Hamad v Express Glass 24 hour Service Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hamad v Express Glass 24 hour Service Pty Ltd [2025] NSWPIC 322
APPLICANT:	Ghadir Hamad
RESPONDENT:	Express Glass 24 hour Service Pty Ltd
MEMBER:	John Harris
DATE OF DECISION:	7 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation during sections 37 and 38 periods; assessment of impairment by Medical Assessor (MA) found some work capacity; medical evidence established no current capacity for part of the period; applicant accepted he could not discharge onus of proof of no current work capacity; drawing of inference as to when applicant failed to establish no current work capacity; application of commonsense; Seltsam Pty Ltd v McGuiness and Tudor Capital Australia Pty Ltd v Christensen considered; applicant failed to discharge onus of proof of no current work capacity from commencement of section 38 period; Held – applicant entitled to weekly compensation based on no current work capacity during section 37 period; award for respondent during section 38 period.
DETERMINATIONS MADE:	1. The applicant had no current work capacity to 7 August 2024. 2. As and from 8 August 2025 the applicant had current work capacity. 3. The claim was amended to claim weekly compensation until 21 January 2025. 4. Respondent to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act as follows: (a) $1,120 per week from 28 February 2023 to 31 March 2023; (b) $1,166.37 per week from 1 April 2023 to 30 September 2023; (c) $1,194.01 per week from 1 October 2023 to 31 March 2024, and (d) $1,215.38 per week from 1 April 2024 to 7 August 2024. 5. Award for the respondent in respect of the claim for weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 from 8 August 2025 to 21 January 2025. 6. The applicant has no entitlement to compensation pursuant to s 66 of the 1987 Act as the permanent impairment assessed by the Medical Assessor and confirmed by the Medical Appeal Panel is below the threshold.

STATEMENT OF REASONS

BACKGROUND

Mr Ghadir Hamad (the applicant) was employed by (the respondent) and sustained injury in the course of his employment on 10 February 2022 when he was struck by glass and suffered significant laceration to the leg. The applicant also suffered psychological injury as a result of the incident.
The applicant claims weekly compensation pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act). The claim for weekly compensation was amended at the hearing to claim for the period from 28 February 2023 to 21 January 2025.
It is agreed that the applicant’s entitlement pursuant to s 37 of the 1987 Act expired on
7 August 2024 and that the claim for weekly compensation thereafter is pursuant to the provisions of s 38 of the 1987 Act.
An agreed wages schedule provided that 80% of the applicant’s pre-injury average weekly earnings for the period are:
(a)    28 February 2023 to 31 March 2023 - $1,120;
(b)    1 April 2023 to 30 September 2023 - $1,166.37;
(c)    1 October 2023 to 31 March 2024 - $1,194.01, and
(d)    1 April 2024 to 30 September 2024 -    $1,215.38.

ADMISSIONS AND ISSUES IN DISPUTE

The applicant was not employed during the period of the claim. Accordingly any entitlement to compensation after 7 August 2024 is constrained by the provisions of s 38(2) of the 1987 Act.
The applicant accepted that he could not establish, on the balance of probabilities, that he had no current work capacity as at 21 January 2025. I will return to the relevance of that date later in the Reasons.
Accordingly, the issues in dispute are:
(a)the extent of any current work capacity during the s 37 period, and
(b)whether the applicant had no current work capacity during the s 38 period.
The claim for incapacity was based solely on psychological injury with no reliance on the physical injuries.

HEARING

The matter was listed for arbitration hearing on 3 July 2025. Mr Gaitanis appeared for the applicant and Mr Perry appeared for the respondent.
The parties were advised that only evidence the subject of submission would be considered.
The following material was admitted into evidence:
(a)    Application to Resolve a Dispute and attachments (Application);
(b)    Reply and attachments;
(c)    Applicant’s Application to Lodge Additional Documents;
(d)    Medical Assessment Certificate dated 21 January 2025, and
(e)    Medical Appeal Panel Certificate dated 5 May 2025.
There was no request to adduce oral evidence.

EVIDENCE

Applicant’s statement

The applicant provided a statement dated 14 October 2024.[1] The applicant was born in 1988, left school in year 11 and tried several different trades including electrical, sheet-metal, air-conditioning and other jobs.
[1] Application, p 1.
The applicant referred to the incident when sheets of glass struck his leg.
The applicant stated that he still has flashbacks and nightmares about the incident which happened a few times a week, still has anxiety and feels frightened and worried about getting hurt. His sleep is disturbed resulting in reduced sleep.

Certificate of capacity

The certificate of capacity dated 22 July 2023 certified the applicant with no current work capacity from that date until 11 November 2023.[2] The certificate noted:
“Physically able to return to preinjury duties, but mentally not, suffers from PTSD. Need to find employment with no direct contact with ‘big panel of glass’ currently approved for transition to new employment.”
[2] Reply, p 341.

Dr D’Silva

Dr D’Silva, psychologist, provided a report dated 5 April 2023.[3] The psychologist noted the applicant continued to display and report symptoms of high levels of anxiety, panic attacks, low mood, tearfulness, lack of motivation, lack of confidence, low self-esteem, disappointment, feelings of hopelessness, mood swings and insufficient sleep.
[3] Application, p 65.
Dr D’Silva provided a further report dated 14 May 2025 when he noted that the applicant continued to suffer from severe nightmares and flashbacks which continued to cause aggravation and exacerbation of symptoms of insomnia, panic, depression and anxiety. The doctor opined that the applicant’s work capacity was currently nil, and he required ongoing psychological and psychiatric treatment.

Dr Kumagaya

Dr David Kumagaya, psychiatrist, was qualified by the applicant and provided a report dated 12 March 2024.[4] The doctor diagnosed the applicant with post-traumatic stress disorder caused by the work injury.
[4] Application, p 39.
Dr Kumagaya noted the applicant’s education as schooling to Year 11 and completion of apprenticeship in glazing with an employment history included pizza chef, sheet metal, air conditioner installer, electrical handyman, trade assistant and glazier.
Dr Kumagaya diagnosed that the applicant was totally incapacitated for work save as to the period from June 2022 to July 2022. The doctor opined that the vocations of sales representative, customer service representative and/or forklift driver required an intact mental state as well as a robust psychosocial functioning. The doctor opined that any vocational engagement as suggested in the report would place the applicant at high risk of further mental state stabilisation and significant deleterious impacts on his of sense of agency, independence and confidence.

Dr Morgans

Dr Sue Morgans, psychiatrist, was qualified by the respondent and provided a report dated 16 July 2024.[5] The doctor noted past employment which included retail, shoe shop, painting and work with the respondent.
[5] Reply, p 1.
Dr Morgans diagnosed a major depressive disorder and post-traumatic stress disorder due to the work injury. The symptoms of post-traumatic stress disorder included intrusive symptoms, persistence avoidance of stimuli associated with the traumatic events, negative alterations in cognitions and marked alterations in arousal.
Dr Morgans diagnosed the applicant as totally incapacitated with zero hours capacity and it was not possible to estimate the duration of time to expect the applicant to regain capacity for employment. The doctor opined that the applicant had not reached maximum medical improvement in accordance with the fourth edition guidelines.

Dr Anwar

Dr Nadeem Anwar, psychiatrist, was qualified by the insurer and provided a report dated
[6] Reply, p 17.
30 August 2022.[6] The doctor diagnosed post-traumatic stress disorder and recommended further treatment including that the applicant be placed on antidepressant medication.
Dr Anwar opined that the applicant currently lacked capacity from a psychiatric perspective to work in his current role or an alternative role with any employer on a part-time or full-time basis with or without restrictions.

Dr Kohler

Dr Terry Kohler, psychologist was qualified by the insurer to provide an independent review of the services provided by Dr D’Silva.[7] In a report dated 14 June 2023 the psychologist noted that there were reported improvements in the applicant’s day-to-day functioning although he was not currently amenable to actively engaging in return-to-work activities.
[7] Reply, p 11.
The psychologist had discussions with Dr D’Silva as to future treatment goals and interventions aimed at helping the applicant to return to work. It was noted that Dr D’ Silva reported that the psychological barriers for the applicant returning to work were his irritability and anger outbursts.
Dr Kohler opined that the applicant was medically fit to work normal hours, and he could not establish any reason that he was psychological unfit to return to work. Ongoing psychological treatment and management was not considered to be reasonably necessary as it approached the level of optimum benefit with regards to treating the impact of the injury.

Vocational report

A vocational report dated 7 October 2022 prepared by two rehabilitation consultants suggested vocational options of sales representatives, customer service representatives, and forklift driver.[8]
[8] Reply, p 27.
The employment history noted the following:[9]
(a)    pizza chef from 2006 to 2008 involving deliveries, customer service, food preparation and pizza making;
(b)    air conditioner installer in 2009 involving installation of aircon units, loading and unloading and use of equipment;
(c)    electrical handyman from 2010 to 2012 involving various electrical expertise;
(d)    trade assistant from 2013 to 2015 involving basic labouring working, digging trenches, unloading and loading and forklift driver, and
(e)    employed by the respondent from 2015 to 2022 which included using a laptop, inductions, general maintenance and cleaning, cutting aluminium, painting timber frames and driving.
[9] Reply, p 37.

Medical Assessment Certificate

Medical Assessor Hong examined the applicant on 10 January 2025 and provided a medical assessment certificate dated 21 January 2025 (the MAC). The applicant described chronic disturbed sleep, depressed mood, feeling hard done from the injury, irritability, loss of concentration and anxiety and worries.
The findings on physical examination were:
“Mr Hamad wore a beanie and tee shirt, and tattoos were visible on his arm. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He smiled and laughed briefly. He spoke spontaneously and fluently. He was not thought disordered. He exhibited good cognitive ability and remain focused throughout the assessment. He was easy to erupt and there was no set-shifting difficulties.”
The Medical Assessor noted the opinion of Dr Kumagaya and observed that the history taken by that doctor was quite different from what he obtained. Medical Assessor Hong stated:
“In terms of employability, given that Dr Kumagai took the wrong history, or different history, in several categories, I believe there is some psychological capacity for employment.”
The Medical Assessor assessed class 3 for employability and provided the following reasons:
“Mr Hamad is not worked since the subject injury and his anxieties impact on his capacity to work. I noted the physicians commented on inconsistencies in his physical capacity, and this physical injury is not assessable in the PIRS.
From a psychological perspective, he has capacity and can manage lower stress employment around 20 hours per week, as he reported a general capacity for initiating activities and perform activities without support or prompting. He can no longer manage his preinjury duties.”

Medical Appeal Panel decision

The Medical Appeal Panel dismissed the applicant’s appeal of the MAC on the basis that the applicant had shown no error pursuant to s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[10]
[10] Hamad v Express Glass 24 hour Service Pty Ltd [2025] NSWPICMP 306.

SUBMISSIONS

Counsels’ submissions have been recorded. The evidence referenced in the submissions have been summarised herein. Where relevant, the submissions are discussed in the findings and reasons which avoids unnecessary repetition.

FINDINGS AND REASONS

I am required to provide a “brief statement” of reasons: s 294(2) of the 1998 Act.
The applicant bears the onus of proof on the balance of probabilities on all issues.[11]
[11] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016]. NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].
The respondent pressed that the opinion of Dr Kohler should be accepted as to the applicant’s current work capacity for employment. However, that opinion is inconsistent with the opinion of treating psychologist (Dr D’Silva), and the qualified opinions by provided by
Dr Anwar (albeit in 2022) and Dr Kumagaya and Dr Morgans in 2024 which found no current work capacity.
The respondent submitted that Dr Kohler’s opinion was done with the assistance of
Dr D’Silva and this was an important part of the respondent’s submission.
I do not accept the submission that Dr Kohler has adopted Dr D’Silva’s opinion when reaching his opinion of current work capacity. I reject the respondent’s submission that
Dr Kohler had regard to or seemingly adopted the opinion of Dr D’Silva. Dr Kohler may have spoken to Dr D’Silva, but his opinion is not in accordance with that provided by the treating psychologist.
The vocational assessment opinion was prepared by rehabilitation consultants and appears to be based on or consistent with the findings of Dr Kohler which I do not accept. The opinion provided in the vocational assessment was not undertaken by either a psychologist or psychiatrist. I give the opinion no weight in this circumstances that the non-qualified authors are commenting on the applicant’s capacity based on his psychological condition.
I agree with the applicant’s submission that the preponderance of the medical evidence overwhelmingly supports the conclusion that the applicant had no current work capacity at all relevant times until at least the time of Dr Morgans’ opinion.
The issue in the present case is that the applicant was assessed by Medical Assessor Hong on 10 January 2025 (the report is dated 21 January 2025, but the examination occurred earlier) as having some capacity for employment. The reasons, whilst not particularly detailed, are clear. Further, the applicant accepted in submissions and did not resist the finding that as at 21 January 2025 the applicant had some current work capacity.
The respondent submitted that the opinion of Dr Morgans in July 2024 was inconsistent with that of the Medical Assessor because Dr Morgans stated that in July 2024 the applicant had not attained maximum medical improvement. I do not agree with that submission as it misunderstands what is meant by maximum medical improvement.
The concept of maximum medical impairment is defined in cl 1.15 of the fourth edition of the NSW workers compensation guidelines for the evaluation of permanent impairment, that the condition is “well stabilised and is unlikely to change substantially in the next year”.
Maximum medical improvement applies to the assessment of permanent impairment.
Dr Morgans’ opined that, at the time of her examination, the applicant’s condition had not stabilised in respect of the assessment of permanent impairment. An aspect of the assessment for a psychological condition is the categorisation of the applicant’s functionality for employment. There is no inconsistency between Dr Morgans’ opinion in July 2024 and that reached by Medical Assessor Hong some six months later because the Medical Assessor had formed the view that the functionality, at least in terms of employability, had improved over that period.
The logical explanation from the conclusions expressed in the respective reports is an improvement of the applicant’s condition between July 2024 and January 2025.
The applicant relied on the presumption that the opinion expressed by Dr Morgans as to lack of capacity would have continued up until the opinion provided by Medical Assessor Hong. The respondent alternatively submitted that the assessment by Medical Assessor Hong in January 2025 should not be interpreted as being limited to the day of the assessment.
I accept the applicant’s submission that, based on Dr Morgan’s opinion, the applicant’s lack of current work capacity would have continued following that opinion. Indeed, Dr Morgans expressed that view. However, it would be illogical to infer, as the applicant submitted, that the applicant only developed some capacity for employment for which he was suitable immediately upon the occurrence of the medical assessment undertaken by Medical Assessor Hong. Indeed, the applicant pressed the occurrence of some capacity as at the date of the report when the examination upon which the report is based occurred some two weeks earlier.
I am entitled to use “commonsense” in evaluating the opinions contained in medical reports. The concept of the use of “commonsense” inferences was discussed in Tudor Capital Australia Pty Ltd v Christensen[12] when McColl JA (as her Honour then was) stated:[13]
“The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material. In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”
[12] [2017] NSWCA 260 (Christensen).
[13] At [364]-[368], Mcfarlan JA agreeing at [425].
Commonsense suggests that these respective opinions show an improvement of the functionality of the applicant’s psychiatric condition which occurred over the period between the examinations undertaken by Dr Morgans and that undertaken by Medical Assessor Hong.
The respondent otherwise correctly submitted that the applicant bears the onus of proof and that a finding of any current work capacity during the period from the commencement of the
s 38 period on 8 August 2024 until January 2025, meant that the applicant was unsuccessful.
The factors under s 32A show that the applicant has a variety of skills and employment. He is of relatively young age and has undertaken employment in various trades as well as work associated with a pizza chef.
“Suitable employment” is defined in s 32A of the 1987 Act as “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
(a)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.”

Schedule 3, cl 9 of the 1987 Act defines current work capacity and no current capacity as:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such as the workers not able to return to work either in the workers pre-injury employment or in suitable employment.
An injured work 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 workers pre-injury employment or able to return to suitable employment that the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in such immediately before that injury.”
The applicant’s entitlement to weekly compensation after 7 August 2024 is pursuant to s 38 of the 1987 Act. It is settled that there is power to make an award during that period.[14]
[14] See Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67 at [22] applying Roberts v University of Sydney [2021] NSWWCC 25 (Roberts).
The applicant is not in employment at the relevant time and therefore is only entitled to an order if he has no current work capacity and this is likely to continue indefinitely pursuant to s 38(2) of the 1987 Act.
I have rejected the alternative positions proffered by the parties as being illogical considering my acceptance of Dr Morgans’ opinion of no current work capacity in July 2024 and the applicant’s concession that he had current work capacity in January 2025. Logically the change in position occurred sometime between these dates. Whilst the selection of a precise date when the applicant possessed current work capacity is somewhat arbitrary, it is within a range of dates which are found with precision.
The applicant submitted against “speculation” when determining the precise date when the applicant had some current work capacity. The reasons explain why a date has been chosen between July 2024 and January 2025 in circumstances where the respondent suggested a date prior to this range and the applicant sought a date at the end of the range. The only uncertainty is the precise date when the applicant has not established, on the relevant onus, that the applicant has no current work capacity.
In the context of the submissions and the applicant’s appropriate concession as to some capacity in January 2025, there will always be uncertainty in assessing the precise date for the cessation of an order for weekly compensation. To the extent that it is possible to give reasons, they reflect the medical opinions at the outlier of this range and ascertaining a date in circumstances where the applicant bears the onus of proof in showing that he had no current work capacity. Rather than amounting to speculation, the determination of a precise date is an inference based on these accepted facts. As Lord Wright stated in Caswell v Powell Duffryn Associated Collieries Ltd:[15]
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
[15] [1940] AC 152 (Caswell) at 169-170.
This passage has been frequently applied. Examples of its application in New South Wales include Seltsam Pty Ltd v McGuiness[16] and Council of the City of Liverpool v Turano.[17] As Spigelman CJ stated in Seltsam, citing Layton v Vines[18], the “test is whether, on the basis of the primary facts, it is reasonable to draw the inference”.[19]
[16] [2000] NSWCA 29 (Seltsam) at [87]
[17] [2008] NSWCA 270 at [405].
[18] [1952] HCA 19; (1952) 85 CLR 352 at 358.
[19] Seltsam at [88].

The various authorities were cited by Snell AP in Secretary, Department of Family and Community Services v Executor of the Estate of Hewston[20] when commenting upon establishing causation by a process of inference such as in circumstantial evidence cases.
[20] [2016] NSWWCCPD 63.
Accordingly, I accept that there would be a reasonable period after Dr Morgans’ examination when the applicant had no current work capacity. At some point his condition improved to the extent that he would have been fit for some work for which he was suitable.
I also observe, not that it was argued, that the applicant may have had difficulty in satisfying to the requisite onus that no current work capacity was “likely to continue indefinitely” within the meaning of s 38 of the 1987 Act.[21] A finding that the applicant’s no current work capacity would continue indefinitely after 7 August 2024 seems inconsistent with the applicant’s concession that he had some current work capacity in January 2025.
[21] Roberts at [98]-[103].
Accordingly, I am not satisfied that the applicant has discharged the onus of proof in showing that he had no current work capacity during any portion of the s 38 period.

FINDINGS AND ORDERS

The findings and orders are set out in the Certificate of Determination.

[2025] NSWPIC 322

7 July 2025