Hutchison v Bogan Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hutchison v Bogan Shire Council [2024] NSWPIC 528
APPLICANT:	Nathan Hutchison
RESPONDENT:	Bogan Shire Council
MEMBER:	John Isaksen
DATE OF DECISION:	23 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation; whether the worker has had no current work capacity or a partial incapacity for work as a result of a psychological injury; Lithgow Services Pty Ltd v Walsh, and State of New South Wales v Rattenbury considered; Held – the worker has had no current work capacity since the date of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has had no current work capacity since 22 February 2023 as a result of the psychological injury he sustained in the course of his employment with the respondent on 21 February 2023. The Commission orders: 2. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,015 per week from 22 February 2023 to 31 March 2023 pursuant to s 36 (1) of the Workers Compensation Act 1987 (1987 Act); (b) $1,057 per week from 1 April 2023 to 23 May 2023 pursuant to s 36 (1) of the 1987 Act; (c) $890 per week from 24 May 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act; (d) $911.25 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act, and (e) $927.60 per week from 1 April 2024 to date and continuing pursuant to s 37 (1) of the 1987 Act. 3. The respondent is to have credit for weekly payments of compensation already paid to the applicant.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Nathan Hutchison, sustained a psychological injury as a result of interpersonal conflict while employed as a minor plant operator with the respondent, Bogan Shire Council.
The applicant ceased work as a result of this injury on 21 February 2023.
The respondent initially denied liability by relying upon s 11A of the Workers Compensation Act 1987 (the 1987 Act) in a dispute notice dated 21 June 2023. The respondent also included a work capacity decision in that dispute notice if it were to be found that the s 11A defence could not be maintained. The respondent assessed the applicant as being able to work up to 20 hours per week as a plant operator, store person or labourer, and had an ability to earn up to $682.82 per week.
The respondent withdrew its denial of liability pursuant to s 11A in a review notice dated 11 March 2023, but maintained the work capacity decision it had previously made.
The applicant contends that he has had no current work capacity since 22 February 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the extent of the applicant’s incapacity for work (ss 32A, 33 and 37 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation and arbitration on 7 August 2024. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Morgan appeared for the applicant. Ms Grotte appeared for the respondent.
The hearing could not be completed on 7 August 2024 and a timetable was set for the filing of written submissions to complete the hearing.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,068.44 as at 21 February 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on 31 July 2024;
(d)    Application to Admit Late Documents filed by the respondent on 7 August 2024;
(e)    written submissions filed by the applicant on 21 August 2024 and 18 September 2024, and
(f)    written submissions filed by the respondent on 12 September 2024.

Oral evidence

There was no application to adduce oral evidence from the applicant or to cross examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 27 March 2023, 6 July 2023 and 26 February 2024. The statement dated 27 March 2023 is primarily related to the circumstances at work which resulted in the psychological injury sustained by the applicant.
In his statement dated 26 February 2024, the applicant states that he has not returned to any form of employment since February 2023. The applicant states that he often finds it difficult to get out of bed in the morning because he has no purpose, and that feelings of worthlessness dictates each day. He states that he has little motivation to do anything.
The applicant states that he is always ruminating on what happened at work, which causes his anxiety to increase.
The applicant states that he is unable to concentrate like he used to, and his attention span is reduced.
The applicant states that he only drives independently in his local area, and that even this can cause his anxiety to increase.
The applicant continues to take several medications, including Sertraline, and other medications for heart disease.

The medical evidence

Certificates of Capacity issued by general practitioners from Western Plains Medical Centre since the applicant sustained injury in February 2023 have consistently certified the applicant as having no current work capacity.
The Certificates of Capacity were initially issued by Dr Priyamanna. Dr Volceva then issued Certificates of Capacity from 28 March 2023 to 28 May 2023. Dr Rhazif has issued Certificates of Capacity since July 2023.
Dr Rhazif has provided a medical report dated 4 April 2024. Dr Rhazif writes that he took over the applicant’s clinical review in June 2023. He writes that he has observed the applicant having symptoms of recurrent panic attacks and feelings of impending doom, anhedonia, poor energy, and difficulty in concentrating. He writes that he has also observed in the past four to five months the applicant having excessive anxiety and depression about “life circumstances”.
Dr Rhazif writes that mental state examination has revealed the applicant to have a depressed and anxious affect, but that the applicant does have good hygiene, normal motor activity, and his cognition and insight is intact.
Dr Rhazif opines that the applicant has a low tolerance for stress, especially stress of a similar nature to what he experienced as a minor plant operator. Dr Rhazif opines that the applicant’s symptoms have a significant impact on his daily functioning by way of recurrent panic attacks, severe distress, and difficulty sleeping, which severely limits his ability to perform tasks in his previous job or similar employment settings.
Dr Rhazif also opines that impaired concentration, reduced energy levels, and symptoms under stress will compromise the applicant’s ability to safely and effectively perform work duties.
Dr Rhazif opines that the applicant’s capacity for employment is significantly influenced by his current psychiatric condition, which is “directly linked” to his previous employment with the respondent. Dr Rhazif concludes that the applicant does not have current capacity for employment, particularly in regard to a return to his previous job as a minor plant operator. Dr Rhazif writes:
“The direct link between his symptoms and the work environment, combined with the current severity of his symptoms on daily functioning, indicate that he is not fit to return to his previous role.”
Dr Rhazif also states:
“It may also be beneficial to explore alternative employment opportunities in the future if his symptoms getting more stable that do not expose him to similar stressors as those experienced in his previous role.”
The first psychologist that the applicant attended for treatment was Calvin Zheng from Access Psych. Mr Zheng writes in a report dated 25 May 2023 that the applicant attended three sessions between 20 April 2023 and 24 May 2023. Mr Zheng records that the applicant experienced symptoms including low mood, low energy, anger and frustration, sleep disturbance, panic attacks, rumination, and tearfulness.
Mr Zheng did not recommend a return to work with the respondent until the applicant had re-engaged in a consistent healthy routine to support his daily living. He anticipated that it might take another four to eight weeks before the applicant was ready to return to work.
There are also clinical notes from Access Psych in evidence and which record the applicant’s last session to be on 27 June 2023. The notes for the session on 27 June 2023 record the applicant still struggling with anxiety and being tired every day.
The applicant has subsequently attended Dr Daniel Brown, clinical psychologist, for treatment. Dr Bowen has provided a short report dated 8 December 2023 which records the applicant having “Extremely Severe” results for depression, anxiety and stress scale DASS-21 for depression, anxiety and stress. The only change in those results five months later is that stress is “Severe.”
Dr Bowen otherwise records in a short report dated 15 May 2024 that the applicant presents with excessive anxiety and worry, low mood, angry/irritable mood, and disturbed sleep.
Dr Glen Smith, consultant forensic psychiatrist, has provided a report at the request of the applicant’s lawyers dated 15 December 2023. Dr Smith interviewed and assessed the applicant by video link.
Dr Smith records that the applicant described continuing to be anxious and depressed, having reduced interest and enjoyment of activities, and feeling tired throughout the day.
Dr Smith records on mental state examination that the applicant appeared anxious and downcast. He records that the applicant’s thought content was characterised by feelings of worthlessness, hopelessness and suicidal ideation.
Dr Smith diagnoses the applicant as having major depressive disorder with anxious distress. He also diagnoses opiate use disorder, alcohol use disorder, cannabis use disorder, and stimulant use disorder, all of which are in sustained remission, and which have been stable for some years prior to the issues the applicant experienced while employed with the respondent.
Dr Smith opines that the applicant presented as being unfit for employment due to his anxiety and depressive symptoms, with associated suicidal ideation and cognitive impairments.
Therese Hatfield, health psychologist, has provided a report at the request of the applicant’s lawyers dated 17 December 2023. Ms Hatfield interviewed and assessed the applicant by video link.
Ms Hatfield records that the applicant reported reduced short-term memory and concentration abilities, loss of enjoyment in all activities, low motivation, and frequent periods of crying.
Ms Hatfield records that the applicant had experienced low blood pressure on a day in the past few months and an investigation had identified a blocked heart valve. She records that the applicant underwent surgery to insert a stent in October 2023 (which was unsuccessful) and November 2023.
Ms Hatfield performed various psychometric testing of the applicant. She concludes that the applicant is severely depressed, discouraged and withdrawn, and most likely meets the criteria for a major depressive episode.
Ms Hatfield opines that the applicant is not fit to return to work with the respondent in the foreseeable future because he has lost all trust in his pre-injury employer and experiences anxiety and symptoms of panic when exposed to reminders of his pre-injury workplace.
Ms Hatfield further opines that the applicant presents with no capacity for work in any occupation. She refers to the applicant having to rely on his partner to remind him to engage in personal care activities, and that he tends to spend his days on the couch and cannot motivate himself to engage in any activities. Ms Hatfield concludes:
“It is difficult to anticipate what paid employment or education/training Mr Hutchison could potentially engage in at this time, given the current severity of his symptoms and impairment these cause to his daily function.”
Ms Hatfield writes that it may be appropriate to review the applicant’s capacity for work and/or training once he has had regular appointments with a psychologist and there is evidence-based treatment for depression.
Dr Samson Roberts, consultant forensic psychiatrist, has provided reports at the request of the respondent’s lawyers dated 28 May 2023, 6 September 2023 and 30 June 2024.
The first report from Dr Roberts dated 28 May 2023 follows an assessment by Zoom on 2 May 2023. Dr Roberts records that the applicant stated that he felt distrustful and expressed anxiety about the prospect of returning to work when he did not know how he would be treated. Dr Roberts records that the applicant said that he would have gone back to work except for a paragraph in a recent letter which asserted that the respondent was not aware of what was happening in the workplace.
Dr Roberts found on mental state examination by video that the applicant did not describe a pervasively depressed mood, but his anxiety was prominent.
Dr Roberts diagnoses an adjustment disorder with anxiety. He writes that he had the impression from the history provided by the applicant that the applicant had improved since leaving the workplace, but there was a deterioration following receipt of a letter to which the applicant took offence.
Dr Roberts is asked if the applicant is psychologically fit to work full time or some specified number of hours per week, noting that the work colleague who caused much of the distress experienced by the applicant has now resigned, and Dr Roberts responds:
“It is evident that Mr Hutchison would be able to resume work in a different workplace undertaking 20 hours per week in a similar role as that in which he was employed previously. With psychological therapy it is expected that within eight weeks he will be fit to resume full pre-injury duties but it is unlikely that he would be psychological comfortable to return to his previous employer having regard to the level of distrust that he feels.”
Dr Roberts undertook a further examination of the applicant by video link on 11 June 2024 for his report dated 30 June 2024.
Dr Roberts records the applicant undergoing three separate procedures in hospitals to treat his cardiac condition.
Dr Roberts asked the applicant about other stressors and the applicant stated that there were always issues with his children, with a son in custody and other children using drugs. The applicant stated that the issues with his children were “stuff that (he can) cope with and deal with every day.”
Dr Roberts found on mental state examination that the applicant exhibited a restricted range of emotional expression, and his account reflected a dysthymic mood.
Dr Roberts writes that the available information now indicates that the applicant has developed depressive symptomatology of a prominent degree reflective of a diagnosis of major depressive disorder. He writes that the applicant described a pervasively depressed mood, loss of energy, loss of motivation, alternate sleep and appetite, and past thoughts of death.
Dr Roberts opines that it is probable that cardiac health issues which the applicant has experienced have contributed significantly to the worsening of his depressive symptoms. He opines that there “is a statistical association between serious cardiac pathology an depressive illness.”
Dr Roberts also records personal stressors of a son in custody, other children using drugs and that the applicant will soon have to relocate from the home in which he is living. Dr Roberts concludes:
“Whilst he downplayed the role of the circumstances as stressors, it is psychologically inconceivable that such circumstances would not represent a psychological burden and, in themselves, such stressors would have the potential to influence a depressive condition.”
Dr Roberts then opines:
“…there are multiple non-work-related factors that are expected to represent sufficient stressors to cause depressive illness in themselves and it is therefore appropriate to conclude that they have influenced the course and severity of his psychiatric presentation.”
Dr Roberts opines that the applicant is not currently fit to resume work. He considers that intervening factors have contributed to a deterioration in the applicant’s condition so that a more comprehensive approach by way of pharmacological and psychological treatment is required for the applicant is fit to resume work. Dr Roberts concludes:
“Based on Mr Hutchison’s account, his psychiatric symptomatology has diminished in severity over recent months, namely subsequent to the reports of Dr Smith and Ms Hatfield. Based on the severity of his condition at the time that they assessed him, their conclusions regarding his work capacity would seem to have been appropriate. As stated above, he remains unfit but has improved and is therefore expected that he will continue to progress, especially with the revised approach to treatment.”
The clinical notes from Western Plains Medical Centre were only received by the Commission on the day before the hearing and were admitted as late documents.
There are extensive notes taken by Dr Rhazif for his first consultation with the applicant on 19 June 2023, which are consistent with the details set out in his report dated 4 April 2024.
There is a reference to “known ischemic heart disease” and the applicant having “concern about his well being” on 19 September 2023.
Dr Rhazif records on 27 September 2023: “Awaiting his heart surgery – feeling anxious due to that as well.”
There are entries on 23 November 2023, 20 December 2023, 5 February 2024, 29 February 2024 and 27 March 2024 for consultations for the applicant’s work injury, which refer to the applicant still feeling anxious at times but being manageable.
There is an entry on 29 April 2024 for “ongoing cardiac issues post-surgery, including ectopic beats on stress test.” There is a record of ectopic beats, dysphagia, right upper back and neck pain, and anxiety. The entry includes: “No capacity at present due to ongoing cardiac and musculoskeletal issues.”
An entry on 23 May 2024 refers to shoulder blade pain, but also “still feels anxious at times but manageable at this stage.” The entry also includes: “Maintain current status quo for his workcover.”
An entry on 7 June 2024 refers to neck and back pain, and a referral to a cardiologist.
An entry on 1 July 2024 records treatment for ischaemic heart disease, right shoulder pain, and anxiety disorder. It is recorded that a Workcover certificate is provided for the applicant’s anxiety disorder.

A summary of the submissions by the parties

Mr Morgan on behalf of the applicant submits that most of the medical evidence supports a conclusion that the applicant has been totally incapacitated for work since the injury he sustained in February 2023. The solitary voice suggesting some capacity for work is from Dr Roberts.
Mr Morgan submits that the certification by applicant’s general practitioners that he is totally unfit for work has not wavered, and that has been reinforced by the findings and opinions of two treating psychologists, Dr Glen Smith, and Dr Hatfield.
Mr Morgan acknowledges that the clinical notes from Western Plains Medical Centre suggest a number of other factors impacting on the applicant’s overall capacity for work, but he submits that the fact remains that the medical evidence referred to supports the applicant having no capacity to work since the date of his injury.
Ms Grotte on behalf of the respondent submits that the primary question for determination is what caused the change in the applicant’s work capacity from a partial work capacity to no work capacity at all between May 2023 and late 2023. Ms Grotte submits that a change in the applicant’s work capacity was due to a multitude of non-work stressors and serious personal health issues which are referred to in the report from Dr Roberts dated 30 June 2024.

Ms Grotte submits that the opinion from Dr Roberts should be preferred and accepted as he is the only expert who has considered all relevant non-work stressors which were capable of causing a change in the applicant’s work capacity in the second half of 2023.
Ms Grotte submits that the medical evidence and opinions relied upon by the applicant make no reference to the serious cardiac issues which the applicant had in the latter part of 2023, with the exception of Ms Hatfield. However, Ms Hatfield she does not meaningfully explore the psychological impact of these issues upon the applicant’s psychological condition. Nor is there any reference in the medical evidence relied upon by the applicant to other physical problems which the applicant has had or issues affecting his children.
Ms Grotte submits that there can be no confidence in the opinions of Dr Bowen, Dr Rhazif, Mr Zhang or Dr Smith because they have failed to comply with the necessary requirements for expert evidence which have been set out in cases such as Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric) and Australian Securities & Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 (Rich). Ms Grotte submits that those opinions ought to be rejected as incomplete and lacking in probative value.
Mr Morgan in response submits that the fact that a worker has a particular vulnerability or family circumstance which might render an otherwise manageable psychiatric condition unmanageable is irrelevant to matters going to incapacity once there has been an acceptance or finding that an injury has been sustained. There is no scope under the legislation as presently framed for the exercise of the discretion to reflect ‘non-work related’ contributions to an overall incapacity.
Mr Morgan submits that the applicant has been totally incapacitated for employment as a consequence of a psychological injury as evidenced by the notes from Western Plains Medical Centre and the report from Dr Rhazif dated 4 April 2024.

DETERMINATION

The respondent proceeds on an assumption that the applicant had a partial incapacity for work as a result of his psychological injury in May 2023. This is based upon the assessment made by Dr Roberts on 2 May 2023.
I prefer the evidence from the applicant’s treating doctors from around this same time, which supports a finding that the applicant had no current work capacity.
Doctors from Western Plains Medical Centre consistently certified the applicant as having no current work capacity from February 2023 up until the time the applicant attended Dr Roberts in May 2023. Dr Rhazif takes over the care of the applicant about seven weeks after that assessment by Dr Roberts, but the notes from that initial consultation with Dr Rhazif record that the applicant still had “excessive anxiety and feel depressed”, and that the applicant was having recurrent panic attacks and “feeling of impending dooms.”
Mr Zheng expressed optimism in his report dated 25 May 2023 when he anticipated that the applicant might be ready to return to work in another four to eight weeks time. There is no further report from Mr Zheng, but the notes from the last session which the applicant attended upon Mr Zheng records the applicant still struggling with anxiety and being tired every day. An entry from the previous session on 13 June 2024 includes: “Anxiety getting me on edge – rang Lifeline on the weekend.”
I prefer the contemporaneous records from those treating the applicant during the six months or so following the applicant ceasing work with the respondent because those health professionals observed and monitored the applicant’s psychological condition on a regular basis, whereas Dr Roberts only examined the applicant on the one occasion. Those contemporaneous records consistently identify the applicant struggling with anxiety and depression, and Certificates of Capacity are issued which certify the applicant as having no current work capacity.
The respondent contends that non-work related stressors in the latter part of 2023, including a cardiac condition which led the applicant to having three admissions to hospital, and difficulties experienced by his children, create a ‘causation of incapacity’ question during this period which is separate to the initial development of the applicant’s injury in early 2023.
The issue as to whether a worker’s incapacity is contributed to by non-work related disability was addressed by DP Roche in Lithgow Services Pty Ltd v Walsh [2011] NSWWCCPD 66 (Walsh) at [94]-[95]:
“…it seems to be suggested that the incapacity suffered by Ms Walsh is contributed to by non-work related disability. Accepting for the moment that there is evidence of such disability it is important to note two fundamental matters. The first is that, if such disability pre-dated the subject injury, it is of no relevance as argued by the appellant. That is so given that an employer takes a worker as he finds him (see discussion by Spigelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (at [40])).
The second matter arises in circumstances where such disability occurs after the subject injury. Such disability may only become relevant if there is a finding of partial incapacity flowing from the 2004 injury.”
There is good evidence to support a finding that the applicant has remained totally incapacitated for work since 22 February 2023 as a result of his work injury. I have already provided my reasons as to why I accept that the applicant was totally incapacitated for work when he attended Dr Roberts in May 2023.
Dr Rhazif continued to certify the applicant as having no current work capacity and recording ongoing psychological symptoms, which he related to the applicant’s work injury, during the latter part of 2023, and despite also being aware of the applicant having serious cardiac issues.
It is apparent from a review of Dr Rhazif’s clinical notes in the latter part of 2023 and during this year that he has been aware of the serious cardiac issues which the applicant has had to contend with, as well as other physical ailments to the lower back, neck and shoulder blade. However, it also apparent that Dr Rhazif has continued to separately identify psychological symptoms referable to the applicant’s work injury, which in turn has led him to continue to certify that the applicant to have no current work capacity as a result of that injury. I have referred in my review of the medical evidence to entries made by Dr Rhazif 23 November 2023, 20 December 2023, 5 February 2024, 29 February 2024 and 27 March 2024 of ongoing psychological problems experienced by the applicant which continue to relate to his work injury.
Furthermore, the report from Dr Rhazif dated 4 April 2024 refers to the applicant having excessive anxiety and depression “about life circumstances” over the previous four to five months. Dr Rhazif does not provide any further particulars of those “life circumstances”, but he does also opine that there remains a direct link between the applicant’s symptoms and the applicant’s work with the respondent.
Ms Grotte submits that a critical piece of evidence is the entry made by Dr Rhazif on 29 April 2024, which includes: “No capacity at present due to ongoing cardiac and musculoskeletal issues”, and there being no reference to any psychological injury.
However, the Certificate of Capacity issued from that consultation (at page 292 of the Application to Admit Late Documents filed by the respondent on 7 August 2024) certifies the applicant as having no current work capacity as a result of the psychological injury he sustained in the workplace.
The clinical notes record that there are regular attendances by the applicant both before and after this one consultation where the applicant is seeking treatment for his work injury. This includes the applicant being prescribed Sertraline, which has been part of the applicant’s treatment since Dr Rhazif took on the care of the applicant in June 2023.
Furthermore, as DP Roche observed in State of New South Wales v Rattenbury [2015] NSWWCCPD 46 (Rattenbury) at [91]:
“…there can be multiple causes of an incapacity (Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435).”
The contemporaneous medical records from the applicant’s treating practitioners therefore support a finding that the applicant has continued to experience significant psychological symptoms as a result of his work injury and caused him to remain totally unfit for work notwithstanding other medical and familial issues which he has had to deal with in the latter part of 2023 and during the course of this year.
Such a finding is supported by the opinions of Dr Smith and Ms Hatfield, who separately opine in December 2023 that the applicant is unfit for work due to his psychological symptoms as a result of bullying and harassment in the workplace.
The respondent contends that those opinions have not been provided in a ‘fair climate’. Samuels JA said in regard to expert evidence in Paric (with Hutley and Priestley JJA agreeing) at [590G]-[510B]:
“Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
While it would have been helpful for Dr Smith to be have made aware of the cardiac health problems which the applicant was having at the time he was examined by Dr Smith in December 2023, I do not consider that lack of information to be ‘fatal’ to the opinion expressed by Dr Smith because of the ample evidence which I have referred to from treatment providers which confirm the ongoing psychological effects of the work injury sustained by the applicant.
In addition, it also needs to be emphasised that Dr Roberts does not state in his report dated 30 June 2024 that the applicant can only be regarded as totally unfit if other non-work related issues are added to the applicant’s condition. He opines that “it is psychologically inconceivable” that the role of other circumstances would not represent a psychological burden upon the applicant, but he does not opine that the applicant can only be regarded as being totally unfit for work if those other “circumstances” are included in the overall psychological condition of the applicant.
The observation of DP Roche in Rattenbury needs to be reiterated: “there can be multiple causes of an incapacity.” The question is whether the effects of the work injury continue to cause the applicant to have no current work capacity. The evidence which I have referred to, and the reasons I have given, support a finding that the applicant has had no current work capacity as a result of his work injury since 22 February 2023.
PIAWE has been agreed at $1,068.44. The applicant is entitled to indexation of the award of weekly payments to be made in his favour pursuant to s 82A of the 1987 Act. The applicant has been in receipt of weekly payments since 22 February 2024, but those payments have been based upon the work capacity decision made by the respondent on 21 June 2023.
I will make an award of weekly payments of compensation pursuant to ss 36 (1) and 37 (1) of the 1987 Act, but there will be an additional order that the respondent have credit for payments already made to the applicant.
The award of weekly payments of compensation to the applicant, with adjustments made pursuant to s 82A, will be as follows:
(a) $1,015 per week from 22 February 2023 to 31 March 2023 pursuant to s 36 (1) of the 1987 Act;
(b) $1,057 per week from 1 April 2023 to 23 May 2023 pursuant to s 36 (1) of the 1987 Act;
(c)    $890 per week from 24 May 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act;
(d)    $911.25 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act, and
(e)    $927.60 per week from 1 April 2024 to date and continuing pursuant to s 37 (1) of the 1987 Act.

[2024] NSWPIC 528

23 September 2024