Bruzzese v Burwood City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bruzzese v Burwood City Council [2024] NSWPIC 663
APPLICANT:	Sonia Bruzzese
RESPONDENT:	Burwood City Council
MEMBER:	Cameron Burge
DATE OF DECISION:	2 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly compensation; ongoing claim pursuant to sections 36, 37 and 38; whether the applicant has ongoing total incapacity for employment which is likely to continue indefinitely; permanent impairment compensation for psychological injury and payment of medical expenses; the applicant suffered a psychological injury in the course of her employment with the respondent; liability for the injury was originally disputed pursuant to section 11A, however, the liability dispute was withdrawn and the claim for permanent impairment compensation referred for medical assessment, followed by an appeal to a Medical Appeal Panel; ultimately, the applicant was assessed with a 19% whole person impairment; the matter in dispute in this decision is the applicant’s incapacity for employment; she claims total incapacity to date and continuing per section 36, 37 and 38; the respondent alleges the applicant has partial incapacity and is not entitled to claim compensation beyond the 130-week entitlement period in section 37; the applicant’s PIAWE is agreed; conduct of proceedings and manner of defending claim; discussion on manner in which proceedings were conducted and operation of the model litigant provisions; Fairfield City Council v Comlekci discussed; Held – the applicant suffered and continues to suffer total incapacity for employment as a result of her injury, which incapacity is likely to continue indefinitely; the respondent is to pay the applicant weekly compensation as claimed; the respondent is to pay the applicant’s reasonably necessary medical expenses; the respondent is to pay the applicant permanent impairment compensation in accordance with the findings of the Medical Appeal Panel.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 26 February 2020. 2. In accordance with the decision of the Medical Appeal Panel dated 4 June 2024, the respondent is to pay the applicant permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 in the sum $49,300 in respect of a 19% whole person impairment. 3. As a result of her injury, the applicant has been totally incapacitated for employment from 26 February 2020 to date and continuing and is likely to remain so indefinitely. 4. At the date of her injury, the applicant’s pre-injury average weekly earnings were $894.92 per week. 5. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to s 36, from 26 February 2020 to 31 March 2020 at $850.17 per week; from 1 April 2020 to 27 May 2020 at $859.02 per week; (b) pursuant to s 37 as follows: (i) from 28 May 2020 to 30 September 2020 at $723.38 per week; (ii) from 1 October 2020 to 31 March 2021 at $723.38 per week; (iii) from 1 April 2021 to 30 September 2021 at $744.22 per week; (iv) from 1 October 2021 to 31 March 2022 at $753.07 per week, and (v) from 1 April 2022 to 24 August 2022 at $766.93 per week; (c) pursuant to s 38 as follows: (i) from 25 August 2022 to 30 September 2022 at $766.93 per week; (ii) from 1 October 2022 to 31 March 2023 at $792.78 per week; (iii) from 1 April 2023 to 30 September 2023 at $825.59 per week; (iv) from 1 October 2023 to 31 March 2024 at $845.16 per week; (v) from 1 April 2024 to 31 October 2024 at $860.29 per week, and (vi) from 1 October 2024 to date and continuing at 80% of the indexed rate of the agreed pre-injury average weekly earnings. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses.

STATEMENT OF REASONS

BACKGROUND

These proceedings seek payment by the respondent, Burwood City Council to Sonia Bruzzese (the applicant) of weekly compensation, medical expenses and permanent impairment compensation.
The applicant claims she suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 26 February 2020.
Liability for that injury was originally declined, the respondent relying on the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act). The declinature was withdrawn at the second conciliation/arbitration date on 14 August 2023 and the matter was then referred for medical assessment.
The dispute currently before the Personal Injury Commission (the Commission) concerns the applicant’s claim for weekly payments. It is the culmination of what can only be described as an extraordinary set of proceedings in this jurisdiction, which have involved no less than five telephone/preliminary conferences; four hearing dates across 16 months; referrals to both a Medical Assessor and Medical Appeal Panel (MAP); the filing of no fewer than 12 Applications to Admit Late Documents (AALDs); two Wages Schedules and now, finally, this Certificate of Determination and Statement of Reasons.

ISSUES FOR DETERMINATION

The applicant’s claim for permanent impairment compensation has been determined by a MAP, which assessed her as suffering from a 19% whole person impairment. The claim for medical expenses seeks a general order only and was not the subject of substantive submissions during the course of these proceedings.
The only issue for determination in these proceedings is the applicant’s incapacity for employment. As noted, injury is now admitted. The applicant’s pre-injury average weekly earnings (PIAWE) are also agreed at $894.92, subject to periodic indexation. Her claim is for weekly compensation from 26 February 2020 to date and continuing pursuant to ss 36, 37 and 38 of the 1987 Act. The applicant claims to be totally incapacitated and that her incapacity will continue indefinitely.
The respondent alleges the applicant has capacity for employment and relies on its Wages Schedule. It alleges the applicant is not entitled to weekly benefits beyond the second entitlement period pursuant to s 37 of the 1987 Act, and that she had partial capacity during the period claimed.

PROCEDURE BEFORE THE COMMISSION

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 over the course of the more than 18 months these proceedings have been on foot the parties have had more than sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was listed for hearing on no fewer than four occasions – 14 June 2023; 11 August 2023 after which it was referred for medical assessment; 7 August 2024 after the MAP had issued its determination, and lastly on 18 October 2024, at which time it finally proceeded to its conclusion.
On each of the hearing dates, Mr Tanner appeared for the applicant. At the first hearing date, the respondent was represented by Mr Perry. At the second hearing date, the respondent was represented by Mr Doak. On the third and fourth occasions, the respondent was represented by Mr Jones.
Given the findings of the MAP, Orders for the payment of permanent impairment compensation will also form part of this Certificate of Determination.

EVIDENCE

Documentary evidence

These proceedings generated a disproportionate amount of written material and serve as a one-matter advertisement for the Commission’s new 500 page limit set out in Rule 67. Remarkably for a matter which involved issues which can only be described as anything other than unusual, the documents in evidence consisted of the following:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply and attachments;
(c)    applicant’s Wages Schedule;
(d)    respondent’s Wages Schedule;
(e)    respondent’s AALD dated 8 June 2023;
(f)    applicant’s AALD dated 9 June 2023;
(g)    applicant’s AALD dated 8 August 2023;
(h)    respondent’s AALD dated 8 August 2023;
(i)    respondent’s AALD dated 9 August 2023;
(j)    respondent’s AALD dated 31 July 2024;
(k)    applicant’s AALDs (x2) dated 1 August 2024;
(l)    respondent’s AALD dated 9 August 2024;
(m)     applicant’s AALD dated 9 August 2024;
(n)    applicant’s AALD dated 26 August 2024;
(o)    applicant’s AALD dated 17 October 2024, and
(p)    applicant’s AALD dated 18 October 2024.

Oral evidence

Notwithstanding cross-examination of the applicant being foreshadowed for the final hearing date, upon medical evidence being received in relation to her fragile mental state, that application was not pressed.

FINDINGS AND REASONS

The applicant’s incapacity for employment

The applicant relied on Independent Medical Examiner (IME) Dr Khan as the medical basis for her claim. Dr Khan noted in his report dated 21 December 2022 that he had examined the applicant on 29 June 2020, 25 January 2021 and 10 February 2022. Having taken into account the respondent's s 78 notice dated 20 December 2022 and the views of the respondent's IME, Dr Neale in her report dated 26 August 2022, Dr Khan nevertheless maintained his view the applicant was totally incapacitated for employment.
In his December 2022 report, Dr Khan addresses Dr Neale's contention the surveillance material relied on by the respondent is suggestive of the applicant having capacity for employment. Dr Khan said:
“Dr Neale's opinion predominantly relies on non-clinical surveillance reports that are cross sectional in nature and do not take into consideration context. From her report dated 26 August 2022, it is evident that Dr Neale was not actually provided the full surveillance footage herself to review and interpret. Instead, she has relied on photographs in the surveillance reports to inform her opinions. These photographs from the Worksite Investigations reports dated 28 October 2021, 1 February 2022, 16 February 2022 and 3 June 2022 do not contain any images of activities that Ms Bruzzese has not already indicated she has performed. Furthermore, these photographs from the Worksite Investigations reports dated 28 October 2021, 1 February 2022, 16 February 2022 and 3 June 2022 do not contain any images that confirm Ms Bruzzese is working in any capacity.”
Mr Tanner submitted the photographs contained in the surveillance material and relied on by the respondent as evidence of residual capacity are of no utility in determining whether the applicant is capable of paid employment where she would be subjected to requirements of discipline, punctuality and the necessity to attend to set tasks in a given time frame.
Dr Khan provided a further report dated 12 February 2022. In that document, Dr Khan noted the applicant's condition had not substantially changed since January 2021. He noted the applicant had symptoms of pervasive depression and anxiety which profoundly and negatively impacted her lifestyle. Dr Khan also noted the applicant had developed a comorbid condition of alcohol use disorder. Mr Tanner submitted the development of such a condition would also be “completely destructive” of her capacity to operate in a work environment.
The applicant also relied on the report of her general practitioner (GP), Dr Massoud dated 7 July 2022, in which the doctor stated the applicant had no capacity for employment, and a guarded prognosis. Mr Tanner noted Dr Massoud was uniquely placed to comment on the applicant's condition, given he has treated her on multiple occasions across many years.
Ms Susan Stern, treating psychologist, consulted with the applicant on five occasions between April and August 2020. She diagnosed the applicant as suffering a major depressive disorder and recorded her symptoms as follows:
“From the interview, Ms Bruzzese presented as very emotional and deeply affected by her experience at Enfield Aquatic Centre. She admitted to feeling worthless, hopeless and was so stressed that she could not sleep. Ms Bruzzese also reported that she has no motivation to complete basic household tasks or socialise with friends and family, which she previously enjoyed doing.
The DASS-21 is a 21 item self-report measure that assesses an individual's level of distress using generic symptoms associated with the mental states of depression, anxiety and stress. Ms Bruzzese's DASS-21 scores indicated that she was experiencing extremely severe levels of depression, while her levels of anxiety and stress were also scored as extremely severe. The test supports the provisional diagnosis of major depressive disorder indicated by the clinical interview.
The Beck Depression Inventory – Second Edition (BDI-II) is also a 21 item self-report measure that indicates major depression symptoms according to diagnostic criteria listed in the DSM. The scores from Ms Bruzzese's BDI-II show her symptoms as extremely severe, which is consistent with the diagnosis obtained through the clinical interview and other psychological tests.
The purpose of the Beck Anxiety Inventory (BAI) is to assess a person's anxiety level based on their rating of symptoms given in a 21 item assessment. It is also a self-reported tool. The results from Ms Bruzzese's test for anxiety were also extremely severe, highlighting the extent of the damage brought on by her psychological trauma.
The Beck Hopelessness Scale (BHS) is a 20 item tool and is used to measure the main aspects of hopelessness, including feelings about the future, loss of motivation, thoughts about oneself and general expectations. Ms Bruzzese's test results returned a score indicative of severe hopelessness and a severely pessimistic look on life for the present and future…
The following is a list of clinical observations and symptoms that Ms Bruzzese has reported experiencing:
-Feelings of hopelessness and worthlessness
-Low self-esteem
-Feeling frustrated and trapped
-Worried and stressed about the future
-Suicidal ideation
-Severe symptoms of anxiety
-Issues with memory
-Anxiety attacks
-Loss of interest in activities
-No motivation to complete basic tasks
-Not taking part in any self-care
-Low mood
-No desire to socialise
-Flashbacks of her manager”
Under the heading “Diagnosis”, Ms Stern stated:
“It is my opinion that Ms Bruzzese's symptoms have resulted in major trauma and as such, has had an extensive impact on her life. She has a consistently low mood, lacks motivation to complete basic chores or cooking for her family, does not spend as much quality time with her daughters and experiences panic attacks when she is near her previous place of employment.
Additionally, as Ms Bruzzese did not report a history of substance abuse or other known medical conditions, Ms Bruzzese's symptoms cannot be attributed to any issue other than her psychological injury at work.”
Ms Stern stated the applicant had no capacity for work, and that she would require frequent and consistent treatment in order to build up her confidence and motivate her to attempt to commence attending regular events before she could contemplate a return to work. Mr Tanner submitted the symptoms described by Ms Stern are plainly inconsistent with any capacity for employment.
Dr Massoud referred the applicant to Dr Dune on 13 September 2023. At that time, Dr Massoud noted the applicant still had depressive symptoms with insomnia, panic attacks, rumination and social withdrawal.
At the time of that referral, the applicant was taking Escitalopram and Valium. As recently as 31 May 2024, the applicant was certified by Dr Massoud as unfit to partake of jury duty. Mr Tanner submitted an inability to participate in even that comparatively passive role is indicative of a total incapacity for employment. That position is consistent with Dr Massoud's earlier report to the applicant's solicitors dated 22 February 2022, where the doctor said:
“Ms Bruzzese has a guarded prognosis given the chronicity of her claim. She has had her treatment interrupted with declinature of her claim for over three years, which has significantly affected her required psychological treatment. Since her claim has been reaccepted, she has been attending regular psychologist review but remains significantly perturbed in her psychological functioning. She remains unfit for employment.
Furthermore, this injury caused significant marital tension, resulting in the breakdown of her marriage. She has since separated from her husband. Additionally, Ms Bruzzese has been under surveillance by the insurer on three known occasions. She harbours significant anxiety when leaving the house and frequently reports looking over her shoulder as she is concerned she may be followed again.
… in an attempt to improve her mental state by non-pharmacological means, I encouraged Ms Bruzzese to attend the gym. Disturbingly, Ms Bruzzese received surveillance photos of her at the gym, causing her to no longer want to attend for fear of further surveillance. She became more withdrawn, paranoid and stated she would only leave the house for essential outings, such as school drop-offs, her daughter's swimming training and grocery shopping.”
The revelation by Dr Massoud that he had encouraged the applicant to attend the gym as part of her recovery process is significant, as the respondent has in part relied upon gym attendance, among other activities, as evidence that she is capable of engaging in paid employment. The attendance by the applicant at group fitness classes is a classic example of the importance of the context surrounding surveillance. Rather than the gym attendances showing someone happily participating in activities in her everyday life, the report of her GP in fact reveals the classes were part of an attempt to treat and improve her psychological wellbeing.
The parties each addressed a portion of the opinion expressed by the MAP in this matter to the effect the applicant's receipt of National Disability Insurance Scheme (NDIS) and carer payments is consistent with a residual capacity for employment. At [146] and following, the MAP said:
“146. The appellant employer stated in its submissions that Ms Bruzzese's youngest daughter has an intellectual disability, which enabled the daughter to compete in the ‘para’ division of swimming competitions. The appellant employer noted that Ms Bruzzese receives NDIS payments and a carer's allowance for that daughter. That evidence, it was submitted, was available to the Medical Assessor but not brought to Ms Bruzzese's attention, and neither did Ms Bruzzese advise him of this information. We note that neither Dr Khan nor Dr Neale were made aware of these facts either, which suggests perhaps that Ms Bruzzese was reluctant to discuss her younger daughter's situation.
147. Nonetheless, the receipt of NDIS payments does suggest that she receives income for her support of her younger daughter, and she is capable, therefore, of performing some limited employment duties. A Class rating of 4 is accordingly appropriate. We note Dr Neale's assessment of 3, but we do not agree that Ms Bruzzese is capable of working 20 hours per week. Accordingly, this finding will be revoked and a Class 4 rating substituted…
148. Accordingly, the PIRS table 11.8 is amended to add to the reasons for ‘employability’:
‘However, she has been able to act as a carer for her youngest daughter and is remunerated by the National Disability Insurance Scheme for her services. This is a somewhat artificial capability, given the familial relationship, but one to which the descriptors of a Class 4 are appropriate. Ms Bruzzese has a severe impairment and could not work for more than 20 hours per fortnight.”

Mr Tanner submitted the MAP’s findings were made on assumptions as to the applicant's capacity which are contrary to all the evidence from every treating practitioner and of the applicant herself. He noted the MAP had assumed the payments to the applicant were in the nature of remuneration for care work, when there is no evidence to that effect. This submission is patently correct.
On 1 August 2024, the applicant provided a further statement. In that statement, the applicant noted she received carer payments from Centrelink for her daughter and has been doing so for approximately nine years. The applicant notes her daughter suffers from an intellectual disability and the applicant has been in receipt of payments from Centrelink since her daughter was approximately eight years of age. The applicant stated the following:
“I receive carer payments every fortnight. Over the years, the payments have increased slightly. I am presently in receipt of $307.00 per fortnight from Centrelink. I am in receipt of such payments to account for caring expenses relating to my daughter's tutoring, personal training, medication and other necessary appointments that she requires to undergo. My daughter is also in receipt of NDIS support for her occupational therapy assistance. I do not provide my daughter with any personal care for her conditions and/or domestic assistance. My daughter is able to care for herself with respect to personal care and hygiene.
I simply receive carer's payments from Centrelink to support my daughter by providing her with the means to obtain all necessary assistance for what she requires to manage her condition.”
For the respondent, Mr Jones submitted the finding of the MAP, while not binding, was open to it and effectively replaces that of the Medical Assessor. He emphasised the question of capacity as one of a sliding scale of symptomology and that even though the applicant has an accepted injury, it is appropriate to examine the totality of the evidence. He submitted such an examination in this matter would lead to a finding of residual capacity, including the applicant's activities as carer for her daughter. In so submitting, Mr Jones noted it was both open to and appropriate of the MAP to take the payment received by the applicant from the NDIS and the carer payment as indicative of residual capacity for employment.
I cannot in any good conscience accept that submission. Firstly, because there is no evidence the payments are made to the applicant as remuneration for care work. Secondly, to equate tasks of parenting and caring for one’s own child – disabled or otherwise – with the duties undertaken in paid employment is a fundamentally flawed and callous approach to assessing a worker's capacity, particularly in the context of a psychological injury.
There are aspects of parenting which may well cross over with certain aspects of employment; however, there is an inherent difference between taking your child to an activity, to a shopping centre or otherwise looking after them and attending to the rigours of paid employment, especially in the context of a psychological injury. It is astonishing that this needs to be pointed out. The respondent seems to equate the applicant's efforts at parenting with an ability to return to the workforce. Absent other evidence in support of such a proposition, that position is the equivalent of equating a worker making toast for breakfast with capacity to work in paid employment as a short order cook.
The respondent also relied on extensive surveillance material and the applicant's bank records in support of a submission that her level of activity is inconsistent with her stated claim of total incapacity. Mr Jones submitted the surveillance shows “an individual getting about their daily lives to a significant degree and a degree that would indicate some capacity for employment”.
The surveillance reports annexed to the Reply are dated 11 March 2021, 11 May 2021, 1 February 2022 and 3 June 2022. The first report notes the applicant undertook group exercise classes on several occasions and appeared “contented”. How an investigator is able to make such a determination as to the applicant's state of mind is not known, particularly when they are taking film from some distance and also in circumstances where there is no indication they are qualified to make such an assessment. Such gratuitous commentary is unhelpful and ought not be made. Moreover, we now know the applicant’s attendance at such classes was in response to a recommendation from her GP and formed part of her prescribed treatment regime.
The second report records the applicant dropping her son to school, attending exercise classes and shopping at Costco.
The third report again shows the applicant attending exercise classes, shopping at Costco and Birkenhead Point Outlet Centre and attending a Portuguese chicken shop in Petersham. She also dropped her children to various activities, including a state swimming championship.
The fourth report showed the applicant buying items at shopping centres, driving her children to school, to hairdressers and apparently worthy of note by the investigator, executing an illegal U-turn on her way to Costco.
The respondent decided to invest more time and resources on no less than three further surveillance reports in October 2021, February 2022 and March 2022. They are attached to a set of late documents lodged in the proceedings.
The first report in the late documents showed the applicant removing items from the boot of her car, attending a fishing and lifestyle store, walking the Bay Run, shopping at Birkenhead Point, attending a group fitness class and giving a lift to her daughter and her daughter's friend.
The second report in the late documents showed the applicant attending a high school (presumably for one of her children’s activities), shopping at Bondi Junction, attending a swimming event where she changed positions while in her seat and engaging in conversation with a swimming coach.
The third report records the applicant eating lunch with her daughter and two friends where she “appeared cheerful”, shopping at Costco, and transporting her children and her father to various places.
Mr Jones submitted this material, together with the applicant’s bank statements demonstrate a level of activity inconsistent with total incapacity for employment.
The difficulty with that submission is the applicant suffers from a psychological injury. I have no doubt that if the applicant presented before the Commission alleging she suffered a physical injury which rendered her incapable of carrying out activities of daily living, then the surveillance evidence would be devastating to her case.
Instead, it shows a claimant carrying out the activities associated with home making and parenting, with occasional exercise which, I again note, was prescribed to her by her GP.
Notwithstanding Mr Jones's submissions, I am at a complete loss as to how the surveillance material can be said to demonstrate in the applicant a capacity for employment. Employment carries with it requirements which are not present in everyday activities such as shopping, dropping children to school, caring for them or undertaking occasional exercise.
Those requirements of employment include time limits, prioritising tasks within set times, dealing with third parties otherwise unknown to you, developing and maintaining relationships with coworkers and a measure of discipline which is associated with any vocation. I wish to make it clear I do not list those matters as an exhaustive record of the issues which make the employment context different to that of carrying out every day familial activities.
As noted, the respondent a relied on the applicant's bank statements in support of its position she has residual earning capacity. It submits the number of transactions on the applicant's statements objectively demonstrate “a level of movement and level of activity” which does not sit comfortably with the opinion of the applicant's IME, Dr Khan, and with the applicant's contended total incapacity to the point Dr Khan's opinions are not provided in a fair climate and should be rejected.
One might reasonably ask why it follows that the ability of a psychologically injured person to carry out a retail transaction somehow translates into earning capacity. Absent some expert evidence as to any such correlation, the mere fact of such transactions proves nothing.
Mr Jones made a similar submission with regards to Dr Massoud and Ms Stern, namely that absent reference to the surveillance material and bank records, it cannot be said their opinions were provided in a fair climate, as they do not have a correct understanding of the true extent of the applicant's movements.
I note, however, that Dr Khan directly addressed these matters and took them into account in his report of 20 December 2022, at which time he noted the findings of Dr Neale and gave reasons, as previously set out, why he rejected them.
The respondent attacked the findings of Ms Stern insofar as they relate to testing undertaken on the applicant. Mr Jones noted, appropriately in my opinion, that those tests are self-reporting in nature and therefore reliant on the applicant's own perceptions of her condition. Given Ms Stern had no access to the surveillance, the respondent submitted her opinions should be given little weight.
Contrary to the applicant's submission that Dr Massoud provided support for her case, the respondent submitted his referral of her to specialist care is indicative of the applicant's condition being beyond Dr Massoud's field of expertise.
With respect, I do not accept either of these submissions.
Firstly, Ms Stern clearly sets out the nature of the tests which she had the applicant undertake. The fact they are self-reporting does not detract from their relevance, absent some error being demonstrated in the manner in which they were conducted, or it being shown they are inappropriate tests to give a worker suffering a psychological condition. Moreover, unlike some physical injuries which can be objectively assessed through range of motion, the subjective feelings and experiences of a psychologically injured worker are plainly directly relevant to the nature and extent of their injury.
In relation to Dr Massoud, I note he is the long-term GP of the applicant and does not make any observations or diagnoses which differ from those routinely seen in any matter where psychological injury is an issue.
The fact Dr Massoud has referred the applicant for specialist treatment does not detract from the weight which should be afforded a long-term treating practitioner. Indeed, he has the benefit of seeing the applicant over a long period and is uniquely placed of all the practitioners to comment on the changes in the applicant's mental state. I do not consider a treating GP's opinion should be considered unreliable because they have either not seen or not forensically considered surveillance material in circumstances where that GP has a long-term history of treating the patient and the benefit of seeing them over many years, and where the material in any event does not demonstrate the applicant carrying out activities separate to those which she has admitted she is capable of attending to.
The Commission was taken to a number of entries in the applicant’s bank statements not only at retailers but some evidencing social outings. The respondent submitted these showed a history of regular spending at multiple venues. The Commission was also referred to the respondent’s submissions made to the MAP.
Once again, it is not clear to me how these transactions are indicative of capacity for employment. Both the Medical Assessor and the MAP each had before them surveillance material which showed the applicant exercising, shopping and attending to social activities. Each addressed the surveillance material and financial records which were before them, yet neither relied on those activities as evidence indicative of residual employment capacity.
It must also be stated that one cannot tell from mere financial records whether it was the applicant who has undertaken the purchase. There is no forensic evidence which establishes the applicant made all of the transactions which have so exercised the respondent, or whether some of them have been undertaken by her family members including her children.
Moreover, the activities with which the respondent is concerned are those which the applicant admitted being able to perform. Notwithstanding the surveillance evidence being before various experts in this matter, the only doctor who is of the view the material is indicative of capacity for employment is the respondent's IME, Dr Neale.
The other experts – treating and medico-legal, do not regard either the applicant's bank records or the surveillance material as determinative of capacity. Nor did the Medical Assessor or MAP. Logically, this makes sense. Wandering around shops, taking children to school, to sport or to social activities and engaging in fitness classes as recommended by a treating practitioner cannot, absent persuasive expert evidence, be considered indicative of a capacity to carry out paid employment in the context of a work-related psychological injury.
Were the applicant claiming a debilitating physical injury yet demonstrating activities such as exercise, shopping and generally moving about unencumbered, her bank records and the surveillance material would greatly assist the respondent. However, psychological injuries are not so straightforward.
Such injuries are contextual and have different types. They are not like injuries in the nature of discogenic back pain or orthopaedic injuries which are measured by objective ranges of motion. One might have thought this was self-evident.
The respondent relied in part on its written submissions to the MAP in support of its arguments in relation to incapacity, and requested they be taken into account in the formulation of these reasons. I have done so. The respondent sought to attack the MAC on a number of bases which are set out in those submissions. Although the attack was broad-ranging and went to each of the PIRS categories, it is said the matters raised also impact the question of incapacity.
The respondent’s submissions to the MAP are the subject of further comment under the heading “Other Matters” below. However, for the purposes of the remaining substantive issue in this matter, I note the following.
The respondent submitted to the MAP that the surveillance material and bank records revealed the applicant to be an unreliable witness. In support of that submission, the respondent noted the applicant makes regular purchases of food across various shopping centres in the Sydney metropolitan area, and her doing so reveals her assertion she spends most of her time at home is untrue. The respondent also submitted that a number of activities set out in the bank records reveal spending on discretionary items or activities, such as to render the MA’s assessment of her functioning – and presumably for the purposes of the current dispute, her capacity – as greater than that assessed by the Medical Assessor.
The respondent submitted to the MAP the liability dispute was withdrawn for “technical reasons”, and proceeded to rely on its witness statements which went to the s 11A question would demonstrate the applicant lacked credibility. As the MAP stated, every expert agrees the applicant suffered a psychological injury, to which the respondent alleged it had a complete defence which it then eschewed by allowing the matter to be subject to medical assessment rather than have the applicant’s credit tested at a hearing.
In any event, the respondent did not give any explanation as to why the evidence of its lay witnesses on the s 11A issue would have any bearing on the issue of incapacity for employment, beyond the general issue of credit.
As the respondent itself notes, the applicant is a recently single mother to three children, one of whom has an intellectual disability. The surveillance material and banking transactions largely demonstrate the applicant going about the fulfilment of parental duties. The respondent appears to treat these activities as something other than a necessity for a person in the position of the applicant and sees fit to attack her credibility for attending to the needs of her children, and on occasions, her father. Even accepting the respondent’s position with regards to the number of transactions and activities undertaken by the applicant, it is manifestly unclear how this translates to residual capacity for employment.
It is worth repeating one passage from the respondent’s submissions as it is illustrative of the approach it has taken to this matter and to the applicant. The respondent (appellant in the MAP proceedings) submitted:
“13. The appellant submits there is no pressing requirement on the worker to attend shopping centres with her daughters. It is a common practice to purchase clothes and even groceries online and have them delivered. The appellant submits it is highly likely the majority of the retail stores in major shopping centres (such as Bondi Junction Westfield, Sydney Westfield or Burwood Westfield) have an online retail store. The trips made by the worker to these stores, such as attending Paesanella Cheese shop in Marrickville (a store which the bank records disclose she frequently visits, and is a 40 minute return drive from her home), are, in the appellant’s submission, inconsistent with her reported capacity and the assessment of impairment made by MA Dr Doris.
14. The appellant also submits that the worker’s history provided to MA Dr Doris that she ‘only goes shopping for necessities’ is plainly not accurate. The appellant submits that the extent of visits to shopping centres is incompatible with the level of impairment and symptoms assessed by MA Dr Doris.
15. Further, in circumstances where it was suggested the worker was only going shopping for necessities, there was no inquiry made by MA Dr Doris as to what exactly those necessities were, and why she was unable to obtain them from one supermarket or one visit per week – as opposed to doing so multiple times per week, and on occasions, multiple times per day (as per the bank statements), and at locations well outside of her local area. MA Dr Doris did not engage in any such discussions with the worker and he did not otherwise address this material.
16. The appellant also submits that it should not be accepted that the worker has not continued to exercise or engage in some form of activity (as she told MA Dr Doris). The worker’s financial records include credit card records documenting payments to Ashfield Aquatic Centre throughout early 2023; and the amount spent -- $23.58 closely aligns with an adult gym entry or group fitness class ($25.50 as of FY23/24). As entry to the pool for a carer of a person with a disability is free, and a general concession card (which Stephanie Bruzzese would be eligible for) entry is $1.401, the clear inference is that these entry fees were for the worker to attend for personal exercise.
17. The appellant similarly submits that MA Dr Doris should not have accepted the worker’s explanation that she was seen wearing the same clothes in the surveillance reports, in particular, in the report dated 15 March 2022. At no stage in any of the reports did the appellant’s viewing of the surveillance material identify the worker wearing the same outfit, other than the pants she wore on 28 and 29 May 2022, which matched with her daughter’s pants and therefore may have been associated with the Trinity Swimming Club or other swimming association her daughter was involved in.
18.In this regard, the appellant submits it would not be unusual for the worker to have more than one pair of club merchandise in her home; where both teenage daughters compete for this swimming club and may share the same or similar size clothing as the worker.
19. Further, while the worker wore black leggings on several occasions, the appellant submits it would not be unusual for an individual of her demographic to own more than one pair of black exercise leggings in any event, and more so for an individual who is the parent of multiple children involved in competitive sport and who attends exercise classes and aquatic centres.”

As can be seen, the respondent has gone to extraordinary lengths to paint the applicant as a dishonest witness, and to delve into her everyday life, to the point where it has even seen fit to analyse and comment upon the clothes she wore to watch her child attend swimming classes and the type of cheese she purchased. Rarely has a claimant’s dairy intake been the subject of such scrutiny. Pointedly, the respondent makes no mention of the applicant having been advised to exercise by her GP, but rather seeks to establish her doing so is indicative of an ability to carry out normal activities rather than being part of her prescribed treatment regime. By no measure is that submission sustainable, nor should it have been made in circumstances where the respondent must have known the applicant’s treating GP has recommended she exercise to assist with her recovery.
It strains credulity that a party would seek to criticise a claimant for parenting their children, or to use their best endeavours at doing so as evidence against them. Likewise, it is astonishing it needs pointing out to the respondent that single-parenting three children entails multiple and varied retail purchases and attendance at various activities. To paint the applicant as somehow engaging on frolics of her own merely because she attends to such matters is a borderline absurd construction to place on the activities revealed in the banking records and surveillance material.
In support of its contention the applicant has capacity for employment, the respondent obtained a number of vocational assessment reports. Those reports indicated the applicant could work as an enquiry clerk or customer service officer at, for example, a sporting complex. Given the trauma associated with the applicant's experience working in such an environment, I do not accept that finding.
The reports also suggested the applicant could work as a hotel and motel receptionist or reservations clerk. Again, given the findings of both her treating and medico-legal practitioners, I do not accept this to be the case. The applicant has, it is true, shown that she has continued to attempt to parent her children and has carried out shopping activities. This, however, is a far cry from demonstrating a capacity for employment, for reasons which I have already set out.
The vocational reports note the jobs recommended for the applicant require skills such as a sound level of recording, calculating, organisation and communication skills together with levels of concentration. However, the applicant reports, and I accept, that those skills fail her on a regular basis. I do not, in the face of consistent treating practitioner material, together with the IME reports of Dr Khan, find the vocational capacity reports persuasive.
On balance, in my view the lay and medical evidence in this matter demonstrates an ongoing total incapacity for employment on the part of the applicant as a result of her work-related injury which is most likely permanent in nature.
Notwithstanding that the exhaustive investigations undertaken by the respondent (more on which anon) show the applicant has engaged in activities such as shopping and dropping her children to school, the crucial element missing from the respondent's case is an adequate explanation as to how those activities translate into a capacity for employment.
As already stated, I also reject the findings of the MAP that payments made by government agencies for the support of a disabled child to a parent are somehow indicative of capacity for employment. Real world experience demonstrates those payments are, in fact, made for the benefit of the disabled person. A receiver of NDIS payments and carer benefits does not have to demonstrate in themselves a capacity for employment before receiving them. The MAP itself acknowledged its findings on employability based on the receipt by the applicant of government payments “is a somewhat artificial capability, given the familial relationship…”.
In considering the question of incapacity in the context of a claim for weekly payments, the views of the MAP are but one piece of evidence. The fact the MAP qualified its own views on employability by acknowledging its finding has a modicum of artificiality means, in my opinion, that view carries limited weight in the face of otherwise consistent and longstanding treating practitioner opinion to the effect the applicant has been and remains totally incapacitated for employment.
The applicant's PIAWE is agreed. Having found she is totally incapacitated and is likely to remain so, I adopt the figures set out in the applicant's wages schedule reflecting total incapacity, including the periodic indexation of payments.
Given my findings in relation to the applicant's capacity, there will be an award as set out on Page 1 of the Certificate of Determination, and I find the respondent is liable to pay the applicant not only for the ss 36 and 37 periods, but also pursuant to s 38 of the 1987 Act.

Medical expenses

62. Given my findings with respect to ongoing incapacity, and the fact the claim for medical expenses was not the subject of substantive submissions at the hearing, there will be a general order for the payment of medical expenses by the respondent.

OTHER MATTERS

Having dealt with the substance of this dispute, it is regrettably necessary to pass comment on the manner in which this claim was defended. It gives me no pleasure to do so.
This matter has a lamentably long history before the Commission. It is, however, worth briefly setting out that history as it reflects in part the manner in which the proceedings were conducted.
The applicant commenced proceedings by Application filed on 7 March 2023. On 17 March 2023, the respondent lodged its Reply.
The matter was then listed for telephone conference before me on 14 April 2023, at which time the liability dispute was maintained and the matter referred for hearing on 14 June 2023. On that occasion, the matter neither resolved nor concluded and was adjourned for further hearing to 11 August 2023.
At the second hearing date, the denial of liability was withdrawn resulting in the claim for permanent impairment compensation being remitted to the President by consent for referral to a Medical Assessor.
On 7 September 2023, Medical Assessor, Dr Doris, issued a MAC assessing the applicant as suffering a 22% whole person impairment. On 5 October 2023, the respondent lodged an Appeal Against Decision of Medical Assessor, which led to the matter being stood over at a telephone conference on 16 August 2023, pending the decision of a MAP. The MAP delivered its reasons on 4 June 2024, upholding the appeal only in relation to the PIRS category relating to employability and assessing the applicant as suffering from a 19% whole person impairment. On any view, such an impairment is significant and serious.
In providing its reasons, the MAP passed comment on the respondent’s submissions and the manner in which it had undertaken its defence of the claim, including the findings which it sought to have the Medical Assessor make.
Demonstrating what in another context might be regarded as admirable persistence, notwithstanding the MAP’s conclusions in relation to several aspects of those submissions, the respondent saw fit to rely on both the same material and approach to attack the applicant’s case, albeit in the different setting of a hearing before a Commission Member.
On 25 June 2024, a post-MAP preliminary conference was convened, at which time the matter was listed for hearing on 7 August 2024. During the course of that hearing, the respondent made application to cross-examine the applicant in relation to certain transactions contained within her bank records.
The matter was then adjourned for further telephone conference on 29 August 2024 for the purposes of listing the matter for another hearing after the respondent gave notice of the transactions about which it would seek to cross-examine. At that preliminary conference, the matter was again listed for hearing on 18 October 2024, at which time it finally, fitfully proceeded to its conclusion.
In the lead up to the final hearing date, the applicant lodged medical evidence from her treating practitioners to the effect she was at risk of self-harm as a result of the impact of having to examine her bank records and try to recall whether she had undertaken certain transactions, or whether they had been carried out by her family members. It was only in the face of such evidence, lodged before the final hearing, that the respondent withdrew its application to cross examine her.
The respondent has pursued the applicant with a level of persistent zealotry rarely seen in this jurisdiction. Not content with its denial of liability and reliance on s 11A (subsequently withdrawn), the respondent attached no fewer than four factual reports to its Reply. In its AALD dated 13 June 2023, it attached a further three factual reports. It also made application to include before the MAP further factual reports by way of fresh evidence. That application was mercifully refused.
The respondent then sought to cross examine a worker who it knew was suffering from the effects of a psychological injury in relation to retail transactions from several years ago, presumably to support a submission the mere act of shopping is suggestive of employability – a contention it pursued unsuccessfully before the MAP, where it challenged the applicant’s reported degree of impairment in part on the basis she need not have attended certain retailers because they have online shopping facilities of which she could have availed herself. It made that submission presumably with no knowledge of the applicant’s level of computer and online literacy, and in apparent ignorance of real-world considerations surrounding the requirements of a recently single parent to attend to their family’s needs, often at short notice.
In its submissions to the MAP, the respondent submitted it withdrew the liability dispute for “technical reasons.” It submitted:
“39. Despite the settlement of the worker’s disputed workers compensation claim (for technical reasons on terms whereby the Appellant reserved its right to raise factual disputes in the proceedings), the evidence of the Appellant’s witnesses in their statements filed with the Reply (also not discussed or considered by the Medical Assessor) gave rise to a significant number of factual disputes and issues which reflected poorly on the credit and behaviour of the worker. These factual disputes and credit issues were summarised in the initial section 78 notice dated 27 April 2020 (particularly at pages 54 – 60 of the ARD – by reference to the witness statements filed at pages 1 – 28 of the Reply). In the Appellant’s submission, the worker has continued to prove to be an unreliable historian and witness in the context of her current permanent impairment claim.”
The liability dispute concerning the applicant’s injury was withdrawn. In its submissions to the MAP, the respondent has suggested findings in relation to the applicant’s credit should have been made by both the Medical Assessor and by the MAP, in part based on the statement evidence of its witnesses concerning liability.
As the MAP noted, it is not a medical specialist’s role to analyse material to a level of forensic expertise which would enable them to draw inferences and make general findings of credit beyond those ascertainable in the clinical environment. The respondent’s position carried with it a presumption that a Medical Assessor’s expertise includes training on evidentiary matters and on the interpretation of the plausibility of evidence which is untested. It defies belief that a party in the position of the respondent, which litigates matters in this jurisdiction daily, cannot have known this is the case. Yet it proceeded to make those submission to the MAP.
It is trite to say the applicant’s evidence in relation to the s 11A dispute was untested before the matter went to the Medical Assessor and the MAP because the respondent made the forensic decision to withdraw its defence.
The approach of seeking to ventilate abandoned liability issues to impugn the credit of a party in the context of a medical assessment has been the subject of some comment in cases such as Ferguson v State of New South Wales [2017] NSWSC 887, NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 and Bayside Council v Ware [2023] NSWPICMP 576.
A party to proceedings is bound by the forensic decisions which it makes. It is inconceivable the respondent would be unaware of authorities such as Ferguson and Ware, yet it provided no explanation as to why the lay evidence on the question of s 11A would have had any relevance to the essential issue before a Medical Assessor and the MAP, namely the level of the applicant’s permanent impairment.
Not content with this construction of events, the respondent went further and made a submission to the MAP for which it had no evidence, but which amply illustrates its approach to the matter. That submission was:
“32. The [respondent] says it can be assumed the worker would be very aware of the importance for her claim of obtaining an assessment from the Medical Assessor of 15% WPI or greater…”
There is no basis for that submission whatsoever. It is a submission which would never be made in a Court, as no evidence has been put forward which supports there being any such knowledge vested in the applicant, and it is suggestive of attempts on her part to all but defraud the workers compensation scheme by fabricating and embellishing her symptoms. Making such a submission without an evidentiary basis to support it is inappropriate, and it is disturbing a party supposedly acting in accordance with the model litigant requirements would make it. Moreover, and from a forensic perspective more importantly, the submission also demonstrates a complete lack of understanding of the concept of inferences and when it is appropriate to draw them. Lastly, one might rhetorically ask if the applicant was aware of the 15% threshold, so what? Is it seriously suggested that a party to proceedings being aware of their rights and the framework within which their claim operates is somehow to be held against them?
The respondent summonsed the applicant’s bank records, a not unusual course of action to test whether a worker has returned to post-injury employment. However, the respondent sought to use this material to assert the applicant undertaking retail transactions is somehow indicative either of malingering on her part or, without medical opinion to support the rationale for the contention, evidence she could have engaged in paid employment. That position was taken notwithstanding the applicant’s injury ultimately being admitted, and it being known to the respondent she was a recently divorced single parent of three, and the full-time carer for an intellectually disabled child.
These proceedings were characterised by the respondent, no doubt on instructions, adopting what I consider to be an openly hostile approach to a worker who, it had conceded, was suffering from the effects of a serious psychological injury.
Indeed, it was only at the last hearing date when confronted with medical evidence the applicant was at risk of self-harm as a result of having to pour over long-past banking transactions to explain her movements, that the respondent withdrew its application to cross-examine her on matters such as whether she had attended a shop, and if so to what ends.
The degree to which the respondent sought to enliven issues of and invite findings in relation to credit before both the Medical Assessor and the MAP, is plainly inappropriate and contrary to established authority and practice. In raising such issues, the respondent has effectively delayed the disposition of this matter to an extent beyond what would reasonably be expected.
Both the interlocutory and substantive hearings in this matter were also characterised by the respondent’s insurer representative occasionally seeking to intervene directly in the proceedings to make submissions of their own, even though the respondent had the benefit of experienced and extremely competent counsel and solicitors in attendance. Such interventions are unhelpful and counterproductive. They cause delays and are disrespectful not only to those representing the respondent, but to the Commission and the other party. Counsel representing one party should not have to deal with submissions from multiple sources on behalf of another. It is axiomatic to say neither the Commission nor the respondent’s representatives would tolerate equivalent interventions from a worker, and nor should they. They ought not take place.
It must be noted in these reasons, because the respondent has plainly itself forgotten, that it is subject to the model litigant provisions and policies of the New South Wales government. The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and Commission Rules. It requires the State and its agencies to act with complete propriety, fairness and in accordance with the highest professional standards.
Broadly, the obligations require the State and its agencies to act fairly in handling claims by, inter alia, not causing unnecessary delay in handling claims and litigation, not requiring another party to prove a matter which the State knows to be true, not taking advantage of a claimant who lacks the resources to litigate a legitimate claim and paying legitimate claims without litigation, including making partial settlements of claims in situations where liability is clear.
The model litigant provisions do not prevent the State or its agencies from, inter alia, acting firmly or properly to protect its interests, or from taking all legitimate steps being taken in pursuing litigation or from testing or defending claims made.
The respondent has, notwithstanding the consistent evidence as to the applicant’s condition, essentially pursued her through factual investigators and seeking to call into question her credit and degree of impairment via, among other things, her bank records which demonstrate she goes shopping and undertakes activities such as buying food and clothes for her family, including for a disabled child.
It must be remembered the fact of the applicant having suffered an injury was never in dispute. The respondent therefore knew from the outset it was dealing with a vulnerable claimant suffering from psychological distress.
As has been noted by the applicant’s treating practitioners and in her own statement evidence which I have no difficulty accepting, the respondent’s conduct has caused untold and completely unnecessary mental anguish to the applicant, and in my view the actions of the respondent were inappropriate in pursuing a claimant which it knew was suffering from psychological injury by attempting to delve into the minutiae of every day financial transactions undertaken in some cases several years ago and in repeatedly arranging for surveillance of a claimant which consistently demonstrated her carrying out activities which she does not deny she undertook.
The respondent sought to question the applicant about her bank records not to assess whether she was engaged in paid employment, but rather whether the transactions which were displayed on her accounts fitted within the respondent’s own ideas – for which it provided no expert medical evidence - of what did or did not equate with certain levels of impairment and/ or incapacity. The respondent’s submissions to the MAP clearly demonstrate its negative attitude to the applicant, and its insistence on painting mundane transactions and activities as somehow indicative of malingering and embellishment on her part without any reasonable basis for adopting that position.
The respondent’s conduct of this dispute, encompassing as it has five preliminary conferences, four hearing dates, the commissioning of at least seven investigation reports, referral to a Medical Assessor and an appeal to a MAP seems to me out of proportion with the matters in dispute in the claim and not in conformity with the model litigant policy. Such conduct also frustrates the Commission’s ability to meet its statutory objects set out in s 42(4) of the Personal Injury Commission Act 2020 and serves to delay other cases.

To paraphrase his Honour President Judge Phillips in Fairfield City Council v Comlekci [2023] NSWPICPD 45, the respondent should finish its sport with the applicant and instead engage in a level of introspection regarding its behaviour commensurate with that which Jake Gyllenhaal must have undertaken when he first heard All Too Well. The time for doing so is long overdue.
I am referring this decision, and in particular my remarks concerning the respondent’s conduct of the claim to the Division Head of the Workers Compensation Division of the Commission to complete such process as he deems appropriate to enable the parties to be heard on the question of whether to refer the respondent’s conduct to SIRA, which has the regulatory supervision of the respondent’s insurer.

SUMMARY

Notwithstanding the Commission’s views in relation to the respondent’s conduct, it is the substantive merits of the claim which render the Application successful. What was ultimately placed in issue, after over 18 months of litigation concerning what is essentially a straightforward psychological injury, is the extent, if any, of the applicant’s capacity for employment.
On balance, I am satisfied to the requisite civil standard that the applicant has discharged the onus of proving she has been totally incapacitated for employment for the totality of the period claimed, and that she is likely to remain so indefinitely. That is, the claims pursuant to ss 36, 37 and 38 of the 1987 Act are made out.
For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2024] NSWPIC 663

2 December 2024