Garthon v Specialized Environmental Services Pty Ltd t/as Trent Garthon Plumbing

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Garthon v Specialized Environmental Services Pty Ltd t/as Trent Garthon Plumbing [2023] NSWPIC 447
APPLICANT:	Trent Garthon
RESPONDENT:	Specialized Environmental Services Pty Ltd t/as Trent Garthon Plumbing
MEMBER:	John Turner
DATE OF DECISION:	5 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; claim for weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) as well as medical expenses pursuant to section 60; applicant alleged that he sustained psychological injury due to nature and conditions of employment; whether the applicant is a “worker”; whether the applicant is prevented from bringing the claim and recovering compensation pursuant to sections 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); date of injury sections 15 and 16 of the 1987 Act; whether the applicant sustained an injury pursuant to section 4(b) of the 1987 Act; main contributing factor; incapacity; weekly benefits; sections 36 and 37 of the 1987 Act; Rules 6 and 68 Personal Injury Commission Rules 2021 (the Rules); sections 3 and 42 Personal Injury Commission Act 2020 (PIC Act); pre-injury average weekly earnings; clause 2 schedule 3 of the 1987 Act; whether past medical expenses reasonably necessary as a result of injury; section 60 of the 1987 Act; Lee v Lee’s Air Farming; Harris v Cudgegong Soaring Pty Limited; Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance; P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson, GIO Workers Compensation Ltd v GIO General Ltd, Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd, Gow v Patrick Stevedores No 2 Pty Limited, AV v AW, Ariton Mitic v Rail Corporation of NSW, Cronje v Leighton Contractors Pty Ltd considered and applied; Held – that the applicant is a “worker” for the purposes of the workers compensation legislation; that the applicant is not prevented by sections 254 and/or 261 of the 1998 Act from bringing this claim or recovering compensation; that the applicant has sustained a psychological injury arising out of or in the course of his employment with the respondent; that the applicant’s employment was the main contributing factor to the psychological injury; that the applicant suffered from no incapacity for work between 1 July 2019 and 31 October 2020; that the applicant was partially incapacitated for work from 1 November 2020 to 30 June 2021.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant is a “worker” for the purposes of the workers compensation legislation. 2. That the applicant is not prevented by ss 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) from bring this claim or recovering compensation. 3. That the applicant has sustained a psychological injury arising out of or in the course of his employment with the respondent. 4. That the applicant’s employment was the main contributing factor to the psychological injury. 5. That the applicant suffered from no incapacity for work between 1 July 2019 and 31 October 2020. 6. That the applicant was partially incapacitated for work from 1 November 2020 to 30 June 2021. The Commission orders: 7. Award for the respondent in respect to weekly benefits compensation for the period 1 July 2019 to 31 October 2020. 8. The respondent is to pay the applicant the following: a. $879.24 per week from 1 November 2020 to 31 January 2021 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); b. $879.24 per week from 1 February 2021 to 31 March 2021 pursuant to s 37 of the 1987 Act, and c. $904.56 per week from 1 April 2021 to 30 June 2021 pursuant to s 37 of the 1987 Act. 9. The respondent is to pay pursuant to s 60 of the 1987 Act the accounts of Dr Harry Ibrahim for services provided on 30 November 2020, 1 February 2021, 24 February 2021, 22 March 2021, 9 August 2021, 25 October 2021 and 23 November 2021 excluding Tax invoice, number 10362RCPTN, issued on 23 November 2021 in the amount of $195.50.

STATEMENT OF REASONS

BACKGROUND

Trent Garthon, the applicant, alleges that he sustained a psychological injury on the deemed date of 1 July 2019 due to the nature and conditions of his employment with Specialized Environmental Services Pty Ltd t/as Trent Garthon Plumbing, the respondent, between early 2011 up until 1 July 2019 due to performing long hours and work commitments which resulted in him suffering work stresses due to an insurmountable workload which was a substantial contributing factor to him developing an adjustment disorder and subsequently family problems and drug abuse.
The applicant is the sole director of the respondent.
In these proceedings the applicant seeks weekly benefits compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 1 July 2019 to 30 June 2021. The applicant also seeks an order for the payment of medical expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a)    the date of the alleged injury;
(b) whether the applicant is a worker as defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(c)    whether the applicant is a deemed worker as defined by cls 1, 1A, 2 and/or 2A of the 1998 Act;
(d) whether employment was the main contributing factor to the contraction of a disease injury as required by s 4(b) of the 1987 Act;
(e) whether employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury as required by s 4(b) of the 1987 Act;
(f) that the applicant is entitled to workers compensation because he failed to give notice of the claimed injury and make a claim for compensation within the time prescribed as required to by ss 254 and 261 of the 1998 Act;
(g)    whether the applicant had/has an incapacity due to the claimed injury;
(h)    the applicant’s pre-injury average weekly earnings (PIAWE), and
(i)    whether the medical or related treatment is reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation conference/arbitration hearing before me on 19 June 2023. Mr John Dodd, counsel, instructed by Mr David McCabe, solicitor, appeared for the applicant, who was present. Mr John Gaitanis, counsel, appeared for the respondent, instructed by Ms Emily Angwin, solicitor. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents; and
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 9 June 2023 filed by the applicant and attached documents, and
(d)    Application to Admit Late Documents dated 13 June 2023 filed by the respondent and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

Oral submissions were made on behalf of the applicant with written submissions being provided by the respondent and the applicant in reply.

FINDINGS AND REASONS

Consideration and findings

The applicant, alleges that he sustained a psychological injury on the deemed date of 1 July 2019 due to the nature and conditions of his employment with the respondent, between early 2011 up until 1 July 2019 due to performing long hours and work commitments which resulted in him suffering work stresses due to an insurmountable workload which was a substantial contributing factor to him developing an adjustment disorder and subsequently family problems and drug abuse.
The applicant seeks weekly benefits compensation pursuant to ss 36 and 37 of the 1987 Act from 1 July 2019 to 30 June 2021. The applicant also seeks an order for the payment of medical expenses pursuant to s 60 of the 1987 Act.

Worker

The applicant bears the onus of proving that he is a worker.
Mr Dodd submitted on behalf of the applicant that the applicant is a classic working director and a worker for the purposes of the workers compensation legislation. He physically carried out work for the respondent for which he was remunerated, and that remuneration was subject to income tax. That from the time that the respondent company was set up in 2008 the applicant received payments from the respondent which in the financial year ending 30 June 2018 were about $82,000 from which tax was deducted.
It was submitted on behalf of the respondent that there is insufficient evidence to support that the applicant is a worker or a deemed worker for the purposes of the workers compensation legislation. The respondent submitted that the applicant appears to have primarily provided services in the capacity of a subcontractor under the direction of other companies.
In making its submissions the respondent noted that the applicant did not pay himself a regular wage or salary; and rather instead states that he covers his personal expenses by using a company credit card on an ad-hoc basis and that his accountant calculates his income when preparing the respondent’s business activity statement (BAS statement). That the accountant would go through the company credit card statements to determine what expenses are personal and what expenses are company related.
The respondent also submitted that the applicant was unable to provide any of the contracts for works provided by the respondent to various entities or timesheets or run sheets demonstrating days worked or hours worked.
In the respondent’s submission there is some doubt as to whether the applicant meets the definition of “worker”. In the respondent’s submission the applicant has primarily performed work and provided services in the capacity of a subcontractor under the direction of other companies. The respondent noted that the applicant’s tax returns show earnings from the respondent for the financial years 2015 to 2018 and thereafter he appears to have only received dividends from the insured on the available tax returns.
On behalf of the applicant it was submitted that he performed the core duties of the business and that the mode of remuneration is only one of the indicia in determining worker. The applicant submitted that the informal method of payment is of no importance and that given the fact that the applicant was a director of the insured the informal method of payment is not surprising.
It is established law that directors of a company can also be employees of the same company.[1]
[1] Lee v Lee’s Air Farming [1961] AC 12.
Whilst the applicant was the sole director of the respondent it is the applicant’s evidence, and it is not disputed, that he also performed the day to day physical duties of the respondent’s core business, in addition to his directorial function.
It is the applicant’s evidence that in 2008 he won a tender on the Barangaroo Headland Park Project and that it was a condition of the contract that he set up a company and have workers compensation insurance. That he was a working director of the respondent and that since commencing the respondent he has not worked as a sole trader and not worked in any alternative employment.
It is also the applicant’s evidence that he did not pay himself wages on a weekly or fortnightly basis. That the respondent did not issue payslips to him and that he did not make payments of wages to himself from a company bank account into a personal bank account. The applicant covered his personal living expenses by using a company credit card that had his name on it. The applicant’s accountant would calculate his income on a quarterly basis when the respondent’s BAS statement was prepared. At the end of each quarter the accountant would go through the company credit card statements to determine which expenses were personal and which were related to the company. At the end of each financial year the accountant would prepare the applicant’s personal income tax return and the tax return for the respondent.
The applicant’s personal tax returns for the financial years 2015 to 2021 are in evidence. As noted by the respondent in its submissions the applicant’s personal tax returns for the financial years 2015 to 2018 declare wages and salary paid to him by the respondent whilst his personal tax returns for the financial years 2019 to 2021 do not declare any income from the respondent by way of wages or salary; rather the applicant received dividends from the respondent.
I accept the applicant’s submission that the informal method of payment is of no importance.
Section 9(1) of the 1987 Act relevantly provides:
“A worker who has received an injury …. Shall receive compensation from the worker’s employer in accordance with this Act.”
Section 4 of the 1998 Act relevantly defines “worker” as follows:
“…worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)...”
For present purposes the essential feature in the s 4 definition of “worker” is the existence of a “contract of service” between the respondent and the applicant.
For there to be a contract of service there must be payment of a wage or other remuneration, otherwise there will be no consideration.[2] It is irrelevant as to how that wage or remuneration is paid. For example in Harris v Cudgegong Soaring Pty Limited [1995] NSWCC 18; (1995) 11 NSWCCR 678, the provision of accommodation was held to be consideration.
[2] Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] QB 497 at [515].
The applicant’s tax returns for the financial years ending 30 June 2019 to 30 June 2021 do not record any payment of wages to the applicant from the respondent. The applicant did however receive remuneration and therefore consideration in the form of dividends. It is the applicant’s evidence, and it is not disputed, that the applicant continued to perform the physical duties core duties of the respondent after 1 July 2018. I am therefore of the opinion that the applicant’s employment continued on after 1 July 2018 even though he did not receive his remuneration in the form of wages. If I am incorrect in this conclusion there is no effect on the outcome on the matter due to the application of ss 15 and 16 of the 1987 Act which provide that any compensation is to be paid by the employer who last employed the worker in employment to the nature of which the disease was due or that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
For the above reasons I find that the applicant was a “worker” for the purposes of the workers compensation legislation.

Date of injury

The applicant relies on a deemed date of injury of 1 July 2019.
The respondent submits that s 16(1)(a) of the 1987 Act provides that in the case of a disease of gradual process the injury shall be deemed to have happened at the time of the workers incapacity or alternatively when the claim is first made. The respondent submits that it is the applicant’s evidence that he started to suffer from depression from the middle of 2015, that Dr Rastogi took a history of the applicant taking time off as early as 2011 due to his psychological condition, that the applicant had further time off in or about 2016, that there is a history of the applicant struggling in August 2017 with him not being able to get out of bed and not able to attend work for four days, that the applicant attended a health retreat in Thailand in November/December 2017, that the certificates of capacity refer to a date of injury of 7 October 2021 and that he had previously notified an injury with a deemed date of 1 July 2015. The respondent submits that it is not clear what, if anything occurred on 1 July 2019.
The applicant submits that ss 15 and 16 of the 1987 Act are only directed towards deeming a date of injury and identifying which employer is liable for that injury and that as the applicant was only employed by the respondent the deemed date of injury is largely irrelevant. The applicant further submits that it is clear that he has suffered some incapacity from 1 July 2019 and thus that would appear to be the relevant date of injury. There may be earlier dates of injury in 2015 and 2017 but these are irrelevant to the current claim as the applicant was able to keep working without loss of income up to 2019. Whilst there is a history of anxiety and depression as early as 2011, there is no evidence of any incapacity at that time. The certificates of capacity are only from when he started attending Dr Ibrahim when he finally had to cease work completely.
Section 15(1) of the 1987 Act states:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 16(1) of 1987 Act states:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
In P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson [2000] NSWCA 214; (2000) 49 NSWLR 481 (Alfonso) the worker developed pain in her arms and neck in the early 1990’s whilst working for the first employer. The worker was put off work in 1993 and the insurer paid weekly compensation. The worker moved to the second employer where her symptoms worsened and she again had time off work in 1995 and was paid compensation. She worked for two weeks in February 1996 but ceased work again and did not return to work.
At first instance Truss J relying on what had been said by Sheller JA in GIO Workers Compensation Ltd v GIO General Ltd (1995) 12 NSWCCR 187 held that incapacity for the purposes of s 16 was a reference to incapacity for which compensation was claimed finding that the relevant date of incapacity was the commencement of the workers inability to earn wages she would otherwise have earned for injury finding a date of injury of 12 February 1996. On appeal Priestly JA (Clarke AJA agreeing) said at [30]:
“…in the case which the trial judge relied on (see pars 4 and 13 above) this court previously reached substantially the same conclusion in regard to the meaning of incapacity in s 15 as I have done in regard to s 16. Sheller JA, at 12 NSWCCR 196 said, in regard to the phrase ‘…at the time of the worker’s…incapacity’ (which is the same in both s 15(1)(a)(i) and s 16 (1)(a)(i) ‘that I have no doubt is a reference to the incapacity for which compensation is claimed’”.

In Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 the worker initially suffered incapacity in 1985, he thereafter worked for others and ultimately ceased work due to the work-related condition in 1986. The Court of Appeal held the last employer in 1986 to be liable. Sheller JA stated at [376]:
“…if there is a later occurrence of incapacity and then a claim for weekly compensation for a period which starts thereafter, in my opinion, section 15(1)(b) applies to make the employer, which employed the worker in employment to the nature of which the disease was due, at the time of, or last before, the incapacity primarily liable”
The incapacity for which the applicant claims weekly compensation is alleged to have commenced from 1 July 2019. The date of injury relied upon, given the applicant’s claim as to when incapacity is alleged to have commenced, is in accordance with the law in respect to the deeming of dates of injury pursuant to ss 15 and 16 of the 1987 Act. As will be discussed further below there is an issue as to whether incapacity commenced at the time alleged by the applicant however the respondent has not raised any issue in respect to insurance coverage and therefore, I accept the applicant’s submission that the date of injury is largely irrelevant.

Notice of injury

The respondent submits that pursuant to s 254 of the 1998 Act compensation is not recoverable unless notice of the injury is given to the employer as soon as possible after the injury has happened. That failure to give notice is not a bar to the recovery of compensation, if it is found that there are special circumstances provided by s 254(3), which include the workers mistake, ignorance or other reasonable cause. Further s 261 of the 1998 Act provides that a claim for compensation may not be recovered unless a claim has been made withing six months of the injury.
The respondent submits that it is the applicant’s evidence that his symptoms arose in July 2015 although Dr Rastogi took a history of the applicant taking time off in 2011 however the applicant did not give notice of his injury until March 2021 and the claim form is dated 12 November 2021.
The respondent submits that the applicant’s evidence that it was not until he consulted with his solicitors in late 2020 that he was aware he could claim workers compensation is not a sufficient explanation or reason. The respondent submits that it is entirely plausible on the evidence that any condition suffered by the applicant was due to other factors unrelated to work and it is only much later that the applicant has sought to attribute his condition to a compensable one under the 1987 Act.
The applicant submits that as a working director the applicant informed himself of the occurrence of injury as it was happening and what the applicant was unaware of was that he had an entitlement to claim workers compensation benefits until he spoke to his solicitor in late 2020. The applicant submits that s 254 of the 1998 Act has been satisfied as the applicant has given notice of the injury as soon as possible after the injury and before he left employment. The applicant also submits that in any event failure to give notice would not bar recovery as there are special circumstances pursuant to s 254(3) being:
(a)    the respondent has not suffered any prejudice;
(b)    ignorance, mistake or other reasonable cause: the applicant was unaware of any entitlement to compensation until he saw his solicitor, and
(c)    the respondent had knowledge of the injury as the applicant was a Director of the respondent.
Section 254 of the 1998 Act relevantly states:
“(1)    Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances—
(a)the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e)the employer has contravened section 231,
(f)the injury has been treated in a first aid room at the place of work,
(g)if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
Section 254 requires notice of injury to be given to the “employer” as soon as possible after the injury has happened and before he voluntarily left the respondent’s employment. The applicant is the sole director of the respondent and therefore he would have become aware of the injury in his capacity as the representative of the respondent, and therefore the respondent became aware of the injury, at the same time as the applicant did in his capacity as an employee of the respondent.
Section 254(2) relevantly provides that failure to give notice of injury as required by s 254(1) is not a bar to the recovery of compensation if in proceedings to recover the compensation it is found that there are special circumstances. Section 254(3) provides a list of relevant circumstances.
The respondent has not submitted that they are in any way prejudiced in respect to any alleged failure to give notice of the injury. It is the applicant’s evidence that he did not know that he could make a claim on his own company, the respondent, until he spoke to his solicitor in late 2020 and that he then contacted his general practitioner (GP) Dr Harry Ibrahim to obtain medical reports and notes about his depression. On 13 October 2020 the applicant attended on the medical practice of Eternal Doctors. The clinical note of the attendance records that the applicant had expressed an intention to investigate making a claim on his insurance.
I find that notice of the injury was given to the respondent in accordance with s 254. If I am incorrect in this matter I also find that any delay in giving notice does not prejudice the respondent in theses proceedings and was caused by ignorance on the part of the applicant.
Section 261 of the 1998 Act states:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
In respect to s 261 the applicant submits that the relevant date of injury is 1 July 2019 and that the claim for compensation was made on 12 November 2021, within three years and that the applicant was ignorant of his entitlement to compensation until he spoke to his solicitor. In the alternative the applicant submits that if the claim has been made outside the three year period the applicant has suffered serious and permanent disablement noting the diagnosis of Dr Rastogi and Dr Teoh. The applicant also submits that pursuant to s 261(4) that the applicant did not become aware that he had a compensable injury until 2020.
As discussed above in respect to s 254 of the 1998 Act I accept the applicant’s submission that the applicant was ignorant of his rights to make a claim. As the claim has been brought within three years of the claimed date of injury, pursuant to s 261(4) the applicant is not barred from recovering compensation.
In any event the applicant relies on the disease provisions contained in ss 15 and 16 of the 1987 Act no notice need be given. In Gow v Patrick Stevedores No 2 Pty Limited [2002] NSWCC 60; (2002) 24 NSWCCR 626 (Gow) Geraghty J at [18] stated:
“…when it comes to disease, it seems that because of the deeming provisions, no notice need be given, that a worker can leave work, as this worker has, be away for ten years, make a claim and find that he does not need to give the respondent notice”.
I find that the applicant is not prevented from bring this claim or recovering compensation by ss 254 and/or 261 of the 1998 Act.

Causation and main contributing factor

Section 4 of the 1987 Act defines injury and relevantly states:
“injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes—
(i)a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”
In AV v AW [2020] NSWWCCPD 9 (AV) Deputy President Snell observed at [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.”
Arbitrator Harris in Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic) stated:
“The opening words of the amended s. 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. In my view, those opening words therefore direct attention to the work-related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process…
In my view, the amendment to s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”
Mr Dodd submitted on behalf of the applicant that the evidence of the applicant as well as the contemporaneous medical evidence supports that the applicant was working extremely long hours, performing extremely hard and exhausting work. That whilst there may have been subsequent factors such as drug abuse that contributed to the applicant’s psychological condition the initial cause was the long hours of work which led to him becoming disconnected from his family and subsequently embroiled in conflict and drug use. That it all started with work and work is the main contributing factor.
The respondent disputes that the applicant’s employment played any factor in any aggravation of any disease. Mr Gaitanis submitted on behalf of the respondent that whilst some of the evidence may indicate that workload issues were contributors the test of main contributing factor is not satisfied, particularly in light of the other stressors. It was submitted on behalf of the respondent that the clinical records of Dr Meers suggest that the dominant stressors were the breakdown of the applicant’s marriage and estrangement from his family as well as substance abuse.
It is the applicant’s evidence that he worked 12 to 14 hours per day five and half to six days per week. That from 2008 to 2010 he was coping with the pressures of the long hours of work as well as handling the pressures of family life. That from approximately 2010 Lend Lease took over the management of the Barangaroo project following which a lot of pressure was placed on the subcontractors and he was working 16 hours per day six days per week. That he was being placed under a lot of pressure to complete work in respect to the Barangaroo project and other projects which the respondent was contracted to. That the pressure just seemed to keep mounting. That he would leave home at 5.30am and commence work at 6.00am. That he worked through to 6.00pm with a 40 minute lunch break. He would then, as part of his work duties, drive from the worksite in the Sydney CBD to Windsor and back which would take two and a half to three hours arriving home at approximately 9.00pm.
It is the applicant’s evidence that from the middle of 2015 he started to suffer from depression, which he attributes to his long hours of work and the expectations of the respondent. It is the applicant’s evidence that the work pressures and the effect that had on his mental health effected his family life which began to deteriorate. That because of the pressures he began to drink alcohol excessively and using cocaine which added to the problems in his family life.
The respondent submits that it was the applicant’s choice, as he was the sole director, of the respondent to work the hours that he did and take on the contracts which the respondent entered into. Whilst this may be true it is irrelevant. The workers compensation system is, with some exceptions, a no fault system.
The contemporaneous evidence supports that the applicant was working long hours for the respondent. The first complaint in the evidence of a psychological nature is made by the applicant to his GP at the time, Dr Quan, on 25 August 2009 at which time Dr Quan recorded in the clinical note of the applicant’s attendance “Work stress counselling”. On 29 July 2010 the applicant attended on Dr Hand who noted in respect to the applicant “Always works hard”.
On 17 August 2011 the applicant attended on Dr Mark Bloch who observed symptoms of depression and noted that the applicant was working hard, major renovation at home, two young children, lack of family support “except for wife”. At the time the applicant was waking up tired and was finding it difficult to cope. Relevantly the doctor noted that the applicant’s consumption of alcohol was low and even though his wife appears to have been supportive there were relationship issues requiring counselling with his wife. At that stage the applicant was provided with a prescription for Cipramil. The applicant appears to have continued to take Cipramil until November 2012 with Dr Quan noting on 30 November 2012 that the applicant had ceased taking Cipramil two weeks earlier.
On 14 August 2013 the applicant attended on Dr Quan complaining of relationship issues. The applicant next complained of psychological problems on 11 July 2014 when he sought counselling for “adjustment issues with wife and depressive state”. At this point the applicant appears to have been referred to the psychologist, Dr Barabara Rysenbry. He does not appear to have consulted Dr Rysenbry at this time.
On 18 December 2015 the applicant attended on Dr Quan who recorded that the applicant was getting depressed from family pressures and was moody and stressed. The clinical note of the attendance also refers to there being a financial problem but does not elaborate as to what that problem may be. On 18 December 2015 Dr Quan also completed a GP Mental Health Plan and again referred the applicant to Dr Rysenbry. The GP Mental Health Plan records a diagnosis of adjustment disorder, depression and sexual disorders and the presenting complaint as “Relationship issues with wife and intimacy resulting in Adjustment disorder with depressive from financial pressures.”[3]
[3] Respondent’s AALD dated 13 June 2023 at p 467.
On 9 June 2016 the applicant attended on Dr Quan who noted that the applicant was physically and mentally exhausted. The clinical note of the attendance records that the applicant was having problems with his wife and that he needed to “make boundaries”. The doctor noted that the applicant was getting depressed and was going to “check bloods for depression”. Dr Quan in a report dated 24 November 2020 confirmed that the applicant attended on him on 9 June 2016 with a history of being mentally and physically exhausted from work pressures with the doctor advising the applicant that he needed to make boundaries regarding work. The applicant was struggling with work problems and getting depressed.
Dr Rysenbry in a report dated 27 November 2020 records that the applicant was referred to her on 18 December 2015 for management of an Adjustment Disorder and depression occurring secondary to work, relationship, family and financial pressures. At the initial consultation which did not occur until 27 June 2016 the applicant described that work commitments were resulting in him neglecting his family, exacerbating relationship difficulties. The applicant described struggling with the expectation that work was expected to have priority over his family and he was finding it difficult to cope with managing long hours working as well as family commitments and he felt “he had no space at all.” Dr Rysenbry recorded that at one point the applicant described feeling so overwhelmed and was in such an “unhappy place” he called Lifeline.

A document titled “Client Assessment”[4] appears to be the typed notes of the applicant’s attendances on Dr Rysenbry. The notes that appear to relate to the applicant’s attendance on 27 June 2016 record that the applicant was self employed as a plumber and had branched out into industrial services working on big projects sub-contracting to big companies. He was working hard and started to neglect his family a little. He is up at 5.00am and home at 6.00pm. Children, renovating, all he does is work – nothing for him. His problem is doing the paperwork and it would build up – huge stress, feeling overwhelmed. Was of the mindset that his wife should help. The applicant had reported that his wife had told him a couple of weeks prior that she didn’t love him anymore, at that point everything blowing up. His wife wanted him out. The applicant was feeling very sad and he had called Lifeline. He had got help in the office, was so stressed with having to do that work each day. He felt like a weight had been lifted from his shoulders.
[4] Respondent’s AALD dated 13 June 2023 at p 12.
The applicant had next attended on Dr Rysenbry on 18 July 2016 at which time the Dr Rysenbry’s notes record that the applicant felt resentful he was putting work before his family and that he was expected to, the applicant thought that he was overworking, he was in an unhappy place. The applicant was a bit worried that his wife had fallen out of love with him, but he shut off, not listening. The applicant felt angry and hurt. He felt very stuck, needed to keep going but no relief from having to work. The applicant had reported that he couldn’t get his wife to see that he was struggling and needed things to change.
The GP clinical records to 18 July 2016 support that the applicant was working long hours for the respondent, that there were other stressors such as family pressures and the undertaking of a renovation which presumably had been completed by 2016. There is no evidence in the clinical records of any significant substance abuse issues at this stage. The GP clinical notes indicate that the applicant’s wife at least initially was supportive but that their relationship deteriorated over time.
However, as would be expected, the GP clinical notes only provide brief descriptions of what is occurring and what is troubling the applicant. Dr Rysenbry, as would be expected being the treating psychologist takes a far more detailed history. Whilst Dr Rysenbry refers to multiple factors impacting on the applicant’s mental health the records are consistent with the applicant’s evidence that his work commitments resulted in him neglecting his family which then led to a deterioration in his relationship with his wife. The records are also consistent with work being the main contributing factor to the applicant’s psychological difficulties with his work commitments causing his to neglect his family, his struggling with the expectation that work was to take priority over his family and his difficulty coping with managing his long work hours as well as his family commitments.
Following his attendances on Dr Rysenbry the applicant’s situation and condition deteriorates. On 7 November 2016 whilst Dr Quan noted that the applicant was feeling better they discussed the applicant needing help with his personal life and also discussed “D A issues” which I assume to be a reference to drug and alcohol. On 12 January 2017 the applicant was provided with a prescription for Cipramil with a further prescription being provided on 20 July 2017.
On 10 August 2017 the applicant attended on Dr Meers with the clinical note of the attendance recording treatment failure major depression with possible BPD. The doctor noted that there were some features of BPD with possible hypomania six months prior. There had been features of clinical depression for the last three to six months. The applicant had contemplated suicide around Christmas 2016. Had been working but struggling to get out of bed and hadn’t been to work for four days. Depression was also putting a major strain on his relationship with his wife. The applicant had been on Citalopram for 12 months. The applicant was provided with a prescription for Efexor.
On 18 August 2017 Dr Meers completed a GP Mental Health Care Plan Patient Assessment in which the doctor recording the presenting issue as depression and noted treatment failure, Major Depression. It was noted that the applicant was not abusing drugs or alcohol but had been drinking excessively one year prior.
On 27 October 2017 the applicant attended on Dr Meers who observed that the applicant’s cocaine habit had crept back in, that his relationship was on the rocks and that he was having anger outbursts. The applicant was going to Thailand in two weeks for a 28 day detox rehabilitation retreat.
On 5 June 2018 the applicant attended on Dr Meers who noted that the applicant was to see Dr Atherton. The applicant had come back from Thailand feeling great. There had been more family dramas and he had relapsed but states that he had been clean for two and a half weeks.
On 6 June 2018 Dr Atherton, psychiatrist, reported on the applicant after reviewing him that day. The doctor had not seen him since November 2017. Since then the applicant had attended The Cabin in Thailand and spent a month there where he felt that he made huge progress in terms of substance misuse and his personal health. On returning from Thailand he was initially living separate from his family but then decided to move back in with his wife. An environment which the applicant described as toxic. His mood deteriorated and he displayed symptoms of depression and anxiety and fear and frustration around the situation. In the context of this there were a couple of episodes of substance use which further exacerbated the applicant’s downward trajectory in his mood. There was an altercation between the applicant and his wife and the police were called for which he was charged with assault and an apprehend violence order (AVO) was put in place. The applicant’s wife had bought a home which she had moved into and which had left a financial liability, which the applicant was unprepared for, and which further exacerbated his stress. The doctor continued the applicant on Efexor.
On 29 June 2018 Dr Meers received a phone call from the applicant’s ex-wife who reported that a friend was worried about the applicant’s behaviour and state of mind and felt that he may have been having a psychotic reaction.
Dr Rosalie Wilcox, psychiatrist, reported to Dr Meers on 13 July 2018. Dr Wilcox noted that for the past 18 months the applicant had been separated from his wife and had minimal contact with his children, that his ex-wife, who had an AVO in place, had recently purchased a new home in respect to which the applicant was required to pay the mortgage.
Dr Wilcox observed that the applicant had quite marked paranoia and whilst this was more evident when he was using cocaine, it was apparent when he was abstinent. The doctor noted that the applicant had in the past received treatment for depression and had been prescribed Citalopram for 18 months. Prior to commencing on the anti-depressant he had felt suicidal after an argument with his wife. Dr Wilcox believed that the applicant may have had a drug induced psychosis. The doctor believed that there was a real possibility that the applicant had a psychotic condition that was exacerbated by his drug use.
On 12 April 2019 the applicant attended on Dr Oswald who noted very stressful property settlement and custody problems with no close confidants. On 12 April 2019 Dr Oswald referred the applicant to a “psychologist” for assistance with supportive counselling and coping strategies. The referral noted that the applicant was dealing with a difficult separation, custody and financial separation.
On 26 April 2019 the applicant attended on Dr Wilson who noted that the applicant was going through a very acrimonious divorce with AVO’s in place. The applicant was feeling heartbroken as he was not getting to see his children much. On 26 April 2019 Dr Wilson referred the applicant to Mr Neil Ballardie of Mind Focus for opinion and management. The referral noted that the applicant was going through a very difficult time with an acrimonious divorce.
On 10 May 2019 the applicant attended on Dr Meers at which time he was upset about recent conflict with his ex-wife. On 10 May 2019 Dr Meers referred the applicant to Mr Greg Phillpot for opinion and management noting that he was upset about recent conflict with his ex-wife. Issues were acrimonious marriage breakdown, agitated, previous cocaine and judicial issues.
On 24 June 2019 the applicant was again elevated about dealings with his ex-wife and characters from his past.
On 27 August 2019 the applicant attended on Dr Quan who recorded that the applicant was getting divorced and was “in a bad place”. The clinical note of the attendance records that the applicant had been through rehabilitation and was off all drugs and alcohol.
On 10 June 2020 Dr Meers referred the applicant to Dr Wilcox for opinion and management. The referral noted that the applicant was going really well but was frustrated with his access to his children but had been managing his emotions and functioning well.
On 24 November 2020 the applicant had a telephone discussion with Dr Quan in which they discussed mental health issues and the use of Cipramil. The doctor noted that the applicant had separated and restarted his business with “boundaries”. The reason for the attendance was recorded as depression.
On 21 July 2018 the psychiatrist, Dr Atherton, provided a court report in respect to the applicant being charged with common assault. The doctor noted that he had seen the applicant on 25 August 2017, 13 September 2017, 27 September 2017, 3 November 2017 and on 6 June 2018. Dr Atherton records that the applicant had first noticed problems about 18 months prior to his first attendance on the doctor however his wife reported that his problems went much further back than that and appeared to have commenced following the birth of their second child when his wife was more caught up with the family and the applicant began to work excessively. There had been a slow separation of their connection in the family and the applicant turned to excessive alcohol and the use of cocaine up to weekly which further worsened issues between them.
Dr Atherton diagnosed a major depressive disorder with the most recent episode being in May 2018 in the context of marital stress. The doctor noted that there was a background of excessive work and loss of identity in his family home and cocaine use disorder which was in short term remission. The doctor was of the opinion that both diagnosis were longstanding noting that the applicant had been under the care of a psychiatrist for several years and had been on anti-depressant medication for at least two years.
The opinion of Dr Atherton is consistent with the history recorded by Dr Rysenbry who recorded that the applicant described his work commitments led to him neglecting his family and that he was struggling with the expectation that work was expected to have priority over his family and that he was finding it difficult to cope with managing the long hours working as well as family commitments.
The applicant submits that the opinion of Dr Rastogi should be accepted.
Dr Rastogi provided a medico-legal report for the applicant dated 19 April 2022. Dr Rastogi diagnosed a chronic adjustment disorder in the context of unrealistic work demands and pressures, working up to 16 hours per day which resulted in relationship stress and comorbid drug abuse with the applicant self-medicating with cocaine.
I accept the opinion of Dr Rastogi which is consistent with the histories taken and opinions of Dr’s Atherton and Rysenbry. Dr’s Atherton an Rysenbry had the opportunity to examine the applicant on multiple occasions and much earlier in time than either Dr Rastogi or Dr Teoh which would have been of assistance in determining the initial cause of the applicant’s psychological condition and understanding its development overtime and the stressors present in the applicant’s life as well the history behind those stressors.
The respondent submits that the opinion of the psychiatrist, Dr Teoh, should be accepted. I prefer the opinion of Dr Rastogi as his opinion is consistent with the contemporaneous evidence as well as the evidence of the applicant and in particular with the opinions and histories taken of Drs Rysenbry and Atherton.
Dr Teoh, who provided a report for the respondent, diagnosed an adjustment disorder with anxious mood.
Dr Teoh in his initial report dated 6 September 2021 came to the opinion that employment was the main contributing factor to the applicant’s psychological condition noting the excessive workload and lack of support with strict deadlines. In coming to this opinion the doctor observed that the applicant’s cocaine use would likely have exacerbated his condition.
Dr Teoh in a supplementary report dated 22 October 2021 noted that he had been provided with additional documentation which in the doctor’s opinion revealed that there were significant external factors affecting the applicant’s condition including his use of cocaine, family issues, financial stressors and vulnerable personality disorder.
Dr Teoh changed his opinion concluding that employment was not a substantial contributing factor. Dr Teoh however appears to have been aware of these issues at the time of the writing of his initial report. Dr Teoh observed that in his opinion the applicant’s use of cocaine would have substantially affected his mental state however the doctor had noted the applicant’s use of cocaine in his earlier report and had expressed the opinion that the use of cocaine would have exacerbated his condition.
The doctor does not comment on the fact that the use of the cocaine appears to have occurred after the applicant had already developed psychological problems as was the case with the assault charges and the family issues.
I accept the applicant’s submission that any personality issues that may have made the applicant vulnerable to a psychological injury are irrelevant. An employer takes an employee as they find them.
Dr Teoh concluded that the applicant’s condition was aggravated and perpetuated by external factors such as the use of cocaine, family issues, financial stressors and vulnerability factors. Whilst these factors may have aggravated or perpetuated the psychological condition that does not prevent the applicant’s employment being the main contributing factor to the psychological injury.
For the above reasons I find that the applicant sustained a psychological injury arising out of and in the course of his employment and that his employment is the main contributing factor.

Weekly benefits

The applicant seeks weekly benefits compensation pursuant to ss 36 and 37 of the 1987 Act from 1 July 2019 to 30 June 2021
The applicant submits that Rule 68 of the Personal Injury Commission Rules 2021 (the Rules) provides that if the amount of weekly compensation is in dispute the disputing party must lodge and serve on the other party a schedule of earnings and that the respondent has failed to lodge a disputing schedule of earnings. The applicant submits that if a disputing schedule of earnings is not lodged then the applicant’s schedule of earnings is taken to be accepted. The applicant submits that the applicant’s wage schedule has not been disputed and should therefore be treated as having been accepted.
Rule 68 of the Rules states:
“(1)    If the amount of weekly compensation or statutory benefits is in dispute, a party must include in an application in Commission proceedings a schedule of earnings containing full particulars of the amount claimed.
(2)     If a party wishes to dispute the accuracy of a matter in the schedule of earnings, the party must lodge and serve on the other parties a schedule of earnings containing full particulars of the party’s allegations of the earnings.
(3)     The schedule of earnings is to be lodged and served with the first document lodged and served by the party in the proceedings, in addition to the documents that must be lodged and served under rule 67.
(4)     A matter not disputed by a party under subrule (2) is taken to be admitted by the party.”
The respondent submits that a proper wages schedule has not been provided by the applicant and that the respondent raised a number of issues in its Reply including issues in respect to the date of injury pleaded, a potential dispute in respect to PIAWE depending
on the date of injury relied upon, that the respondent had not received any payslips/timesheets/invoices for the 12 months prior to the pleaded date of injury, that the applicant’s statement evidence was to the effect that he continued to work for the respondent in 2020 and that the pleaded claim for weekly benefits compensation and the wages schedule did not appear to reflect this, that the respondent requested that a detailed wages schedule be provided setting out the claim on a week by week basis, that the available tax records did not cover the period for which weekly benefits was being claimed and the respondent had requested further information and that there was a lack of evidence in regard to capacity/incapacity for the period for which weekly benefits were claimed. The respondent also submits that issues were raised in respect to the applicant’s wages schedule at the Teleconference held in this matter prior to the matter being listed for conciliation/arbitration conference.
The respondent further submits that to date the applicant has not provided an appropriate schedule of earnings containing full particulars of the amount claimed and the respondent is entitled to know the precise claim which it is required to meet and in the absence of this should not be prevented from raising a dispute in the proceedings. The respondent submits that the applicant’s schedule of earnings is inaccurate, invalid and does not comply with Rule 68 and should not be accepted.
I do not accept the applicant’s submission. The wages schedule in the ARD claimed weekly benefits compensation from 1 July 2019 to date and continuing with a PIAWE of $1,598.61 and a pleaded ability to earn/current weekly earnings of $0. A further wages schedule contained within the documents annexed to the ARD appears to claim weekly benefits compensation from 1 July 2018 to 30 June 2021. The periods for which weekly benefits are claimed in the two wages schedule are different. At the conciliation/arbitration conference the applicant advised that the claim for weekly benefits compensation was limited to the period from 1 July 2019 to 30 June 2021.
The respondent in its Reply expressed some uncertainty in respect to the claim being brought by the applicant. In respect to the date of injury the respondent noted in its Reply that the claim being brought relied on a date of injury of 1 July 2019 whilst the dispute notices which had been issued by the insurer referred to dates of injury of 30 November 2020 and 1 July 2015 and to the applicant notifying injury by correspondence dated 5 March 2021 which was not received until 31 March 2021, that the claim form dated 12 November 2021 referred to a claim form having been completed on 7 April 2021 and that the certificates of capacity referred to a date of injury 7 October 2021.
The respondent gave notice in the Reply that there may be a dispute in relation to the PIAWE, subject to the date of injury and noted that they had not reviewed any payslips/timesheets/invoices for the 12 months prior to the pleaded date of injury.
The respondent further noted in its Reply that the applicant’s statement suggested that he had continued to perform his work duties in 2020 and that it is the applicant’s evidence that he had worked on reduced hours since October 2020, that in response to a request for particulars dated 15 October 2021 the applicant had advised that he was continuing to work within his certified capacity.

The respondent in its Reply expressed the view that the applicant’s pleaded claim for weekly compensation did not appear to reflect the applicant’s earnings. As a result, the respondent requested that the applicant provide a detailed wages schedule setting out the applicant’s earnings on a week by week basis, along with supporting evidence. The respondent also observed that the taxation returns served with the ARD did not cover the period for which weekly benefits was being claimed. The claim in the ARD being for weekly benefits from 1 July 2018 to date and continuing, and the respondent requested further wage and taxation records.
It is apparent that there was significant confusion on the respondent’s part as to the nature of the weekly benefits clam being brought by the applicant. This confusion was understandable given the applicant’s inconsistent wages schedules as well as the evidence served by the applicant in support of the claim which will be discussed further below. The respondent requested clarification of the weekly benefits claim being brought, which appears to have never been provided, as well as additional documentation. The respondent also gave notice that there may be a dispute in respect to the PIAWE but further information and clarification was required.
Whilst the applicant has included a schedule of earnings, the applicant has included two schedules which have significant differences. The schedules on their face both appear to be inconsistent with the applicant’s own evidence.
The position of the respondent, to respond to the wages schedule has also been complicated by the fact that the applicant is the sole Director of the respondent.
Whilst it may have been prudent for the respondent to put on a disputing wages schedule the respondent has in its Reply expressed its understandable uncertainty as to what it is in fact required to be meeting.
The objectives of the Personal Injury Commission Act 2020 (the PIC Act) are set out in s 3. The objects of the PIC Act include at s 3(c) “to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.
Section 42(1) of the PIC Act identifies the guiding principle for the Act and the Rules in their application to proceedings in the Commission as to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Rule 6(1) of the Rules provides:
“The Commission may, by order, dispense with a requirement of these Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so.”
Pursuant to Rule 6(4) a requirement of the Rules may be dispensed with before or after the occasion for compliance with the requirement arises.
In the circumstances it is in the interests of justice that the requirement for the respondent to file a wages schedule be dispensed with. I therefore order that the requirement for the respondent to file a wages schedule in accordance with Rule 68 is dispensed with.
The applicant submitted that the tax returns are reflected in the applicant’s wages schedule in respect to the PAYE income and that the PAYE income is consistent overtime. The applicant conceded in submissions that the medical evidence is to the effect that he has a residual capacity to work two days per week. It was submitted that the applicant’s PAYE income, as disclosed in the wages schedule, should be applied to determine the earnings lost as a result of incapacity caused by the psychological injury. That the loss should be determined on a proportional basis.
The applicant’s personal tax returns record the following gross salary/wage earnings from the respondent:
(a)    Financial year to 30 June 2015      $82,620;
(b)    Financial year to 30 June 2016      $78,000;
(c)    Financial year to 30 June 2017     $82,628, and
(d)    Financial year to 30 June 2018      $83,128.
The applicant’s tax returns for the financial years ending 30 June 2019 to 30 June 2021 record no wage/salary income from the respondent or any other source. Whilst the applicant received a nominal income from the respondent in 2019 his tax returns for the 2020 and 2021 financial years record that he received substantial dividend payments from the respondent.
The respondent’s company tax return for the financial year to 30 June 2018 records a significant financial loss. The respondent made significant profit in the financial years ending 30 June 2019 and 30 June 2020 before once again posting a significant loss in the financial year ending 30 June 2021.
Calculating compensation based on the profit or loss of the respondent business is inappropriate. What should be considered is the cost of employing someone doing the work that the was performing.[5]
[5] Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16.
Neither party has provided submissions on cl 2 of Schedule 3 of the 1987 Act which provides:
“(1)    ‘Pre-injury average weekly earnings’, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note: See also clauses 3-5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2)     Except as provided by this clause (or by regulations made under this clause), in calculating the ‘pre-injury earnings’ received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (‘the relevant earning period’).
(3)     The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)--
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)     If the amount of a worker's pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker's pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Post 30 June 2018 the applicant has not received any remuneration in the form of wages from the respondent. I have previously found that the applicant remained employed by the respondent post 30 June 2018. In the 52 weeks prior to 1 July 2019, the date on which the applicant claims that incapacity commenced, the applicant’s wages schedule at page 105 of the ARD documents records that the applicant received $1,920 in income. The applicant’s tax return for the financial year to 30 June 2019 reveals that the applicant received $691 in income from the respondent, all of which was paid in the form of dividends.
Clause 2(2) of Schedule 3 states that except as provided by that clause or by regulations made under the clause no regard is to be had to earnings in employment “paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury”. It is the applicant’s evidence, and there is no dispute, that he continued to physically perform the core duties of the respondent’s business post 30 June 2018. The applicant however was not compensated for his work during the financial year ending 30 June 2019. It seems reasonable to conclude that whilst earnings were payable to the applicant for the work performed in the 52 weeks to 30 June 2019 for the purposes of cl 2(2) the payment of those earnings were deferred to the following years.
In the 2020 and 2021 financial years the applicant received significant payments of dividends from the respondent. These payments are of no assistance in calculating the applicant’s weekly earnings as it is not possible to discern what portion of that income was derived from the applicant’s labours as opposed to the fruits of the profits from the business and/or Directorial benefits.
Whilst there is some evidence before me in respect to incapacity resulting from physical injuries there is no claim before me in respect to any physical injuries.
It is the applicant’s evidence that he has worked on reduced hours since October 2020 working two days a week, eight hours per day. It is also the applicant’s evidence that he does not have any records to verify his attendance. It would appear that prior to October 2020, during the period for which weekly benefits compensation is claimed, the applicant continued to work his usual hours for the respondent.
Dr Rastogi who examined the applicant on 20 April 2022 records that the applicant decreased his working hours in October 2020 to 16 hours per week and that at the time of examination the applicant was working 16 hours per week and just managing.
Dr Ibrahim in a series of certificates of capacity certified the applicant as fit for suitable duties eight hours per day, two days per week due to his psychological injury:
(a)    from 4 February 2020 to 18 February 2020;
(b)    from 30 November 2020 to 4 February 2021;
(c)    from 18 February 2021 to 22 April 2021;
(d)    from 24 July 2021 to 6 April 2022, and
(e)    from 5 August 2022 to 5 November 2022.
Dr Teoh in his report dated 6 September 2021 recorded that the applicant was working two days per week with an offsider and was planning to increase his workload. Dr Teoh assessed that the applicant had the capacity to work two days per week with an offsider.
Whilst the applicant has claimed weekly benefits compensation from 1 July 2019 it is the applicant’s evidence that he did not reduce the hours which he was working until October 2020. Whilst there is a certificate of capacity certifying reduced hours between 4 February 2020 and 18 February 2020 there is no evidence that the applicant in fact reduced his hours of work.
In respect to the period for which weekly benefits compensation is claimed, the evidence supports that from October 2020 the applicant has worked two days per week for eight hours per day. The medical evidence supports that this was the extent of the applicant’s capacity.
There is no evidence as to what someone performing the applicant’s pre-injury duties would have earned apart from the wages which the applicant was paid by the respondent for the financial years 30 June 2015 to 30 June 2018 during which the applicant was paid wages of between $78,000 and $83,128 per annum. During that period there is no evidence of any consistent increase overtime in the wages paid. Noting that the applicant was the sole director of the respondent, the wages paid to the applicant to 30 June 2018 do not appear inflated and do not represent the profits which the respondent was producing.
As there is no pattern of a regular or consistent increase in the wages paid by the respondent to the applicant year on year I conclude that on the balance of probabilities it is unlikely that the applicant’s wage income would have increased from the 2018 financial year to the 2019 or 2020 financial year.
I adopt the applicant’s wage and salary income for the financial year to 30 June 2018 as the PIAWE. I therefore find that the applicant has a PIAWE of $1,598.61 which is commensurate with the PIAWE calculated by the applicant.
I do not accept the respondent’s submission that a report from a forensic accountant is required to assist with an understanding of the matter. The applicant was paid wages by the respondent for a period, the income from which was declared on the applicant’s income tax returns. Whilst the applicant and other associated persons may have received loans from the respondent those loans are not being claimed as wage income which should be taken into consideration in addition to the wages received. Similar applies to the dividends paid by the respondent to the applicant. Whilst the applicant has not received a wage income from the respondent post 30 June 2018 the applicant continued to perform the physical duties involved in the business and therefore performed the duties of an employee. Whilst the applicant has received dividends from the respondent post 30 June 2018 the evidence does not support that the applicant has been totally incapacitated at any point in time during the period in which weekly compensation is claimed rather the evidence supports that the applicant reduced his working hours to two days per week in October 2020. There is sufficient information on which to determine the value of the lost weekly earnings as a result of that incapacity.
I find, in accordance with the applicant’s evidence, that the applicant continued to perform his work duties full-time until sometime in October 2020 and therefore find that he suffered no incapacity until he reduced his work hours.
The applicant has not identified the particular date in October when he reduced his hours of work. Whilst the applicant did not obtain a certificate of capacity until 30 November 2020 I accept that he was partially incapacitated from the date that he reduced his work hours in October 2020.
The applicant bears the onus of proving incapacity and as I am unable to determine whether he reduced his work hours on the first day or the last day of October 2020 or a day in-between I find that from 1 November 2020 the applicant suffered from a partial incapacity. It is the applicant’s evidence that he has been able to work two days per week. The medical evidence including the opinion of Dr Teoh supports that the applicant has had a capacity work two days per week.
I find that that the applicant is entitled to weekly benefits compensation on the basis of a partial incapacity between 1 November 2020 and 30 June 2021 on the basis of a partial incapacity.

The applicant had a residual capacity to earn of two days per week at eight hours per day, or 16 hours per week, during the period 1 November 2020 to 30 June 2021.
Pursuant to ss 36(2)(a) and 37(2)(a) of the 1987 Act the applicant has an entitlement to 95% of the PIAWE less his current weekly earnings.
I accept the applicant’s submission that the entitlement to weekly benefits compensation should be calculated on a proportional basis based on a PIAWE of $1,598.61. Adopting a PIAWE of $1,598.61 and dividing it by five working days I find that the applicant for the two days that he was working had weekly earnings during the period from 1 November 2020 to 30 June 2021 of $639.44. Deducting the $639.44 from $1,518.68 (95% of the PIAWE) I find that the applicant has an entitlement to weekly benefits compensation pursuant to ss 36 and 37 from 1 November 2020 to 30 June 2021 at the rate of $879.24 per week (subject to indexation).

Medical expenses

The applicant claims an amount of $881.53 for past medical expenses in respect to accounts of Dr Harry Ibrahim for services provided on 30 November 2020 (x2), 1 February 2021, 24 February 2021, 22 March 2021, 9 August 2021, 25 October 2021 and 23 November 2021 (x2).
All but one of the invoices in relation to the services refer to anxiety and depression and therefore relate to the psychological injury. Tax invoice, number 10362RCPTN, issued on 23 November 2021 in the amount of $195.50 is for services provided in respect to a multiple ligament injury and is therefore not reasonably necessary as a result of the psychological injury.

SUMMARY

I find that:
a.     The applicant is a “worker” for the purposes of the workers compensation legislation.
b. The applicant is not prevented by ss 254 and/or 261 of the 1998 Act from bringing this claim or recovering compensation.
c.     The applicant has sustained a psychological injury arising out of or in the course of his employment.
d.     The applicant’s employment was the main contributing factor to the psychological injury.
e.     The applicant suffered from no incapacity for work between 1 July 2019 and 31 October 2020.
f.     The applicant was partially incapacitated for work from 1 November 2020 to 30 June 2021.
The Commission orders:
(a)    Award for the respondent in respect to weekly benefits compensation for the period 1 July 2019 to 31 October 2020.
(b)    The respondent is to pay the applicant the following:
(i)$879.24 per week from 1 November 2020 to 31 January 2021 pursuant to s 36 of the 1987 Act;
(ii)$879.24 per week from 1 February 2021 to 31 March 2021 pursuant to s 37 of the 1987 Act, and
(iii)$904.56 per week from 1 April 2021 to 30 June 2021 pursuant to s 37 of the 1987 Act.
(c)    The respondent is to pay pursuant to s 60 of the 1987 Act the accounts of Dr Harry Ibrahim for services provided on 30 November 2020, 1 February 2021, 24 February 2021, 22 March 2021, 9 August 2021, 25 October 2021 and 23 November 2021 excluding Tax invoice, number 10362RCPTN, issued on 23 November 2021 in the amount of $195.50.

[2023] NSWPIC 447

5 September 2023