BXQ v BZZ

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BXQ v BZZ [2024] NSWPIC 316
APPLICANT:	BXQ
RESPONDENT:	BZZ
MEMBER:	Karen Garner
DATE OF DECISION:	18 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 33 and 37, and a general order for medical and related expenses pursuant to section 60; accepted back injury and psychological consequential condition; whether applicant had no work capacity during the relevant period; Held – applicant had no work capacity during the relevant period; respondent to pay weekly compensation pursuant to sections 33 and 37; respondent to pay the applicant’s expenses in accordance with section 60; parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts; the Certificate of Determination and statement of reasons to be de-identified.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no work capacity from 19 September 2022 to 9 April 2023 as a result of the accepted back injury and psychological consequential condition. The Commission orders: 1. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37(1) of the Workers Compensation Act 1987 (1987 Act) as follows (subject to deduction of any amounts previously paid in respect of the relevant period): (a) $1,824 per week from 19 September 2022 to 30 September 2022; (b) $1,888 per week from 1 October 2022 to 31 March 2023, and (c) $1,968 per week from 1 April 2023 to 9 April 2023. 2. The respondent to pay the applicant’s expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts or Medicare Notice of Charge. 3. The parties have 14 days liberty to apply with respect to the calculations of the weekly compensation amounts. 4. The Certificate of Determination and statement of reasons issued by the Personal Injury Commission is to be de-identified.

STATEMENT OF REASONS

BACKGROUND

BXQ (the applicant) worked for BZZ (the respondent) as a truck driver. (The names of the parties have been de-identified.)
By Workers Injury Claim Form dated 14 July 2020, the applicant made a claim for workers compensation pursuant to the Workers Compensation Act 1987 (1987 Act) in relation to low back pain, estimated to have occurred on 10 June 2020, caused by “prolonged sitting in a truck and driving over bumpy ground” in the course of his work.
By notice dated 2 June 2022 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), the respondent’s insurer (the insurer) stated that it would reduce the applicant’s weekly workers compensation benefits (weekly benefits) to $1,500 from 13 September 2022 on the basis that it decided under s 43(1)(a) of the 1987 Act that the applicant was currently able to work four hours per day, three days per week in suitable employment, namely as a Delivery Driver, and that the applicant could earn $324 per week (working four hours per day, three days per week) as a Delivery Driver.
By notice dated 27 June 2022 issued pursuant to s 78 of the 1998 Act, the insurer stated that it would reduce the applicant’s weekly benefits to $1,500 from 14 September 2022 on the basis that it decided under s 43(1)(a) of the 1987 Act that the applicant was currently able to work four hours per day, three days per week in suitable employment, namely as a Delivery Driver, and that the applicant could earn $324 per week (working four hours per day, three days per week) as a Delivery Driver.
By notice dated 29 November 2022 the insurer stated that the applicant’s weekly benefits would be suspended from 29 November 2022 because he failed to comply with his return to work obligations, in particular he did not attend a scheduled meeting with Procare.
By notice dated 15 December 2022 issued pursuant to s 78 of the 1998 Act, the insurer stated that it would reduce the applicant’s weekly benefits to $1,480 from 28 March 2023 on the basis that it decided under s 43(1)(a) of the 1987 Act that the applicant was currently able to work four hours per day, three days per week in suitable employment, namely as a Delivery Driver, Customer Service Officer and Assisted School Transport Driver, and that the applicant could earn $408 per week (working four hours per day, three days per week) as a Customer Service Officer.
By notice dated 2 March 2023, the insurer stated that the applicant’s entitlement to weekly benefits would cease entirely from 10 April 2023 because the applicant did not meet the requirements of s 38 of the 1987 Act for weekly benefits to continue after 130 weeks.
By letter dated 20 April 2023, the applicant’s solicitor notified the insurer that the opinion of Dr Jacobson dated 29 March 2023 was that the applicant was suffering a consequential psychological condition, being major depressive disorder, with marked anxiety, and was incapacitated from work at that time. The applicant’s solicitor requested a review of the insurer’s Work Capacity Decision dated 15 December 2022 and back payment of weekly benefits in the amount of $408 per week from the period from 28 March 2023 to
10 April 2023, and also sought reinstatement of the applicant’s claim for weekly benefits from 10 April 2023 ongoing in accordance with s 38 of the 1987 Act.
By notice dated 4 May 2023, the insurer stated that, following a review, it decided to maintain its decision issued on 15 December 2022.
By notice dated 10 May 2023, the insurer stated that it accepted liability for a consequential psychological condition of adjustment disorder.
By letter dated 16 May 2023, the applicant’s solicitor provided a Certificate of Capacity dated 10 May 2023 completed by the applicant’s nominated treating doctor, Dr Jasim, which certified that the applicant “has no current capacity for any work” from 2 May 2023, and a further report of Dr Alyosha Jacobson dated 29 March 2023 which expressed the opinion that the applicant was totally incapacitated for work due to his secondary psychological injury. The applicant’s solicitor requested reinstatement of the applicant’s weekly benefits at 80% of the applicant’s pre-injury average weekly earnings (PIAWE) on the basis that he was totally incapacitated to work. The applicant’s solicitor also sought back payment of the applicant’s weekly benefits at 80% of PIAWE from 28 March 2023 to date.
By notice dated 8 June 2023, the insurer stated that it decided to maintain its decision issued on 15 December 2022. The insurer stated that a work capacity assessment had been completed which confirmed that the applicant had current work capacity for suitable employment four hours per day, three days per week. The insurer stated that, based on the available evidence to date, there was no information to indicate how the downgrade in the applicant’s capacity certified by his nominated treating doctor, Dr Jamim, was directly related to the injury;
“We note that your treating doctor, Dr Jasim, has certified you has as having capacity for work for 12 hours per week from 25/3/2022 to 4/4/2023. We also note that he added acute adjustment disorder on certificates from 10/5/2022, but his assessment remained the same, in that you had capacity to work 12 hours per week. When you downgraded to no capacity on the 2/5/2023, we asked Dr Jasim for the reasons for the downgrade however he provided no response.”

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (Application) lodged on 8 April 2024 which claimed:
(a) weekly compensation pursuant to ss 33 and 37 of the 1987 Act in respect of the period from 19 September 2022 to 9 April 2023, and
(b) weekly compensation pursuant to ss 33 and 38 of the 1987 Act in respect of the period from 10 April 2023 ongoing.
The respondent lodged a Reply (Reply) on 29 April 2024.
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.
At a preliminary conference on 7 May 2024, by consent, the Application was amended to also include a claim for medical expenses pursuant to s 60 of the 1987 Act in accordance with a schedule of expenses to be filed by the applicant.
At a hearing on 30 May 2024, the applicant was represented by Mr Lachlan Robison, counsel instructed by Acorn Lawyers. The respondent was represented by Mr Paul Stockley, counsel, instructed by Bartier Perry Lawyers.

INTERLOCUTORY MATTERS

Discontinuation of claim for weekly benefits pursuant to s 38 of the 1987 Act

At the hearing, the applicant was granted leave to amend the Application to discontinue the claim for weekly benefits pursuant to s 38 of the 1987 Act.
On behalf of the applicant, Mr Robison stated that the basis for this was because the applicant anticipates a potential change in his circumstances as a consequence of possible future bariatric surgery to address his weight. On behalf of the respondent, Mr Stockley stated that the respondent reserves its position and may defend such claim in the future.

Claim for consequential gastrointestinal condition

At the hearing, the applicant sought to amend the Application to include a claim for consequential gastrointestinal condition, specifically gastroesophageal reflux syndrome diagnosed by Dr Frommer, caused by inactivity and weight gain as a consequence of the lumbar and psychiatric conditions pleaded in the Application.
The respondent opposed such amendment of the Application.
The submissions of respective counsel were recorded.
I determined to refuse such amendment of the Application. My reasons for such determination are as follows:
(a) the Commission is required to hear and determine matters in accordance with the statutory framework, which relevantly include sections 3, 42 and 43 of the Personal Injury Commission Act 2020 (PIC Act). It is clear from those provisions that the Commission is required to facilitate the just, quick and cost effective resolution of the real issues in the proceedings and to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and forms;
(b)    subject to certain limitations, Rule 19 of the Personal Injury Commission Rules 2020 (PIC Rules) provides a discretionary power to the Commission to amend a document lodged in the Commission if it considers the amendment to be necessary in the interests of justice. The amendment may be made “during the proceedings, including after the commencement of purported commencement of proceedings”, and on any terms that the Commission thinks fit;
(c)    sub-rule 74 of the PIC Rules requires the Commission to ensure that each party has the fullest opportunity practicable to have the party’s case considered without compromising the objects of the PIC Act;
(d)    I accept that, subject to the legislative provisions, objects and guiding principles referred to above, the Commission has a discretion to grant leave to amend the Application if it is satisfied that it is necessary to avoid injustice. Principles relevant to the exercise of the Commission’s discretion were stated by the High Court in Aon Risk Services v Australian National University (2009) 239 CLR 175 (Aon Risk), particularly at [95] and [111];
(e)    the history of these proceedings is set out above;
(f)    I accept that the applicant would be prejudiced by refusal of the amendment. However, I also consider that the respondent would be prejudiced by such amendment of the Application at this late stage of the proceedings. Such prejudice may be rectified by adjournment of the hearing, however that would result in delay in determination of the applicant’s substantive claims;
(g)    having regard to the underlying objects of the legislation and the provisions set out above, and considering all of the evidence and circumstances of these proceedings and the applicant’s claims, I am not satisfied that the amendment sought is necessary to avoid injustice;
(h)    accordingly, I determine to refuse the requested amendment of the Application.

Claim for general order for expenses pursuant to s 60 of the 1987 Act in respect of that consequential condition

In the absence of a schedule of s 60 expenses being lodged in the Commission, Mr Robison confirmed that the applicant sought a general order for medical and related expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

Accordingly, the applicant now claims:
(a) weekly compensation for a closed period pursuant to ss 33 and 37 of the 1987 Act, specifically for the period from 19 September 2022 to 9 April 2023, and
(b) a general order for medical and related expenses pursuant to s 60 of the 1987 Act.
There is no dispute:
(a) that the applicant sustained injury to his back in the nature of a disease, with a deemed date of injury of 1 June 2020, and
(b) consequential psychological condition.
Further, the parties agreed the applicant’s PIAWE (indexed) in respect of relevant periods in respect of which weekly compensation is claimed as follows:
(a)    from 19 September 2022 to 30 September 2022 at $2,280;
(b)    from 1 October 2022 to 31 March 2023 at $2,360, and
(c)    from 1 April 2023 to 9 April 2023 at $2,460.
The parties agree that the following issues remain in dispute and require determination:
(a) the extent and quantification of the applicant’s entitlements pursuant to ss 33 and 37 of the 1987 Act, and
(b) the extent and quantification of the applicant’s entitlements pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a)    Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents (AALD) dated 24 May 2024, lodged by the applicant;
(d)    AALD dated 27 May 2024, lodged by the respondent, and
(e)    Wages Schedule dated 24 May 2024, lodged by the applicant.

Oral evidence

No party applied to adduce oral evidence or cross-examined any witness.

Lay evidence

The applicant

The applicant gave the following evidence by way of statements dated 27 June 2023 and
17 May 2024:
(a)    the applicant injured his lumbar spine at work on or about 10 June 2021;
(b)    the applicant was initially certified as fit for restricted duties, however, his capacity was downgraded in or around December 2020 and the applicant has not returned to any form of employment since that time;
(c)    prior to sustaining his work injury, the applicant was the sole provider for his wife and four children;
(d)    since his back injury, the financial stress of being on workers compensation and being in pain had a major impact on the applicant’s mental health and the applicant has struggled with symptoms of anxiety and depression;
(e)    in August 2020, the applicant was referred to a counsellor for his work related injuries however he never booked the appointment as he was dealing with an opioid addiction at the time;
(f)    the applicant started seeing Dr Peter Moloney, neurosurgeon, for treatment in or around October 2020, and he recommended that the applicant undergo bilateral facet joint injections and an epidural injection, followed by hydrotherapy. The applicant did not arrange that procedure as he was not functioning well at the time;
(g)    in late 2021, the applicant’s physical injuries started to improve, although he was still suffering intermittent severe pain;
(h)    on or about 28 February 2022, after significant pressure from the rehabilitation provider, Dr Jasim certified the applicant as “fit for restricted duties”, working four hours per day, three days per week;
(i)    in April 2022, the applicant commenced seeing psychologist, Lubica Vracar. He did not find the sessions helpful and eventually stopped attending;
(j)    in June 2022, the applicant returned to see Dr Moloney and asked if lumbar spine surgery was an option because he was continuing to struggle with pain.
Dr Moloney advised the applicant that he would need to lose weight before surgery could be considered;
(k)    throughout 2022, the applicant tried his best to engage with the return to work process. Whilst his back pain had improved, the applicant’s mental health was continuing to decline. It was, and continues to be, the applicant’s mental health that primarily prevents him from working;
(l)    on 2 June 2022, the insurer issued a Work Capacity Decision which stated that the applicant could work four hours per day, three days per week. Consequently, the applicant’s weekly compensation was reduced from $1,824 to $1,500 from
13 September 2022;
(m)     in October 2022 the applicant’s solicitors requested funding for him to receive psychological treatment for his consequential psychological condition. Such funding was approved by the insurer;
(n)    on 15 December 2022, the insurer issued a further Work Capacity Decision which effectively further reduced the applicant’s weekly compensation to $1,480 from 28 March 2023;
(o)    on or about 18 January 2023, the applicant’s general practitioner included consequential psychological condition to his Certificate of Capacity and his solicitors requested formal acceptance of that condition;
(p)    on 2 March 2023, the insurer issued a decision notice which stated that the applicant’s weekly compensation would cease entirely from 10 April 2023;
(q)    on 10 May 2023, the insurer accepted liability for consequential psychological condition. The applicant presented to his general practitioner, Dr Jasim, who immediately downgraded the applicant’s capacity to “nil” on his Certificate of Capacity. The applicant’s understanding was that Dr Jasim had been waiting for liability for his psychological condition to be accepted prior to reducing his capacity;
(r)    the applicant agrees that he has some capacity to work in relation to his physical injuries;
(s)    however, the applicant’s mental health has impacted his capacity and he has not been able to get the help that he needs. The applicant requires assistance dealing with daily tasks such as booking appointments and the workers compensation process, to the extent that the insurer has cut off his payments for non-compliance;
(t)    the applicant continues to see a psychologist on a monthly basis. At around Christmas time, the applicant was prescribed anti-anxiety medication, which he is continuing to take;
(u)    the applicant’s main symptoms at this time are significant anxiety, loss of concentration and difficulty concentrating. The applicant struggles to attend morning appointments because he does not sleep well;
(v)    the applicant’s anxiety symptoms are so severe that he has been having bowel issues and heart palpitations;
(w)   the applicant’s back is still painful, although he has learnt to manage it much better, although he is very guarded;
(x)    the applicant travelled overseas for personal reasons on two occasions in 2023 and 2024;
(y)    the applicant worked as a casual security guard on an intermittent part-time basis between November 2023 and April 2024. The applicant ceased that work because he found it overwhelming because of his psychological condition;
(z)    the applicant worked “a handful of shifts” as a truck driver for a couple of weeks in December 2023. The applicant ceased that work because driving long distances made his back hurt and he experienced anxiety;
(aa)    the applicant worked as a truck driver undertaking more local work in March and April 2024. The applicant ceased that work because his back hurt from being seated so long and he was still struggling psychologically;
(bb)    the applicant has not undertaken any other employment since that time;
(cc)     prior to his work injury, the applicant has always had a strong work ethic and took pride in working hard. He has struggled psychologically because he has been unable to work due to his injury, and
(dd)    since June 2023, the applicant continued to be certified as having no work capacity from his treating general practitioner, Dr Jasim. The applicant informed Dr Jasim that he was working on and off during that period.

Medical evidence

Independent medical evidence

Dr Alyosha Jacobson, consultant psychiatrist

Dr Jacobson provided an independent medical opinion, qualified by the applicant.
In a report dated 29 March 2023, Dr Jacobson stated a diagnosis of severe major depressive disorder. Dr Jacobson, secondary to the applicant’s work-related back injury. Dr Jacobson stated that the applicant also had marked anxiety, with significant features of agoraphobia and social phobia, although it did not exactly meet diagnostic criteria stated in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition.
Dr Jacobson recorded that the applicant reported that his back had very much improved since the original injury, although he experienced intermittent and unpredictable pain, and that his mental health difficulties had “snowballed” over the past three years since the injury. Dr Jacobson recorded that the applicant reported that he: had markedly withdrawn “from everything”; had lost confidence; had poor sleep; had low motivation and energy; regularly cried, struggled with attending appointments; had infrequent suicidal ideation; had marked inconsistent anxiety; did not like being around groups of people; was often very distracted and disorganised; didn’t think that he could work because of his anxiety and depression; considered it likely that he would have persistent difficulties with avoidance, overwhelm, low energy and possibly interpersonal difficulties with concentration and organisation; and, didn’t want to drive because of his back.
Dr Jacobson recorded that the applicant psychological treatment had been erratic due to his anxiety and avoidance.
Dr Jacobson recorded that the applicant reported that prior to the work injury he was motivated to work long hours and that “work has always come first”.
Dr Jacobson stated that the applicant “does not currently have capacity to work, given his significant persistent depressive symptoms leading to hopelessness, avoidance, spending much of his time in bed, not attending appointments, poor sleep, poor concentration, low motivation, and energy”.
Dr Jacobson stated that the applicant’s prognosis was guarded and likely to remain the same for the foreseeable future, due to him having been unwell over a protracted period of time and him remaining very depressed and avoidance which significantly affected his capacity to engage in essential treatment.
In a supplementary report dated 6 September 2023, Dr Jacobson expressly disagreed with Dr Kumar’s conclusion that the applicant could return to work at six hours per day, two days per week, increasing weekly by six hours per day until he worked every day and then go to full-time work. Dr Jacobson stated that:
“I respectfully disagree with Dr Kumar’s conclusion. [the applicant] has now been off work for 2.5 years. He struggles to leave the house due to anxiety, spending most of the day sleeping, due to avoidance. He has persistent low mood, reduced pleasure, marked weight gain, low energy, hopelessness. He is distracted and disorganised and struggles to function outside of home. He has persistently avoided physiotherapy and psychology sessions. In my opinion, he is currently unable to return to work or he would have done so already by now. His anxiety, impaired concentration, low mood, capacity to reliably attend, long standing avoidance and hopelessness, will not revert to normal functioning simply because his payments are cut.”

Dr Kirthi Kumar, psychiatrist

Dr Kumar provided an independent medical opinion, qualified by the respondent.
In a report dated 28 March 2023, Dr Kumar stated a diagnosis of adjustment disorder, consequential to his work-related back injury.
Dr Kumar stated that the applicant’s prognosis was likely to be status quo, noting that the applicant’s psychological status was chronic and that he had been avoidant of treatment.
In a report dated 1 June 2023, Dr Kumar acknowledged that the applicant had depressive symptom explained by adjustment disorder and chronic pain which seemed to be stable by resting. Dr Kumar stated that at examination, the applicant was lacking confidence and there was a sense of rejection from the workforce due to his perceived stigma of being on WorkCover. However, Dr Kumar stated that “from both clinical and psychological perspective, there was no true incapacity for work. His lack of confidence and sick role must be addressed psychologically and by self-help”. Dr Kumar supported a gradual return to work from a psychiatric perspective. Dr Kumar supported the applicant returning to work in a gradual manner and he suggested: six hours per day, two days per week; increasing weekly by six hours on another day until the applicant returned to work daily; with the applicant returning to full-time work in a fortnight. Dr Kumar recommended that the applicant undergo complementary psychological treatment to support his return to work.
In a report dated 17 October 2023, Dr Kumar stated the following in relation to the applicant’s capacity to perform the roles listed in the vocational assessment:
“[The applicant’s] lack of confidence was due to perceived fear of stigma and thus rejection from work opportunities. He was keen to work. He was looking forward for vocational rehabilitation. There was no evidence to suggest his ADLs were affected. He was able to socialise and interact reasonably well with his family and friends. He was also able to offer support to his friends who were experiencing mental challenges. There was no evidence of cognitive impairment based on available information and gross examination contrary to reported lack of inability to sustain concentration for prolonged period. It is hoped that with time this would only improve. As much as it was noted that he was not actively involved in the management of his psychological challenges, [the applicant] returning to work in some capacity would help his psychological status as the treatment would have involved, not only pharmacological and psychological, but also vocational rehabilitation. From a psychological perspective, [the applicant] was capable of a gradual return to work in any of the roles identified.
Whether he would be physically capable of working in the identified roles or not is something to be confirmed by the NTD and or an orthopaedic/neurosurgeon.
I also recommend seeking further vocational assessment to ascertain if the needs have changed.”
Dr Kumar expressed the opinion that, with adequate management and vocational rehabilitation, the applicant’s condition would improve and Dr Kumar expressed concern that the applicant was still avoiding biopsychosocial management of his condition. Dr Kumar stated that it was impossible to accurately predict if the applicant’s current condition would achieve a complete resolution. Dr Kumar stated that returning to work in a part-time capacity whilst he seeks psychological treatment is an optimal way to help the resolution of the applicant’s condition in the long term.

Dr John Sheehy, neurosurgeon

Dr Kumar provided an independent medical opinion, qualified by the respondent.
In a report dated 19 January 2021, Dr Kumar stated that the applicant continued to be symptomatic following injury to his low back in the course of his work as a truck driver.
Dr Kumar stated that imaging demonstrated a tear in the posterior wall of the L3/4 and L4/5 discs and bilateral pars defect at L5/S1.
In a report dated 18 November 2021, Dr Kumar stated that the applicant had a total incapacity for his original employment. Dr Kumar stated that the applicant was currently “fit for duties that involve no lifting or bending provided he can sit or stand as he wishes, driving truck on smooth surfaces with a modern suspension” although he would not be able to return to his pre-injury role as a truck driver driving overweighted vehicles on rough surfaces.
In a report dated 1 February 2022, Dr Kumar stated that the applicant had significantly improved at the time of his last assessment although the effects of aggravation of an underlying pars defect was improved but continuing. In relation to the applicant’s work capacity, Dr Kumar recommended that the applicant commence duties four hours a day, three days a week under medical supervision and that, if the aggravation continued to settle, his time at work could then be increased. Dr Kumar stated that the applicant should not return to work involving heavy lifting or bending but stated that “Full-time driving in a satisfactory truck over smooth surfaces will be possible”.

Treating medical evidence

The evidence includes various treating doctor reports and clinical records.
By referral dated 20 August 2020, the applicant’s treating general practitioner, Dr Chahoud, referred the applicant for opinion and management of back pain, injury at work, depression and anxiety.
In a report dated 26 October 2020, Dr Rosenthal, consultant occupational physician and injury management consultant, noted that the applicant had a mechanical lumbar pain with disc abnormalities. Dr Rosenthal stated that:
“In the normal course of events his mechanical back pain should resolve with physical treatments and self-managed exercises. However, [the applicant] expressed serious concerns about returning back to his pre-injury job because of the significant vibration and trauma that he is experiencing driving the trucks.
It is unclear at this stage whether any suitable duties will be made available. At this stage, the physical injury should recover but there may be psychological issues that need to be addressed.”
Dr Rosenthal also stated that:
“I had a discussion with Dr Chahoud on 26 October 2020. Dr Chahoud indicated that [the applicant] had seen Dr Moloney and he has been offered a cortisone injection. I agreed that this would be appropriate.
I discussed with Dr Chahoud upgrading [the applicant’s] certificate to allow him to return to suitable duties. Dr Chahoud was agreeable to returning him on suitable duties, initially on reduced hours of 4 hours per day, 5 days per week with a 5kg lifting restriction and no truck driving. Dr Chahoud was concerned about [the applicant’s] weight and said he needs to lose weight. Dr Chahoud also noted some concerns as to whether he will be able to return to his pre-injury duties. At this stage, it was agreed it was too early to make this long term prediction, although I indicated to him that I thought that [the applicant] should recover from this injury and the goal at this stage would still be to return him to pre-injury duties.
In summary, Dr Chahoud was agreeable to upgrading [the applicant’s] certificate to a suitable duties certificate whilst he continues to recover from his back injury. At this stage, his prognosis for recovery is still good but could take another 3 months. If he fails to recover after 3 months, I would be happy to review him with the further information from Dr Moloney.”
A medical certificate issued by Dr Chahoud on 2 December 2020 stated:
“Alex has come to me today with regards his chronic back pain and referall [sic] issues. This has been exacerbated with severe anxiety and the stressful situation that he has been put in recently due to a misunderstanding between himself and the case worker.
Recalling the meeting that I had in my treatment room with Alana and Alex present we encouraged Alex to take on some light duties to assist him with his recovery and anxiety. It was a clear and concise agreement that these duties were to be undertaken from his home as he felt extrememtly [sic] anxious about returning to Allmen offices or the workplace in general.
Alex has been seeing someone with regards his mental health conditions that have worsened in light of recent circumstances. I have recommended professional help for him.”
A report by Dr Peter Moloney, neurosurgeon and spine surgeon, dated 10 June 2022, stated that on 23 May 2022 the applicant reported continuing pain symptoms and asked whether surgical intervention could be performed. Dr Moloney noted that the applicant was significantly overweight and he recommended initial management by weight loss and core strengthening exercises, possibly with injection therapy.
In a report dated 21 April 2022, Prescribe Exercise Australia recommended that the applicant undergo supervised exercise physiology treatment in relation to the diagnosis of lumbo-sacral diffuse disc injury. In a report dated 21 July 2022, Prescribe Exercise Australia reported that the applicant had improved his functional capacity but showed very poor aerobic capacity required for a new workplace role. It stated that the applicant reported a flare-up of symptoms over the past two weeks and recommended he undertake ongoing exercise physiology treatment.
By referral dated 18 January 2023, Dr Haider Jasim, general practitioner, sought Dr Wael Wahaib Aldoorie’s opinion and management in respect of the applicant’s diagnosis of “Adjustment disorder that progressed to Major Depressive Disorder”.
By report dated 23 May 2023, Dr Jasim stated that the applicant reported severe anxiety and depression. Dr Jasim stated that the applicant’s mental health condition and acute anxiety and depression symptoms were barriers preventing the applicant from receiving an upgrade in capacity. Dr Jasim stated that the applicant “was not coping well and he asked for help. I have referred him to see Psychiatrist in March this year”.
By report dated 23 October 2023, Dr Jasim reported that the applicant first began experiencing consequential psychological symptoms in late July 2022. Dr Jasim stated that “On about 11^th of May 2022, [the applicant] was able to handle light physical duties. Since May 2022, [the applicant’s] psychological capacity started to decline till late July when he presented with remarkable psychological work capacity impairment”. In relation to the applicant’s current capacity for work with respect to both his physical injury and consequential psychological condition, Dr Jasim stated “[the applicant] cannot handle light physical duties part time at this point in time. [the applicant] presented with major depression disorder secondary to long term lower back disc injury. Currently he has no psychological capacity”. Dr Jasim stated that the applicant “might be able to achieve gradual return to work from both physical and psychological point of view”.

Certificates of Capacity

Various Certificates of Capacity relevantly certified:
(a)    for various periods from 19 September 2022 to 10 January 2023, in relation to a diagnosis of lumbosacral diffuse disc injury, that the applicant had some capacity for work for four hours per day, three days per week;
(b)    for the period from 10 January 2023 to 8 February 2023, in relation to diagnoses of lumbosacral diffuse disc injury and adjustment disorder with mixed anxiety and depression, that the applicant had some capacity for work for four hours per day, three days per week;
(c)    for the period from 8 February 2023 to 8 March 2023, in relation to a diagnosis of lumbosacral diffuse disc injury, that the applicant had some capacity for work for four hours per day, three days per week, and
(d)    for various periods from 2 May 2023 to 23 May 2024, in relation to diagnoses of lumbosacral diffuse disc injury and severe adjustment disorder, that the applicant had no current work capacity.

Vocational evidence

Procare Vocational Assessment Report

A Vocational Assessment Report dated 22 April 2022 stated that suitable employment options for the applicant were: Delivery Driver; Customer Service Officer; and Assisted School Transport Driver.

Labour Market Analysis Report

A Labour Market Analysis Report dated 22 November 2022 gave labour market evidence in relation to employment options of: Delivery Driver; Customer Service Officer; and Assisted School Transport Driver.
The report stated:
“Based on the available evidence within the labour market, the role of Delivery Driver would be considered as a suitable employment option for [the applicant] to pursue. This judgement is considered in the context of his transferable skills, prior work experience, and current functional capacity. Notably, [the applicant’s] prior experience within truck driving and taxi driving were cited as key drivers behind his likelihood of employment. The employers contacted agreed that this employment history would indicate that [the applicant] possessed the relevant transferable skills of driver safety, time management, experience working to deadlines, and customer service. [The applicant] is eligible for Delivery Driving roles without the need for retraining or any additional certificates as he possesses the only mandated requirement of a current NSW driver's license.
In review of the medical restrictions required for the position, the role of Delivery Driver is suitable for [the applicant] in respect to his current medical restrictions as per the most recent Work Cover Certificate of Capacity. All employers consistently explained that lifting would not exceed a 5-kilogram maximum (limited to pizza boxes), standing would not exceed a 10-minute duration, and postural changes could be made as required. Finally, all employers also confirmed that they were able to accommodate the current requirement of 4 hours per day, 3 days per week.
...
Based on the available evidence within the labour market, the role of Customer Service Officer would be considered as a suitable employment option for [the applicant] to pursue. This judgement is considered in the context of his transferable skills, prior work experience, and current functional capacity. Notably, [the applicant’s] prior experience within business management/ownership and taxi driving were cited as key drivers behind his likelihood of employment. The employers contacted agreed that this employment history would indicate that [the applicant] possessed the relevant transferable skills of customer service, teamwork, time management, and operatopms [sic] experience. [The applicant] is eligible for Customer Service Officer roles without the need for retraining or any additional certificates.
In review of the medical restrictions required for the position, the role of Customer Service Officer is suitable for [the applicant] in respect to his current medical restrictions as per the most recent Work Cover Certificate of Capacity. All employers consistently explained that they were able to accommodate the current requirement of 4 hours per day, 3 days per week.
...
Based on the available evidence within the labour market, the role of Assisted School Transport Driver would be considered as a suitable employment option for [the applicant] to pursue. This judgement is considered in the context of his transferable skills, prior work experience, and current functional capacity. Notably, [the applicant’s] prior experience within truck driving, taxi driving, and operations management were cited as key drivers behind his likelihood of employment. The employers contacted agreed that this employment history would indicate that [the applicant] possessed the relevant transferable skills of driver safety, time management, route planning, verbal communication, and customer service. [The applicant] is eligible for Assisted School Transport Driver roles without the need for retraining or any additional certificates as he possesses the mandated requirement of a valid working with children's check and a current NSW driver's license.
In review of the medical restrictions required for the position, the role of Assisted School Transport Driver is suitable for [the applicant] in respect to his current medical restrictions as per the most recent Work Cover Certificate of Capacity. All employers consistently explained that there would be extended periods of sitting and driving ranging from 90 minutes to 2 hours in duration. Likewise, there would be constant forward reaching, fine motor control, and twisting on an as-needs basis. The employers confirmed intermittent standing and walking were also required when inspecting and exiting the vehicle, and when entering the school administration premises. All employers confirmed that lifting, carrying, pushing, pulling, squatting, and kneeling where not required for the position. Finally, all employers also confirmed that they were able to accommodate the current requirement of 4 hours per day, 3 days per week.”

Other evidence

The evidence also includes various other evidence including financial records.

SUBMISSIONS

Counsel made detailed oral submissions at the hearing, which were recorded. I have considered the submissions in detail.
In summary, Mr Robison submitted on behalf of the applicant:
(a)    there is no dispute that the applicant suffered a back injury and a consequential psychological condition;
(b)    the applicant accepts that the effects of the applicant’s back injury has declined over time, whilst the effects of the applicant’s consequential psychological condition have become more prominent. In any event, the combined effects of the back injury and the consequential psychological condition is that the applicant has remained fully incapacitated during the relevant periods;
(c)    the applicant’s statement details the nature of his work duties, his back injury and the development of his consequential psychological condition and his motivation to return to work. Further, the applicant’s statement evidences that his attempts to return to work subsequent to his back injury were unsuccessful because of back pain and his psychological condition;
(d)    the applicant’s evidence should be preferred to that of Dr Kumar which should not be given weight;
(e)    the evidence as a whole demonstrates that, with the exception of attempts to return to work which were ultimately unsuccessful, the applicant had no work capacity during the relevant period as a result of his back injury and/or, the consequential psychological condition, which became of greater significance over time;
(f) having regard to the evidence as a whole, it is appropriate to award weekly compensation pursuant to s 37 of the 1987 Act, and
(g)    further it is appropriate to make a general order for expenses pursuant to s 60 of the 1987 Act.
In summary, Mr Stockley submitted for the respondent:
(a)    weekly compensation is claimed only in respect of a closed period from
19 September 2022 to 9 April 2023 and the relevant evidence is that which deals with that particular period of time;
(b)    the Certificates of Capacity completed by Dr Jasim are not reliable and should not be given weight. Firstly, despite the applicant engaging in other work for relatively long periods, Dr Jasim did not amend the Certificates of Capacity to reflect that the applicant was actually working: although Dr Jasim certified that the applicant had no capacity to work, the applicant was actually working during the relevant periods. Secondly, the applicant’s evidence in relation to Dr Jasim downgrading his work capacity to nil after the insurer accepted the consequential psychological condition is not strictly admissible because it is outside the period of claim;
(c)    Dr Sheehy accepted, in relation to the physical injury, that the applicant could return to gainful employment gradually and under supervision, provided it did not involve driving on rough surfaces, lifting or bending;
(d)    the applicant has successfully completed a tertiary education even though he has not found employment in computing. However, it is clear that the applicant has a relatively wide transferrable skills and employment options due to his literacy and numeracy competencies. Dr Sheehy accepted that the applicant has a relatively wide range of employment options;
(e)    Dr Kumar adopted a similar approach and accepted the nexus between the back injury and the psychological condition, however Dr Kumar noted that the applicant did not share his prior history of psychological symptoms dating back to at least 2012, which must raise some concern as to the applicant’s reliability. In any event, Dr Kumar supported a graduated return to work. Dr Kumar also acknowledged the applicant’s education and background and wide range of transferable skills;
(f)    various evidence demonstrates that the applicant had capacity to work outside of the relevant claim period. For example, the applicant travelled internationally without any evidence of functional issues, and
(g)    Dr Kumar’s evidence should be given weight. It is unfair to submit that
Dr Kumar’s evidence should not be given weight on the basis that he became a “detective” because Dr Kumar accepted what the applicant told him but simply noted relevant inconsistencies.
In summary, Mr Robison submitted in reply:
(a)    Certificates of capacity which post-dated the period of the claim are relevant to the extent that they do demonstrate chronicity of the applicant’s condition;
(b)    there is no justification for any attack on the professional standing of the applicant’s treating general practitioner in relation to issue of the Certificates of Capacity. Applying the test of Brigginshaw to any criticism of the applicant’s general practitioner issuing Certificates of Capacity, there is no real proof of professional misconduct. Further, there was no change in the general practitioner’s professional judgement;
(c)    in relation to Dr Kumar’s evidence, the ultimate issue to be determined is whether the applicant was incapacitated. If there is an inconsistency, it is of no medical relevance to that issue;
(d)    there should be no discount applied in relation to availability of work because it is clear from the evidence that the applicant was not able to cope with it;
(e)    the mere fact that the applicant travelled does not touch on capacity and does not advance matters as it is not engaged with by medical evidence. Indeed, the applicant conceded that the holiday made him feel better and it translated into motivation to return to work, and
(f)    however the applicant’s attempted return to work was unsuccessful and that failure is the end of the case.

FINDINGS AND REASONS

Entitlements pursuant to ss 33 and 37 of the 1987 Act

The applicant claims weekly compensation pursuant to ss 33 and 37 of the 1987 Act for a closed period from 19 September 2022 to 9 April 2023.
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 37 of the 1987 Act states:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
(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,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Item 9 of Schedule 3 of the 1987 Act states:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has
"current work capacity" if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
"no current work capacity" if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act relevantly states:
“(1) In this Division and in Schedule 3—
...
first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
maximum weekly compensation amount means the maximum weekly compensation amount under section 34.
second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.
work capacity assessment means a work capacity assessment under section 44A.
work capacity decision—see section 43.
worker with high needs means a worker whose injury has resulted in permanent impairment and—
(a)the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b)an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note—
Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
and includes a worker with highest needs.
worker with highest needs means a worker whose injury has resulted in permanent impairment and—
(a)the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b)an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note—
Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.
(2) Words and expressions in this Division that are defined in Schedule 3 have the meanings provided by that Schedule. The regulations may amend Schedule 3.
Note—
Definitions include current work capacity, current weekly earnings and pre-injury average weekly earnings.”
The applicant is aged 41 years. At the time of his back injury, the applicant worked as a truck driver, driving coal trucks over rough surfaces.
In April 2022, the Vocational Assessment Report identified suitable employment options of Delivery Driver, Customer Service Officer and Assisted School Transport Driver. The Vocational Assessment Report set out the applicant’s education, employment history and skills. It is not in dispute, that in 2006 the applicant obtained a tertiary qualification of Bachelor of Computer Science. The applicant commenced but did not complete other tertiary study. The applicant’s employment history includes working as a café business owner, taxi driver/owner and a truck driver. The report stated that the applicant possesses good communication, literacy and computer skills. The report stated that the applicant demonstrated a lack of work conditioning and anxiety. The report stated that the applicant indicated that he did not want to return to work in the IT sector and that he did not feel able to return to truck driving in any capacity because it would aggravate his back.
In November 2022, the Labour Market Analysis Report identified the same suitable employment options.
The applicant’s evidence in respect of the claimed period is that whilst his back pain had improved, his mental health progressively declined. The applicant’s evidence is that, despite his best efforts and a strong work ethic, he struggled to engage with the return to work process. The applicant’s evidence is that he was ultimately unsuccessful in returning to work, at least primarily, because of his psychological state.
There is no evidence that the applicant was engaged in any work during the claimed period.
Various Certificates of Capacity relevantly certified:
(a)    for various periods from 19 September 2022 to 10 January 2023, in relation to a diagnosis of lumbosacral diffuse disc injury, that the applicant had some capacity for work for four hours per day, three days per week;
(b)    for the period from 10 January 2023 to 8 February 2023, in relation to diagnoses of lumbosacral diffuse disc injury and adjustment disorder with mixed anxiety and depression, that the applicant had some capacity for work for four hours per day, three days per week;
(c)    for the period from 8 February 2023 to 8 March 2023, in relation to a diagnosis of lumbosacral diffuse disc injury, that the applicant had some capacity for work for four hours per day, three days per week, and
(d)    for various periods from 2 May 2023 to 23 May 2024, in relation to diagnoses of lumbosacral diffuse disc injury and severe adjustment disorder, that the applicant had no current work capacity.
The applicant’s evidence is that Dr Jasim was waiting for his psychological consequential condition to be accepted prior to downgrading his capacity to nil.
It is the case that Dr Jasim did certify that the applicant had no current work capacity after May 2023 when the insurer accepted the psychological consequential condition. However, that is outside the period of claim.
Dr Jasim provided a report which set out the history of the applicant’s psychological symptoms. Dr Jasim’s report dated 23 October 2023, stated that on about 11 May 2022 the applicant was able to handle light physical duties. Dr Jasim stated that the applicant first began experiencing consequential psychological symptoms in late July 2022. Dr Jasim stated that “Since May 2022, [the applicant’s] psychological capacity started to decline till late July when he presented with remarkable psychological work capacity impairment”. Whilst it is somewhat unclear, it appears from the context of the report as a whole that Dr Jasim was referring to July 2022. I note that the report itself is somewhat inconsistent and, further, those dates do not clearly reconcile with the various Certificates of Capacity.
It is clear from the treating medical evidence that the applicant was referred for psychological treatment prior to and during the claimed period.
In February 2022, independent medical expert, Dr Kumar stated that the applicant’s back symptoms had significantly improved although the applicant continued to experience some symptoms. From a physical perspective, Dr Kumar supported a graduated return to work, with some restrictions.
In March 2023, independent medical expert Dr Kumar diagnosed adjustment disorder.
Dr Kumar stated that the applicant’s prognosis was likely to be status quo, noting that his psychological condition was chronic and that he had been avoidant of treatment. At that time, Dr Kumar did not express an opinion as to the applicant’s work capacity in relation to his psychological condition. However, outside the claimed period, in June 2023 and later,
Dr Kumar supported a gradual return to work from a psychiatric perspective and that the applicant undergo complementary psychological treatment to support his return to work.
In March 2023, independent medical expert, Dr Jacobson diagnosed severe major depressive disorder, in addition to marked anxiety with significant features of agoraphobia and social phobia which did not meet diagnostic criteria. Dr Jacobson stated that the applicant’s mental health difficulties had “snowballed” over the previous three years and that he had been unwell over a protracted period of time. Dr Jacobson also stated that the applicant continued to experience intermittent and unpredictable pain although his back symptoms were very much improved since the accepted injury. At that time, Dr Jacobson expressed the opinion that the applicant did not have any work capacity due to his significant persistent depressive symptoms and that his prognosis was guarded and likely to remain unchanged for the foreseeable future. Outside the claimed period, in September 2023,
Dr Jacobson stated a similar opinion.
I note that the psychological symptoms described by the applicant are generally consistent with the history recorded in the medical evidence.
This is not a case where the evidence is clear cut.
I find the evidence of Dr Jacobson, consultant psychiatrist and independent medical expert, to be particularly persuasive. Dr Jacobson dealt with the applicant’s capacity during the claimed period. I consider that Dr Jacobson’s report is largely consistent with Dr Jasim’s report dated 23 October 2023, although I note inconsistency with the Certificates of Capacity issued during the claimed period to the extent that those Certificates stated that the applicant had current work capacity to work four hours per day, three days per week.
Having carefully considered and analysed the evidence, I am satisfied on the balance of probabilities that the applicant had no work capacity during the period from 19 September 2022 and 9 April 2023 because of the applicant’s accepted back injury and psychological consequential condition. I accept that the psychological consequential condition progressively became the prominent cause of the applicant’s incapacity. I accept that the symptoms of the applicant’s back injury and psychological consequential condition precluded the applicant from being able to return to work, either in the applicant’s pre-injury employment or in the identified “suitable employment”.
As noted above, the parties agreed the applicant’s PIAWE (indexed) in respect of relevant periods in respect of which weekly compensation is claimed as follows:
(a)    from 19 September 2022 to 30 September 2022 at $2,280;
(b)    from 1 October 2022 to 31 March 2023 at $2,360, and
(c)    from 1 April 2023 to 9 April 2023 at $2,460.
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 19 September 2022 to 9 April 2023, pursuant to ss 33 and 37(1) of the 1987 Act as follows, subject to deduction of any amounts previously paid in respect of the relevant period:

Period	Rate of PIAWE (indexed)	Actual weekly earnings (excluding leave)	Deductible amount	Weekly compensation entitlement (subject to deduction of any amounts previously paid in respect of the relevant period)
19/09/22 to 30/09/22	80% of $2,280	Nil	Nil	$1,824
01/10/22 to 31/03/23	80% of $2,360	Nil	Nil	$1,888
01/04/23 to 09/04/23	80% of $2,460	Nil	Nil	$1,968

I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

Entitlements pursuant to s 60 of the 1987 Act

On the basis of my findings above, it is appropriate to make a general order for payment of medical expenses pursuant to s 60 of the 1987 Act.

De-identification

The applicant’s solicitors submitted that it is appropriate for the proceedings to be de-identified on the public record. That was not opposed by the respondent. Having regard to the circumstances of this matter, I consider that it is indeed appropriate that the Certificate of Determination and statement of reasons issued by the Commission is to be de-identified.

Summary

The Commission finds:
(a) the applicant had no work capacity from 19 September 2022 to 9 April 2023 as a result of the accepted back injury and psychological consequential condition.
The Commission orders:
(a) The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37(1) of the 1987 Act as follows (subject to deduction of any amounts previously paid in respect of the relevant period):
(i)$1,824 per week from 19 September 2022 to 30 September 2022;
(ii)$1,888 per week from 1 October 2022 to 31 March 2023, and
(iii)$1,968 per week from 1 April 2023 to 9 April 2023.
(b)    The respondent to pay the applicant’s expenses in accordance with s 60 1987 Act upon production of accounts, receipts or Medicare Notice of Charge;
(c)    The parties have 14 days liberty to apply with respect to the calculations of the weekly compensation amounts, and
(d)    The Certificate of Determination and statement of reasons issued by the Commission is to be de-identified.

[2024] NSWPIC 316

18 June 2024