Cifala v NF Importers Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cifala v NF Importers Pty Ltd [2024] NSWPIC 109
APPLICANT:	Stuart Cifala
RESPONDENT:	NF Importers Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	8 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and medical expenses for psychological injury; whether the worker sustained injury in the course of his employment; whether the worker’s cessation of work was due to an industrial dispute and did not involve a psychological injury; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause injury; reference to Attorney General’s Department v K; whether the worker has had no current work capacity since he ceased work in March 2023; Held – the worker sustained an injury in the course of his employment with the respondent; the worker has had no current work capacity since 30 March 2023; award of weekly payments of compensation and for the payment of medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury in the course of his employment with the respondent by way of a disease injury pursuant to s 4 (b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) with a deemed date of injury of 30 March 2023. 2. The applicant has had no current work capacity since 30 March 2023. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $2,341.80 per week from 30 March 2023 to 31 March 2023 pursuant to s 36 (1) of the 1987 Act; (b) $2,395.50 per week from 1 April 2023 to 29 June 2023 pursuant to s 36 (1) of the 1987 Act; (c) $2,395.50 per week from 30 June 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act, and (d) $2,423.60 per week from 1 October 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act. 2. The respondent is to pay the applicant’s reasonably necessary expenses for treatment for his psychological injury pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Stuart Cifala, the applicant in these proceedings, claims that he sustained a psychological injury while employed as Chief Executive Officer (CEO) with the respondent, NF Importers Pty Ltd.
Mr Cifala claims that during the course of his employment he was subjected to numerous incidents of intimidation, exclusion and differential treatment, worked in an unsupportive work environment, and was exposed to racially derogatory remarks, and as a result sustained a psychological injury.
Mr Cifala ceased work on 29 March 2023 and made a claim for workers compensation benefits. The claim form signed by Mr Cifala on 24 April 2023 identifies the date of injury to be 29 March 2023 and refers to a lunch/meeting on that day includes: “During the meeting I asked the managing director a question, which he erupted into an abusive rage against me. This happened before and I don’t condone this abuse.”
A dispute notice was issued by EML on behalf of the respondent on 5 May 2023 wherein workers compensation liability was disputed on the grounds that Mr Cifala did not sustain an injury in the course of his employment with the respondent, did not have total or partial incapacity for work resulting from any injury, and was not entitled to medical or related treatment for the injury claimed by him. That decision was confirmed in dispute notices dated 22 June 2023, 23 June 2023 and 25 September 2023.
Mr Cifala claims weekly payments of compensation from 30 March 2023 to date and continuing and the payment of the costs of medical treatment for his psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury arising out of or in the course of his employment with the respondent (s 4 of the Workers Compensation Act 1987 (the 1987 Act)),
(b)    the extent of the applicant’s incapacity for work as a result of any psychological injury (ss 32A, 33, 36, and 37 of the 1987 Act), and
(c)    whether the respondent is liable for reasonably necessary medical treatment as a result of in the course of his employment with the respondent (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a hearing on 31 January 2024. 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.
Mr Malouf appeared for the applicant, instructed by Ms Azer. Mr Gaitanis appeared for the respondent, instructed by Ms Israil.
The hearing was conducted by video and was recorded.
Mr Gaitanis on behalf of the respondent objected to the hearing proceeding because
Mr Cifala had not complied with a request to provide business activity statements, copies of bank statements and other details of income from several businesses owned by Mr Cifala.
I rejected this application and my reasons were recorded.
Mr Cifala’s pre-injury average weekly earnings (PIAWE) were agreed at $2,885.
The hearing could not be completed on 31 January 2024 and the following timetable was set for the completion of the hearing:
(a) the respondent to file and serve written submissions by 21 February 2024, and
(b) the applicant to file and serve any written submissions in reply by
28 February 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and taken into account in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 23 January 2024;
(d)    Application to Admit Late Documents filed by the respondent on
19 February 2024 (pursuant to a Direction made at the hearing);
(e)    written submissions filed by the respondent on 21 February 2024;
(f)    written submissions in reply filed by the applicant on 26 February 2024, and
(g)    further written submissions filed by the respondent on 27 February 2024.

Oral evidence

There was no application to adduce oral evidence from the applicant or from any other witnesses, or to cross examine the applicant or any other witnesses, who have provided evidence.

FINDINGS AND REASONS

Whether the applicant sustained a psychological injury in the course of his employment with the respondent

The applicant’s evidence

Mr Cifala has provided statements dated 5 June 2023 and 21 December 2023.
Mr Cifala states that he commenced employment with the respondent in February 2019 after being contacted by Warren Fraser. He states that he had previously been employed with Subaru Australia for four and a half years and accepted a redundancy.
Mr Cifala states that he moved into the role of CEO for the respondent in April 2020. He states that he was responsible for about 100 staff members throughout Australia. He states that he worked 12 hours per day for six days per week. He states that he rarely took annual leave or sick leave.
Mr Cifala states that there was a change in the company environment in the last six months of his work with the respondent, and that he and Warren Fraser were disagreeing on matters. He states that from December 2022 he was kept out of numerous conversations and was not included in significant information by Mr Fraser, despite Mr Cifala being the CEO.
Mr Cifala states that he saw and tried to defuse many abusive outbursts by Mr Fraser, and repeatedly informed Mr Fraser that he could not make certain comments to the staff.
Mr Cifala states that he was subjected to personal abuse by Mr Fraser for the first time on
30 November 2022 when he and Mr Fraser and Darrell Stapleton met at the Young Street Hotel in Newcastle and Mr Fraser told Mr Cifala in an abusive manner to shut my “fucking mouth” or he would put Mr Cifala in his place. Mr Cifala states that he went to use the bathroom and on his return “I did give it back to Warren in the same manner.”
Mr Cifala states that he had three days leave in January 2023 and had 50 missed calls from Mr Fraser over that time, and that he was then abused by Mr Fraser for Mr Cifala not contacting him.
Mr Cifala states that Mr Fraser accused him of being sneaky and going behind Mr Fraser’s back, but that this was not the case.
Mr Cifala states that Mr Stapleton was hired on a full-time basis in January 2023 with a remuneration package significantly higher than his own package. He believes that Mr Fraser made that appointment with the plan of replacing Mr Cifala with Mr Stapleton.
Mr Cifala states that by February 2023 he “felt shit” because he was working harder and harder while staff were dropping off, and he was trying to improve the financial situation of the respondent, but he was being ignored or overruled. He states:
“If I said the golf ball was white, Warren would say it was black with Darrell agreeing with him. I was suffering from anxiety and feeling more and more useless and worthless, but I was trying to ride out the wave.”
Mr Cifala states that on 29 March 2023 there was a meeting between Mr Fraser,
Mr Stapleton, Greg Ryan and himself, and that everything was fine. He states that they all then went to lunch at the Tilbury Hotel. He states that Mr Fraser and Mr Stapleton drank approximately two bottles of wine between them, but he only had two to three mid strength beers.
Mr Cifala states that he asked Mr Fraser about a contract of employment for an employee and Mr Fraser yelled at him: “there you go again getting involved in something that has nothing to do with you”. Mr Fraser also yelled: “listen here, if I fucking tell someone to do something, I don’t what you getting involved, I don’t care who you are fucking in the office.” Mr Cifala also states that Mr Fraser accused him of sleeping with a staff member.
Mr Cifala states that he spoke calmly to Mr Fraser, but Mr Fraser continued to make accusations. He states that he then said a couple of times to Mr Fraser: “clearly you don’t want me any more, so pay me to leave.” Mr Cifala denies in his further statement dated
21 December 2023 that he asked for $100,000 to walk away.
Mr Cifala states that Mr Fraser said that Mr Stapleton “gets paid more than you”, and then
Mr Cifala said: “I have worked six days a week, for four years to turn the business around, that’s how you look after me.” He states that he then called Mr Fraser an ungrateful c..t and a grub. He states that he then said: “I am not going to put up with this and I won’t be returning to work until you provide me with a solution.”
Mr Cifala states that he went to his car and telephoned David Page to inform him of what occurred. He states that he then phoned Laura Dunford, the HR manager, and explained what had occurred and that he would be on sick leave until further notice.
Mr Cifala states that he became aware on 30 March 2023 of an email that had been sent by the company to internal and external stakeholders stating that his employment was terminated, but that this was later retracted to a statement that he was no longer with the business.
Mr Cifala states that he had been seeing a psychiatrist, Dr O’Shea, on a monthly basis since 2014 after a relationship breakup. He states that he did not always feel the need to continue with seeing Dr O’Shea and that he just enjoyed speaking to Dr O’Shea.
Mr Cifala states there were several occasions between April 2020 and November 2022 when he complained to Dr O’Shea about what was happening at work. He states that he obtained a medical certificate from Dr O’Shea on 31 March 2023 stating that he was unfit to work from 30 March 2023 to 21 April 2023.
Mr Cifala states that the reference made by Mr Fraser at the Tilbury Hotel of Mr Cifala sleeping with a staff member was to Jade McEvoy. Mr Cifala states that they were “mates”.
Mr Cifala states that his moods fluctuate from very depressed to being very agitated. He states that he feels very lost and has no sense of direction.

The evidence of other lay witnesses

Warren Fraser

Warren Fraser has provided statements dated 3 May 2023 and 14 June 2023.
Mr Fraser states that Mr Cifala worked from Monday to Friday and on occasional Saturdays. He states that he cannot recall specific details regarding Mr Cifala’s contract such as his hours of work or KPIs.
Mr Fraser states that he first noticed a change in Mr Cifala’s mood in mid 2022. He states that Mr Cifala became generally moody, but Mr Cifala did not disclose any problems to him.
Mr Fraser states: “Prior to 29 March 2023, everything was normal.” He states that everything went well at a meeting on that morning which was attended by himself and Mr Cifala. He states that at the Tilbury Hotel he consumed one alcoholic beverage before a heated discussion occurred between himself and Mr Cifala.
Mr Fraser states that Mr Cifala raised an issue at the hotel which Mr Fraser did not wish to discuss at that time. He states that Mr Cifala raised his voice and that he raised his voice back at Mr Cifala. He states that Mr Cifala then said he would walk away from the company if he was paid $100,000, but Mr Fraser did not respond to this.
Mr Fraser states that Mr Cifala then started to berate him in front of the two other employees and asked what other employees were being paid. He states that Mr Cifala stood up and called him a grub and a c..t and that Mr Fraser would hear from his lawyers. Mr Cifala then left the hotel.
Mr Fraser states that he has had no further contact with Mr Cifala since 29 March 2023. He states that he is not aware of any emails released by the company in relation to Mr Cifala’s employment. Mr Fraser states that Mr Cifala has had conflict with other staff members in the past, although he cannot recall any specific individuals. He states that he knows a few individuals who are not sorry that they will no longer see Mr Cifala.
Mr Fraser states that Mr Cifala’s performance was not great and that he was generally doing an okay job.

Darrell Stapleton

Darrell Stapleton has provided statements dated 3 May 2023 and 25 May 2023. Mr Stapleton states that he is the current Director of Operations for the respondent.
Mr Stapleton states that his relationship with Mr Cifala was professional, that they worked well together, and that he never had any issues with Mr Cifala.
Mr Stapleton states that he noticed that Mr Fraser and Mr Cifala were starting to raise their voices while they were at lunch at the Tilbury Hotel on 29 March 2023. He states that
Mr Cifala said to Mr Fraser that he did not know how to run a business. He states that
Mr Cifala swore at Mr Fraser on a number of occasions, calling him a c..t and a grub.
Mr Stapleton states that Mr Cifala said: “give me $100,000 and I walk away.” He states that Mr Cifala asked him what his salary was, but he did not respond to this question. He states that he got the impression that Mr Cifala was unhappy with his current salary. Mr Stapleton states that Mr Cifala said that he would hear from Mr Cifala’s lawyers, and that Mr Cifala then left the hotel.

Greg Ryan

Greg Ryan has provided statements dated 3 May 2023 and 26 May 2023. Mr Ryan states that he is an employee of the respondent and is part of a leadership team with Mr Fraser,
Mr Page and Mr Cifala.
Mr Ryan states that Mr Cifala did not seem 100% happy at work in the few months before
29 March 2023.
Mr Ryan states that there may have been a beer ordered for them at the Tilbury Hotel on
29 March 2023, but is not sure if those drinks were finished. He states that Mr Cifala asked Mr Fraser about an unrelated matter and got the sense that Mr Cifala was trying “to bait Warren”.
Mr Ryan states that things started to get loud between Mr Fraser and Mr Cifala, and that
Mr Cifala called Mr Fraser a c..t and a grub. He states that Mr Cifala said to Mr Fraser that he had no idea how to run a business and started asking Mr Stapleton how much Mr Stapleton was being paid. Mr Ryan states that Mr Cifala said that he be given $100,000 and he would walk away.
Mr Ryan states that Mr Cifala is overly confident in his abilities and had made questionable business decisions. He states that he also recalls Mr Cifala having prior conflict with the general manager of the Wollongong dealership.

Jade McEvoy

Jade McEvoy has provided a statement dated 4 September 2023. Ms McEvoy states that she was employed as a Group Marketing Manager for possibly three years until she ceased employment in May 2023.
Ms McEvoy states that she had a good working relationship with Mr Cifala, whom she worked with at Subaru before she worked for the respondent. She states that Mr Cifala is “very hands on” and leads by example.
Ms McEvoy states that her relationship with Mr Fraser was “initially neutral”. She states that towards the end of 2022 she noticed Mr Fraser was becoming more avoidant of her and others because Mr Stapleton was around a lot more.
Ms McEvoy states that she sat in on several meetings which involved Mr Fraser and
Mr Cifala and on numerous occasions witnessed Mr Fraser act aggressively when he did not want to hear something that was said by Mr Cifala or others. She states that Mr Fraser would yell, swear, spit and do very animated actions such as hair pulling.
Ms McEvoy states that things started to change once Mr Fraser started bringing different people into the business and there was a lot of confusion and frustration amongst the staff.
Ms McEvoy states that she noticed that Mr Cifala became much quieter and more reserved due to the constant aggressive behaviour and comments made by Mr Fraser.
Ms McEvoy states that she felt she was being pushed out of the company after the incident involving Mr Cifala on 29 March 2023. She states that she was very stressed and anxious when she noticed that people were being interviewed for senior roles in marketing.

Kane Mayer

Kane Mayer has provided a statement dated 15 September 2023. Mr Mayer states that he was employed as an E-Commerce and Digital Assets Specialist with the respondent for one and a half years until he ceased his employment in July 2023.
Mr Mayer states that Mr Cifala was an amazing CEO who put a lot of time and effort into the business. Mr Mayer states that Mr Cifala worked on weekends, and he would always be the first one in and the last one out of the workplace.
Mr Mayer states that he did not witness interactions between Mr Fraser and Mr Cifala but there were occasions when he saw them being confrontational and Mr Fraser making aggressive body signs such as waving his arms around aggressively. He states that he then found Mr Cifala to be very secluded and stressed.
Mr Mayer states that he began to be shut down on communications and have responsibilities pulled away from him after Mr Cifala resigned, and that this led to Mr Mayer also resigning his employment with the respondent.

Laura Dunford

Laura Dunford has provided a statement dated 16 June 2023. Ms Dunford states that she has been HR Group Manager for Fraser Motorcycles since late 2022.
Ms Dunford states that she had a good working relationship with Mr Cifala and that he was understanding, supportive and a good leader.
Ms Dunford states: “Warren does not talk with me. I am not sure why. Warren is just busy, but as the HR Group Manager I am never involved in the discussions with Warren.”
Ms Dunford states that when she commenced her employment with the respondent she heard of arguments between Mr Fraser and Mr Cifala which occurred in front of other people, although no incident reports were ever made. She states that this level of communication between Mr Fraser and Mr Cifala “was certainly not normal for me”. Ms Dunford states that she understood that Mr Fraser and Mr Cifala had a long standing relationship and they would say things in the heat of the moment, but they would then continue as normal.

Ms Dunford states that he has heard of other incidents involving Mr Fraser’s behaviour, but she had not personally witnessed any of this. She states: “I can only say that I have observed Warren’s behaviour and he seems to get along well with certain other employees who work for him.”
Ms Dunford states that she noticed a change in Mr Cifala around February 2023 when he appeared to have lost motivation. She states that she noticed this change after Mr Stapleton was appointed Head of Legal and Business Affairs. Ms Dunford states that Mr Cifala expressed to her that he felt that Mr Fraser was trying to boot him from the company.
Ms Dunford states that she spoke by telephone with Mr Cifala on 29 March 2023. She states that Mr Cifala was emotional, and she could tell in the tone of his voice that he was angry. Ms Dunford states that Mr Cifala said that Mr Fraser “lost his shit” and that Mr Fraser accused Mr Cifala of an affair with Jade McEvoy, which caused Mr Cifala to feel belittled and embarrassed in front of his work colleagues.
Ms Dunford states that Mr Fraser sent an email out to the company on 30 March 2023 advising that Mr Cifala had resigned, although she did not receive this email. She states that she was looped into a second email from Mr Fraser advising that staff were to inform any stakeholders that Mr Cifala was unavailable.

The medical evidence

Dr O’Shea, consultant psychiatrist, writes a short handwritten letter on 31 March 2023 which includes that Mr Cifala “is medically unwell due to work-related stress.”
Dr O’Shea provides answers to questions asked by EML on 17 May 2023 which includes the following:
“Stuart suffered an aggravation of a pre-existing condition of anxiety and depression. His condition was stable and he was fully functional for 4 years at Fraser Motorcycles and working effectively at Chief Executive Officer prior to workplace bullying.”
Dr O’Shea has also provided a report to Mr Cifala’s lawyers dated 13 September 2023.
Dr O’Shea writes:
“Stuart Cifala had an exacerbation of depression and anxiety this year in the context of workplace harassment. He has communicated that the owner of the company Fraser Motor Cycles named Warren on multiple occasions behaved in an intimidatory and hostile manner including using swearing language to Stuart who was at the time appointed as CEO…This created low mood, fearful thoughts, anxious feelings and led him to feeling unable to return to the workplace. This behaviour that was felt by Stuart occurred on multiple occasions before him finally being unable to return to the workplace.”
Dr O’Shea provides the following opinion:
“I believe employment is the main contributing factor to the psychological injury and condition of Major Depression with features of depression and anxiety created by workplace harassment. Stuart had worked for the company for several years and had been promoted to Chief Executive Officer and performed very well in his duties at a high level managing staff and had been performing extremely well and there had been no performance management issues for Stuart prior to him going on sick leave. This indicates that whilst he’d had anxiety and depression previously this was well treated and in full remission before the workplace harassment issue.”
The medical file from Dr O’Shea is also in evidence. The attendance notes made by
Dr O’Shea are handwritten and not easy to read.
There are references between May 2015 and May 2018 of Mr Cifala expressing stress at work, which is during the period in which he worked for Subaru Australia.
There are references to “work stress” for attendances on 17 April 2020, 27 October 2020 and 6 September 2022. I interpret a note on 29 November 2022 to be: “Warren being difficult.” However, there also several notes of “mood good”, including on 7 July 2020,
21 August 2020, 27 October 2020, 22 February 2022, and on 21 February 2023. The entry for 21 February 2023 also includes “maybe changing jobs”.
There are also references in those notes to ‘Jade’. An entry on 28 February 2017 refers to “unrequited love” for Jade, but she is married. There are ongoing references to Jade and how that relationship is going for Mr Cifala. An entry on 21 February 2023 includes: “some challenges with Jade – girlfriend/stuck in bad marriage.”
Dr Virk, psychiatrist, provided a report at the request of EML dated 12 June 2023.
Dr Virk records from Mr Cifala that Mr Fraser would often make offensive remarks about people and Mr Cifala would have to intercede to ensure that there was no litigation or escalation from what occurred. He records that Mr Cifala was working about six days per week. He also records that Mr Fraser would be drunk on most days at work. Dr Virk records that Mr Cifala was excluded from information that he needed for him to do his job throughout February 2023 and that Mr Cifala was constantly thinking about how he was going to pay wages to the staff.
Dr Virk records details of what occurred at the hotel on 29 March 2023 which is consistent with Mr Cifala’s own evidence.
Dr Virk writes that Mr Cifala’s account of the meeting on 29 March 2023 differs greatly from the other witnesses. He writes that Mr Cifala failed to disclose his request for $100,000 and his threat of involving solicitors. Dr Virk opines:
“In my professional opinion, Mr Cifala has not suffered any significant anxiety and depressive symptoms that have resulted in an impairment in his social or occupational functioning. His inability to return to work is related to an industrial dispute and although he has experienced psychological distress in relation to this, I do not believe that he has suffered a psychological injury nor an aggravation of a pre-existing psychological condition.”
Dr Virk does not accept that Mr Cifala experienced a worsening of anxiety and depressive symptoms as a result of Mr Fraser’s behaviour because it appears that Mr Cifala was maintaining his work performance until the incident on 29 March 2023. Dr Virk considers “it is evident” that Mr Cifala is hoping to obtain some monetary benefit from the respondent.
Dr Virk concludes:
“Mr Cifala suffers from a pre-existing psychological condition, namely major depressive disorder, but I do not consider it to have been aggravated in a significant manner that would suggest that it is impairing his functioning.”
Dr Kumagaya, consultant psychiatrist, has provided a report at the request of Mr Cifala’s lawyers dated 18 July 2023.
Dr Kumagaya records details of engagements that Mr Cifala had with the business owner which became increasingly intimidating and belittling, and that there were also racially derogatory remarks made by the business owner. He also records details of what occurred at the hotel on 29 March 2023 which are consistent with Mr Cifala’s own evidence.
Dr Kumagaya found Mr Cifala’s affect was dysphoric, and he noted Mr Cifala to be reduced in mobility, intensity and reactivity.
Dr Kumagaya opines:
“…Mr Cifala’s employment was the main contributing factor to the development of Mr Cifala’s psychological injury, major depressive disorder with anxious distress. Although Mr Cifala did disclose a pre-injury psychiatric background of a depressive and anxious syndrome approximately 10 years ago, this was in full remission at the point of his subject workplace injury. Hence, Mr Cifala’s is most accurately understood as a de-novo psychiatric condition arising as a result of his experience of various workplace incidents and stressors his employment with NF Importers.”
Dr Kumagaya is also asked to comment on the report from Dr Virk dated 12 June 2023 and states that the primary points of difference are in relation to causation and diagnosis.
Dr Kumagaya opines that it is incorrect for Dr Virk to opine that Mr Cifala’s psychological injury was solely due to the events on 29 March 2023 because even on the history obtained by Dr Virk it is clear that Mr Cifala developed symptoms of a depressive and anxious nature well before that date and which occurred in the context of exposure to workplace stressors. Dr Kumagaya also states that Dr Virk’s opinion that Mr Cifala is not suffering from a psychological injury is contradictory to details obtained by Dr Virk and the opinion of
Dr O’Shea and himself.
Dr Kumagaya provides a further report dated 23 December 2023 after he has perused the clinical notes of Dr O’Shea. Dr Kumagaya concludes:
“The extensive medical evidence from Mr Cifala’s treating psychiatrist, corroborates Mr Cifala’s accounts of his workplace injury, as well as the assessment conclusions of the undersigned. It is clear that Mr Cifala suffered from a psychological/psychiatric injury as a result of his exposure to workplace stressors during his employ with NF Importers Pty Ltd.”
Dr Virk has provided two further reports without a further consultation with Mr Cifala. In a report dated 14 December 2023, Dr Virk writes that he has not ignored the symptoms reported to him by Mr Cifala but interpreted them within the broader context of Mr Cifala’s overall functioning. However, he concedes “that Mr Cifala’s condition may have evolved to a diagnosable psychological condition with consequent impairment functioning” and considered that a review of the records from Dr O’Shea would be beneficial to gain a comprehensive understanding of Mr Cifala’s psychological health over the relevant period.
Dr Virk provides a further report dated 25 January 2024 following upon his review of the clinical notes from Dr O’Shea. Dr Virk opines from a review of that material that Mr Cifala’s psychological symptoms appeared to fluctuate depending on stressors in his life, but that it appears that Mr Cifala was quite resilient and was able to maintain his social and occupational functioning. He refers to the notes made on 20 February 2023 wherein
Mr Cifala reports his mood was “good” and he was “coping well”. Dr Virk concludes:
“This suggests a baseline level of coping ability and resilience in the face of life’s challenges, and appears to contradict his claims that he had been exposed to an abusive environment at work over an extended period.”
Dr Virk also concludes:
“Ultimately, based upon the comprehensive review of Mr Cifala’s medical history (in the records provided by Dr O’Shea), it is my professional opinion that the workplace incident dated 29 March 2023 did not result in a significant aggravation of Mr Cifala’s pre-existing major depressive disorder.”

A summary of the submissions made by the parties to this dispute

Mr Malouf on behalf of Mr Cifala refers to statements from co-workers which corroborate the poor behaviour of Mr Fraser in the workplace. Mr Malouf submits that the evidence from
Ms Dunford also corroborates Mr Cifala’s claim of the significant impact that the incident at the hotel on 29 March 2023 had upon him and which caused him to cease work. Mr Malouf also points out that the statement from Ms Dunford was obtained at the request of the respondent but was not included in the Reply.
Mr Malouf submits that Dr O’Shea has seen Mr Cifala over many years and is in no doubt that Mr Cifala has sustained an injury in the course of his employment with the respondent, and this opinion should be preferred and accepted.
Mr Malouf submits that the opinion of Dr Virk should not be accepted. He submits that Dr Virk takes on the role of an advocate rather than a medico-legal doctor by his conclusion that “it is evident” that Mr Cifala is hoping to obtain some monetary benefit from the respondent and by choosing to engage in a consideration of whether Ms McEvoy was Mr Cifala’s girlfriend.
Mr Malouf also submits that the opinion from Dr Virk on causation is equivocal by variously stating in those reports that Mr Cifala has not suffered a psychological injury or aggravation of a psychological injury, that the incident on 29 March 2023 did not result in a significant aggravation of Mr Cifala’s pre-existing major depressive disorder, and that “the incident on 29 March 2023 did not necessarily exacerbate his psychological condition beyond its pre-existing pattern of fluctuation”.
Mr Gaitanis submits Mr Cifala’s evidence has many difficulties, exaggerations and untruths and that his evidence should not be accepted. He submits that where a witness has lied then, in accordance with the principles set out in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Ferreira), the balance of that evidence calls for careful assessment.
Mr Gaitanis submits that it is clear from the clinical notes from Dr O’Shea that Ms McEvoy is more than just a mate and he has attempted to mislead the Commission by relying on
Ms McEvoy as an independent witness.
Mr Gaitanis submits that Mr Fraser, Mr Stapleton and Mr Ryan all state that Mr Cifala made a demand for $100,000 at the Tilbury Hotel, but that it is not referred to in Mr Cifala ’s first statement and is denied by him in his second statement. Mr Gaitanis submits that this evidence makes it more plausible that Mr Cifala made his demand for $100,000 after he had considered resigning (as recorded by Dr O’Shea on 21 February 2023) and was emboldened to confront Mr Fraser. He submits that this is clearly an industrial dispute and not a dispute involving psychological injury, and that this is the conclusion reached by Dr Virk.
Mr Gaitanis submits that Ms Dunford’s evidence does not support that there was toxicity in the workplace because she states that Mr Fraser seemed to get along with certain employees and she is not aware of any prior reports of conflict regarding Mr Cifala or other employees.
Mr Gaitanis submits that Mr Mayer is a disgruntled employee and not an independent witness.

Determination

In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche said in regard to the claim for a psychological injury at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
Mr Cifala describes several events and circumstances during his employment, and especially in the last six months of that employment, which he claims to have been stressful for him, including:
(a)    working 12 hours per day for six days per week and rarely taking annual or sick leave;
(b)    returning to work after three days leave in January 2023 to find he had 50 missed calls from Mr Fraser during that time and being abused by Mr Fraser for Mr Cifala failing to contact him;
(c)    the incident at the Young Street Hotel in Newcastle in November 2022 when
Mr Fraser told Mr Cifala in an abusive manner to shut his “fucking mouth”;
(d)    being excluded from information by Mr Fraser from December 2022 onwards;
(e)    being accused by Mr Fraser of Mr Cifala going behind Mr Fraser’s back, and
(f)    working harder and harder to try and improve the respondent’s financial situation as staff were dropping off.
There are a number of reasons as to why upon reviewing all of the evidence I am prepared to accept Mr Cifala’s evidence and also accept that these events and circumstances which he has described had a stressful impact upon him.
Firstly, although the claim form completed by Mr Cifala on 24 April 2024 states that the injury occurred at the meeting on 29 March 2023, it is apparent from the statement taken by the investigator on 25 May 2023 (just two months after that incident) and signed by Mr Cifala on 5 June 2023 that Mr Cifala was identifying several events, factors and circumstances during his employment which had been causing him stress, especially in the last six months of his employment.
This is not a situation which sometimes arises in these types of claims where a worker endeavours to look back through their history of employment to identify other stressful incidents when they have relied upon a single traumatic incident which becomes the subject of challenge by the employer, or the aggrieved worker has to meet a s 11A defence.
Mr Cifala makes it clear from soon after he makes his claim and is being investigated by the insurer that there were several events and circumstances in the workplace which had caused him stress.
Secondly, at least some of those complaints made by Mr Cifala are corroborated by other witnesses. Mr Mayer states that Mr Cifala would work on weekends, send emails late at night, and would always be the first one in and the last one out of the workplace. He states that he saw Mr Cifala and Mr Fraser being confrontational and Mr Fraser making aggressive body signs such as waving his arms around aggressively.
Mr Gaitanis dismisses Mr Mayer’s evidence as that of a disgruntled ex-employee. However, the evidence which I have referred to from Mr Mayer is no more than observations of what he saw while he worked for the respondent. I do not consider that this particular evidence should be discounted or dismissed.
Ms McEvoy provides evidence of being present at meetings which involved Mr Fraser and
Mr Cifala and seeing Mr Fraser on numerous occasions acting aggressively and yelling, swearing, spitting and making the action of hair pulling. This is similar to the evidence provided by Mr Mayer. Ms McEvoy also refers to a lot of confusion and frustration amongst the staff due to actions taken by Mr Fraser, which also supports Mr Cifala’s evidence.
The respondent has not provided any evidence from any other witnesses, in particular other employees who worked with Ms McEvoy and might have observed her interactions with
Mr Cifala in the workplace, to support its criticism of Ms McEvoy as an independent witness. It can only rely upon references to Ms McEvoy in the clinical notes from Dr O’Shea, which must be treated with caution because Mr Cifala’s perception of that relationship might be quite different to Ms McEvoy’s understanding of that relationship.
I agree with the submission made by Mr Malouf that the evidence from Ms Dunford provides good support for the complaints of difficulties that Mr Cifala was having in his role of CEO, particularly because of her position as HR Group Manager. Ms Dunford is in a good position to observe what was occurring in the workplace, especially as she only commenced her employment in late 2022 and could provide a fresh insight into the dynamics of the workplace.
Ms Dunford states that she found Mr Cifala to be a good leader and to be understanding and supportive. She concedes that she only heard of arguments between Mr Fraser and
Mr Cifala and never received any incident reports, but she accepts that such arguments did occur.
Ms Dunford also concedes that she did not see other incidents involving Mr Fraser’s behaviour, but she did hear of them. Her evidence that Mr Fraser gets along with “certain employees who work for him” is consistent with the evidence from Mr Cifala that Mr Fraser began to favour Mr Stapleton over Mr Cifala and the evidence from Mr Mayer that he began to be shut down on communications and have responsibilities pulled away from him.
In my view, the evidence from Ms Dunford reinforces Mr Cifala’s evidence that he was having difficulties in his dealings with Mr Fraser by late 2022 and early 2023. Ms Dunford’s observations that she noticed a change in Mr Cifala around February 2023 supports Mr Cifala’s evidence that by this time he “felt shit”.
Thirdly, the respondent provides little evidence, especially from Mr Fraser, to counter the evidence provided by Mr Cifala, Mr Mayer, Ms McEvoy and Ms Dunford of the stressful nature of the work being experienced by Mr Cifala.
Mr Fraser states that Mr Cifala worked on occasional Saturdays, whereas Mr Mayer states that Mr Cifala worked on weekends. Mr Fraser’s lack of awareness and curiosity as to the amount of work being performed by Mr Fraser is supported by the evidence from Ms Dunford that she was never involved in discussions with Mr Fraser despite her role as HR Group Manager.

Mr Fraser states: “Prior to 29 March 2023, everything was normal”. However, Mr Fraser does not choose to address the incident which Mr Cifala claims to have occurred at the Young Street Hotel on 30 November 2022 in which Mr Cifala claims that he was verbally abused by Mr Fraser, the 50 phone calls and subsequent abuse which Mr Cifala claims were made by Mr Fraser when Mr Cifala took three days leave in January 2023, or Mr Cifala’s allegations of many abusive outbursts made by Mr Fraser to staff which Mr Cifala had to then defuse.
Even the evidence from Mr Fraser, Mr Stapleton and Mr Ryan regarding the incident at the Tilbury Hotel on 29 March 2023 does not reveal, on my review of the evidence, the significant discrepancies between the evidence of those witnesses and the evidence from
Mr Cifala which form a major part of the respondent’s submissions seeking to deny liability.
Mr Cifala denies that he asked for $100,000 to walk away, but he does state in his first statement that he said a couple of times to Mr Fraser: “clearly you don’t want me anymore, so pay me to leave.” So while there is a conflict in the evidence from the four witnesses who were present at that lunch as to whether Mr Cifala specifically demanded $100,000 to leave the respondent, it can be accepted that Mr Cifala wanted a payment to leave.
Fourthly and finally, there are notes made by Dr O’Shea within the last seven months during which Mr Cifala worked for the respondent which refer to problems that Mr Cifala was having at work. The notes for 6 September 2022 include: “stress at work”, with reference to a breach of privacy and a colleague having his or her employment terminated. The notes for
29 November 2022 include: “Warren being difficult.”
In addition to those notes, Dr O’Shea also writes in his report dated 13 September 2023 that he understood that Mr Cifala communicated “on multiple occasions” that Mr Fraser behaved in an intimidatory and hostile manner, including using swearing language to Stuart.
I do note that there is no reference to stress at work when Mr Cifala attends Dr O’Shea on
21 February 2023 and 21 March 2023, and the notes on 21 February 2023 include “mood good” and “coping well”.
However, I consider a conclusion can be drawn from what is contained in those notes and the subsequent report from Dr O’Shea that Mr Cifala was having difficulties and was experiencing stress at work, especially during the seven month period leading up to the incident on 29 March 2023.
I therefore accept from a review of the evidence from Mr Cifala, the evidence from Mr Mayer, Ms McEvoy and in particular from Ms Dunford, the lack of evidence from witnesses relied upon by the respondent to dispute the complaints made by Mr Cifala, and the contemporaneous records made by Dr O’Shea, that there were actual events in the workplace, especially in the last six months or so when Mr Cifala worked for the respondent, which Mr Cifala perceived to be hostile and which were capable of causing him to suffer an aggravation of a pre-existing psychological disease.
It is nonetheless also necessary for there to be medical evidence to support a finding as to the cause of the psychological injury sustained by Mr Cifala.
I prefer the opinion provided by Dr O’Shea on the cause of the psychological injury sustained by Mr Cifala because he is in the best position to provide such an opinion given that he has seen Mr Cifala on a regular basis since 2014. He has had the opportunity to monitor the condition of his patient and be aware of those factors in Mr Cifala’s life which had the potential to exacerbate an ongoing condition of anxiety and depression.
The material from Dr O’Shea, his answers to EML on 17 May 2023, and the opinion on causation contained in his report dated 13 September 2023 support a finding that Mr Cifala sustained a disease injury by way of an aggravation and exacerbation whereby his employment is the main contributing factor to that aggravation and exacerbation as provided for by s 4 (b)(ii) of the 1987 Act.
The application of s 4 (b)(ii) has been well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The long term treatment of Mr Cifala by Dr O’Shea means that Dr O’Shea is aware of both work and non-work related factors which could aggravate his patient’s psychological condition, and being aware of these factors, Dr O’Shea concludes that Mr Cifala’s employment is the main contributing factor to the psychological injury and condition of major depression with features of anxiety and depression.
I prefer the opinion of Dr O’Shea over that of Dr Virk because of the good position that
Dr O’Shea has in providing an opinion on causation. However, the opinions provided by
Dr Virk in his three reports do evolve, after reviewing Dr O’Shea’s records, to a concession “that the workplace incident dated 29 March 2023 did not result in a significant aggravation of Mr Cifala’s pre-existing major depressive disorder.”
This concession is made after Dr Virk’s initial opinion that Mr Cifala had not suffered a psychological injury nor an aggravation of a pre-existing psychological condition. Yet even with this concession, Dr Virk does not engage in the evaluative process referred to in AV v AW to determine if the workplace incident or any other incidents during Mr Cifala’s employment comprise the main contributing factor to the aggravation of Mr Cifala’s psychological condition.
I am satisfied from a review of the lay evidence and my preference for the opinion of
Dr O’Shea that Mr Cifala meets the definition of a disease injury within s 4 (b)(ii) of the 1987 Act, being that Mr Cifala’s employment has been the main contributing factor to the aggravation and exacerbation of his psychological condition. The deemed date of injury should be 30 March 2023 which is the first date of Mr Cifala’s incapacity for work.

The claim for weekly payments of compensation

The applicant’s evidence

In his statement dated 5 June 2023, Mr Cifala states that his plan is to keep his mind occupied, and that he does have hobbies and interests with cars and motorbikes, and that there is work which needs to be completed on the family property at Wyong Creek.
In his statement dated 21 December 2023, Mr Cifala states that he is not ready to re-enter the workforce in his current psychological state. He states that his moods fluctuate from being very depressed to being very agitated. He states that he feels very lost and has no sense of direction.

The medical evidence

Dr O’Shea has issued Certificates of Capacity dated 27 April 2023, 8 August 2023,
1 September 2023, and 12 December 2023 which certify Mr Cifala as having no current work capacity. Those certificates state that it is unsafe for Mr Cifala to go back to the workplace due to workplace intimidation.
In his report dated 13 September 2023, Dr O’Shea writes: “I don’t believe that Stuart Cifala has the current capacity to return to work at Fraser Motor Cycles because of his condition and also because of the workplace behaviour that was exhibited towards him.”
Dr Kumagaya in his report dated 18 July 2023 records that Mr Cifala’s employment history has included sales manager, assistant financial controller, business owner, national business and development manager and chief executive officer. He records that Mr Cifala “continued to experience prominent challenges in his psychosocial capacity towards self-care and personal hygiene, engagement in social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability.”
Dr Kumagaya opines: “Given Mr Cifala’s ongoing depressive and anxious symptoms in addition to their correlative psychosocial impairments, he currently does not present with a work capacity.”
Dr Kumagaya also opines in that report: “Considering Mr Cifala’s age, education qualifications, training, experience, employment skills, and individual characteristics,
Mr Cifala does not present with a work capacity towards any occupations.”
In his report dated 12 June 2023, Dr Virk records that since 29 March 2023 Mr Cifala has driven to Wagga Wagga to meet some friends and that he has been working and doing other duties on his farm.
Dr Virk found Mr Cifala’s affect to be euthymic and reactive, and that Mr Cifala’s thought content was notable for a strong sense of perceived injustice about workplace events.
Dr Virk opines that Mr Cifala has full capacity to return to pre-injury or alternate work. He considers that it is more likely that Mr Cifala will be able to return to work with an alternate employer once the industrial issues with the respondent have resolved. Dr Virk opines:
“Ultimately, I regard Mr Cifala’s non-attendance at work to be a choice that he has made due to a strong sense of perceived injustice about the way Mr Fraser has been running the business.”
In his report dated 14 December 2023, Dr Virk refers to various bank statements which
Mr Cifala has produced in the course of this dispute. Dr Virk refers to records of purchases at multiple restaurants, bars and hotels, and from stores such as Repco and Bunnings. Dr Virk opines:
“The analysis of Mr Cifala's bank statements, provides substantial insight into his daily activities and capabilities. The statements show a pattern of behaviour that includes regular travel, dining at various restaurants, and making purchases from a range of stores like Repco, Bunnings, and Coles, as well as frequenting different bars and hotels. These activities not only demonstrate Mr Cifala's independence in performing daily tasks but also suggest his ability to manage financial transactions, plan outings, and navigate social interactions effectively. These skills are transferrable to a wide range of employment contexts.”
Dr Virk concludes:
“In summary, considering Mr. Cifala's current level of functioning as evidenced by his daily activities and financial transactions, along with the lack of significant cognitive, interpersonal, or emotional deficits, it is my opinion that he has full capacity to engage in alternate employment.”

A summary of the submissions made by the parties to this dispute

Mr Malouf submits that the medical evidence relied upon by his client more than adequately discharges his onus of proving that he is presently incapacitated for work.
Mr Malouf submits that the analysis of Mr Cifala’s bank statements in the second report from Dr Virk is crude and unpersuasive, and that such analysis is premised entirely on supposition which cannot be proven by any supportive evidence.
Mr Gaitanis submits that Dr Kumagaya barely deals with the issue of capacity in his report dated 18 July 2023 other than to conclude that Mr Cifala “does not present with a work capacity.” He submits that Mr Cifala’s “prominent challenges” towards self-care, engagement in social activities, travel, concentration and employability lack specificity and detailed contextualisation.
Mr Gaitanis submits that the analysis made by Dr Virk of Mr Cifala’s bank statements demonstrates Mr Cifala having independence in performing daily tasks and managing financial transactions, planning outings and navigating social interactions, which can be transferable to a wide range of employment contexts.
Mr Gaitanis submits that Mr Cifala’s involvement in excavating and duties on his farm indicates a capacity for sustained physical and mental effort.

Determination

“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(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 includes a definition of “suitable employment” as:
“‘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.”
The opinion from Dr Kumagaya on Mr Cifala’s capacity for work is of no assistance. He baldly states that Mr Cifala “does not present with a work capacity” without providing any explanation for this conclusion other than to refer to “psychosocial impairments” in the most general of terms.
Dr Kumagaya is aware that Mr Cifala has been employed in the past in financial, sales and managerial roles but makes no attempt to consider whether the skills and experience from those past roles would at least allow for Mr Cifala to undertake some work at a menial level, such as basic clerical work, accounts work or retail work, which is required by the application of s 32A of the 1987 Act.
However, I also do not consider that Dr Virk provides assistance on the question of
Mr Cifala’s capacity for work. Dr Virk’s opinion in his first report that Mr Cifala has full capacity to return to pre-injury or alternate work is based upon his conclusion that Mr Cifala’s inability to return to work is related to an industrial dispute and a conscious decision made by Mr Cifala not to return to work with the respondent. I have provided my reasons as to why I do not accept that conclusion and why I am satisfied that Mr Cifala did sustain a psychological injury in the course of his employment with the respondent.
I consider it is unsafe and unfair to rely upon the conclusions reached by Dr Virk in his third report from his analysis of Mr Cifala’s bank statements without Dr Virk speaking directly with Mr Cifala in regard to those statements and allowing for a response from Mr Cifala.
The opinion provided by Dr O’Shea in his report dated 13 September 2023 that he does not believe that Mr Cifala has current capacity to return to work is limited to the question of whether Mr Cifala can return to work with the respondent. Dr O’Shea does not engage in a consideration of whether there is employment which Mr Cifala might be suited for as prescribed by s 32A.
There are the Certificates of Capacity issued by Dr O’Shea throughout the course of 2023 which certify Mr Cifala as having no current work capacity. Caution needs to be exercised when Certificates of Capacity show little or no change in the details in those certificates over an extended period of time, unless there is a report or additional material which supports what is set out in those certificates. President Keating said in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
However, just as I have accepted that Dr O’Shea is in a very good position to provide an opinion on causation because of his long term treatment of Mr Cifala, I also consider that this extends to the opinion he provides on Mr Cifala’s capacity for work. Dr O’Shea has had the option of setting out some restrictions on Mr Cifala’s capacity for activities in those certificates but has not been prepared to do so and has continued to certify that Mr Cifala has no current work capacity.
It might well be that with almost 12 months having now passed since Mr Cifala ceased work due to his psychological injury, he may be able to do some basic, low skilled work such as general clerical duties or cleaning work or process work. However, the medical evidence which I preferred on the question of Mr Cifala’s capacity for work supports a finding that he has had no current work capacity since 30 March 2023.
The parties agreed that PIAWE is $2,885. Section 82A increases that amount to $3,004.40 as of 1 April 2023 and to $3,075.65 as of 1 October 2023. The reduction of those amounts by 95% pursuant to s 36 of the 1987 Act and then by 80% pursuant to s 37, still make those amounts greater than the maximum weekly compensation amount set out in s 34. Section 34 (1AA) provides that a weekly payment of compensation is not to exceed the maximum weekly compensation amount.
The award of weekly payments of compensation will therefore be as follows:
(a)    $2,341.80 per week from 30 March 2023 to 31 March 2023 pursuant to s 36 (1) of the 1987 Act;
(b)    $2,395.50 per week from 1 April 2023 to 29 June 2023 pursuant to s 36 (1) of the 1987 Act;
(c)    $2,395.50 per week from 30 June 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act, and
(d)    $2,423.60 per week from 1 October 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act.

The claim for medical expenses

There will be an order that the respondent is to pay for Mr Cifala’s reasonably necessary medical treatment for his psychological injury pursuant to s 60 of the 1987 Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established