8C of the Regulations together with an agreed schedule of the compensation to be paid in accordance with s 37(3)(a) of the 1987 Act in accordance with this determination for the period 24 July 2024 to date.
If the parties are unable to agree the PIAWE and/or the compensation to be paid pursuant to s 37(3)(a) the parties are to provide submissions in respect to the calculation of such a PIAWE and a calculation of the compensation which they submit is payable in accordance with s 37(3)(a) from 24 July 2024 to date with a schedule of the PIAWE, with indexation, and a schedule of the compensation which it is submitted is payable as follows:
(a)    applicant’s submissions to be lodged and served by 5.00pm on 28 May 2025;
(b)    respondent’s submissions to be lodged and served by 5.00pm on 4 June 2025, and
(c)    applicant’s submissions in reply by 5.00pm on 10 June 2025.
The respondent is pursuant to s 60 of the 1987 Act to pay the applicant’s reasonably necessary medical and treatment expenses for the psychological injury sustained on
14 August 2023.

[2025] NSWPIC 185

5 May 2025