Kazangi v Reece Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kazangi v Reece Australia Pty Ltd [2024] NSWPIC 437
APPLICANT:	Tammy Kazangi
RESPONDENT:	Reece Australia Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	14 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 Act; sections 33 and 37; accepted psychological injury; unrelated brain injury; whether incapacity caused by accepted psychological injury; extent of any incapacity caused by psychological injury; Kooragang Cement Pty Ltd v Bates; Held – as a result of the accepted work-related psychological injury the applicant has had no capacity for work and continues to have no current work capacity; respondent to pay the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of the accepted work related psychological injury the applicant has had no capacity for work from 31 August 2023 and continues to have no current work capacity. 2. The respondent is to pay the applicant pursuant to s 37 of the Workers Compensation Act 1987: (a) $1,152 per week from 31 August 2023 to 30 September 2023; (b) $1,176 per week from 1 October 2023 to 31 March 2024, and (c) $1,200 per week from 1 April 2024 to date and continuing subject to indexation.

STATEMENT OF REASONS

BACKGROUND

Tammy Kazangi, the applicant, was employed by Reece Australia Pty Limited, the respondent, as a showroom consultant and sales representative commencing with the respondent in or about March 2016.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained psychological injury on the deemed date of
1 December 2022. The applicant alleges that she sustained the psychological injury as a result of being bullied and harassed by her manager in the course of her employment.
The applicant claims weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 31 August 2023 ongoing.
It is not disputed that the applicant has suffered psychological injury. The only issue in dispute is whether the applicant has suffered an incapacity, either partial or total, for work as a result of the accepted psychological injury.
It is the applicant’s evidence that she completed Year 10 at High School. She obtained a Weight Loss Consulting Diploma at the Australian Institute of Fitness in 2015.[1]
[1] Applicant’s statement dated 25 January 2024 at [5].
On 2 November 2021 the applicant suffered a subarachnoid haemorrhage secondary to a ruptured cerebral aneurysm for which she underwent surgery at Westmead Hospital at the hands of the neurosurgeon, Dr Gemma Olsson.
Following the haemorrhage the applicant returned to work on part time duties with the respondent on 7 July 2022.
It is the applicant’s evidence that it felt like she wasn't wanted back at work; many of her customers were reassigned, making it difficult to reconnect and impacting her commissions.[2] That she faced hostile comments and targeting. Colleagues constantly picked on her and ridiculed her. That she endured ongoing hostile treatment, excessive criticism, and belittling in front of others, feeling punished for her injury and growing confused, depressed, and isolated.[3]
[2] Applicant’s statement dated 25 January 2024 at [12].
[3] Applicant’s statement dated 25 January 2024 at [13].
On 4 October 2022 the applicant underwent further brain surgery for aneurysm and on
14 November 2022 the applicant underwent a further procedure to treat a large left-sided subdural haemorrhagic collection.
Following these further surgical procedures the applicant returned to work with the respondent on 15 December 2022 and continued to work for the respondent until going off work on 21 March 2023. The applicant has not returned to work since 21 March 2023.

ISSUES FOR DETERMINATION

The parties agreed that there is no dispute in respect to the applicant’s pre-injury average weekly earnings (PIAWE) as pleaded in the Application to Resolve a Dispute (ARD) at $1,379.36.
The parties agree that the following issue remains in dispute:
(a) incapacity for work resulting from an injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
2 July 2024. Mr Jarryd Malouf, counsel, instructed by Mr Andrew Joy and Mr Haider Zawaidi appeared for the applicant, who was present. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Mr Scott Murray. The proceedings were conducted via MS TEAMS. 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 and attached documents;
(b)    Reply and attached documents;
(c)    respondents Application to Admit Late Documents (AALD) dated 4 June 2024 and attached documents;
(d)    applicant’s AALD dated 7 June 2024 and attached documents, and
(e)    respondent’s AALD dated 3 July 2024 and attached documents.
The parties agreed to all the late documents being admitted into evidence with the exception of those attached to an AALD lodged by the respondent dated 27 June 2024.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded.

FINDINGS AND REASONS

Section 33 of the 1987 Act states:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The applicant bears the onus of proving incapacity and that her incapacity results from her injury. It is accepted that the applicant has suffered a work related psychological injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
In essence it is the respondent’s submission that the applicant’s incapacity is a result of a brain injury and the psychological effects of suffering from cerebral aneurysms, cerebral haemorrhage, stroke and neurosurgical treatment. In the respondent’s submission it is necessary to look at the clinical records in chronological order and the significance of the material in respect to the applicant’s aneurysm and stroke.
On 2 November 2021 the applicant suffered a subarachnoid haemorrhage secondary to a ruptured cerebral aneurysm for which she underwent surgery at Westmead Hospital at the hands of the neurosurgeon, Dr Gemma Olsson.
The applicant had a history of depression and anxiety prior to suffering the ruptured cerebral aneurysm. The pre-existing depression and anxiety did not however cause any incapacity for work with the applicant maintaining employment prior to the haemorrhage on
2 November 2021. The medical evidence also supports that the applicant’s mood was stable immediately prior to suffering the haemorrhage.
The applicant attended on Dr Thi Le on 9 January 2012. The clinical record of the attendance[4] records that the applicant was suffering from depression and anxiety and required a care plan to see a psychologist. On 19 December 2012 Dr Le noted[5] that the applicant’s anxiety was better with treatment from a psychologist and that more sessions would be helpful. On 17 May 2017,[6] 25 September 2017,[7] 10 January 2018,[8]
20 February 2018,[9] 2 August 2018,[10] 22 November 2018,[11] 15 May 2019[12] and
[4] ARD   p 50.
[5] ARD   p 51.
[6] ARD   p 59.
[7] ARD   p 60.
[8] ARD   p 62.
[9] ARD   p 63.
[10] ARD p 65.
[11] ARD p 66.
[12] ARD p 75.
[13] ARD p 76.
18 October 2019[13] the applicant’s general practitioner (GP), Dr Haibi Hu noted that the applicant’s mood was stable.
The applicant attended on Dr Hu on 25 June 2020[14] complaining that she had been stressed from work for the last few days. This however appears to be an isolated incident and complaint.
[14] ARD p 79.
In my view the medical evidence supports that the applicant suffered a brain injury as well as suffering psychologically as a result of the haemorrhage, the cerebral aneurysms and the neurosurgical treatment. The medical evidence supports that following the haemorrhage on
2 November 2021 the applicant’s memory and concentration was affected, and she suffered from low mood with diagnosis of adjustment disorder and depressed mood being considered.
On 20 December 2021 Dr Olsson reported to Dr Hu[15] that associated with the surgical repair the applicant had sustained a right temporal lobe infarct which appeared to have affected her memory. The applicant had also reported low mood which Dr Olsson observed was very common following either a brain injury from a haemorrhage or following brain surgery, particularly one complicated by ischemia.
[15] Respondent’s AALD dated 4 June 2024 p 685.
On 1 February 2022 the applicant attended on Dr Hu reporting that she did not think that her memory was impaired. Dr Hu noted that Dr Olsson had explained to the applicant that she had another aneurysm for which Dr Olsson had put the applicant on a waiting list for treatment.[16]
[16] ARD p 85.
Whilst the applicant had reported on 1 February 2022 that she did not believe her memory was impaired, on 7 February 2022 the applicant attended on Dr Hu. Dr Hu records in the clinical record of the attendance that the applicant had poor memory, poor concentration and mild intermittent headache after the brain surgery. The applicant thought that she could not work more than eight hours per week and advised that Dr Olsson had given her a letter in December 2021 indicating that she could not work for three months.[17]
[17] ARD p 85.
On 15 March 2022 Dr Olsson reported to Dr Hu that the applicant had persisting memory issues. Dr Olsson also reported that the applicant continued to be quite anxious in relation to her other intracranial aneurysms. At the time Dr Olsson was reticent to operate on the applicant’s remaining aneurysms as the applicant was likely to suffer a neurocognitive “hit” associated with further surgery even without complications with there being a 2% to 5% chance of further cerebral injury, particularly given how bad the applicant’s memory issues remained following the temporal lobe stroke that she had as a result of the treatment of her ruptured cerebral aneurysm.
In the first instance, Dr Olsson thought that it might be beneficial to get a neuropsychological examination. In the opinion of Dr Olsson this would help them to understand what a further memory injury might look like with bitemporal memory deficit and help them to understand exactly what memory injury had been sustained and might also help the applicant to consider what option she had in terms of return to work. Dr Olsson did not think that the applicant would at that time be functional in a workplace.[18]
[18] Respondent’s AALD dated 4 June 2024 p 662.
The applicant attended on Dr Hu on 21 March 2022. The clinical record of the attendance[19] records that the applicant had suffered from depressed mood since her brain operation.
Dr Hu diagnosed possible adjustment disorder and depressed mood related to the aneurysm rupture and surgery and prescribed the applicant Lexapro. Dr Hu noted that Dr Olsson had given the applicant a medical certificate, indicating that she was unfit to work until
[19] ARD pp 86-87.
18 September 2022.
The applicant attended on Dr Hu on 30 March 2022. The clinical record of the attendance[20] records that the applicant had poor memory, poor concentration and intermittent headache after the brain surgery. Dr Hu observed that the applicant was not able to cope with any work and that Dr Olsson had indicated that she was unfit to work until 18 September 2022.
[20] ARD p 87.
The applicant attended on Dr Hu on 13 April 2022 at which time she reported that she thought that the Lexapro was helpful for her depressed mood.[21]
[21] ARD p 88.
On 16 June 2022 Dr Hu noted that the applicant’s mood had been stable and that as recommended by Dr Olsson the applicant had seen the clinical neuropsychologist, Ms Chiara Pawela, at Westmead Hospital. The doctor noted that the applicant had poor memory, poor concentration and intermittent headache after the brain surgery. There were no new symptoms.[22]
[22] ARD p 88.
Whilst the applicant was apparently provided with a medical certificate by Dr Olsson in or about March 2022 which certified her as unfit to work until 18 September 2022 the applicant returned to work with the respondent on a part time basis on 7 July 2022.
It is the applicant’s evidence that she returned to work with the respondent in July 2022 in a part time role.[23] It is the evidence of Mr Matthew Gibbons, a branch manager with the respondent, that the applicant returned to work on 7 July 2022 after asking to work three days per week.[24]
[23] Applicant’s statement dated 20 April 2023 at [20].
[24] Statement of Mathew Gibbons dated 1 June 2023 at [13].
It is the applicant’s evidence that following her return to work she experienced persistent and ongoing bullying and harassment in the workplace.[25] It is not disputed that the applicant sustained a psychological injury in the course of her employment.
[25] Applicant’s statement dated 20 April 2023 at [22].
In my view the evidence supports that the applicant was able to perform her work duties following her return to work on 7 July 2022.
Whilst it is the evidence of Mr Gibbons that the applicant’s work performance following her return was average to below average the only issue that Mr Gibbons refers to in respect to her work performance was the taking of multiple smoke breaks which were more than the authorised breaks.[26] Apart from the taking of these smoke breaks Mr Gibbons did not make any other complaints in respect to the applicant’s work performance.
[26] Statement of Mathew Gibbons dated 1 June 2023 at [17].
Dr Hu noted on 11 August 2022[27] that the applicant had returned to part-time work 24 hours per week. Significantly Dr Hu noted that the applicant was coping well at work.
[27] ARD p 89.
On 12 September 2022 Dr Olsson reviewed the applicant reporting to Dr Hu[28] that the applicant had seen a neuropsychologist at Westmead Hospital since her last review.
[28] Respondent’s AALD dated 4 June 2024 p 667.
Dr Olsson observed that the neuropsychologist report was much more encouraging than anticipated given the applicant’s clinical memory difficulties, however the applicant reported to Dr Olsson that her memory difficulties had recently improved.
The applicant attended on Dr Hu on 16 September 2022. The clinical record of the attendance[29] records that the applicant was working three days per week and was “coping ok with her work.” Further brain surgery to clip a cerebral aneurysm was to be performed in October 2022. The applicant was worried about the potential side effects and complication of the surgery.
[29] ARD p 89.
On 4 October 2022 the applicant underwent further brain surgery for aneurysm. In my view the evidence supports that the applicant had maintained and was coping with her employment with the respondent after returning to work on 7 July 2022 up to having the further brain surgery on 4 October 2022. The evidence in my view supports that the applicant’s condition continued to improve following her return to work and prior to the further surgery in October 2022 with the applicant reporting to Dr Olsson in September 2022 that her memory had recently improved and the neuropsychologist report being much more encouraging than anticipated. That Dr Olsson was prepared to perform the second surgery would also appear to indicate that there had been an improvement as the doctor had previously been concerned about performing the further surgery due to the level of the applicant’s impairments.
Dr Hu noted on 11 October 2022[30] that the applicant underwent stereotactic left frontotemporal craniotomy and aneurysm repair on 4 October 2022 at the hands of
[30] ARD pp 89-90.
Dr Olsson. Dr Hu noted that the applicant had poor memory, poor concentration and intermittent headache after the brain surgery. Dr Hu also noted that Dr Olsson had suggested that the applicant should not work for six weeks after the surgery.
The applicant attended on Dr Hu on 14 October 2022. Dr Hu noted in the clinical record of the attendance[31] that Dr Olsson had told the applicant that she still had some small brain aneurysms. The applicant reported that she sometimes felt anxious and depressed about her aneurysm. Dr Hu noted that the applicant was on Lexapro.
[31] ARD p 90.
The applicant attended on Dr Hu on 31 October 2022. The clinical record of the attendance[32] records that the applicant had anxiety/depression symptoms, she was restless, got tired easily, had impaired concentration, was sometimes irritable, had depressed mood, loss of interest/pleasure, agitation, and had feelings of worthlessness. Dr Hu observed that the applicant’s symptoms caused clinically significant distress and impairment in social and occupational areas of functioning.
[32] ARD p 91.
On 14 November 2022 Dr Hu noted[33] that the applicant had undergone a CT scan of her brain a week prior which was reported as showing a large left-sided subdural haemorrhagic collection. Dr Olsson had instructed the applicant to immediately attended Westmead Hospital where Dr Olsson performed a procedure to treat the haemorrhagic collection.
[33] ARD p 92.
On 29 November 2022 Dr Olsson reviewed the applicant reporting to Dr Hu[34] that they had been keeping an eye on “these pretty large acute on chronic subdural haematomas” which had developed post surgery. Dr Olsson observed that “Amazingly she has remained asymptomatic the whole time”.
[34] Respondent’s AALD dated 4 June 2024 p 666.
Dr Olsson observed that the applicant’s most recent scan showed a small improvement in the amount of midline shift. The applicant remained “very, very well”.
Dr Olsson was happy that the applicant could return to work at that point, although she needed to take it easy.
Dr Olsson planned to review the applicant in a few weeks time with repeat imaging.
The applicant attended on Dr Hu on 30 November 2022. The clinical record of the attendance[35] records that Dr Olsson was of the opinion that the applicant could go back to work three days per week.
[35] ARD pp 92-93.
Dr Olsson in a medical certificate dated 1 December 2022[36] advised that the applicant was able to return to work on part time hours. Dr Olsson had reviewed the applicant’s work duties and advised that she could complete all tasks except driving, working at heights and lifting more than 5kg. Dr Olsson advised that with time it was highly likely that all of these restrictions could be lifted.
[36] Reply p 38.
On 13 December 2022 Dr Olsson reviewed the applicant and reported to Dr Hu[37] that the applicant was “doing really well without any significant symptomatology in relation to her subdural haematomas”. The doctor noted that the applicant’s most recent CT scan showed that this was improving in size ongoing.
[37] Respondent’s AALD dated 4 June 2024 p 665.
Dr Olsson was going to keep the applicant under surveillance and catch up with her again after Christmas.
In my view the medical evidence supports that following the further brain surgery on
4 October 2022 the applicant’s memory and concentration was impaired, and she also felt depressed and anxious, was restless, tired easily, was sometimes irritable, suffered a loss of interest/pleasure, was agitated and had feelings of worthlessness.

However, the evidence supports that the applicant’s condition improved significantly overtime and following the procedure performed by Dr Olsson on or about 14 November 2022.
Dr Olsson observing on 29 November 2022 that the applicant remained “very, very well” and declaring that the applicant could return to work although she needed to take it easy. Whilst Dr Olsson in the medical certificate of 1 December 2022 placed restrictions on what the applicant could do at work the doctor indicated that with time it was highly likely that all of those restrictions could be lifted and on 13 December 2022 Dr Olsson had reported to Dr Hu that the applicant was “doing really well without any significant symptomatology in relation to her subdural haematomas”.
On 15 December 2022 the applicant returned to work with the respondent on restricted duties[38] and continued to work for the respondent until going off work on 21 March 2023.[39]
[38] Statement of Mathew Gibbons dated 1 June 2023 at [21].
[39] Statement of Mathew Gibbons dated 1 June 2023 at [22].
The applicant attended on Dr Hu on 5 January 2023. The clinical record of the attendance[40] records that the applicant was working three days a week and that she was coping well with her work.
[40] ARD p 93.
On 10 January 2023 Dr Olsson reviewed the applicant and reported to Dr Hu[41] that the applicant’s subdural haematomas continued to decrease in size and that the applicant remained well. The doctor was going to review the applicant in two months.
[41] Respondent’s AALD dated 4 June 2024 p 664.
The applicant attended on Dr Hu on 6 February 2023. The clinical record of the attendance[42] records that the applicant had a medical certificate from Dr Olsson indicating that she could not work more than 24 hours per week post neurosurgical recovery for the next three months. Dr Hu noted that the applicant had poor memory, poor concentration and intermittent headache.
[42] ARD p 94.
In respect to the applicant’s anxiety and depression Dr Hu observed that the applicant’s mood was stable.
Dr Olsson reviewed the applicant and reported to Dr Hu on 7 March 2023[43] that a recent CT scan showed complete resolution of the subdural haematoma. Dr Olsson planned to catch up with the applicant in 12 months for surveillance.
[43] Respondent’s AALD dated 4 June 2024 p 132.
It is the applicant’s evidence that on 20 March 2023 she completed a quote as requested.[44] That the next day she was told to make an alteration to the quote[45] and later that day was “harassed” for the altered quote.[46] It is the applicant’s evidence that from that time onward she was harassed for minor things[47] and at that point broke down, left work[48] and consulted her GP.[49]
[44] Applicant’s statement signed 19 May 2023 at [32].
[45] Applicant’s statement signed 19 May 2023 at [33].
[46] Applicant’s statement signed 19 May 2023 at [34].
[47] Applicant’s statement signed 19 May 2023 at [35].
[48] Applicant’s statement signed 19 May 2023 at [36].
[49] Applicant’s statement signed 19 May 2023 at [37].
The applicant attended on Dr Hu on 21 March 2023. The clinical record of the attendance[50] records the reason for the attendance as depressed mood. The applicant reported that since the surgery her supervisor at work had cut down her work hours. The applicant had recently asked for longer work hours, which had been declined. The applicant reported that she had communicated with a new client and her supervisor had asked her to pass the client to another staff member. The applicant felt depressed, frustrated, hopeless, upset and sad. Her sleep was disturbed by her depressed mood. The applicant felt that her work supervisor wanted her to leave her job.
[50] ARD pp 94-95.
The applicant attended on Dr Hu on 22 March 2023. The clinical record of the attendance[51] records that the applicant felt depressed, frustrated, hopeless, upset and sad when she thinks about how her work supervisor treated her. The applicant thought that her work supervisor had treated her unfairly.
[51] ARD p 95.
The applicant attended on Dr Hu on 23 March 2023. The clinical note of the attendance[52] records that the applicant reported that since November 2022, she had been bullied by her boss and her colleague at work. This caused her upsetting memories, flashbacks, emotional distress and palpitation from time to time. The applicant thought that the work environment and stress had worsened her symptoms with which she could not cope. The applicant reported that she did not want to work in that environment anymore.
[52] ARD p 95.
Dr Hu recorded that the applicant had decreased interest in activities, felt isolated, had difficulty experiencing positive affect, was irritable, had difficulty concentrating and sleeping. The applicant reported that these symptoms had been present for a few months. Her symptoms created distress or functional impairment in her social and work activities. The applicant did not think that these symptoms were caused by her brain surgery. She thought that the symptoms were caused by being bullied at work.
Dr Hu formed the impression that the applicant was suffering from post-traumatic stress disorder.
The applicant attended on Dr Hu on 24 March 2023. The clinical record of the attendance[53] records that the applicant reported that she had been bullied at work by her boss and a colleague since 29 September 2022. This caused her upsetting memories, flashbacks, emotional distress and palpitation from time to time. She felt hopeless, worthless, nervous, had difficulty getting to sleep and had poor appetite. The applicant wanted to have psychological counselling. The applicant reported that she could not cope with any work due to her symptoms and requested a Workcover Certificate. She did not think that her symptoms were related to her previous brain surgery.
[53] ARD p 96.
On 24 March 2023 Dr Hu referred the applicant to the psychologist, Mr Michael Adamantidis. In the letter of referral[54] Dr Hu recorded that the applicant had reported that since
[54] ARD p 42.
29 September 2022, when she returned to work after recovery from her brain surgery, she had been bullied by her boss and her colleague at work which caused her upsetting memories, flashbacks, emotional distress and palpitation from time to time. The applicant thought that the work environment and stress worsened her symptoms with which she could not cope. The applicant did not want to work in that environment anymore.
Dr Hu noted that the applicant had decreased interest in activities, felt isolated and had difficulty experiencing positive effect. Was irritable, had difficulty concentrating and sleeping. The applicant reported that she had been experiencing these symptoms for a few months. Her symptoms created distress and functional impairment in her social/work activities.

Dr Hu noted that the applicant did not think that her symptoms were caused by her brain injury. She thought that the symptoms were caused by being bullied at work.
Dr Hu noted that the applicant had a previous mental health history of anxiety/depression.
On 24 March 2023 Dr Hu issued a certificate of capacity[55] with a diagnosis of post-traumatic stress disorder. Dr Hu recorded a date of injury of 29 September 2022 with the applicant having been first seen at the practice for the injury on 21 March 2023.
[55] ARD pp 121-123.
Dr Hu recorded on the certificate of capacity that the applicant had indicated that she had been bullied at work by her boss and a colleague since 29 September 2022 which had caused her upsetting memories, flashbacks, emotional distress and palpitations.
Dr Hu certified the applicant as unfit from 24 March 2023 to 7 April 2023.
On 28 March 2023 Dr Olsson reported[56] that the applicant had an acute neurosurgical injury that resulted from an acute haemorrhage that occurred in November 2021 which required neurosurgical operation for the management of an aneurysm as well as a very large stroke associated with the haemorrhage. Subsequently the applicant was found in a neuropsychological evaluation to have impairments associated with her stroke that were neurocognitive.
[56] Respondent’s AALD dated 4 June 2024 p 693.
The applicant was very keen to return to work for personal and social reasons and had managed this following a period of absence.
Dr Olsson noted that as a result of the initial haemorrhage, the applicant was discovered to have further neurosurgical issues that required surgical management in November 2022.
Dr Olsson observed that the applicant made a relatively good superficial recovery from this admission fairly early on and had been able to return to work despite her neurocognitive difficulties and this most recent surgery.
Subsequently, she developed further complications of her surgery that required further intervention through the hospital system.
In the opinion of Dr Olsson, the demands of the applicant’s work in the context of her recent injury and subsequent multiple further requirements for neurosurgery had left her unable to work. Given her initial neuropsychological evaluation and subsequent events, Dr Olsson was not surprised by this outcome and supported the applicant in any application to not return to work given its likely impacts on her health.
The applicant attended on Dr Hu on 5 April 2023. The clinical record of the attendance[57] records that the applicant felt upset that she was bullied by her boss and her colleague at work. This caused her upsetting memories, flashbacks, emotional distress and palpitation from time to time. The applicant reported that she still felt hopeless, worthless and nervous. She had poor sleep and poor appetite. She believed that she could not cope with any work due to her symptoms and requested a Workcover Certificate.
[57] ARD p 98.
The applicant attended on Dr Hu on 18 April 2023. The clinical record of the attendance[58] records that the applicant felt upset, frustrated, anxious and depressed. She could not cope with any work. She had insomnia.
[58] ARD p 99.
On 18 April 2023 Dr Hu provided the applicant with a certificate of capacity[59] repeating the details of the previous certificate of capacity of 24 March 2023 and certifying the applicant with no capacity for work from 18 April 2023 to 2 May 2023.
[59] Reply pp 32-34.
On 18 April 2023 Dr Olsson reported to Services Australia[60] that the applicant had a subarachnoid haemorrhage in 2021 following the rupture of a right sided middle cerebral artery aneurysm. As a result of this and treatment of that aneurysm, which was a craniotomy and clipping of the aneurysm as an emergency, the applicant suffered an inferior middle cerebral artery occlusion with a complete stroke of the right temporal lobe. This had left the applicant with neurocognitive deficits along with memory and processing deficits which had been previously outlined by a neuropsychologist. This particular episode of injury had completely stabilised, and Dr Olsson anticipated no further recovery for the applicant given the complete stroke.
[60] Respondent’s AALD dated 4 June 2024 p 694.
Dr Olsson observed that as a result of this injury, while the applicant appeared to be functionally intact, she has significant issues with concentration and speed of processing. She also finds that she is distractable as well as having memory impairment compared to her prior level of activity. These had previously been defined as being moderate to severe and result in significant fatigue when put in particular busy environments.
As such, it is the opinion of Dr Olsson that the applicant’s condition does impact on her ability to work more than 15 hours per week in any employment. Dr Olsson observed that had she only had a subarachnoid haemorrhage, the majority of patients who survive that relatively critical incident do not return to work in the short to medium term. The applicant subsequently had a stroke as well as the necessity for further craniotomy on the opposite side for another aneurysm and medical complications resulted from that in the form of a subdural haematoma that required surgical management.
Dr Olsson was of the opinion that the applicant being able to work should not be anticipated.
The applicant attended on Dr Hu on 2 May 2023. The clinical record of the attendance[61] records that the applicant was feeling anxious, sad, upset, frustrated and depressed. She had decreased interest in activities, felt isolated and had difficulty experiencing positive affect. She had irritability and difficulty sleeping. She indicated that she could not cope with any work and believed that she could not work at all due to the severity of her symptoms.
[61] ARD p 99.
In a certificate of capacity dated 2 May 2023[62] Dr Hu certified the applicant with no capacity for any work from 2 May 2023 to 16 May 2023.
[62] ARD pp 119-120.
The applicant attended on Dr Hu on 16 May 2023. The clinical record of the attendance[63] records that the applicant complained of insomnia and nightmares from time to time. The applicant reported that her nightmares were about her traumatic experience when she was at work. The applicant felt anxious, sad, upset, frustrated and depressed. She had decreased interest in activities. The applicant indicated that she could not cope with any work.
[63] ARD p 100.
On 24 May 2023 the applicant attended for the first time on the psychologist,
[64] ARD p 43.
Mr Adamantidis. The clinical record of the attendance[64] records that the applicant was complaining about workplace bullying issues.
The applicant reported to Mr Adamantidis that she had brain surgery and was away from work for several months. Upon her return to work, she found that others had been hired to replace her, and the relationship dynamics had changed significantly. She reported that her immediate manager was inappropriate.
The applicant also reported that she recently ended a long term relationship. The applicant did not believe that her brain injury had affected her behaviour to the point where she is the one that has the issue at work.
The applicant reported that she wanted to come to therapy to address the workplace issues as well as some other issues regarding her past.
Mr Adamantidis clinical impression was that the applicant was experiencing an adjustment disorder with mixed anxiety and depressed mood, much of which appear to be related to work issues.
The applicant attended on Dr Hu on 30 May 2023. The clinical note of the attendance[65] records that the applicant felt anxious, sad, upset, frustrated and depressed. She had decreased interest in activities. She had an episode of panic attack. She reported that she could not cope with any work due to her symptoms.
[65] ARD p 101.
The applicant attended on Dr Hu on 13 June 2023. The clinical record of the attendance[66] records that the applicant felt anxious, sad, upset, nervous, stressed and depressed. She had decreased interest in activities. The applicant was of the opinion that she could not cope with any work. She had insomnia and nightmares from time to time. The nightmare was about her traumatic experience when she was at work.
[66] ARD p 101.
Dr Hu in a certificate of capacity dated 13 June 2023[67] certified the applicant with no capacity for work from 13 June 2023 to 27 June 2023.
[67] ARD p 110-113.
The applicant attended on Mr Adamantidis on 14 June 2023. The clinical record of the attendance[68] records that the applicant continued to express despair and remorse about the way she was treated by her workplace when she returned to work after brain surgery. They also discussed the possibility of the applicant selling her home and moving.
[68] ARD p 44.
The applicant expressed a reluctance to return to work and found it difficult to reconcile this with having been a hard worker all of her life.
The applicant attended on Dr Hu on 27 June 2023. The clinical record of the attendance[69] records that the applicant reported that when she thinks about her traumatic experience at work, she feels nervous, sad, upset and depressed. The applicant continued to be of the opinion that she could not cope with any work. She had nightmares from time to time.
[69] ARD p 102.
The applicant attended on Dr Hu on 11 July 2023. The clinical note of the attendance[70] records that the applicant’s mood had improved. She felt less anxious, nervous, upset and depressed however she was still of the opinion that she could not cope with any work due to her post-traumatic stress disorder symptoms.
[70] ARD p 103.
Dr Hu in a certificate of capacity dated 11 July 2023[71] certified the applicant with no capacity to work from 11 July 2023 to 25 July 2023.
[71] ARD p 107-109.
The applicant attended on Mr Adamantidis on 12 July 2023. The clinical record of the attendance[72] records that the applicant reported that she had a recent stressful event which was family related. The applicant reported that she was continuing to prepare her home for sale and change of residence.
[72] ARD p 45.
Aside from the above incident, the applicant reported to Mr Adamantidis that her overall mood had been relatively stable since their last session.
The applicant attended on Dr Hu on 25 July 2023. The clinical record of the attendance[73] records that the applicant still felt anxious, nervous, upset and depressed with her symptoms getting worse when she thinks about her traumatic experience at work. She had nightmares from time to time and reported that the quality of her sleep was not good. The applicant was of the opinion that she could not cope with any work due to her post-traumatic stress disorder symptoms.
[73] ARD p 104.
The applicant attended on Dr Hu on 8 August 2023. The clinical record of the attendance[74] records that the applicant reported feeling anxious, nervous, upset and depressed. The applicant was of the opinion that she could not cope with any work due to her post-traumatic stress disorder symptoms.
[74] ARD p 105.
The applicant believed that her symptoms were work related.
The applicant attended on Mr Adamantidis on 23 August 2023. The clinical record of the attendance[75] records that the applicant reported that she had been quite well since their last session. She had recently sold her house and had bought a new property.
[75] ARD p 46.
They discussed the applicant’s feelings in respect to the sale of her house and moving and how the rearranging of her life with not working and the brain injury had caused considerable emotional upheaval.
They discussed the option for the applicant to possibly work part time or casually.
The applicant attended on Mr Adamantidis on 20 September 2023. The clinical record of the attendance[76] records that the applicant had moved residence. The applicant’s emotions in respect to the move were discussed.
[76] ARD p 47.
The applicant attended on Dr Hu on 5 October 2023. The clinical record of the attendance[77] records that the applicant still felt anxious, nervous, upset and depressed. She had decreased interest in activities. She had insomnia and nightmares from time to time. The nightmares were about her traumatic experience / flash back when she was being bullied at work. The applicant reported that she did not believe that she could cope with any work due to her post-traumatic stress disorder symptoms. The applicant had stopped taking the Lexapro because it caused brain fog side effect.
[77] ARD pp 105-106.
Mr Adamantidis reported to the applicant’s solicitors on 24 October 2023[78] that he was not qualified, nor had the relevant clinical experience to determine whether the applicant’s psychological injury is the direct result of a brain haemorrhage. In the opinion of
[78] ARD pp 39-40.
Mr Adamantidis that would require specialised psychometric testing and brain scans by a clinical neuropsychologist.
Mr Adamantidis did however note that over the course of her therapy with him, the applicant did make several allegations regarding her experience whilst working for the respondent and that the applicant also reported feeling that while working for the respondent, she was ostracised from her colleagues by her managers in a manner that made her isolated in the workplace.

Mr Adamantidis was not aware of any other medical cause or explanation as to why the applicant was suffering psychological injuries other than being subject to bullying and harassment. Mr Adamantidis was aware that the applicant had been diagnosed with mild neurocognitive disorder, but he also believed that, should the applicant’s allegations prove to be correct, it would be reasonable to assume that being exposed to such behaviour whilst at work would cause significant psychological distress.
In the opinion of Mr Adamantidis, the allegations the applicant had made about the respondent did appear to cause significant psychological distress. The applicant reported feeling highly anxious and depressed when attending work due to the behaviours she was exposed to. When the applicant presented for therapy with Mr Adamantidis, he did not observe any obvious or significant cognitive impairment that could be the result of any specific medical condition. The applicant consistently presented as alert, and oriented to space and time. She was friendly, polite and appropriate, and willing and able to respond to all queries put to her in a reasonable, logical and succinct manner. There was no evidence of thought disorder. There was no evidence of psychotic phenomena. There was no evidence of a memory deficit. There was, however, evidence of psychological distress in relation to the experiences the applicant had whilst working for the respondent. In the opinion of
Mr Adamantidis, if the applicant’s allegations are deemed to be correct, it would be reasonable to assume that an ordinary person would experience significant psychological distress if they were exposed to such behaviour while at work.
Mr Adamantidis believed that the applicant was fit to return to work. Based on the applicant’s presentation during therapy, he believed that the applicant had the physical and mental capability to engage in general office work, or work within a retail environment.
Mr Adamantidis did not believe that the applicant’s cognitive impairment would impede her ability to engage in such work. Mr Adamantidis observed that the applicant was able to engage with him in a therapeutic and appropriate manner, and was able to compile a detailed, reasonable and complex narrative in relation to her personal life and her experience at work. She was also able to recognise the physical impact of her brain injury, but was also able to portray herself as hard-working, honest and sincere individual. Mr Adamantidis believed that the applicant was capable of working at least three days per week, although he would be hesitant to recommend that she be placed in a loud or overly busy work environment, as he was not confident that her brain injury had left her in a robust mental state that could withstand an overly fast pace, any sensory overload or heavy workplace pressures.
On 19 March 2024 Dr Olsson reviewed the applicant and reported to Dr Hu[79] that she had reviewed the applicant that day. The plan was for ongoing surveillance.
[79] Respondent’s AALD dated 4 June 2024 p 663.
On 29 April 2024 Dr Olsson reviewed the applicant and reported to Dr Hu[80] that the applicant remained under surveillance and that Dr Olsson would review her again in 12 months.
[80] Respondent’s AALD dated 4 June 2024 p 696.
It is the respondent’s submission that the reports completed by Dr Olsson, the treating neurosurgeon, indicate that it is the effects of the aneurysms, the stroke and the neurosurgical treatment that has caused the applicant’s incapacity for work. I am of the view and find that the applicant’s incapacity for work from 21 March 2023 is due to the accepted work related psychological injury for the following reasons.
Following her return to work on 15 December 2022 the evidence supports that the applicant was coping well with her work with Dr Hu recording such on 5 January 2023. There is no evidence that the brain injury worsened in anyway rather the evidence is that the subdural haematoma continued to decrease in size with a CT scan ultimately showing complete resolution of the subdural haematoma and Dr Olsson on 7 March 2023 only planning to review the applicant in 12 months time.
On the applicant’s evidence the final catalyst for her going off work was the events at work on 20 March 2023 which is supported by the contemporaneous records of the applicant’s GP, Dr Hu, and treating psychologist, Mr Adamantidis. When the applicant attends on Dr Hu for depressed mood on 21 March 2023 she complains about issues at work. On
22 March 2023 Dr Hu recorded that the applicant felt depressed, frustrated, hopeless, upset and sad when she thought about how her work supervisor treated her and on 23 March 2023 and 24 March 2023 Dr Hu again recorded the applicant’s complaints in respect to being bullied at work and the psychological impact that had on her.
On 24 March 2023 Dr Hu refers the applicant to a psychologist, Mr Adamantidis, for treatment. The referral focuses on the accepted work related psychological injury noting that the applicant had been bullied at work which caused her upsetting memories, flashbacks, emotional distress and palpitation from time to time.
The certificates of capacity issued by Dr Hu were all for the work related psychological injury.
Dr Olsson in her reports following 20 March 2023 makes no reference to the events in the workplace prior to the applicant ceasing work duties and no reference to the undisputed work related psychological injury. Dr Olsson does not explain what changed in respect to the brain injury for the applicant to go from being able to cope with her work following her return to work in December 2022 to being unable to cope on 21 March 2023. Dr Olsson simply does not consider the impact of the accepted work related psychological injury.
On attending on the psychologist, Mr Adamantidis, for the first time the applicant’s complaints were about workplace bullying issues with Mr Adamantidis forming the clinical impression that the applicant was experiencing an adjustment disorder with mixed anxiety and depressed mood, much of which appeared to be related to work issues.
Dr Jane Lonie, clinical neuropsychologist, provided a forensic neuropsychology report to the respondent dated 30 June 2023.[81] Dr Lonie performed neuropsychology testing on the applicant.
[81] Reply pp 124-140.
In the opinion of Dr Lonie, the applicant sustained clinically significant impairments to her overall level of intellectual function, most notably impacting upon her perceptual reasoning ability in keeping with the right hemisphere focus of the November 2021 brain haemorrhage.
In the opinion of Dr Lonie, the applicant was endorsing mild elevations in depressive symptoms and normal levels of stress and anxiety. In the opinion of Dr Lonie, the applicant’s psychological symptoms were accountable in terms of the brain injury which the applicant sustained in the context of the brain haemorrhage of November 2021 with the applicant in the opinion of Dr Lonie meeting the criteria for a diagnosis of mild neurocognitive disorder due to stroke. Dr Lonie did not support a diagnosis of post-traumatic stress disorder.
In the opinion of Dr Lonie the combination of the impairments which the applicant had sustained as a result of the brain haemorrhage in November 2021, specifically, impairments of perceptual reasoning ability, immediate visual memory, emotional lability, loss of insight and social perception, would likely significantly detract from her ability to retain and foster existing client and colleague relationships and form new relationships within the workplace, to recognise her limitations or errors, to work with and produce materials that require her to make use of perceptual reasoning abilities, as one might expect to rely upon in the drawing up of a bathroom or kitchen plan/layout.
In the opinion of Dr Lonie, the nature and combination of cognitive losses would likely prevent the applicant from returning to her work with the respondent in a successful manner.
However, in the opinion of Dr Lonie the applicant remained capable of returning to full time paid employment however it would be necessary to take into account and attempt to avoid any position requiring or reliant on perceptual reasoning skills. It would also be necessary to consider the applicant’s reduced levels of insight into her cognitive impairments. Attention should also be given to the social context and demands of any future employment opportunities.
Dr Lonie provided a second forensic report to the respondent dated 6 June 2024[82] following review of reports by Dr Olsson. In the opinion of Dr Lonie, the findings of Dr Olsson are entirely consistent with the neuropsychological findings arising from her own interview and examination of the applicant and her previous report of 30 June 2023.
[82] Respondent’s AALD dated 3 July 2024 pp 1-6.
In the opinion of Dr Lonie there is evidence of very significant neuropsychological impairment with demonstrated functional impact that is entirely commensurate with the nature of the injuries the applicant has sustained to her brain from 2021 onwards. In the opinion of
Dr Lonie there is ample evidence indicating that the combined areas of neuropsychological impairment would have had a very significant adverse impact upon the applicant’s capacity to perform her work duties. For these reasons, in the opinion of Dr Lonie, the difficulties the applicant encountered in maintaining her employment are highly likely to have arisen as a result of the cognitive impacts of the aneurism and neurosurgical intervention for this.
Dr Lonie maintained the opinion that the applicant’s presentation and incapacity for work is attributable to her aneurism, neurosurgical intervention for this and stroke as opposed to the alleged psychological injury. In the opinion of Dr Lonie there is overwhelming evidence attesting to this within the medical records of her treating neurosurgeon and within the findings of two neuropsychological evaluations.
I do not accept the opinion of Dr Lonie. The opinion of Dr Lonie does not explain how the applicant was in fact successfully able to return to work following her surgical procedures and able to continue to work. The opinion of Dr Lonie also does not explain the escalation in the applicant’s psychological symptoms prior to her ceasing work on 21 March 2023 and does not explain why the applicant became incapacitated from 21 March 2023 when she had previously been capable of performing her work duties.
As previously discussed, in my view the evidence supports that the applicant ceased work on 21 March 2023 due to her psychological injury with their being no evidence that the applicant was experiencing difficulties in the performance of her work duties due to the impacts of the aneurism and the neurosurgical intervention. Whilst Dr Lonie found the findings of Dr Olsson to be entirely consistent with her neuropsychological assessment, as previously discussed, Dr Olsson does not refer to, discuss or consider the accepted work related psychological injury.

I prefer the opinion of Dr Abdal Khan, psychiatrist.
Dr Khan provided a forensic report to the applicant dated 20 November 2023.[83]
[83] ARD pp 26-35.
Dr Khan took a history of the intracranial haemorrhage due to a ruptured cerebral aneurysm in November 2021 and the emergency neurosurgery following which the applicant reported that she struggled with symptoms of depression and anxiety that were caused by uncertainty regarding the potential for another intracranial haemorrhage due to a remaining cerebral aneurysm that was yet to be clipped. That she returned to work in a partial capacity in or around August 2022 and was not experiencing any difficulties at that stage. That the applicant required further neurosurgery to clip the remaining cerebral aneurysm in October 2022.
The applicant reported to Dr Khan that during her return to work following her second neurosurgery in October 2022 she started to experience workplace bullying and harassment.
The applicant reported that the final incident that caused her to be unable to cope anymore with her workplace stressors related to issues in respect to the completion of a quotation on 20 March 2023.
In the opinion of Dr Khan, as a result of these aforementioned work-related stressors, the applicant experienced gradual deterioration in her mental state characterised by low mood, anxious ruminations, panic, irritability, agitation, anger, reduced motivation, reduced energy, reduced enjoyment in activities, social withdrawal, sleep disturbance with poor sleep maintenance, appetite disturbance with weight fluctuation, impaired attention and impaired concentration. She also struggled with feelings of hopelessness and worthlessness, impaired self confidence, impaired self-esteem and difficulties with trust in interpersonal relationships.
Dr Khan diagnosed major depressive disorder with anxious distress.
In the opinion of Dr Khan prior to the subject injury, the applicant was asymptomatic and in good health. She had struggled with symptoms of depression and anxiety from late 2021 to mid-2022, which was related to uncertainty regarding the potential for another intracranial haemorrhage due to a remaining cerebral aneurysm that was yet to be clipped. At the time of the subject injury, these symptoms had remitted.
In the opinion of Dr Khan, the applicant’s psychiatric/psychological injury was caused by the bullying and harassment she endured in her employment as opposed to her injuries related to her brain haemorrhage.
Dr Khan observed that although there was evidence in the clinical progress notes of the applicant’s GP, Dr Hu, that the applicant had struggled with symptoms of anxiety and depression as well as cognitive difficulties following her first intracranial haemorrhage, it was also evident that by the time she had her second cerebral aneurysm clipped, these symptoms had improved. In this respect Dr Khan’s observations are consistent with my own and with the evidence.
In the opinion of Dr Khan the applicant’s mental state then deteriorated in the context of work related psychological injury. Which in my view is consistent with the evidence as previously discussed.
Dr Khan is of the opinion that the applicant’s psychiatric/psychological condition is a direct result of the bullying and harassment in the workplace as opposed to the psychological symptoms being as a result of her diagnosis of mild neurocognitive disorder due to stroke.
In the opinion of Dr Khan, from a psychiatric perspective, the applicant was at the time of examination totally incapacitated for work due to the ongoing impact of the subject injury on her mood regulation, motivation, energy, sleep patterns, attention, concentration, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust in interpersonal relationships.
In the opinion of Dr Khan from a psychiatric perspective, with further mental health treatment and further stabilisation of her mental state, the applicant was likely to be fit to resume suitable duties with an alternate employer within the next six months. He observed the applicant to be motivated to focus on her mental health recovery and return to employment in the future.
Dr Khan concluded that the applicant’s prognosis was positive. Although she continued to experience pervasive symptoms of depression and anxiety, she was motivated to focus on her mental health recovery and return to employment in the future.
Dr Khan provided a supplementary forensic report, without further clinical examination, to the applicant dated 6 February 2024.[84] Dr Khan confirmed his opinion that the applicant’s psychiatric/psychological injury was caused by the bullying and harassment she endured in her employment as opposed to injuries related to the brain haemorrhage.
[84] ARD pp 36-38.
Dr Khan did not consider the applicant to have suffered from post-traumatic stress disorder.
Dr Khan in my view has obtained a relatively complete history of the relevant events and the symptoms experienced by the applicant which are consistent with the clinical records of the applicant’s attendances on Dr Hu from 21 March 2023.
The respondent submitted that the opinion of Dr Khan should not be accepted as Dr Khan had not been provided with and considered the reports of Dr Olsson and therefore did not know what Dr Olsson had said in respect to the neurocognitive impairment and therefore had insufficient information in respect to the brain injury to come to any conclusion in respect to its significance or otherwise. I do not accept the respondent’s submission.
It is correct that Dr Khan was not provided with the reports of Dr Olsson. However, Dr Khan was assessing the applicant in respect to her accepted psychological injury. In respect to the brain injury and the sequalae arising from the aneurysms and their surgical treatment, as previously discussed, the applicant returned to work and was able to perform her work duties until she suffered an escalation of her psychological symptoms with the work related psychological injury. The applicant had demonstrated that she could perform her work duties following her brain injury and there is no evidence of any worsening of that brain injury prior to 21 March 2023.
The opinion of Dr Khan, unlike the opinions of Dr Olsson and Dr Lonie, provides a reasoned and logical explanation which is consistent with the contemporaneous evidence for the applicant becoming unfit for work on 21 March 2023.
I prefer the diagnosis of Dr Khan of a major depressive disorder with anxious distress to the diagnosis of post-traumatic stress disorder made by Dr Hu. As a specialist psychiatrist,
Dr Khan, is more qualified than Dr Hu to provide a diagnosis.
The applicant claims weekly benefits compensation pursuant to s 37 of the 1987 Act from
31 August 2023 to date and ongoing. There are no certificates of capacity in the period for which weekly compensation is being claimed. It is the applicant’s evidence that she was not aware that they were required.
Mr Adamantidis reported to the applicant’s solicitors on 24 October 2023 that, based on the applicant’s presentation during therapy, he was of the opinion that the applicant was fit to return to work. Mr Adamantidis believed that the applicant had the physical and mental capability to engage in general office work, or work within a retail environment.
Mr Adamantidis believed that the applicant was capable of working at least three days per week, although he would be hesitant to recommend that she be placed in a loud or overly busy work environment, as he was not confident that her brain injury had left her in a robust mental state that could withstand an overly fast pace, any sensory overload or heavy workplace pressures.
Dr Khan who examined the applicant on 20 November 2023, approximately one month after Mr Adamantidis provided his report to the applicant’s solicitors on 20 November 2023, assessed the applicant at the time of examination to be totally unfit for work due to the psychological injury. However, Dr Khan was of the opinion from a psychiatric perspective, that with further mental health treatment and further stabilisation of her mental state, the applicant was likely to be fit to resume suitable duties with an alternate employer within the next six months. Unfortunately, Dr Khan did not re-examine the applicant.
In the opinion of Dr Lonie, the nature and combination of cognitive losses would likely prevent the applicant from returning to her work with the respondent in a successful manner.
However, in the opinion of Dr Lonie the applicant remained capable of returning to full time paid employment however it would be necessary to take into account and attempt to avoid any position requiring or reliant on perceptual reasoning skills. It would also be necessary to consider the applicant’s reduced levels of insight into her cognitive impairments. Attention should also be given to the social context and demands of any future employment opportunities.

I do not accept the opinion of Dr Lonie as to the applicant’s incapacity as that opinion focuses heavily on the brain injury sustained as a result of the aneurysms and their surgical treatment. As previously noted the opinion of Dr Lonie does not explain the escalation in the applicant’s psychological symptoms prior to her ceasing work on 21 March 2023 and the subsequent incapacity.
I prefer the opinion of Dr Khan to that of Dr Adamantidis in respect to incapacity.
Dr Adamantidis has based his opinion on the applicant’s presentation during therapy sessions. There is no indication that those therapy sessions were directed to the question of the applicant’s ability to return to employment apart from it being noted on 23 August 2023 that they had discussed the option for the applicant to possibly work part time or casually. Conversely Dr Khan was specifically required to examine the applicant in the context of providing a medicolegal report in respect to the psychological injury and any incapacity arising therefrom.
Dr Khan speculated that with further mental health treatment and further stabilisation of her mental state, the applicant was likely to be fit to resume suitable duties with an alternate employer within the next six months. This is mere speculation on the part of Dr Khan. In forming this opinion Dr Khan observed that the applicant was motivated to return to work. The applicant has however, not returned to paid employment and it is the applicant’s evidence that as a result of her work related psychological injury she feels as though she is unable to return to work in any capacity.[85] That she has completely lost all motivation, affecting not only her ability to work but her daily activities as well.[86] That she is dealing with social anxiety and feelings of incompetence, which makes the thought of interacting in any workplace setting “incredibly daunting” and would hinder her ability to engage with colleagues,[87] that her sleep continues to be negatively impacted by memories and anxious thoughts.[88]
[85] Applicant’s statement dated 6 June 2024 at [24].
[86] Applicant’s statement dated 6 June 2024 at [25].
[87] Applicant’s statement dated 6 June 2024 at [26].
[88] Applicant’s statement dated 6 June 2024 at [27].
For the above reasons I am of the view and find that as a result of the accepted psychological injury the applicant has been totally incapacitated for work from
31 August 2023 and continues to have no capacity for work. There will therefore be an award for weekly compensation pursuant to s 37 of the 1987 Act from 31 August 2023 to date and continuing.
Pursuant to s 37(1) of the 1987 Act the applicant, on the basis of a total incapacity for work, is entitled to 80% of the PIAWE. The PIAWE is agreed at $1,379.36 and is subject to indexation commencing from 1 April 2023 pursuant to s 82A of the 1987 Act and rounding pursuant to s 82D of the 1987 Act. The applicant’s entitlement to weekly compensation is:
(a)    $1,152 ($1,440 x 80%) from 31 August 2023 to 30 September 2023;
(b)    $1,176 ($1,470 x 80%) from 1 October 2023 to 31 March 2024, and
(c)    $1,200 ($1,500 x 80%) from 1 April 2024 to date and continuing subject to indexation.

[2024] NSWPIC 437

14 August 2024