Lelov v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lelov v Blacktown City Council [2022] NSWPIC 93
APPLICANT:	Tony Lelov
RESPONDENT:	Blacktown City Council
MEMBER:	John Isaksen
DATE OF DECISION:	3 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for psychological injury; whether worker sustained injury in the course of his employment; whether the worker sustained a disease injury pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987; reference to AV V AW; whether the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; reference to Hamad v Q Catering Ltd, Northern NSW Local Health Network v Heggie, and Irwin v Director General of School Education; whether the worker has had no current work capacity or a partial incapacity for work; Held – the worker’s employment was the main contributing factor to the aggravation of a psychological disease; the worker’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and the action that was taken was not reasonable; the worker has had no current work capacity as a result of the injury; award for weekly payments of compensation and medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent. 2. The deemed date of injury pursuant to section 16 (1)(a) of the Workers Compensation Act 1987 is 3 September 2020. 3. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 4. The applicant had no current work capacity from 3 September 2020 to 12 October 2020. 5. The applicant has had no current work capacity from 5 November 2020.
ORDERS MADE:	1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $999.29 per week from 3 September 2020 to 12 October 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987; (b) $999.29 per week from 5 November 2020 to 23 December 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987, and (c) $841.51 per week from 24 December 2020 to date and continuing to section 37 (3) of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Tony Lelov, the applicant in this dispute, claims that he sustained a psychological injury in the course of his employment with the respondent, Blacktown City Council as a result of interpersonal conflicts and unreasonable disciplinary action.
Mr Lelov ceased work due to his psychological injury on 3 September 2020. On that day he was required to answer a series of allegations regarding inappropriate behaviour towards other employees which were of a sexual nature.
Mr Lelov returned to work on or about 14 October 2020, but he ceased work again on or about 9 November 2020. Mr Lelov has not worked since.
Mr Lelov claims that his employment with the respondent has been the main contributing factor to the aggravation of a bipolar disorder.
Mr Lelov claims weekly payments of compensation from 3 September 2020 due to having no current work capacity, as well as the payment of medical treatment for his psychological injury.
The respondent disputes that Mr Lelov sustained injury arising out of or in the course of his employment. However, the respondent also contends that if Mr Lelov is able to establish that he did sustain psychological injury arising out of or in the course of his employment, then compensation is still not payable to Mr Lelov because any such injury has been wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline.
The respondent also disputes the extent of incapacity for work claimed by Mr Lelov as a result of any psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a psychological injury arising out of or in the course of his employment with the respondent (section 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    whether any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline (section 11A of the 1987 Act), and
(c)    the extent of the applicant’s incapacity for work as a result of his injury (sections 32A, 33, 36, and 37 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 17 February 2022. 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 McEnaney appeared for the applicant, instructed by Ms Kousar. Mr Saul appeared for the respondent, instructed by Ms Beattie.
The hearing was conducted by video in accordance with the protocols set out by the Personal Injury Commission (the Commission) due to the coronavirus pandemic.
There was no agreement at the hearing of the applicant’s pre-injury average weekly earnings (PIAWE) and there was no material provided by either party from which
I could make a determination of PIAWE. I reminded the parties of the obligations imposed by Rule 68 of the Personal Injury Commission Rules and the need for all information and documents to be relied upon by the parties to be in the Application to Resolve a Dispute (ARD) and Reply. However, as there was simply no information available to determine PIAWE, I made the following directions at the conclusion of the hearing:
(a) the respondent is to lodge and serve by 5.00pm on 18 February 2022 its calculation of PIAWE and details of any earnings of the applicant after 3 September 2020, and
(b) the applicant is to lodge and serve by any response to that material by 25 February 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    The ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 3 February 2022;
(d)    Application to Admit Late Documents filed by the respondent on 14 February 2022;
(e)    Application to Admit Late Documents filed by the respondent on 18 February 2022, and
(f)    Application to Admit Late Documents filed by the applicant on 28 February 2022.

Oral Evidence

There was no application to adduce oral evidence or cross examine Mr Lelov.

The applicant’s evidence

Mr Lelov has provided statements dated 3 September 2020 and 16 April 2021.
The statement dated 3 September 2020 is in response to 10 allegations made by some co-workers of inappropriate behaviour by Mr Lelov of a sexual nature. Mr Lelov denies all of the allegations. He states that he finds the allegations made against him to be repugnant.
In his statement dated 16 April 2021, Mr Lelov states that he commenced employment with the respondent in 2016 and started to experience bullying behaviours almost immediately. He states that Steve Wardell would taser people at work. He states that Mr Wardell would come out of nowhere and taser him. Mr Lelov states that his supervisor, Doug, turned a blind eye to this behaviour. He states that bullying and harassment were common occurrences in the workplace.
Mr Lelov states that he was having difficulties with his marriage and that he and his wife separated in January 2019. He states that around this time his mother was diagnosed with terminal cancer, and that he was recovering from an injury to the right elbow that he sustained at work. He states that his mental health deteriorated to the point where he was admitted to hospital for three weeks for psychological treatment.
Mr Lelov states that he gained benefit from his three week admission to hospital, but the bullying continued when he returned to work. He states that in September 2019 he was accused by a co-worker of physically touching that worker, which caused him stress but that he continued at his work.
Mr Lelov states that the allegations raised in September 2020 put him in a low mood. He states that he did not have a problem with the respondent investigating the allegations, but what people would think of him caused him to become depressed again.
Mr Lelov states he saw his treating psychiatrist, Dr Jayalath, and his medication for Lithium was increased.
Mr Lelov states that he returned to work after six weeks but found the workplace to be hostile. He states that co-workers would walk around him with their hands protecting their crotch region as if he was going to touch them.
Mr Lelov states that he has not worked since November 2020.
The claim form completed by Mr Lelov on 21 September 2020 states how the injury happened as being:
“From the grievance put by Simon Farrugia, meeting for workplace investigation, on slander put against me.”

The medical evidence

There are clinical notes from Conrad Road Family Practice in evidence.
There is an entry by Dr Karavadra on 3 September 2020 of Mr Lelov requesting a certificate for stress leave due to things being brought up at a meeting at work which offended Mr Lelov deeply and which he did not believe were true.
There is an entry by Dr Karavadra about three weeks earlier on 10 August 2020 of
Mr Lelov reporting a deterioration of his mental health during the previous week and that Mr Lelov contacted the Hills clinic. The entry also records that Mr Lelov “feels much better this week and has returned to work”.
Mr Lelov has had at least a further five consultations between 8 September 2020 and 12 October 2020 with Dr Karavadra in regard to stress arising from the allegations made against Mr Lelov.
There is an entry made by Dr Karavadra on 13 October 2020 which includes:
“all parties agreed that tony can return to work
but to work in isolation and be given his own ute
to do duties that do not require interaction with other employees
tony is happy with this plan
wants to return to work with these conditions”
A Certificate of Capacity is issued by Dr Karavadra on that day which certifies Mr Lelov as being fit for pre-injury duties “as per meeting with work cover manager (Diane) – recommend that Tony return to work with full capacity but that he be given duties where he does not need interaction with other employees and can work alone”.
There is an entry made by Dr Karavadra on 24 October 2020 of Mr Lelov being back at work but that Mr Lelov felt that co-workers were gossiping about him and that the respondent has not followed instructions to give Mr Lelov a solitary job. The entry includes: “should not be doing tasks outside of work cover situations”.
There is an entry made by Dr Karavadra on 5 November 2020 which includes:
“Tony presents today quite upset
has been stressed due to work
reports his work have not considered my recommendations that he be allowed to work alone for a period of time
is still driving around in teams
feels paranoid about other workers talking about his case”
There is an entry made by Dr Karavadra on 9 November 2020 which records Mr Lelov being stressed at work and being paranoid about people gossiping about him. A Certificate of Capacity is issued by Dr Karavadra on that day which certifies Mr Lelov as having no current work capacity for three weeks due to: “Work related stress causing exacerbation of bipolar”.
There are some 25 reports from Mr Lelov’s treating psychiatrist, Dr Jayalath which cover the period from 8 March 2018 up to the time that Mr Lelov has to answer allegations of inappropriate conduct in September 2020. Those reports identify stressful issues in Mr Lelov’s life including the breakdown of his marriage, difficulties associated with an injury to his right elbow, difficulties living with his parents, and a grievance against him from a co-worker in September 2019. Those reports confirm that Mr Lelov takes Lithium on a regular basis.
In a report addressed to the Human Resource Department of the respondent dated 19 September 2019, Dr Jayalath confirms that Mr Lelov suffers from Bipolar Affective Disorder type 2.
In a report dated 16 July 2019, which is the last report before Mr Lelov has to answer allegations of inappropriate conduct in September 2020, Dr Jayalath writes: “He works 5 days a week and enjoys what he does”.
In a report dated 11 September 2020, Dr Jayalath records that Mr Lelov had been suspended from work after there were complaints by co-workers of verbal and sexual harassment. He records that Mr Lelov has been feeling low and anxious in his mood. Mr Lelov’s prescription for Lithium had been 250 mg twice a day, but is increased by Dr Japyalath to 225 mg in the morning and 450 mg at night. Dr Jayalath writes: “The illness has exacerbated due to work retaliated stress”.
In a report dated 5 October 2020, Dr Jayalath writes that Mr Lelov’s mental health symptoms are significantly affected by the ongoing investigation at work, as well as forthcoming family law proceedings. Dr Jayalath writes:
“I am afraid he is not fit enough to return to his work environment at present. He has attempted to do once, but had felt anxious and suspicious about other people talking about the allegations.”
Dr Jayalath has provided a report dated 6 March 2021. Dr Jayalath writes:
“His mental health status was stable with medication prior to the allegations made against him. Following the allegations made, he suffered from a relapse. I have had to increase the dose of medications to treat and stabilise his mental health symptoms. I do consider the allegations made against him and how it was dealt with contributed to the deterioration of his pre-existing mental health condition.”
Dr Jayalath also writes:
“As mentioned above the allegations made against him and how it was handled by his employer are significant factors contributing to the relapse of his mental health condition. He informed me that information about the allegations were disclosed to other members of staff which made him feel humiliated.”
Dr Jayalath states that he wrote a letter to the human resources department of the respondent in September 2019 regarding Mr Lelov’s mental health needs and had expected the respondent to provide due consideration to Mr Lelov’s pre-existing mental illness when allegations were made against Mr Lelov. Dr Jayalath writes that as far as he is aware that due consideration did not occur during the handling of the allegations.
Dr Canaris, consultant psychiatrist, has provided reports at the request of Mr Lelov’s solicitors dated 18 March 2021, 14 June 2021 and 26 January 2022.
In his report dated 18 March 2021, Dr Canaris records that Mr Lelov had worked for the respondent for six years and he “enjoyed his job”. Dr Canaris records that the allegations made by a fellow worker went back over three years. He records that
Mr Lelov said: “They were false allegations – they brought me down”.
Dr Canaris also records that Mr Lelov was put back with four employees when he attempted return to work, and that he was really annoyed when co-workers would hold their crutch when he was approaching them.
Dr Canaris records details of Mr Lelov’s past psychiatric history and lists multiple reports from Dr Jayalath as part of the documents forwarded to him for his examination.
Dr Canaris opines, assuming the broad accuracy of the history provided to him, that
Mr Lelov’s employment appears to be the main contributing factor to the aggravation of a bipolar 2 affective disorder. Dr Canaris also presumes that Mr Lelov’s breakdown of his relationship with his children has been an aggravating factor. He queries over what period the effects of that estrangement have occurred and how that relates to worsening of Mr Lelov’s mental state following the allegations from the respondent.
Dr Canaris then opines that subject to that caveat:
“…his present decompensation has arisen from a specific event comprising allegations being levelled against him followed by finding fellow workers in another team alluding to the allegations after he attempted to return to work.”
Dr Canaris also writes that the allegations against Mr Lelov, and the way in which they were perceived and interpreted by Mr Lelov, appear to be the predominant cause of his psychological injury. Dr Canaris also writes that Mr Lelov was distressed to find that the events which were the subject of the allegations went back three years, and concludes: “A stressor of this nature would be inherently likely to destabilise a pre-existing bipolar disorder”.
The second report from Dr Canaris dated 14 June 2021 is provided after Dr Canaris is informed that Mr Lelov claims to have encountered bullying behaviours almost immediately upon his commencement of employment with the respondent in 2016.
Dr Canaris concludes:
“Assuming the broad accuracy of his statement, it follows that his employment with Blacktown Council was a source of ongoing distress. While it was not the only source of distress in this life, it is more likely than not that his employment made a substantial contribution to the emergence of his illness which is best as I can tell was not apparent prior to his commencement with Blacktown Council.”
Mr Saul objected to the third report from Dr Canaris dated 26 January 2022, but I allowed the report into evidence because, on my reading of the report, it merely sought to confirm Mr Lelov’s claim that his employment was the main contributing factor to the aggravation of his bipolar disorder so as to meet the requirements of section 4 (b)(ii) of the 1987 Act, and which had been made apparent from his two previous reports. I did not consider there was prejudice to the respondent in allowing this report into evidence.
Dr Samuell, clinical and forensic psychiatrist, has provided a report at the request of the respondent dated 27 November 2020, although the examination of Mr Lelov occurred on 22 October 2020.
Dr Samuell records that Mr Lelov had returned to full hours and duties and that he was working without difficulty, although people were starting to talk about what had happened. Dr Samuell records that Mr Lelov told him that he was stressed that day because the respondent had “leaked something”.
Dr Samuell records that Mr Lelov’s first episode of psychological difficulty was in January 2019 following a relationship breakdown and that Mr Lelov had been admitted to hospital for a Bipolar Affective Disorder.
Dr Samuell records that Mr Lelov was accused of touching the buttocks of a co-worker, and that the events relied upon happened three years ago. He records that Mr Lelov had no idea what was being alleged by the respondent. He records that Mr Lelov told his supervisor he was hurt and could not compose himself after he had attended an interview and denied all of the accusations.
Dr Samuell records that Mr Lelov had not been notified of the outcome of the investigation. He records that the complaints and investigation were spread around at work, with people saying: “Watch out, hide yourself…look who is coming”. Dr Samuell records that Mr Lelov was uncertain about any further steps in regard to the complaint made against him.
Dr Samuell diagnoses Mr Lelov as having sustained an Adjustment Disorder with Mixed Disturbance of Mood. He opines that this is a result of being subjected to complaints which Mr Lelov considered to be unreasonable. Dr Samuell also opines that there was no compelling evidence that Mr Lelov’s pre-existing condition had been aggravated.

FINDINGS AND REASONS

Whether the applicant sustained a psychological injury in the course of his employment with the respondent

Mr Lelov claims that he sustained a psychological injury in the course of his employment as a result of interpersonal conflicts and unreasonable disciplinary action. He claims that the injury he sustained meets the requirements of section 4 (b)(ii) of the 1987 Act, which provides:
“In this Act:
Injury:
………….
(b) includes a disease injury, which means:
………….
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
I am not satisfied that Mr Lelov’s employment prior to 3 September 2020 was the cause of any psychological injury. The available evidence does not support the claims made by Mr Lelov of bullying which occurred immediately upon his commencement of employment with the respondent, and that bullying and harassment were common occurrences in the workplace.
The only specific reference to bullying in the evidence from Mr Lelov is when a co-worker, Steve Wardell, would taser other employees, including Mr Lelov. However, even then there is no information provided by Mr Lelov as to when this aberrant behaviour occurred, how often it occurred, and the effect it had upon Mr Lelov.
Of particular significance on this issue is that there is no reference in any of the reports from Dr Jayalath of Mr Lelov experiencing bullying or harassment in the workplace prior to 3 September 2020. It is apparent when reading the reports of Dr Jayalath that this treating psychiatrist was very aware and mindful of incidents and events that may have had a stressful impact upon Mr Lelov.
Not only there is no mention of bullying or harassment in the workplace in the reports of Dr Jayaalth, but Dr Jayalath identifies Mr Lelov’s workplace as being a positive place for Mr Lelov. Dr Jayalath records in April 2019 that Mr Lelov was doing light duties and “is happy with what he does”. Dr Jayalath records in November 2019 that Mr Lelov “enjoys being able to work”. Dr Jayalath records in July 2020 that Mr Lelov “works 5 days a week and enjoys what he does”.
I consider it reasonable to infer that given the regular monitoring of Mr Lelov by
Dr Jayalath from at least March 2018, and Dr Jayalath being mindful of events that may have had a stressful impact upon Mr Lelov, that there would be some acknowledgement of bullying and harassment in the workplace in the reports from
Dr Jayalath if indeed Mr Lelov was the subject of such behaviour.
I could also not locate any reference to bullying and harassment in the clinical notes from Dr Karavadra prior to 3 September 2020. Dr Samuell does not record a history of any such behaviour in his report.
The only medical evidence which refers to bullying and harassment as being a cause of injury is from Dr Canaris, and even then it is not included in the history obtained by Dr Canaris on the only occasion that he sees Mr Lelov. Indeed, Dr Canaris records in his first report that Mr Lelov “enjoyed his job”. Dr Canaris is only asked to assume that Mr Lelov was the subject of bullying behaviours after he has provided his initial report.
The lack of any reference to bullying in the first report from Dr Canaris, when he had the opportunity to interrogate Mr Lelov regarding the causes of his injury, adds to my conclusion that Mr Lelov did not sustain a psychological injury in the course of his employment as a result of bullying, harassment or unreasonable conduct prior to 3 September 2020.
Dr Jayalath and Dr Canaris both consider that the bipolar affective disorder which
Mr Lelov suffers from was aggravated or exacerbated by events at work from
3 September 2020.
Dr Jayalath opines that Mr Lelov’s illness has been “exacerbated due to work retaliated stress”, although I would accept that this should read: “work related stress”. From a reading of his reports dated 11 September 2020, 5 October 2020 and 6 March 2021, it is apparent that Dr Jayalath identifies the allegations made against Mr Lelov, the talking by co-workers about Mr Lelov when he made an attempt to return to work, and the lack of consideration of Mr Lelov by the respondent during the handling of the allegations, to be the source of stress and anxiety for Mr Lelov.
Dr Canaris considers the specific event of the allegations being levelled against
Mr Lelov, as well as co-workers alluding to the allegations when Mr Lelov attempted a return to work, to be the causes of the aggravation of the bipolar disorder.
In contrast to those two opinions, Dr Samuell opines that Mr Lelov sustained an Adjustment Disorder with Mixed Disturbance of Mood due to the complaints he had to answer, and that there was no aggravation of any pre-existing condition.
I prefer the opinion of Dr Jayalath on the issue of the diagnosis and causes of the psychological injury sustained by Mr Lelov on and from 3 September 2020. Unlike many instances where a specialist only commences to treat a patient after a specific injury, Dr Jayalath had been Mr Lelov’s treating psychiatrist for some two and a half years prior to the events which occurred on and from 3 September 2020. Dr Jayalath is therefore in a very good position to provide an opinion on the diagnosis and causes of the psychological injury sustained by Mr Lelov while employed by the respondent.
I have already observed that it is apparent when reading the reports of Dr Jayalath that he was very aware and mindful of incidents and events that may have had a stressful impact upon Mr Lelov.
Dr Jayalath opines that the allegations made against Mr Lelov and how those were handled by the respondent were “significant factors” contributing to a relapse in
Mr Lelov’s mental condition. Dr Jayalath adds that the disclosure of the allegations to other members of staff made Mr Lelov feel humiliated.
Dr Jayalath does not state that those events which occurred at work constituted the main contributing factor to the aggravation of Mr Lelov’s bipolar condition. However, DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72] said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
There is other evidence in addition to the “significant factors” identified by Dr Jayalath which support a finding that Mr Lelov’s employment has been the main contributing factor to the aggravation of Mr Lelov’s bipolar condition.
Firstly, the reports provided by Dr Jayalath for some 12 months prior to 3 September 2020 describe Mr Lelov as coping well with his underlying psychological condition. Several of those reports state: “Tony is in remission of symptoms”. It is then readily apparent from the reports dated 11 September 2020 and 5 October 2020 that
Mr Lelov’s psychological symptoms significantly worsened from 3 September 2020.
Secondly, Mr Lelov is prescribed a substantial increase in Lithium by Dr Jayalath from 250 mg twice a day to 225 mg in the morning and 450 mg at night a week after
Mr Lelov is informed of the allegations he has to answer. Dr Jayalath records in May 2021 that Mr Lelov continues to take that level of medication.
Thirdly, Mr Lelov’s psychological condition was serious enough for Dr Jayalath to consider that Mr Lelov was not fit for work when he reviewed Mr Lelov on 5 October 2020 and 24 October 2020.
The application of section 4(b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
Mr Saul for the respondent submits that what occurred to Mr Lelov at work on 3 September 2020 was only one of several factors that had an impact on Mr Lelov’s psychological condition. He submits that the reports from Dr Jayalath reveal Mr Lelov’s psychological symptoms fluctuate due to his bipolar disorder so that what occurred in his employment cannot be the main contributing factor to the aggravation of this disease.
Dr Jayalath does acknowledge in his report dated 5 October 2020 that Mr Lelov’s mental health symptoms were being affected by forthcoming family law proceedings. Dr Karavadra had recorded Mr Lelov having a deterioration of his mental health only three weeks before 3 September 2020.
However, the significant factors identified by Dr Jayalath which occurred at Mr Lelov’s workplace on and from 3 September 2020, the worsening of symptoms recorded by
Dr Jayalath around that time, the need to increase the prescription of Lithium, and
Mr Lelov being certified unfit for work for periods from 3 September 2020, leads me to be satisfied that Mr Lelov’s employment was the main contributing the aggravation of his bipolar disorder.
I am not persuaded otherwise by the opinion provided by Dr Samuell. It is apparent from reading Dr Samuell’s report that he was not provided with any reports from
Dr Jayalath. He does not list any reports from Dr Jayalath on the first page of his report, and there is no reference to any material from Dr Jayalath throughout the report.
In my view, the failure by Dr Samuell to be provided with information from a treating psychiatrist who had an integral role in the treatment of Mr Lelov for almost three years prior to the events on and from 3 September 2020, means that I cannot be confident in the opinion on the diagnosis and cause of injury provided by Dr Samuell.
Dr Samuell examines Mr Lelov when he has returned to work and records that
Mr Lelov was stressed on the day of the examination because the respondent had “leaked something”. Dr Samuell records that Mr Lelov had yet to be notified of the outcome of the investigation, was uncertain about any further steps to be taken in regard to the investigation, and that people at work were talking about him.
However, Dr Samuell has not taken into account any of those concerns when forming an opinion on the cause of Mr Lelov’s psychological condition. That is of particular significance because Mr Lelov ceases work some two weeks after his examination with Dr Samuell for reasons which, according to what is recorded by Dr Jayalath in his reports and by Dr Karavadra in his notes, are at least partly due to concerns recorded by Dr Samuell at his examination of Mr Lelov.
Furthermore, no attempt has been made by the respondent to have Dr Samuell consider those concerns at some later date. In my view, the opinion on the cause of
Mr Lelov’s psychological injury which is expressed by Dr Samuell is incomplete and cannot be relied upon.
Mr Saul submits that Mr Lelov cannot rely upon anything which happened after 3 September 2020 to form the basis of an injury because there is no allegation of injury after 3 September 2020. Mr Saul refers to the injury date pleaded in the ARD is 3 September 2020 and there is no allegation in the ARD of injury thereafter.
Mr McEnaney submits that the Commission is not a jurisdiction of strict pleadings and relies upon what was said by DP Roche in Trustees of the Roman Catholic for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes) at [54]:
“…Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd[1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a “means to an end” (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd[1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd[2012] NSWCA 138 at [14] and [15])). Thus, if the particulars did claim separately for each incident, and I am firmly of the view that they did not, then, having regard to the way the case was argued, that makes no difference to the result.”
I agree with the submission made by Mr McEnaney and his reliance upon what was said in Barnes. Both Mr Lelov’s treating doctors and independent medical experts refer to events which occur to Mr Lelov at work after 3 September 2020 and which had the potential to be a cause of his psychological injury.
I also note that while Mr Lelov nominates the date of injury in his claim form as 3 September 2020, and he describes the injury as having happened due to the grievance lodged by a co-worker and subsequent workplace investigation, that claim form is completed on 21 September 2020. This is before further events occur upon
Mr Lelov’s return to work, and which Dr Jayalath and Dr Karavadra identify as being causes of stress for Mr Lelov.
The respondent had the opportunity to undertake its own investigation of those further events at work but did not do so. The respondent was made aware of those further events because Dr Jayalath refers to those events in his report dated 6 March 2021, and Dr Canaris opines in his report dated 18 March 2021 that it was the allegations, levelled against Mr Lelov and the behaviour of co-workers when Mr Lelov attempted to return to work which was the cause of his decompensation.
The reports of Dr Jayalath dated 6 March 2021 and Dr Canaris dated 18 March 2021 were forwarded to the respondent on 22 July 2021 as part of a request for a review of the decision to dispute liability. The respondent responded that the medical evidence did not cause it to alter its decision in regard to liability for the injury.
Mr Saul advised during conciliation that Dr Samuell was on extended leave and was unable to provide an opinion beyond that set out in his report dated 27 November 2020. However, no explanation was given as to why alternative arrangements had not been made by the respondent to address the expert opinion relied upon by Mr Lelov.
I am satisfied from a review of the evidence that Mr Lelov sustained an injury in the course of his employment with the respondent on 3 September, and between 13 October 2020 and 9 November 2020, by way an aggravation of a psychological disease, and that Mr Lelov’s employment was the main contributing factor to that aggravation.
The respondent also relies upon injury being wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline to dispute Mr Lelov’s entitlement to workers compensation.

The section 11A defence

Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Mr Saul submits that the psychological injury sustained by Mr Lelov was wholly caused by the investigation undertaken by the respondent in regard to allegations of inappropriate behaviour by Mr Lelov on 3 September 2020. He submits that the action taken by the respondent was reasonable because as a responsible employer there was no option but to investigate the serious acts alleged to have been committed by Mr Lelov in the workplace.
Mr McEnaney submits that the respondent bears the onus of proving that the disciplinary action taken by the respondent was reasonable, and merely stating that the respondent was obliged to do so does not meet that test. He submits that the respondent has not provided any evidence such as witness statements or minutes of meetings to support a finding that the action taken by the respondent with respect to discipline was reasonable.
Mr McEnaney submits that the failure of the respondent to act reasonably includes there being no letter setting out the allegations that Mr Lelov had to address, no reasons being provided for undertaking an investigation of complaints which date back three years, and the failure to give due consideration to the applicant’s well being when he is informed of the allegations and throughout the course of the investigation despite the respondent being aware from a year earlier that Mr Lelov suffers from a serious psychological condition.
Mr Saul in response submits that Mr Lelov is being disingenuous in complaining about the reasonableness of the respondent’s actions because Mr Lelov makes no complaint about the investigation undertaken by the respondent in his own evidence and states that he had no problem with the respondent making its investigations.
Before a consideration is undertaken as to the reasonableness of the respondent’s action in respect to discipline, it is necessary to determine if Mr Lelov’s injury was wholly or predominantly caused by that action.
In Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), DP Snell said at [88]:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The only medical evidence which supports Mr Lelov’s psychological injury being wholly caused by disciplinary action taken by the respondent is Dr Samuell.
I have already provided some reasons as to why I do not have any confidence in the opinion provided by Dr Samuell. In regard to the application of section 11A of the 1987 Act, there are “a number of potentially causative factors” (Hamad) for the psychological injury sustained by Mr Lelov which are identified by Dr Samuell in his report in addition to the allegations which Mr Lelov had to answer. These include comments being made by other workers upon Mr Lelov’s return to work and Mr Lelov’s belief that the respondent had leaked some information about him.

However, Dr Samuell does not engage in a consideration of whether these issues were a cause of Mr Lelov’s psychological injury. He merely opines that Mr Lelov sustained an Adjustment Disorder as a result of being subjected to complaints which Mr Lelov considered to be unreasonable.
In his first report, Dr Canaris opines that the allegations against Mr Lelov, and the way in which they were perceived and interpreted by Mr Lelov, appear to the predominant cause of his psychological injury. However, Dr Canaris also opines that Mr Lelov’s decompensation has arisen from the allegations levelled against him and co-workers alluding to the allegations upon his return to work.
In his second report, Dr Canaris opines that Mr Lelov’s employment has been the source of his ongoing distress, without providing any more specific information as to what that might be. There is no advancement on this broad opinion in his third report.
There is a lack of certainty in the reports provided by Dr Canaris as to whether there was a predominant cause for Mr Lelov’s psychological injury within the course of his employment with the respondent.
My preference is again for the material and opinion provided by Dr Jayalath because he has played an integral role in the treatment of Mr Lelov.
Dr Jayalath identifies a number of “causative factors” for the injury sustained by
Mr Lelov. He identifies the causes of stress for Mr Lelov to be the allegations made against Mr Lelov, the comments made by co-workers about Mr Lelov when he made an attempt to return to work, and the lack of consideration for Mr Lelov’s mental well being by the respondent during the handling of the allegations.
The allegations made against Mr Lelov clearly come within the meaning of discipline. How the allegations were handled by the respondent would also come within the meaning of discipline because that would be consistent with the “broad view... to be taken of the expression ‘action with respect to discipline’” referred to by AJA Sackville in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR (Heggie) at [59].
However, there are other factors which contributed to the stress and anxiety experienced by Mr Lelov which cannot be regarded as ‘action with respect to discipline’.
There are the comments and actions of co-workers upon Mr Lelov’s return to work.
Dr Karavadra records on 24 October 2020, 5 November 2020 and 9 November 2020 that Mr Lelov “felt” or “feels” that he was being talked about. That might suggest that Mr Lelov sensed this rather than it actually occurred.
However, around this same time both Dr Jayalath and Dr Samuell record that Mr Lelov actually heard things being said about him. The weight of evidence would support a finding that Mr Lelov did hear comments being made about him by other employees and saw actions by other employees which Mr Lelov found to be unpleasant, and that these incidents caused him anxiety and stress.
There is also the stress recorded by Dr Karavadra of Mr Lelov’s attempt to return and remain at work. Dr Karavadra records on 24 October 2020 and 5 November 2020 that the respondent was not following the recommendations made by him that Mr Lelov be allowed to work on his own. Dr Karavadra records on 5 November 2020 that Mr Lelov was quite upset and stressed because he had not been allowed to work on his own but instead was driving around in teams.
I accept that the failure to follow the recommendation made by Dr Karavadra that
Mr Lelov work alone upon his return to work was also a cause of distress for Mr Lelov. It is apparent from the Certificate of Capacity issued by Dr Karavadra on 13 October 2020 that there had been an agreement with the ‘work cover manager (Diane)’ that
Mr Lelov would not interact with other employees. There is no evidence from the respondent to dispute this.
The decision by Dr Karavadra to certify Mr Lelov as having no current work capacity on 9 November 2020 due to psychological injury would seem to be at least partly due to co-workers continuing to gossip about Mr Lelov and the respondent not following the recommendation made by Dr Karavadra that Mr Lelov work alone.
Mr Saul submits that the only evidence to support the stressful incidents and events which go beyond 3 September 2020 is from the medical evidence. He submits that
Mr Lelov is trying to create a case from the clinical records and which he has not been prepared to provide in his own statement evidence. Mr Saul submits that the clinical records cannot be elevated to matters that have not been addressed by Mr Lelov in his own evidence. He also submits that caution should be exercised when relying on contemporaneous medical records.
Mr Lelov has provided little evidence as to what occurred after he returned to work in mid-October 2020. He does state that co-workers would walk around him with their hands protecting their crotch region, although he does not state how that affected him. He provides no evidence of the difficulties he was having in working in a team.
While more detailed evidence from Mr Lelov as to what occurred to him after 3 September 2020 may well have been helpful, I accept that there is sufficient evidence from the clinical notes from Dr Karavadra, the reports from Dr Jayalath, and what is recorded by Dr Samuell and Dr Canaris (as opposed their opinions), for me to be satisfied that there were a number of causative factors to the aggravation of Mr Lelov’s bipolar disorder while in the course of his employment with the respondent.
While the allegations made against Mr Lelov and how they were handled by the respondent fall within the meaning of discipline, I do not accept that there is sufficient evidence whereby I can be satisfied that those factors alone have even been the predominant cause of Mr Lelov’s psychological injury, when there are other factors which have no connection to discipline which have also been a cause of Mr Lelov’s injury.
I therefore do not consider that the psychological injury sustained by Mr Lelov was wholly or predominantly caused by action taken by the respondent with respect to discipline.
If I am wrong on this issue, I also do not consider that the action taken by the respondent was reasonable.
In Heggie, AJA Sackville provided the following assistance with the application of section 11A of the 1987 Act at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the [1987] Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
In Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin), Geraghty CCJ said:
“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
The decisions of Irwin and Heggie refer to the balance between the rights of a worker and the objective of the employer. I accept that it was reasonable for the respondent to undertake an investigation of the complaints which were made by a number of
Mr Lelov’s co-workers. Mr McEnaney did not take issue with this, and Mr Lelov states that he had no problem with the respondent making its investigations.
However, there is also evidence that the action taken with respect to the discipline of Mr Lelov was not reasonable. There is the concern which Mr Lelov had that some of the allegations went back three years, without an explanation being provided by the respondent as to why there was such a time delay in having these allegations raised. That concern was recorded by both Dr Samuell and Dr Canaris.
There was the uncertainty of the outcome of the investigation, which apparently was still pending when Mr Lelov saw Dr Samuell in mid-October 2020. Mr Lelov had returned to work, was made the subject of gossip by co-workers and required to work with other employees notwithstanding the recommendations of Dr Karavadra, but did not know what the future of his employment with the respondent was going to be.
There was the failure by the respondent to have due consideration for Mr Lelov’s mental well being when it undertook its investigation, given that the respondent would have been aware of past psychological problems which Mr Lelov had experienced. Whether that was one of Mr Lelov’s ‘rights’ as an employee which is referred to in both Heggie and Irwin may be debateable. However, in my view it does go to a question of fairness, which is emphasised by Geraghty CCJ in Irwin.
The respondent has chosen not to provide any material in regard to the investigation of Mr Lelov, but in the absence of that material, there is evidence from doctors who have seen Mr Lelov that he was not being treated fairly in the investigation that was required. There is, in particular, no reason for me to doubt the records made by
Dr Jayalath and Dr Karavadra who were addressing the immediate concerns which
Mr Lelov had between September and November 2020.
I therefore do not accept that the respondent has established a defence pursuant to section 11A of the 1987 Act.

The claim for weekly payments of compensation

The respondent has provided some wages and income material for Mr Lelov pursuant to the Direction I gave on 17 February 2022, but I cannot locate from that material the exact dates when Mr Lelov did not work due to his injury.
Doing the best I can from the available evidence, it would seem that Mr Lelov had no current work capacity from 4 September 2020 to 12 October 2020. He then returned to work, but he was certified as having no current work capacity from 5 November 2020.
Dr Karavadra has issued Certificates of Capacity certifying that Mr Lelov has had no current work capacity up to 3 March 2021.
There is an entry from Dr Karavadra on 22 June 2021 of: “still not fit for work” and “exacerbation of depression/anxiety”.
There are no other specific entries in the clinical notes from Conrad Road Family Practice during 2021 regarding Mr Lelov’s capacity for work, although there are references during that year of renewals of a Centrelink medical certificate. There are Centrelink medical certificates in the ARD dated 2 March 2021 and 22 October 2021 which certify Mr Lelov being unfit for work due to psychological conditions. The certificate dated 22 October 2022 is issued by Dr Chellappah, but it is from Conrad Road Family Practice.
Dr Jayalath records in a report dated 14 January 2021 that Mr Lelov had started a coffee bean business, although there is no other evidence that Mr Lelov has operated the business. Dr Canaris records in March 2021 that Mr Lelov had not started the business yet.
In his report dated 6 March 2021, Dr Jayalath writes that Mr Lelov “currently has capacity to respond to authority, work independently concentrate, work in a team and communicate with other appropriately”. He also notes that Mr Lelov’s mood was stable and normal when he last saw him in January 2021.
Dr Jayalath writes that there was a period of total incapacity for work from late September to November 2021, but I would accept that this a typographical error, and the year that is referred to should be 2020. Dr Jayalath writes:
“Considering the duration of time he has been out of work, I would recommend him to have a phased return to work over a period of 6 to 8 weeks. It will be important to ensure that the allegations are properly investigated and appropriate actions taken so that he could return to work with dignity.”
In a report dated 1 July 2021, Dr Jayalath records that Mr Lelov is keeping well overall, although he has been experiencing hand tremors. Three weeks later, Dr Jayalath records that Mr Lelov’s “mood is currently euthymic” and he does not suffer from any other mental health symptoms.
The final report from Dr Jayalath that is in evidence before the Commission is dated 30 September 2021, wherein Dr Jayalath records that Mr Lelov has had an exacerbation of Chronic Lymphocytic Leukaemia.
When Dr Canaris saw Mr Lelov in March 2021, he considered that Mr Lelov was not fit for full time work with the respondent. He opines that Mr Lelov in his current condition “is effectively unemployable”.
Dr Samuell considered that Mr Lelov was fit for his current pre-injury duties when he saw Mr Lelov in mid-October 2020. However, it has now been well documented in this decision that Mr Lelov subsequently ceased work in early November 2020. I have already accepted that Mr Lelov suffered a further aggravation of his psychological symptoms from incidents which occurred during his attempt to return to work in October and early November 2020.
Mr McEnaney submits that the opinion on work capacity by Dr Samuell can be set aside because Dr Samuell is not made aware of subsequent events at work which led to Mr Lelov ceasing work again. Mr McEnaney submits that there is otherwise no evidence of Mr Lelov having any capacity to work.
Mr McEnaney submits that Dr Jayalath is doing the best he can for Mr Lelov in recommending a return to work, but the practical reality is that Mr Lelov is not well enough to obtain employment.
Mr Saul concedes that Mr Lelov would not want to return to work with the respondent, but there are a wide variety of physical jobs that he would otherwise be suited for elsewhere.
I have relied very much on the material and opinion provided by Dr Jayalath on my findings as to the cause of Mr Lelov’s psychological injury because of the integral role that doctor has had with the treatment of Mr Lelov. It might therefore logically follow that I should prefer Dr Jayalath’s opinion on Mr Lelov’s capacity for work.
If that be the case, then Dr Jayalath’s opinion would support a finding that Mr Lelov has been capable of undertaking employment from at least the beginning of 2021. That conclusion can be made not only from the opinion provided in the report dated 6 March 2021, but also from observations recorded by Dr Jayalath on two occasions in July 2021.
However, the Certificates of Capacity and Centrelink certificates and clinical notes, which are mostly from Dr Karavadra, would support a finding that Mr Lelov has continued to have no current work capacity since ceasing work on or about 5 November 2020.
Caution does need to be exercised when relying on Certificates of Capacity which include the same details in each of them other than a change in the date on the certificate. President Keating in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) said at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
Nonetheless, Dr Karavadra has had the opportunity of reviewing Mr Lelov and has maintained an opinion which is set out in the material from Conrad Road Family Practice that Mr Lelov has had no current work capacity.
While Dr Jayalath has opined that Mr Lelov is capable of some work, he has not provided any details of what that work might be or how many hours of work each week Mr Lelov is able to complete. I agree with Mr McEnaney that the opinion provided by Dr Jayalath in his report dated 6 March 2021 regarding Mr Lelov’s capacity for work is a hope or aspiration which has not been practically realised.
There is also no evidence from the respondent which might assist on determining what work Mr Lelov might be suited for. I agree with Mr McEnaney that there is no benefit provided by Dr Samuell on the issue of Mr Lelov’s incapacity for work.
I am satisfied from the material provided by Dr Karavadra that Mr Lelov had no current work capacity from 4 September 2020 to 12 October 2020, and that he has had no current work capacity from 5 November 2020 onwards.
Mr Lelov claims that his PIAWE is $1,137.73. This is based upon an hourly rate of $29.94 for a 38 hour week, which is derived from a document annexed to the “Calculation of PIAWE and Earning Loss to Date” in the Application to Admit Late Documents filed on 28 February 2022 which states normal pay for an unspecified period to be $37,582.70 for a period of 1,255.25 hours. The hourly rate when $37,582.70 is divided by 1,255.25 hours is $29.94.
The respondent claims that PIAWE is $1,051.88. This is based upon a calculation sheet attached to an Application to Admit Late Documents filed on 14 February 2022. That document includes other payments made to Mr Lelov, such as sick leave and annual leave, which are to be included in the calculation of earnings as provided for by clause 6 of Schedule 3 of the 1987 Act. However, it is difficult to independently confirm those payments from additional documents provided by the respondent in that Application to Admit Late Documents.
Therefore, neither the material provided by Mr Lelov or by the respondent is satisfactory in making a determination of PIAWE. I could not locate any documents which simply sets out in chronological order the earnings of Mr Lelov for the 52 weeks prior to 3 September 2020.
I have determined to accept the PIAWE calculated by the respondent of $1,051.88 because that calculation does set out other payments made to Mr Lelov over a 52 week period, even though it is difficult to confirm those payments in other material provided by the respondent.
The available evidence indicates that Mr Lelov had time off work in the 52 weeks prior to 3 September 2020, so that it is unlikely that Mr Lelov earned $29.94 per hour for 38 hours of every week over a 52 week period prior to 3 September 2020. For instance, the clinical notes from Conrad Road Family Practice record Mr Lelov having time off work in April 2020 for Covid-like symptoms.
Ninety five per cent of PIAWE amounts to $999.29. Eighty per cent of PIAWE amounts to $841.51.
There will be an award in favour of Mr Lelov for the payment of weekly benefits of compensation as follows:
(a) $999.29 per week from 4 September 2020 to 12 October 2020 pursuant to section 36 (1) of the 1987 Act;
(b) $999.29 per week from 5 November 2020 to 23 December 2020 pursuant to section 36 (1) of the 1987 Act, and
(c) $841.51 per week from 24 December 2020 to date and continuing to section 37 (3) of the 1987 Act.

The claim for medical expenses

There will be an order for the payment by the respondent of reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.

[2022] NSWPIC 93

3 March 2022