Grant v Lyndhurst IGA Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grant v Lyndhurst IGA Pty Ltd [2025] NSWPIC 329
APPLICANT:	Barbara Grant
RESPONDENT:	Lyndhurst IGA Pty Ltd
MEMBER:	Anthony Scarcella
DATE OF DECISION:	9 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 38; accepted physical and psychological injuries as the result of an assault in the workplace by a store customer; entitlement to weekly benefits under section 38 disputed for a closed period; clause 9 of Schedule 3; current work capacity and no current work capacity; section 32A; suitable employment; whether unpaid training and study approved by the respondent as a pathway for the applicant to return to work constituted work that would support a finding of current work capacity; Mid North Coast Local Health District v De Boer and Wollongong Nursing Home Pty Ltd v Dewar considered; Held – the applicant had no current work capacity for the closed period claimed within the meaning of clause 9 of Schedule 3; the respondent to pay the applicant weekly compensation in respect of the injuries for the closed period claimed under section 38(2).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no current work capacity from 27 February 2025 to 25 March 2025 within the meaning of cl 9 of Schedule 3 in the Workers Compensation Act 1987. The Commission orders that: 2. The respondent is to pay the applicant weekly compensation in respect of the injuries sustained on 11 August 2021 as follows: (a) $1,432 per week from 27 February 2025 to 25 March 2025 under s 38(2) of the Workers Compensation Act 1987; (b) the respondent is to make the appropriate indexation adjustments to the weekly compensation payments ordered above under s 82A of the Workers Compensation Act 1987 in accordance with the formula and review dates stipulated therein; (c) the respondent is to be given credit for any payments made, and (d) liberty to apply within 14 days in relation to the calculation of weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Barbara Grant, is a 54-year-old woman who was employed by the respondent, Lyndhurst IGA Pty Limited (Lyndhurst), as a manager of its Bomaderry store.
On 11 August 2021, Ms Grant alleges that she applied the COVID-19 protocol and requested a customer to wear a mask whilst in the store. The customer physically assaulted her resulting in physical and psychological injuries. The physical injuries consisted of a broken pelvis and an injury to her elbow requiring hospitalisation. She remains psychologically unwell by reason of the assault and has been diagnosed with chronic post-traumatic stress disorder. The physical and psychological injuries are not in dispute.
Ms Grant lodged a claim for benefits under the Workers Compensation Act 1987 (1987 Act) and received benefits.
On 18 November 2024, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a notice which was stated to be under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) advising that a decision had been made to reduce the amount of Ms Grant’s weekly benefits payments. The notice then went on to state that the decision was made under s 43(1)(a) of the 1987 Act on the basis that Ms Grant was, at that time, able to work in suitable employment as an aged and disabled carer and clerical and administrative worker. The notice further stated that EML had made a decision under s 43(1)(c) of the 1987 Act that Ms Grant could earn $1,050 per week in suitable employment as an administration assistant, which would result in a reduction of her weekly benefits payments from 27 February 2025.[1]
[1] Application to Resolve a Dispute at pages 7-11.
Also on 18 November 2024, EML issued Ms Grant with a work capacity decision advising that she had not met the special requirements under s 38 of the 1987 Act and that she would not be eligible to continue to receive weekly benefits payments from 27 February 2025. EML relied on the Certificate of capacity dated 27 June 2024 issued by Ms Grant’s general practitioner, Dr Trevor Smith, who certified her as having capacity for some type of employment for six hours per day, five days per week since 27 June 2024. EML noted that it had not received any information that Ms Grant was working 15 hours or more per week.[2]
[2] Application to Resolve a Dispute at pages 12-16.
On 10 March 2025, Ms Grant requested a review of the decisions contained in EML’s notices dated 18 November 2024 under s 287A of the 1998 Act.
On 19 March 2025, EML issued the outcome of its review under s 287A of the 1998 Act advising that the work capacity decision dated 18 November 2024 was withdrawn due to an incorrect calculation of the weekly benefits payment amount and that Ms Grant’s weekly benefits payments would increase to $1,432 from 27 February 2025. However, EML maintained that Ms Grant could earn $1,050 per week in suitable employment as an administration assistant.[3]
[3] Application to Resolve a Dispute at pages 17-22.
In an email to Ms Grant’s lawyers dated 25 March 2025, the EML case manager (Zoey G) stated, amongst other things, as follows:
“ … I apologise for any miscommunication as there has not been a s 78 decision made on Barbara's claim.
A Work Capacity Decision was made on Barbara's claim in conjunction with a s 38 ineligibility decision as Barbara is not meeting the criteria. The Work Capacity Decision was withdrawn based on a calculation error.
As this was an administration error and not an error in Barbara’s working capacity, the s 38 ineligibility is still correct and effective on her claim.”[4]
[4] Application to Resolve a Dispute at page 23.
Ms Grant, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 29 April 2025, in the Workers Compensation Division of the Personal Injury Commission (Commission) disputing EML’s work capacity decision and claiming weekly benefits compensation from 27 February 2025 and ongoing under s 38 of the 1987 Act as a result of the injuries sustained in the course of employment with Lyndhurst on 11 August 2021.
At the preliminary conference held before Member Bachelor on 3 June 2025, he was informed that Ms Grant’s weekly benefits payments resumed on 26 March 2025.

ISSUES FOR DETERMINATION

The parties agree that the issue that remains in dispute is whether Ms Grant is entitled to the payment of weekly benefits from 27 February 2025 to 25 March 2025 under s 38 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the notices referred to above. Those issues were narrowed to the issue referred to above.

Matters not previously notified

No such other matters were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing via MS Teams on 1 July 2025. Mr Stephen Hickey of counsel appeared for Ms Grant, instructed by Ms Evelyn Garnett, solicitor. Mr Paul Stockley of counsel appeared for Lyndhurst, instructed by Mr Stephen Lee, solicitor.
During the conciliation phase the parties agreed as follows:
(a) Ms Grant’s pre-injury average weekly earnings (PIAWE) are $1,790, and
(b) 80% of the agreed PIAWE is $1,432.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 29 April 2025 and attached documents, and
(b) Reply to ARD (Reply) dated 21 May 2025 and attached documents

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Barbara Grant’s evidence

In evidence there is a statement by Ms Grant dated 9 April 2025. I will now refer to the relevant parts of that evidentiary statement.
Ms Grant provided her brief family history, educational history, medical history and employment history. She had worked for Westpac Bank for nine years after leaving school; Abbey Nursing Home as a full-time cook for two years; St George’s Basin Public School as a teachers aide for two years and at the same time, Huskisson Bayside Motel as a cleaner for about two years; Coles on a casual basis for about two years; IGA in Berry for about seven or eight years; and Lyndhurst’s IGA in Bomaderry for about two years until the subject injury.
Ms Grant provided the following description of the incident that led to her injuries on 11 August 2021:
“24.   The injury occurred on 11 August 2021. There was a customer in the store who was not wearing a mask. He was tall, carrying a motor bike helmet, wearing a motor cycle jacket and jeans.
25.   I was at the front counter doing orders on my computer.
26.   I saw him walk in without his mask. I said excuse me sir you need to have a mask on in the store.
27.   He grinned at me and kept walking into the store.
28.   I walked after him thinking maybe he didn’t hear me.
29.   I said ‘Sir you need to have a mask on and I have some behind the counter if you need one.’
30.   He turned around walked past me on his way out the front door he kicked the glass entry door and shattered it.
31.   I went to take a photo of his number plate to report to police.
32.   As I walked out of the store he was standing near the door. He said ‘What do you think you’re doing?’
33.    I said ‘I am gonna take a picture of your number plate because you smashed the door.’
34.   I could only see him in my peripheral [sic: vision].
35.   I noticed he [sic: was] walking towards me.
36.   I started walking away.
37.    Next thing I knew I was on the ground. He had crash tacked [sic: tackled] me.
38.    I couldn’t move.
39.    People in the carpark and nearby and [sic] staff from the next door day care centre came running to help me and called police and ambulance.
40.    I couldn’t get up because he had broken by [sic: my] pelvis on the left side and my right elbow.
…
43.    I heard him take off on the motor bike.
44.    I heard him come back.
45.    I started screaming again.
46.    One of the men managed to pull the attacker’s fuel line so he couldn’t get far.
47.    The police caught up with him before the ambulance got to me.”[5]
[5] ARD at pages 2-3.
Ms Grant stated that, following the incident, she was admitted to Shoalhaven Hospital as an inpatient for about 10 days. Whilst she was in hospital, her employer lodged a workers compensation claim on her behalf. Once discharged from hospital she consulted her general practitioner, Dr Trevor Smith, who, initially, referred her to a counsellor and then to a psychologist, Ms Lauren Carter.
Ms Grant stated that, since Dr Smith moved to Melbourne, she had been consulting Dr Luisa Benedicto at Basin View Medical Centre. She continues to consult Ms Carter and EML continues to pay for those consultations. Over the last few weeks, she had been consulting Ms Carter on a weekly basis but before that, she consulted Ms Carter on a monthly basis.
Ms Grant stated that, at the time of her evidentiary statement, she had been receiving weekly compensation benefits from EML since the date of her injuries. She has not worked since 11 August 2021 and has had no capacity to work.
Ms Grant stated that EML assigned her to a rehabilitation provider, Actual Rehab, to assist her in discussing options for a return to work. She expressed an interest in aged care as she had previously worked in aged care as a cook. There were a number of teleconferences with the rehabilitation provider and Dr Smith wherein it was suggested by Louise of Actual Rehab that her capacity for work be increased so that she could do the proposed TAFE course. She was told that EML would pay for the TAFE course. EML reimbursed her for a police check and an National Disability Insurance Scheme (NDIS) check in order to enable her to enter the 12 month course, being a Certificate III in Individual Support: Ageing.
Ms Grant stated that she commenced the TAFE course in August 2024. She did the course online from home via MS Teams classes for 5.5 hours, one day per week. Additionally, she had to attend TAFE in person at Nowra once every four weeks between 9.30am and 4.30pm. There was a placement component to the course consisting of three blocks of 40 hours in November 2024, March 2025 and May 2025. At the suggestion of Louise from Actual Rehab, Dr Smith further increased her work capacity to enable her to attend the placement component of the course.
Ms Grant stated that she attended the placement at the RFBI Masonic Village Basin View in November 2024 for a one week block and “loved it”.[6] She also attended the one week block placement beginning on 11 March 2025. The placement component of the course is intended to enable participants to gain work experience. She did not receive any payment during her placements.
[6] ARD at page 4 at [70].
Ms Grant stated that she received correspondence from EML on 18 November 2024 which she found confusing. There were many attachments. Included in the correspondence was a letter stating that her weekly benefits payments would be reduced. She discussed the correspondence with her case manager, Claudia and her rehabilitation caseworker, Matthew. She explained that she could not complete the TAFE course and work because she had to do blocks of placement. On 3 December 2024, she received a letter from EML advising that her payments would stop from 27 February 2025. She incorrectly assumed that the issue had been resolved and it looked to her as if payments would continue. She came to realise that her payments had ceased when she did not receive any payment on 27 February 2025.
Ms Grant stated that, on 28 February 2025, she spoke to an EML representative, Zoey, who advised her to fill out a review form. One week later, Joey from the review department advised that her payments would be reinstated and backdated to 27 February 2025 and she received a review outcome letter to that effect. The following day, Zoey telephoned her and advised that her payments would not be reinstated because she was not meeting her capacity requirements under s 38 of the 1987 Act. As a result, Ms Grant became increasingly distressed and spoke to Ms Carter, who emailed Zoey. On 21 March 2025, Zoey advised by email that she and her supervisor would be reviewing the decision and advise her of the outcome.
Ms Grant stated that, on 25 March 2025, she received a telephone call from Zoey confirming that her payments would not be reinstated. They discussed the Certificate of capacity issued by Dr Benedicto. Ms Grant explained that the certificate stated that she had capacity to do a course. Zoey informed her that the latter comment on the certificate was not taken into consideration and that all that was considered was the ticked box that said she had capacity.
Ms Grant stated that, thereafter, she experienced a lot of distress and consulted Ms Carter. She described herself as being in a state of panic that her livelihood had been taken away despite having tried to do the right thing by engaging in a course with a view to returning to work. She felt that EML had “pulled the rug from underneath”[7] her.
[7] ARD at page 5 at [101].
Ms Grant stated that she was looking forward to completing the TAFE course so that she could try and get back to work and be a normal person. She now avoids shopping centres and supermarkets. She continues to suffer from anxiety, distress, depression, fear, rumination, crying, agoraphobia and sleep disturbance.
Ms Grant concluded by stating the following:
“I do not believe the Certificates issued by my doctor demonstrate I have capacity to work. They were issued so that I could get some training to return to work in the future. I feel deceived by the insurer because I understand at the time they were talking to me about my return to work plans I was certified unfit for work. I was only increased to do a course.”[8]
[8] ARD at page 6 at [104].

The treating medical evidence

Following the assault at work on 11 August 2021 described above, Ms Grant was admitted to Shoalhaven Hospital for treatment of her injuries and was discharged on 27 August 2021. The Shoalhaven Hospital discharge referral summarised Ms Grant’s admission as follows:
“Barbara was admitted to SDMH with left pubic rami + right radial head # + partial right common extensor tendon tear. These injuries were sustained during an assault at work, where a disgruntled customer kicked her in the back. She was admitted under the orthopaedic team and managed conservatively from fracture point of view, with APS teams involved to guide pain management and pain adequately controlled with oral analgesia. She was admitted under the inpatient rehabilitation team given her protected weightbearing status, progressing to mobilise with single point stick within a matter of days. Her confidence with mobilising and pain in general improved quickly also, with no PRN analgesia requirements required over the past 3 days. Orthopaedic teams provided discharge advice and follow up as outlined below. Unfortunately she was not able to be reviewed by inpatient psychology services during her admission, however we discussed the importance of this, suggesting regular reviews with yourself [Dr Sithara Bogoda Appuhamilage], referral for a mental health care plan and psychology input, and alternative internet and phoneline sources to use in the interim with support from local family. She was linked with the EDTT team for ongoing allied health support at home to continue with her mobility and independence goals, and discharged home in the care of her daughter on the 27th August.”[9]
[9] ARD at page 136.
Ms Grant had been admitted to Shoalhaven Hospital under the care of Dr Paul Jarman, orthopaedic surgeon. On 24 August 2021, Dr Jarman reported to Dr Smith that Ms Grant was involved in an assault at work where she was kicked by a member of the public and sustained pelvic fractures. She had mentioned left elbow pain on the background of clear
[10] ARD at page 68.
X-rays. She progressed to an MRI scan which revealed a lateral epicondylosis lesion and an undisplaced radial neck fracture. Dr Jarman observed that the fracture seemed stable and did not require immobilisation. He opined that the lateral epicondylosis lesion would need to be addressed later but that the present focus was Ms Grant’s osseous rehabilitation.[10]
On 24 September 2021, Dr Jarman reported to Dr Smith that Ms Grant’s elbow was functioning well. He observed that there was minimal bony tenderness with some tenderness in the region of the lateral epicondyle that may become more apparent as the use of her arm increased. He opined that she could be treated non-surgically in this regard but may require platelet rich plasma injections if the condition became problematic later. In respect of Ms Grant’s pelvis, Dr Jarman was happy for her to wean off crutches after having observed her most recent X-ray. Dr Jarman noted that Ms Grant had quite an issue with post-traumatic stress disorder which warranted admission to on-campus rehabilitation. However, she received outpatient services support in this regard instead.[11]
[11] ARD at pages 66-67.
On 3 November 2021, Dr Jarman reported to Dr Smith that Ms Grant was recovering well physically following her twin injuries with regard to her elbow. Essentially, she had a full range of motion. The elbow was stable and she had no bony tenderness. In respect of her pelvis, she had a full range of hip motion and no pain on weight-bearing. She was continuing to work on her pelvic stability exercises with her physiotherapist. She stated that she was making the appropriate progress with her post-traumatic stress disorder and Dr Jarman opined that this would be the limiting factor in her return to work. He recommended optimising her osteoporosis management and noted that he had not made plans to review her again.[12]
[12] ARD at pages 64-65.

On 28 October 2024, Dr Smith issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 22 October 2024 to 21 November 2024 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. However, in the comments section of the certificate, Dr Smith stated as follows:
“The patient [sic] condition has improved somewhat in that she can attend to limited social visits to beach and is attending TAFE training to work in aged care. Needs psychotherapy and report from psychologist is required.”[13]
[13] ARD at pages 484-486.
On 21 November 2024, Dr Smith issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 21 November 2024 to 17 December 2024 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. However, in the comments section of the certificate, Dr Smith stated as follows:
“She is having heightened traumatic and stress response to the proposal that she will not be paid by insurer as of end of Feb 2025. She cannot do a pre-injury work and do a coarse [sic] at the same time.”[14]
[14] ARD at pages 487-489.
On 18 December 2024, Dr Smith issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 18 December 2024 to 17 January 2025 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also stated that Ms Grant would be fit for pre-injury work from 17 January 2025 and also recorded that she had fitness for some work in the form of training in aged care. However, in the comments section of the certificate, Dr Smith repeated the comments he had made in his certificate dated 21 November 2024.[15]
[15] ARD at pages 490-492.
On 20 January 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 20 January 2025 to 17 February 2025 for seven hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also recorded that Ms Grant had fitness for some work in the form of training in aged care. However, in the comments section of the certificate, Dr Benedicto stated as follows:
“Patient is undergoing a TAFE course in aged care. Has some capacity for work for training purposes only.”[16]
[16] Reply at pages 27-29.
On 20 February 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 20 February 2025 to 20 March 2025 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also recorded that Ms Grant had fitness for some work in the form of training in aged care. However, in the comments section of the certificate, Dr Benedicto repeated the comments she had made in her certificate dated 20 January 2025.[17]
[17] Reply at pages 30-32.
On 20 March 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 20 March 2025 to 17 April 2025 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also recorded that Ms Grant had fitness for some work in the form of training in aged care. However, in the comments section of the certificate, Dr Benedicto repeated the comments she had made in her certificate dated 20 January 2025.[18]
[18] ARD at pages 493-495.
Ms Lauren Carter, psychologist, provided a report dated 26 March 2025.[19] As at the date of her report, Ms Carter stated that Ms Grant had undergone 54 sessions with her since her initial appointment on 13 January 2022.
[19] ARD at pages 56-60.
Ms Carter noted that Ms Grant had symptoms which included flashbacks; avoidance; tearfulness; hypervigilance; poor sleep; re-experiencing intrusive, distressing recollections of the traumatic event; nightmares; anxiety; difficulty concentrating; and anhedonia. Ms Carter diagnosed Ms Grant with post-traumatic stress disorder.
Ms Carter described the treatment provided to Ms Grant to date which included psychoeducation of various kinds and neuroplasticity exercises. She described the psychological intervention strategies implemented as cognitive behavioural therapy, dialectical behaviour therapy and neuroplasticity neuroscience (mindfulness-based).
In respect of Ms Grant’s progress, Ms Carter opined that progress had been slow. However, she noted that Ms Grant was an extremely determined woman. Ms Carter opined that the slow progress had more to do with the magnitude of her trauma rather than her capacity to recover.
In relation to Ms Grant’s work capacity, Ms Carter opined as follows:
“In respect of the period 27 February 2025 to 17 April 2025, in my opinion Barbara Grant does not have any capacity for work. This is supported by her General Practitioner, who stated very clearly that her capacity is for training and study purposes only. Ms Grant is on an excellent trajectory for recovery and return to work capacity, however she is simply not ready yet. She has a clear plan for returning to work. She has absolutely no intention of staying on workcover [sic] indefinitely.”[20]
[20] ARD at page 59 at [4].
Ms Carter noted that Ms Grant had been doing remarkably well with her studies and training and would very much like to continue with the same. She observed Ms Grant to be extremely committed to finishing her studies and training and to re-entering the workforce.
In respect of EML’s work capacity decision, Ms Carter stated:
“I do not agree with the work capacity decision on 18 November 2024 that Ms Grant has the capacity to work as an Aged and Disabled Carer or Clerical and Administrative Worker, 6 hours per day, 5 days per week. She has the capacity to study and train, not to work. Again, this was made extremely clear by Ms Grant’s General Practitioner, Dr Trevor Smith, whose opinion should be taken in good faith as it is in the best interests of the client. Clearly Dr Smith did not know about section 38, however the certificate was made to reflect the client’s needs, which are that she has zero capacity for work and some capacity to study. Moreover, Dr Smith changed the capacity only because he was directed to do so by the insurer in order to be approved to study.”[21]
[21] ARD at pages 59-60 at [7].
On 26 March 2025, unbeknownst to Ms Carter at the time of preparing her report, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having no current capacity for any work from 26 March 2025 to 9 April 2025 due to an exacerbation of her post-traumatic stress disorder.[22]
[22] ARD at pages 496-498.
Dr Benedicto provided a report to EML dated 11 April 2025.[23] Dr Benedicto noted that Ms Grant was known to have post-traumatic stress disorder and that recent events had led to a decline in her mental health. The recent event being that she was asked to resume her work which triggered her post-traumatic stress disorder.
[23] ARD at page 61.
Dr Benedicto noted that Ms Grant was still working on her mental health with her psychologist and that her post-traumatic stress disorder was triggered by having to go back to work. He recommended that a report be requested from the psychologist.
In respect of work capacity, Dr Benedicto opined that Ms Grant did not have any capacity to work at that time and needed to be able to improve her coping skills to tolerate the working environment at IGA. He noted that, physically, she could manage work but that mentally, she was not coping at the moment due to her post-traumatic stress disorder. Ms Grant needed ongoing psychological consultations. Dr Benedicto stated that she would reassess Ms Grant every four weeks to gauge her capacity to work.
On 11 April 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having no current capacity for any work from 11 April 2025 to 9 May 2025 due to an exacerbation of her post-traumatic stress disorder.[24]

The forensic medical evidence

[24] Reply at pages 39-41.

Associate Professor Michael Robertson: 4 April 2023

On 3 April 2023, Ms Grant consulted Associate Professor Michael Robertson, consultant psychiatrist, at the request of her lawyers. In evidence, there is a report by Associate Professor Robertson dated 4 April 2023.[25] I will now refer to the relevant parts of that report.
[25] ARD at pages 28-39.
Associate Professor Robertson took a history from Ms Grant that was consistent with her evidentiary statement.
Associate Professor Robertson diagnosed Ms Grant with chronic post-traumatic stress disorder and opined that she was on the cusp of a comorbid major depressive disorder. He opined that the incident on 11 August 2021 was the substantial and main contributing factor to Ms Grant’s psychopathological disturbance and psychosocial morbidity.
In respect of work capacity, Associate Professor Robertson opined that Ms Grant had no current work capacity and that if the situation continued without intervention, it was likely to become a permanent impairment.

Associate Professor Michael Robertson: 15 July 2024

On 15 July 2024, Ms Grant again consulted Associate Professor Robertson at the request of her lawyers. In evidence, there is a report by Associate Professor Robertson dated 15 July 2024.[26] I will now refer to the relevant parts of that report.
[26] ARD at pages 41-55.
Associate Professor Robertson provided a summary of his previous assessment.
Associate Professor Robertson noted that Ms Grant reported her progress as being a case of two steps forward, one step back since the last consultation with him. She reported that she had not experienced any persisting physical symptoms in the past 12 months. He noted that her primary issue had been ongoing psychopathological disturbance and that the most prominent symptoms had been in the realm of panic. Ms Grant experienced multiple panic attacks in both limited symptom and florid forms with an associated degree of agoraphobia. Flashbacks of the incident were often provoked in similar circumstances.
Associate Professor Robertson maintained the view that Ms Grant presented with a chronic post-traumatic stress disorder attributable to the workplace incident on 11 August 2021. He opined that she had participated in appropriately conducted psychological therapy which had comparable efficacy to medication in the management of post-traumatic stress disorder. He further opined that she had reached a point of maximum medical improvement sufficient for the evaluation of whole person impairment (WPI).
Associate Professor Robertson opined that there had been no inconsistencies evident on mental state examination.
In respect of work capacity, Associate Professor Robertson opined that Ms Grant could not return to her pre-injury occupation given the extent of her panic triggering her intrusive
post-traumatic stress disorder symptoms and hypervigilance. There was no foreseeable circumstance where she could return to pre-injury duties. However, he opined that she could work in alternative duties at about 20 hours per week but that such duties should have minimum scope for interpersonal conflict or tension and have flexible timeframes for completion of tasks. The duties might have to be solitary work or work in isolated locations. He further opined:
“Given her clinical presentation, it is unlikely that Ms Grant will ever again manage to maintain gainful employment on a sustainable basis in a new occupation for which she is reasonably qualified by training, education or experience. Any future employment is likely to be on a reduced hours basis in a significantly diminished role.”[27]
[27] ARD at page 51 at [14].
In respect of Ms Grant’s prognosis, Associate Professor Robertson opined that it was guarded because whilst she had benefited from psychological treatment, she continued to experience symptomatic disturbance and associated psychosocial morbidity which was unlikely to improve.
Associate Professor Robertson assessed Ms Grant’s adaptation/employability as a moderate impairment. He noted that she had been working with a rehabilitation provider and that her recent Certificate of capacity increased to 30 hours, although this was a pragmatic decision by her general practitioner. Ms Grant estimated that she would be capable of sustaining around 20 hours per week in a role that was different from her pre-injury duties including, no scope for interpersonal conflict or tension.
Associate Professor Robertson assessed Ms Grant with a 16% WPI.

Dr Revanthi Injeti: 21 May 2025

On 30 April 2025, Ms Grant consulted Dr Revanthi Injeti, psychiatrist, at the request of Lyndhurst’s lawyers. In evidence, there is a report by Dr Injeti dated 21 May 2025.[28] I will now refer to the relevant parts of that report.
[28] Reply at pages 1-7.
Dr Injety took a history from Ms Grant that was consistent with her evidentiary statement.
Dr Injety opined that Ms Grant appeared to be suffering from post-traumatic stress disorder.
Dr Injety noted that Ms Grant stated she was not ready to return to pre-injury employment because there were certain significant triggers as a result of the assault. She was motivated to attend placement for a Certificate III in Ageing, having already completed a placement and not struggled with any triggers. She felt safer working in aged care.
Dr Injety opined that part-time employment was suitable for Ms Grant as long as there were no triggers and as long as she has support from her psychologist to manage her symptoms. As she had been able to consider workplace placement for 38 hours per week, he recommended that she gradually increase her part-time work of suitable employment for 10 hours per week and, if able to cope, then consider increasing gradually to 38 hours per week.
Dr Injety opined that it was imperative that Ms Grant and her psychologist are involved in the discussion regarding restrictions based on her new workplace. Due to the significant symptoms of post-traumatic stress disorder, she is likely to have triggers and have significant anxiety which may affect her ability to confidently return to work and sustain work in the new workplace. Ms Grant confirmed that working at her pre-injury employment would be a major trigger and therefore, Dr Injety opined that she should not return to pre-injury employment.
Dr Injety assessed Ms Grant’s adaptation/employability as a moderate impairment. He noted that she could not work at all in her pre-injury occupation but could perform less than 20 hours per week in a different position that required less skill or was qualitatively different, that is, less stressful. Ms Grant reported that she had capacity to do work placement for 38 hours per week, six hours per day from May 2025. She intended to complete the work placement and find a role in aged care which she reported as being less complex than her previous role where she was working full-time six days per week and had to multitask.
Dr Injety assessed Ms Grant with a 7% WPI.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. Below is an outline of the parties’ submissions.

Lyndhurst’s submissions

It is uncontroversial that the closed period in dispute falls after the expiry of the second entitlement period (s 38 of the 1987 Act).
In order to secure entitlement to weekly benefits, it is incumbent on Ms Grant to demonstrate that she qualifies for the same within the meaning of s 38 of the 1987 Act.
There is no suggestion that Ms Grant was in any way employed during the period in dispute. So, s 38 of the 1987 Act appears to be limited to the proposition that she had no current work capacity during that period (s 38(2)).
The Commission is seized with the jurisdiction to adjudicate s 38(2) of the 1987 Act where Lyndhurst has put it in issue.
Lyndhurst submits that Ms Grant has a current work capacity. That is, it does not accept that Ms Grant has no current work capacity and is likely to continue to have no current work capacity. Such submission is supported by the Certificate of capacity dated 20 February 2025 issued to Ms Grant by Dr Benedicto. The certificate covers the period 20 February 2025 to 20 March 2025 certifying capacity for some type of work for six hours per day, five days per week. In response to the question posed on the certificate that, if there was no current capacity for work, what was the estimated time to return to any type of employment, Dr Benedicto recorded that Ms Grant had fitness for some work in the form of training in aged care. There is some ambiguity in that comment, in that, it seems to be unresponsive to the question that it answers. However, it is acknowledged that, on one view of it, Dr Benedicto is saying that the work for which Ms Grant has capacity for 30 hours per week constitutes training in aged care. If the certificate is read in that way, then it would be a matter for the Commission to determine whether training in aged care constitutes work that would support a finding of current capacity. If it does, then Ms Grant’s claim fails. If otherwise, she succeeds.
The parties have agreed that the relevant rate of compensation for the period in dispute is $1,432 per week.
The Commission should read the Certificate of capacity dated 20 February 2025 on its own. What was done in other certificates before or afterwards does not assist the Commission in this dispute.
The question is whether training in aged care is considered to be employment or whether it is rehabilitation or something else that does not support a finding of current work capacity.
Dr Benedicto’s report dated 11 April 2025 provides some insight as to what she was considering when completing the certificates of capacity she issued to Ms Grant.

Ms Grant’s submissions

Ms Grant had no work capacity for the period in dispute. This submission is supported by Dr Benedicto’s report dated 11 April 2025. Dr Benedicto observed that Ms Grant was not coping mentally due to her post-traumatic stress disorder at that moment and opined that she had no work capacity at this time.
Further support comes from Ms Carter in her report dated 26 March 2025. Ms Carter opined that Ms Grant did not have any capacity for work during the period 27 February 2025 to 17 April 2025. Ms Carter opined that Ms Grant was on an excellent trajectory for recovery and a return to work capacity but was simply not ready yet. Ms Carter further opined that Ms Grant absolutely had capacity for study and training but not for work. Ms Carter’s opinions confirmed Dr Benedicto’s view that it was important to refer to Ms Carter’s opinion, she having treated Ms Grant for so long.
The Certificate of capacity dated 20 February 2025 stated that Ms Grant was undergoing a TAFE course in aged care and had some capacity for work for training purposes only, which was reflective of what Dr Benedicto and Ms Carter had said in their respective reports referred to above. So, the certificate certifying Ms Grant fit for some type of work must be viewed in that format.
If there is some capacity for work, there must be some measure of earnings. Ms Grant was not paid for any of the training. There is no way of measuring an entitlement to fulfill the s 38 test for capacity by way of income on that basis. However, that is not the end of the test as s 32A of the 1987 Act requires some examination of all the matters listed therein, including Ms Grant’s history, injury and other factors that may impact on her health. In accordance with Wollongong Nursing Home Pty Ltd v Dewar[29] (Dewar), there has to be a capacity to do some real job for Ms Grant to be fit for suitable employment.
[29] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.

The Certificates of capacity prior to and following the certificate dated 20 February 2025 appear to have consistently set forth some capacity for work for training purposes only. It is doubtful that “training purposes only” would fulfill the test of a real job.
The Certificate of capacity dated 26 March 2025 issued to Ms Grant by Dr Benedicto recorded no current capacity for any work from 26 March 2025 to 9 April 2025. Whilst it is outside the period in dispute, it provides some insight into prior certifications.
A month after the closed period claimed, Dr Injeti opined that it was imperative that Ms Grant and Ms Carter be involved in the discussion regarding restrictions based on her new workplace. Part-time employment is suitable as long as there are no triggers and she has support to manage her symptoms. He recommended a gradual increase in part-time work of suitable employment for 10 hours per week and if able to cope, then consider increasing gradually to 38 hours per week. Dr Injeti expressed a significant level of caution in respect of a slow introduction in Ms Grant’s return to work.
Whilst Associate Professor Robertson’s reports pre-dated the closed period claimed they are important reading. He opined that, in terms of Ms Grant’s capacity, she could work in alternative duties 20 hours per week but with a minimum scope for interpersonal conflict or tension; have flexible time frames for completion of tasks; and perform solitary work or work in isolated locations. He opined that it was unlikely that she would ever manage to maintain gainful employment on a sustainable basis in a new occupation and that any future employment would likely be on a reduced hours basis in a significantly diminished role.
Ms Grant’s evidentiary statement set out the circumstances surrounding the appointment of Actual Rehab by EML; the reason behind the certification of increased work capacity to facilitate her participation in a Certificate III in Individual Support: Aging at TAFE; her participation in the TAFE course; and details of her placement component in the course.
The evidence from Ms Grant and Ms Carter is that the former was trying to get back to work by engaging in the training. Ms Grant’s evidence was that she could not complete the course and work at the same time. When, on 27 February 2025, she realised that her weekly benefits had ceased, she became increasingly distressed and spoke to Ms Carter, which was consistent with the latter’s opinion that Ms Grant had no work capacity during the closed period claimed.
Ms Grant had no work capacity during the closed period claimed. There was no real job for which she was then fit between 27 February 2025 and 25 March 2025. Accordingly, she is entitled to $1,432 per week for the period claimed.
However, if the Commission finds that Ms Grant had some capacity during the closed period claimed, there was no evidence that she was working fulfilling the test required in s 38 of the 1987 Act, that is, working 15 hours per week at $211 per week and so, her claim will fail.

Lyndhurst’s submissions in reply

Counsel for Lyndhurst drew the Commission’s attention to Schedule 3, cl 9 of the 1987 Act which contains the definitions of current work capacity and no current work capacity.

FINDINGS AND REASONS

The legislation and legal principles

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the Act to the injured worker shall include weekly payments during the period of incapacity.
There is no issue that the closed period in dispute, namely, 27 February 2025 to 25 March 2025 falls after the expiry of the second entitlement period (s 38 of the 1987 Act).
Section 38 of the 1987 Act deals with weekly benefits payments after the second entitlement period, that is, after week 130.
Section 38(1) of the 1987 Act provides:
“A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.”
Section 38(2) of the 1987 Act provides:
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”
Section 38(3) of the 1987 Act provides:
“A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if -
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.”
In Sabanayagam v St George Bank Ltd[30] (Sabanayagam), Sackville AJA found that the controversy between the parties regarding the worker’s satisfaction of the requirements under s 38(2) or s 38(3) arose under the 1987 Act. Accordingly, the Commission had jurisdiction to determine the matter subject to the operation of s 43 of the 1987 Act (work capacity decisions by insurers).[31]
[30] Sabanayagam v St George Bank Ltd [2016] NSWCA 145.
[31] Sabanayagam v St George Bank Ltd [2016] NSWCA 145 at [127].
An assessment of Ms Grant’s capacity involves a consideration of whether she has no current work capacity or a current work capacity as defined in Schedule 3, cl 9 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 defines “suitable employment” as follows:
“‘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.”

Section 43 of the 1987 Act in existence prior to the 2012 amending Act and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”.[32]
[32] Arnott's Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171.
Since the 2012 amending Act, it is clear that “total incapacity” differs from “no current work capacity”. “No current work capacity” requires a consideration of the worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Roche DP in Mid North Coast Local Health District v De Boer[33] and in Dewar.
[33] Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41.
In Dewar, Roche DP stated:
“… employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.[34]
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ … However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[35]
[34] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [56].
[35] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [57]-[60].

Consideration and findings

The unchallenged evidence is that Ms Grant sustained physical and psychological injuries as a result of the incident on 11 August 2021 during the course of her employment with Lyndhurst. She made a good recovery from her physical injuries and was discharged from Dr Jarman’s care on 3 November 2021. The preponderance of the medical evidence demonstrates that Ms Grant’s primary ongoing issues are the symptoms related to her
post-traumatic stress disorder caused by the work related incident.
On mental state examination, Associate Professor Robertson observed no inconsistencies in Ms Grant’s presentation. Dr Injeti did not raise any inconsistencies in Ms Grant’s presentation. Ms Carter observed that Ms Grant was extremely committed to finishing her TAFE studies, placement training and then re-entering the workforce.
I accept Ms Grant as a witness of truth, who did her best to provide a history of her injuries, her treatment and her complaints of symptoms to her treating doctors, psychologist and the forensic medical specialists. The histories she provided of injury, treatment and complaints of symptoms were, in the main, consistent. I also accept her unchallenged evidence, corroborated by Ms Carter, that she is motivated to return to work.
I accept Ms Grant’s following unchallenged evidence:
(a)    EML assigned Ms Grant to a rehabilitation provider, Louise of Actual Rehab to whom she expressed an interest in aged care;
(b)    Dr Smith and Ms Grant were involved in a number of teleconferences with Louise of Actual Rehab, who suggested that her capacity for work be increased so that she could do the proposed TAFE course that EML would pay for;
(c)    EML reimbursed Ms Grant for a police and NDIS check in order to enable her to enter the proposed 12 month TAFE course;
(d)    Ms Grant commenced the TAFE course in August 2024;
(e)    Ms Grant participated in the course online from home via MS Teams classes for 5.5 hours, one day per week and attended TAFE in person at Nowra once every four weeks between 9.30am and 4.30pm;
(f)    Ms Grant was required to participate in three placement components to the course, being three blocks of 40 hours in November 2024, March 2025 and May 2025;
(g)    Louise of Actual Rehab suggested that Dr Smith further increase Ms Grant’s work capacity to enable her to attend the placement components of the course;
(h)    Ms Grant participated in the first placement component of the course for a one week block in November 2024;
(i)    Ms Grant participated in the second placement component of the course for a one week block beginning on 11 March 2025, and
(j)    Ms Grant was not paid for her participation in the two placement components of the course.
EML’s work capacity decision dated 18 November 2024 relied on a vocational assessment report by Actual Rehab on 12 September 2023 that suggested suitable vocational options for Ms Grant were as an aged and disability carer or as a clerical and administrative worker. The Actual Rehab vocational assessment report was not in evidence before me, nor was Dr Smith’s alleged medical endorsement of the role of an administration assistant being within Ms Grant’s current functional capacity.
EML’s review outcome dated 19 March 2025 referred to a Certificate of capacity issued by Dr Smith dated 18 September 2024 certifying Ms Grant with the capacity to work six hours per day, five days per week, with restrictions. On that basis, EML was satisfied that Ms Grant had the capacity to work 30 hours per week. Dr Smith’s certificate was not in evidence before me.
I accept Ms Grant’s unchallenged description of the events that occurred between the issue of EML’s work capacity decision dated 18 November 2024 and the telephone call she received from Zoey of EML on 25 March 2025 (referred to in [28]-[30] above). I also accept Ms Grant’s evidence that she became increasingly distressed and in a state of panic after the telephone conversation with Zoey on 25 March 2025. Ms Grant’s increase in symptoms was corroborated in the Certificate of capacity issued by Dr Benedicto dated 26 March 2025 certifying her as having no current capacity for any work from 26 March 2025 to 9 April 2025 due to an exacerbation of her post-traumatic stress disorder.
I accept Ms Grant’s evidence in respect of her ongoing work-related psychological symptoms as set out in [103] of her evidentiary statement. I also accept those symptoms set out by Ms Carter in her report dated 26 March 2025 at [2], noting however, Ms Carter’s evidence that there had been an increase in those symptoms from or about 26 March 2025.
If Ms Grant had “no current work capacity” during the disputed period 27 February 2025 to 25 March 2025 as has been submitted by her counsel, I must assess whether she has been able to return to both her pre-injury duties and suitable employment since 11 August 2021.
Firstly, I will deal with Ms Grant’s ability to return to her pre-injury duties.
Neither Dr Benedicto, nor Ms Carter specifically addressed the issue of Ms Grant’s ability to return to her pre-injury duties in their respective reports.
Associate Professor Robertson opined that Ms Grant could not return to her pre-injury occupation given the extent of her panic triggering her intrusive post-traumatic stress disorder symptoms and hypervigilance and that there was no foreseeable circumstance where she could return to pre-injury duties.
Dr Injety opined that Ms Grant should not return to her pre-injury employment because it would be a major trigger.
Accordingly, I am satisfied and find that Ms Grant has had no capacity to return to her
pre-injury duties from 11 August 2021 and ongoing.
The next matter for consideration is whether Ms Grant was fit for suitable employment as defined in s 32A of the 1987 Act. This requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan and any occupational rehabilitation services that have been provided, irrespective of whether the work is available to her or of a type or nature that is generally available in the employment market.
Ms Grant is a 54-year-old woman who left high school half way through year 11 in 1987. After leaving high school, she worked for Westpac Bank for about nine years. In 1995, she left her employment with Westpac Bank to have children. When the youngest of her three children was two or three years old, she commenced work at the Abbey Nursing Home as a full-time cook for a period of about two years. She worked as a teachers’ aide at the school her children attended, St George’s Basin Public School, for about two years during school hours until about 2008 when funding for her position ran out. Whilst working as a teachers’ aide she also worked as a cleaner at the Huskisson Bayside Motel for a period of about two years. She then obtained casual work for 20 to 30 hours per week at Coles in Vincentia for about two years. She was offered a better job at IGA in Berry in about 2014/2015 where she worked for seven to eight years. She was moved to Lyndhurst’s IGA store in Bomaderry as a store manager, working six days per week, 7.5 hours per day.
There were no return to work plans or relevant occupational rehabilitation service reports in evidence. However, there were a series of Pinnacle Rehab reports, the first of which was dated 9 September 2021 and the last of which was dated 14 December 2021. Those early reports were of little relevance to the issue in dispute. There was the work capacity decision dated 18 November 2024 and the review request outcome dated 19 March 2025 that relied on the Actual Rehab vocational assessment report dated 12 September 2023 that purportedly suggested that suitable vocational options for Ms Grant were as an aged and disability carer or as a clerical and administrative worker. EML was satisfied that Ms Grant had the capacity to work 30 hours per week as allegedly certified by Dr Smith. It is this work capacity decision that is disputed by Ms Grant but limited to the closed period in dispute, namely, 27 February 2025 to 25 March 2025.
Associate Professor Robertson’s most recent report dated 15 July 2024 pre-dated the closed period in dispute. However, at the time, he did provide some insight as to Ms Grant’s work capacity in the future, which I have referred to at [65]-[67] above.
Ms Grant’s consultation with Dr Injety took place about one month after the end of the closed period in dispute. However, it also provided some insight as to Ms Grant’s work capacity in the future, which I have referred to at [72]-[75] above.
On 20 February 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 20 February 2025 to 20 March 2025 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also recorded that Ms Grant had fitness for some work in the form of training in aged care noting that Ms Grant was undergoing a TAFE course in aged care and had some capacity for work for training in aged care purposes only.
On 11 March 2025, Ms Grant commenced and completed the one week second placement component of her TAFE course.
On 20 March 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having capacity for some type of work from 20 March 2025 to 17 April 2025 for six hours per day, five days per week, noting that the factors affecting her recovery were the ongoing symptoms of post-traumatic stress disorder. The certificate also recorded that Ms Grant had fitness for some work in the form of training in aged care. The certificate again recorded that Ms Grant had fitness for some work in the form of training in aged care noting that Ms Grant was undergoing a TAFE course in aged care and had some capacity for work for training purposes only.

On 26 March 2025, Dr Benedicto issued Ms Grant with a Certificate of capacity certifying her as having no current capacity for any work from 26 March 2025 to 9 April 2025 due to an exacerbation of her post-traumatic stress disorder.
In her report dated 11 April 2025, Dr Benedicto provided some clarity in respect of the certificates of capacity referred to above. She referred to the decline in Ms Grant’s mental health which triggered her post-traumatic stress disorder when she was requested to return to work. This was consistent with Ms Grant’s evidence that she would not be able to complete the12 month TAFE course approved by EML if she had to go back to work. Dr Benedicto opined that Ms Grant could manage work physically but that, mentally, she was not coping due to her post-traumatic stress disorder and that she required ongoing consultations with her psychologist. This was consistent with the opinions expressed by Ms Carter in her report dated 26 March 2025.
In respect of Ms Grant’s work capacity, Ms Carter opined that Ms Grant had no work capacity during the period 27 February 2025 to 17 April 2025 and noted that such opinion was supported by her general practitioner who stated very clearly that her capacity was for training and study purposes only. Ms Carter opined that Ms Grant had capacity for study and training and had been doing remarkably well in this regard. She further opined that Ms Grant was simply not yet ready to return to work from a psychological viewpoint.
Ms Carter’s opinion is very persuasive. Ms Grant had undergone 54 sessions of therapy with Ms Carter by the time of her report dated 26 March 2025. Ms Carter was in the best position to assess Ms Grant’s psychological progress and work capacity.
I reject Lyndhurst’s submission that there was some ambiguity in Dr Benedicto’s Certificates of capacity. I am satisfied that Dr Benedicto was certifying that Ms Grant was only fit for 30 hours per week training in aged care and not fit for a return to work as such. This finding was supported by the opinion of Ms Carter.
I am not satisfied that the unpaid training in aged care approved by EML constitutes work that would support a finding of current work capacity. It was a pathway agreed to by EML to lead Ms Grant back to a return to work. It was a pathway she had not yet completed. Ms Grant’s second onsite training component commenced on 11 March 2025 for a period of one week only. Her attendance in-person at Nowra TAFE was only required every four weeks from 9.30am to 4.30pm during the 12 month course. Course classes were online from home for 5.5 hours, one day per week.
I am not satisfied that being able to study and train in aged care for the hours set out above meant that Ms Grant had a current work capacity during the closed period in dispute in the light of Dr Benedicto’s evidence and more particularly, the evidence of Ms Carter. There was no persuasive medical evidence in Lyndhurst’s case that expressed an opinion in respect of the closed period of weekly benefits claimed. Further, the Actual Rehab vocational assessment report relied on by Lyndhurst in its work capacity decision was not in evidence.
Having regard to the medical evidence of Dr Benedicto and particularly, Ms Carter as to Ms Grant’s capacity, Ms Grant’s age, skills, work experience and the other relevant factors to be considered in accordance with s 32A of the 1987 Act, I am satisfied, on the balance of probabilities, that she had no current work capacity during the period in dispute, namely, 27 February 2025 to 25 March 2025.
Accordingly, I find that Ms Grant is entitled to weekly compensation from 27 February 2025 to 25 March 2025 at the agreed rate of $1,432 per week under s 38(2) of the 1987 Act.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this

[2025] NSWPIC 329

9 July 2025