Muliana v Nestle Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Muliana v Nestle Australia Ltd [2023] NSWPIC 315
APPLICANT:	Nyoman Muliana
RESPONDENT:	Nestle Australia Limited
Member:	John Isaksen
DATE OF DECISION:	3 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for psychological injury; respondent relies on defences of the worker’s injury being solely attributable to serious and wilful misconduct and reasonable action being taken with respect to discipline; reference to Clyde v State of NSW on whether worker’s injury was solely attributable to serious and wilful misconduct; reference to Irwin v Director General of School Education on the test of reasonable action taken by the respondent with respect to discipline; Held – there was a combination of causes for the injury sustained by the worker in the course of his employment; the worker’s injury was not solely attributable to serious and wilful misconduct; discipline was not the whole or predominant cause of the worker’s injury and the action taken by the respondent with respect to discipline was not reasonable; award of weekly payments of compensation for the worker having no current work capacity since the date of the injury; respondent to pay the worker’s reasonably necessary medical expenses for psychological injury.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury in the course of his employment with the respondent on 7 October 2022. 2. The respondent has failed to establish a defence pursuant to s 14 (2) of the Workers Compensation Act 1987 (1987 Act). 3. The respondent has failed to establish a defence pursuant to s 11A of the 1987 Act. 4. The applicant has had no current work capacity since 12 October 2022. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,901 per week from 12 October 2022 to 11 January 2023 pursuant to s 36 (1) of the 1987 Act, and (b) $1,601 per week from 12 January 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act. 2. The respondent is to have credit for any weekly payments of compensation already made to the applicant. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Nyoman Muliana, claims that he sustained a psychological injury in the course of his employment with the respondent, Nestle Australia Limited, on 7 October 2022 as a result of a physical assault in the workplace and subsequent events wherein the applicant claims that he was not supported, not believed, not valued and was neglected by the respondent.
The applicant ceased work due to his psychological injury on 12 October 2022. He claims that he has had no current work capacity since 12 October 2022.
Icare has issued dispute notices on behalf of the respondent dated 22 December 2022 and 6 January 2023 wherein liability is disputed on the following grounds:
(a)    the applicant did not sustain an injury arising out of or in the course of his employment;
(b)    that any psychological injury sustained by the applicant was solely attributable to the serious and wilful misconduct of the applicant;
(c)    that 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, dismissal or provision of employment benefits, and
(d)    that the applicant is not entitled to weekly payments of compensation and the payment of medical expenses because the applicant has no incapacity for work resulting from a work injury, and medical treatment is not reasonably necessary as a result of a work injury.
The applicant claims weekly payments of compensation from 12 October 2022 onwards due to having no current work capacity. The applicant also claims for the payment of medical treatment for his 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, including the cause or causes of any psychological injury and the nature of any psychological injury sustained by the applicant (s 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    whether any psychological injury sustained by the applicant was solely attributable to the serious and wilful misconduct of the applicant, and was not an injury which has resulted in serious and permanent disablement (s 14 (2) of the 1987 Act);
(c)    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 (s 11A (1) of the 1987 Act), and
(d)    the extent of the applicant’s incapacity for work as a result of any psychological injury (sections 32A, 33, 36, and 37 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 1 June 2023 and 26 June 2023. 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 Ty Hickey appeared for the applicant, instructed by Ms Azer. Ms Balendra appeared for the respondent, instructed by Mr Myles.
There were some preliminary issues which needed to be addressed and ruled upon on the first day of the hearing.
Firstly, the applicant sought to amend the “Injury Description” in the Application to Resolve a Dispute (ARD) by adding: “adjustment disorder”. This was opposed by the respondent on the basis that the applicant had chosen to run his claim based upon the psychological condition of post-traumatic stress disorder and the respondent was prejudiced by the additional or alternative category of an adjustment disorder.
The amendment was allowed on the basis that it is only necessary to establish that a worker has sustained an injury in the course of employment without the need to make a determination as to the precise nature of the injury (see Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014 NSWCA 264 (Bindah) at [119]). The experts relied upon both parties concede that the applicant did sustain a psychological injury in the course of his employment with the respondent.
Furthermore, there is evidence which has been disclosed to the respondent which supports the cause or causes of the injury claimed made by the applicant, and therefore could not be regarded as prejudicial to the respondent. Reference was made to what was said by DP Roche in Trustees of the Roman Catholic Church 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])).”
Secondly, the applicant withdrew from the ARD a handwritten statement with the names of Angadeep Singh and Parampal Singh on that document, and then objected to the respondent relying upon that document as part of its evidence. Mr Hickey for the applicant submitted that although it is usual in this jurisdiction for material to be admitted and consideration then turns to the weight to be given to each piece of evidence, the document was from a third party and was hearsay evidence and there was simply no probative value in allowing this particular document into evidence. Reference was made to Symbion Health Limited v Jimmy Franks & Linfox Australia Pty Ltd [2007] NSWWCCPD 93 at [64] (Symbion Health).
The document was allowed into evidence because Ms Balendra for the respondent stated that the respondent was only relying on the document to the extent that it was an attachment to an Incident Report completed by an employee of the respondent, and that notwithstanding what was said in Symbion Health, it would ultimately be a question of what weight, if any, could be attached to the contents of that statement.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $2,001.
The applicant was paid weekly benefits of compensation on a provisional basis until 27 December 2022, although those payments were based on an interim rate of PIAWE of $1,518.10 because EML did not have enough information to fully calculate PIAWE.
It was agreed that if the applicant was successful then there would be an award of weekly payments of compensation 12 October 2022 with credit for any weekly payments of compensation made up until the date when weekly payments ceased due to denial of liability.
The applicant had sought orders in the ARD orders for the payment of specific medical treatment pursuant to s 60 (5) of the 1987 Act, but that was amended to claim a general order for the payment of reasonably necessary treatment by the respondent.
The respondent conceded that the only category in s 11A (1) of the 1987 Act available as a defence was in respect of discipline.
The hearing could not be completed on 1 June 2023 and was listed for a second day of hearing on 26 June 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents, including 16 minutes of CCTV footage from about 3.30am on 7 October 2022 from the respondent’s premises;
(c)    Application to Admit Late Documents filed by the respondent on 30 May 2023;
(d)    Application to Admit Late Documents filed by the applicant on 1 June 2023, and
(e)    Application to Admit Late Documents filed by the respondent on 16 June 2023.

Oral evidence

The respondent was granted leave for cross examination of the applicant on some limited issues.

The applicant’s evidence

The applicant has provided statements dated 10 January 2023, 17 February 2023 and 30 March 2023.
The applicant states that he commenced employment with the respondent about 19 years ago, and that he has always been a hard worker and committed to his job.
The applicant states that he was at his workplace at about 3.00am on 7 October 2022 and had been loading about 60 pallets of goods onto a Linfox truck. He states that he had about four pallets left when a Linfox driver approached him in an intimidating manner and said words to the effect of: “excuse me mate, you nearly hit me.” The applicant states that he thought the driver was joking and said to the driver words to the effect: “I didn’t hit you mate, I know what I am doing. Go away, leave me alone.”
The applicant states that he then drove off to get another two pallets to be loaded. He states that he was sitting in his forklift to write his docket after he loaded these two pallets when the driver approached him again and said words to the effect: “be careful mate, you nearly hit me.” The applicant states that he felt that the driver was trying to pick a fight with him.
The applicant states that the driver rattled a fire extinguisher that was attached to the forklift and said words to the effect of: “what if I throw this bottle at your face, how would you feel about it.” The applicant states that he felt numb and was in a state of shock and said to the driver words to the effect of: “just get away from my forklift, don’t do that, it’s dangerous, f… off.”
The applicant states that the driver then started to swing his arms as if he was about to punch the applicant. He states that he instinctively raised his arms high to block an anticipated punch, and the punch hit his hands. The applicant states that the driver then quickly ran away, and the applicant started to drive away quickly in fear and panic.
The applicant states that he threw the paperwork he was holding onto the warehouse floor and he did not throw that paperwork at the driver. He states that he called Garry Brooks on the CB radio saying: “the driver tried to pick a fight with me. He threw a punch at me”, but he received no response.
The applicant states that he started to drive towards the office and had to take a longer route because there was too much stock blocking his way. He states that he again called Garry on the radio but there was no response.
The applicant states that he saw Garry at Dock 16 and said to Garry that the driver tried to pick a fight with him and threw a punch at the applicant. He states that Garry said he would talk to the driver and “sort it out for you.”
The applicant states that he met with Garry and the driver shortly after this. He states that Garry said: “the driver gave a statement that you nearly hit him.” The applicant states that he disputed this and asked Garry to check the CCTV footage. He states that Garry did not do this, and he felt that his side of the story was not being heard by Garry.
The applicant states that during this meeting he was not accused of hitting the driver’s hand or hitting the driver’s foot with his forklift or slapping the driver with paperwork.
The applicant states that he felt mentally exhausted after this meeting and during his break he closed his eyes to relax. He states that he completed one more load and went home at about 7.00am.
The applicant states that he had a rostered day off on 8 October 2022. He states that on 9 October 2022 he received a phone call from Maarke, the operations manager, informing him that he would be required to give a statement at work that evening.
The applicant states that he met with Garry during his shift on 9 and 10 October 2022. He states that the meeting was just after midnight, so that it took place on 10 October.
The applicant states that two union representatives were present at the meeting, and that one of those representatives, Hein, wrote out a statement which the applicant signed. The applicant states that he was not given the opportunity to complete his version of events and felt demoralised.
The applicant states that he signed the statement that had been hand written by Hein because he felt mentally exhausted and defeated. He states that he felt that he was “being unheard and unsupported.”
The applicant states that he remained in a state of shock and his wife took him to his general practitioner, Dr Moussad, on 12 October 2022. He states that Dr Moussad advised him that he was not fit for work.
The applicant states that his wife sent a SMS on 16 October 2022 to Maarke asking whether an official and complete statement would be taken from her husband as opposed to the hand written notes taken on 10 October 2022. He states that Maarke replied that there was still an investigation. The applicant states that he has never received any outcome to an investigation into this matter.
The handwritten statement which was written during the meeting on 10 October 2022 is in evidence. The statement refers to the driver making a threat to the applicant of hitting the applicant with a mounted extinguisher. The statement continues:
“I said to him ‘just go away from my forklift, fuck off.’ He swung his arm very close to me like he’s gonna hit me so I panicked while I was writing the load sheet held the load sheet up high to protect myself with the punch from him. I took off and I called Garry on CB radio. ‘The driver tried to pick a fight on me’, ‘he threw a punch me’,….I threw the paperwork onto the floor, I feel that he didn’t appreciate that I loaded his truck so I was in shock.”
The applicant states in the handwritten statement that he then drove to the office, and then:
“While I was doing CB radio to call Garry again ‘Garry, the driver tried to pick a fight on me and threw a punch to me.’ I saw Garry on door 16. Garry came to me and said ‘can you loaded the shuttle’ and then he said ‘don’t worry, I’ll sort it out for you.’”
The applicant states that he never spoke to Mr Brooks over the radio as has been alleged by Mr Brooks. He states that Mr Brooks told him to “stay calm” when they met at Dock 16, and he states that Mr Brooks said this because it was evident that he was in panic. The applicant also states that Mr Brooks did not ask him he was okay when they did meet at Dock 16.
The applicant was cross-examined by Ms Balendra principally on whether the applicant was actually punched by the driver. The applicant said that he was punched by the driver.
The applicant said that during the meeting on 10 October 2022 he was “entrapped” by Garry and that what is set out in the handwritten statement is not a complete version of the events which occurred between himself and the driver on 7 October 2022. He said that at the meeting he was in a “terrible state of mind”.

Other lay evidence

Garry Brooks has provided statements dated 27 January 2023 and 30 May 2023.
Mr Brooks states that he has worked as a Team Leader for the respondent for about seven years and that the applicant is one of about 30 employees whom he oversees. He states that the applicant’s work performance is very good and that to the best of his knowledge the applicant has never been red flagged for inappropriate behaviour at work. He states that he would describe the applicant’s usual workplace demeanour as laid back.
Mr Brooks states that he was contacted by the claimant via the two-way radio just before 4.00am on 7 October 2022 with the applicant reporting that he was having issues with a driver. He states that his response was for the applicant to stay calm and he would sort it out for the applicant. Mr Brooks states that he did not realise the seriousness of the matter at the time because there was not much urgency in the applicant’s voice and that it just appeared to be another of the regular problems experienced with drivers.
Mr Brooks states that he reached the applicant within a short timeframe and found the applicant driving away on his forklift. He states that the applicant tried to explain the situation. The applicant said he had dealt with a conflict with a driver. He states that the applicant could not give him any detail that could be easily understood. He states that the applicant can be difficult to understand because of a strong Balinese accent.
Mr Brooks states that he had the feeling that the applicant’s mood was elevated but he was not overly upset or emotional. He states that he asked the applicant if he was okay and was assured by the applicant that he was.
Mr Brooks states that he then approached the truck driver, Angadeep Singh, who he had never met before. He found the driver’s demeanour was extremely angry. Mr Brooks states that the truck driver informed him that the applicant had reversed into him accidentally and that he had put his hand out to protect himself. He states that the truck driver said that he approached the applicant and asked the applicant to be careful but that the applicant told the truck driver that he “didn’t give a fuck” if he hit the truck driver or not.
Mr Brooks states that the truck driver said that in a second exchange the applicant struck him in the face with some paperwork, that the applicant then drove away in an aggressive manner, and that the applicant then drove back towards the truck driver, and that one of the driver’s feet was run over by the forklift being driven by the applicant. Mr Brooks states that the truck driver said that he feared for his safety, so that he ran around to the other side of the truck and sought refuge in his prime mover.
Mr Brooks states that the truck driver showed his injured foot, which appeared to have a minor injury.

Mr Brooks states that he viewed security footage in the security hut with the driver. He states that it was impossible to ascertain if the forklift actually impacted the truck driver when the applicant was reversing the forklift. He states that the footage showed the driver walking around to the other side of the truck and the applicant then driving to the other side of the truck, but that the truck obscures the scene between the applicant and the truck driver. He states the footage shows the driver moving very fast to allegedly avoid the applicant operating the forklift.
Mr Brooks states: “I concluded from viewing the subject CCTV footage and speaking with the driver that his version of events seemed more likely.”
Mr Brooks states that he organised a meeting between the applicant and the truck driver after he had viewed the footage. He states that the applicant was not offered a support person for this “informal meeting” because he was just trying to get to the bottom of what had occurred.
Mr Brooks states that the truck driver was very upset, and that the applicant was very calm and told the driver that he needed to be careful. He states that the meeting never escalated to any great degree and ended with both the applicant and the truck driver agreeing to disagree about their version of events. Mr Brooks states:
“Basically, the claimant’s version of events differed from the drivers, who maintained that the claimant tried to punch him in the face in response he put up his hand to protect himself. The claimant then panicked and drove off after throwing the paperwork to the ground.”
Mr Brooks states that he later went looking for the applicant and found him sleeping in the room for drivers on his break. Mr Brooks assumed from the applicant’s extremely laid back demeanour that the applicant was fine.
Mr Brooks states that on the following Sunday he sat down with the applicant and his union delegates to take a statement from the applicant. He states that one of the applicant’s union delegates scribed the applicant’s statement while going through the applicant’s version of events.
Mr Brooks states that at the meeting the applicant was obviously unhappy and accused Mr Brooks of not dealing with the matter to his expectation and that Mr Brooks had failed to support him. Mr Brooks states that this is “totally untrue” and feels disappointed in the applicant’s attitude towards him.
Mr Brooks states that he is aware that there had been an internal investigation undertaken in regard to the incident involving the applicant, but he has no knowledge of any findings.
In his further statement dated 30 May 2023, Mr Brooks maintains that the applicant did not appear to be in a state of shock when they met following the exchange between the applicant and the driver. He also states that he later observed the applicant in the lunch room to be asleep.
Mr Brooks states that the incident between the applicant and the truck driver “could have resulted in discipline” when it was first reported, and he tried to informally resolve the issues between the applicant and the driver. However, he had to escalate the matter to Mr Otuhaha when this could be achieved at the meeting in his office. He states that the applicant was afforded every opportunity to put forward his events. He states that he tried to handle the matter as fairly and appropriately as possible, given that the applicant and the driver could have simply apologised to one another.
Maake Otutaha has provided a statement dated 18 January 2023. Mr Otutaha states that he has been employed with the respondent since 2009 and has been employed in his current role of Operations Manager since September 2022.
Mr Otutaha states that the applicant’s work performance has been very good over the period that Mr Otutaha has been the applicant’s direct supervisor.
Mr Otutaha states that he spoke to the applicant by telephone on 9 October 2022, and that the applicant was calm, approachable and agreeable. He states that the applicant said that he could hear the truck driver yelling at him after the applicant put his forklift into reverse, and they then commenced to yell at each other. Mr Otutaha states that the applicant admitted that he threw the docket documentation at the truck driver.
Mr Otutaha states that the claimant “also brought up the allegation for the first time” that the truck driver tried to punch the applicant while the applicant was operating the forklift.
Mr Otutaha states that the applicant agreed to approach Mr Brooks on his shift to complete a formal incident report regarding the matter.
Mr Otutaha states that he understands that the applicant did complete an incident report with Mr Brooks and a support person. He states that the applicant sent him a text message that morning or night informing him that it was the applicant’s intention to finish work early on stress leave after becoming overwhelmed when going over the incident with Mr Brooks and the others at the meeting.
Mr Otutaha states that he received a text message from the applicant’s wife on 16 October 2022 explaining that the applicant was too unwell to return to work. He states that he responded in a text message to inform her that an internal investigation of the incident was still underway.
Mr Otutaha states that his view of the applicant’s claim for workers compensation “is over the top and an exaggeration of his condition”. He states that the applicant’s job is not in jeopardy and the respondent looks forward to the applicant’s return to work in the near future.

The CCTV footage

There is some CCTV footage of the areas where the incidents occurred between the applicant and the truck driver on the morning of 7 October 2022.
The footage shows the truck driver walking down the left side of the two trailers that are attached to the prime mover and then crouching or bending down so that he can no longer be seen in the footage. The applicant then reverses with two pallets for loading onto the truck. The truck driver then approaches the applicant while he is loading the pallets. There is a period of about 50 seconds when the truck driver and the applicant appear to interact with each other, but they are both obscured from view, and it is not possible to identify any physical movements of significance from either person. The applicant then drives away.
The truck driver then walks around to the other side of the trailer and although he mostly obscured from view, he appears to be pacing up and down on that side of the trailer.
The applicant then reverses his forklift on to the right side of the trailer and loads another two pallets on to that side of the trailer. Both the truck driver and the applicant are obscured from view. There is a period of about 40 seconds from the time of loading by the applicant to when the truck driver is seen walking quickly back to the left side of the trailer.
The footage shows the truck driver walking quickly and then running along the side of the two trailers and the applicant driving his forklift at a distance of about 10 metres behind the truck driver. The applicant drives his forklift away from the truck and out of sight.

Medical evidence

Certificates of Capacity have been issued by the applicant’s general practitioner, Dr Moussad, from 22 October 2022 to 14 April 2023 which provide a diagnosis of injury of post-traumatic stress disorder with anxiety component. The answer provided to: “How is the injury related to work?” is: “physical abuse”.
Miriam Boulos, psychologist, has provided a report at the request of the applicant’s lawyers dated 16 May 2023.
Ms Boulos writes that she initially saw the applicant on 10 November 2022. She records from the applicant that on 7 October 2022 he was suddenly and aggressively approached by a truck driver who accused the applicant of almost running him over. Ms Boulos records that the truck driver violently threw a fire extinguisher on the floor and threw a punch at the applicant. She records that the applicant immediately covered his face and then fled “this ferocious scene.”
Ms Boulos records that the applicant tried to contact his supervisor on two occasions over the radio system, but the supervisor did not answer. She records that the applicant’s supervisor appeared to be dismissive of the situation when the applicant was eventually able to contact his supervisor.
Ms Boulos records that the applicant was constantly questioned by his supervisor when the applicant was finally asked to prepare a statement. She records that the applicant felt abandoned and failed to receive any support from his supervisor.
Ms Boulos opines that “this injury” has affected the applicant’s mood, thoughts, feelings and behaviour. She writes that the applicant has stated on several occasions that he was surprised and saddened by his supervisor’s response to this incident.
Dr Fernando, psychiatrist, has provided a report dated 20 December 2022 at the request of the respondent.
Dr Fernando records that on 7 October 2022 the applicant was approached by a truck driver and was told by the truck driver that the applicant nearly hit him. She records that the driver again approached the applicant and threatened to throw a fire extinguisher in the applicant’s face. Dr Fernando then records that the truck driver tried to throw a fist into the applicant’s face and the applicant covered his face with a book that he was writing in as an act of self defence.
Dr Fernando records that the applicant called for help to Garry on his walkie-talkie but there was no response. Dr Fernando records that Garry did eventually see the applicant, but that Garry did not ask how the applicant “was doing”, and that he directed the applicant to load another truck.
Dr Fernando records that the applicant and the truck driver met in Garry’s office about one hour later, and that the applicant was told by Garry that the truck driver complained that the applicant had tried to run him over with a forklift. Dr Fernando records that the applicant asked that Garry check the CCTV. He records that Garry did not take a complaint from the applicant, but only from the truck driver.
Dr Fernando records that the applicant went home in a state of shock and feeling upset.
Dr Fernando records that the applicant made an incident report on the following Sunday in the presence of Garry and two union leaders. She records that the applicant tried to refer Garry “in some sections”, but that Garry tried to cut him off and Garry tried to avoid having his name mentioned in the report. Dr Fernando records that the applicant felt stressed and was feeling quite sad and was crying on that Sunday, and the applicant asked to go home on stress leave.
Dr Fernando records that what was most distressing to the applicant was that Garry did not believe him.
Dr Fernando diagnoses the applicant as having an adjustment disorder with anxiety features. He identifies the main contributing factors for the applicant’s “psychological distress” to be:
(a) perceived injustice from his supervisor on the day of the incident when the applicant felt he was not believed and not supported after a distressing physical assault, and
(b) being unsupported by his supervisor and manager after the incident.
Dr Fernando opines that the applicant does not fulfil the criteria for post-traumatic stress disorder because of an absence of symptoms associated with that condition. Dr Fernando writes:
“As described by Mr Muliana himself it is not the incident where he was allegedly attempted to be assaulted that has distressed him mostly, it was the fact that he was allegedly blamed afterwards by his in charge and not being ‘believed’, ‘supported’ is what has caused an emotional reaction.”
Dr Fernando has provided a supplementary report dated 1 March 2023 following a review of the CCTV footage. Dr Fernando writes that the footage is inconclusive and does not reveal any additional information.
Dr Fernando writes that the applicant did not mention the incident involving the truck driver as being the predominant cause of his psychological distress, but rather the indifferent and unfair treatment the applicant alleges to have received from his manager on the day of the incident.
Dr Fernando writes that the applicant said that Garry did not take a statement and did not look at the CCTV footage. However, Dr Fernando noted that Garry had taken a statement from the applicant and had looked into the CCTV evidence as well. Dr Fernando concludes: “In my opinion, this perceived mistreatment was the predominant cause of his psychological distress.”
Dr Fernando opines that “any proposed actions of discipline are not the predominant cause” for the applicant’s psychological distress, but Dr Fernando also opines: “as per the history provided, the manner in which the investigative process was handled seems to be the predominant cause for his psychological distress.”
Dr Kumagaya has provided a report at the request of the applicant’s lawyers dated 3 March 2023.
Dr Kumagaya records that on 7 October 2022 the applicant was verbally threatened at his workplace by a truck driver. He records that the truck driver threatened to throw a fire extinguisher at the applicant’s face while shaking the fire extinguisher with his hands, which caused the applicant to experience intense fear. Dr Kumagaya records that the truck driver then punched the applicant, although the applicant blocked the punch with his hands.
Dr Kumagaya records that the applicant felt unsupported following this incident because he made a number of radio calls to his team leader for help, but those calls were unanswered. He also records that the team leader did not give the applicant the opportunity to provide his version of events on the day of the incident, but that this was afforded to the truck driver by the team leader. Dr Kumagaya also records that the applicant was still not able to sufficiently describe what occurred when the applicant was given the opportunity to do this two days later.
Dr Kumagaya diagnoses the applicant has having post-traumatic stress disorder, which developed subsequent to the incident on 7 October 2022. He also opines that the applicant’s mental state was further destabilised by his subsequent experience of being unsupported in the workplace.
Dr Kumagaya also comments on certain parts of Dr Fernando’s reports. He disagrees with the diagnosis of injury made by Dr Fernando. Dr Kumagaya confirms that the applicant’s symptoms correlate with a diagnosis of post-traumatic stress disorder.
Dr Kumagaya also disagrees with Dr Fernando’s opinion on the cause of injury. Dr Kumagaya writes:
“Mr Muliana’s post-traumatic stress disorder symptoms arose subsequent to his experience of being verbally threatened and assaulted at the workplace. His subsequent experience of being unsupported at the workplace only serve to further destabilise his already unstable mental state.”
Dr Fernando has provided a further report dated 11 May 2023, which is partly in response to the report from Dr Kumagaya. Dr Fernando writes that the details around the history of the injury are very similar in both his own and Dr Kumagaya’s report, but that the discrepancy between the reports is around the details which were considered by the applicant to be the predominant cause of his psychological distress.
Dr Fernando concedes that there can be a change of symptoms over time. She writes that the applicant’s “change of account around the predominant cause of distress could be a reflection of the change of his symptoms rather than an inconsistency in his history.” Dr Fernando writes that a patient’s symptoms can change over time, which can then alter or progress the diagnosis of a psychological injury.
Dr Fernando is also asked to “confirm whether it remains your view that the predominant cause was action taken by Nestlé, or proposed to be taken, with respect to the investigation which could have been ‘with respect to’ discipline”. Dr Fernando answers that it was the manner in which the investigative process was handled which seems to have been the predominant cause of the applicant’s psychological distress.

FINDINGS AND REASONS

Whether the applicant sustained a psychological injury in the course of his employment with the respondent, including the cause or causes of any psychological injury and the nature of any psychological injury

The experts retained by both parties to this dispute opine that the applicant sustained a psychological injury in the course of his employment with the respondent. There are, however, differences between those two experts as to the cause or causes of the psychological injury and the type or nature of the psychological injury sustained by the applicant.
Dr Fernando opines that the main contributing factors for the applicant’s psychological distress are perceived injustice from Mr Brooks on the day of the incident when the applicant felt he was not believed and being unsupported by his supervisor and manager after the incident. Dr Fernando diagnoses the applicant as having an adjustment disorder with anxiety features.
Dr Kumagaya opines that the applicant sustained a psychological injury subsequent to his experience of being verbally threatened and assaulted at the workplace and that his mental state was further destabilised by his subsequent experience of being unsupported in the workplace. Dr Kumagaya diagnosed as the applicant as having post-traumatic stress disorder.
Ms Balendra for the respondent submits that the identification of the nature of the psychological injury sustained by the applicant is crucial to a proper determination of this dispute, particularly in regard to the defence relied upon by the respondent pursuant to
s11A (1) of the 1987 Act. Ms Balendra relies upon what was said by DP Roche in Dywidag Systems International Pty Lyd v Melksham [2020] NSWWCCPD 41 (Melksham) at [114]:
“The appellant asserts that in dealing with the question of ‘injury’ within the meaning of s 4 of the 1987 Act, the Arbitrator was required to identify the pathological change that occurred in the event on 26 June 2007. Noting the respondent’s submission to the Arbitrator recorded at [12] of the Arbitrator’s reasons, the pathological nature of the injury on 26 June 2007 was clearly in issue before him. The Arbitrator accepted the respondent’s submission that it was not necessary for him to determine the pathology arising from that injury. In the circumstances of this case, the nature of the injury was indeed a matter for the Commission to determine. Applying the rationale set out by Roche DP in Jaffarie, the Arbitrator was in error by failing to determine that issue.”
Mr Hickey for the applicant submits that the circumstances of a particular dispute will determine whether it is necessary to make findings on the nature of injury sustained by a worker. He submits that in this dispute it is only necessary to determine if the applicant has sustained a psychological injury.
The submission made by Mr Hickey is supported by what was said by Emmett JA in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014 NSWCA 264 (Bindah) at [119]:
“Consequently, Order 3 of the Certificate of Determination on 21 November 2011 simply recorded the arbitrator's determination that Mr Bindah had incurred an injury. That determination involved a conclusion on a matter of causation, being that Mr Bindah's employment was a substantial contributing factor to his injury. The arbitrator did not need to make a determination about the precise nature of the injury, because that matter fell within the province of a medical dispute, which was for the approved medical specialist, and, if necessary, the Appeal Panel, to determine. The arbitrator's determination that Mr Bindah had suffered an injury meant that he had suffered an injury according to the definition of that term in s 4 of the Compensation Act. That definition includes both a personal injury and an aggravation, acceleration, exacerbation or deterioration of a disease. It was then for the approved medical specialist to determine the degree of permanent impairment that resulted from the injury. That determination involved a conclusion on a matter of causation, as indicated by the words in bold.”

It is not unusual for psychiatrists to differ in their diagnosis of the type of psychological injury sustained by a person who presents themselves for assessment. Indeed, Dr Fernando concedes after considering the opinion of Dr Kumagaya that there could have been a change in the applicant’s symptoms over time which can alter or change the diagnosis of a psychological injury.
In my view and consistent with what said by Emmett JA in Bindah, a crucial issue in this dispute is not the nature of the injury (which does differ between the two experts) but rather the cause or causes of the psychological injury sustained by the applicant. It is the cause or causes of the psychological injury sustained by the applicant which are central to the defences raised by the respondent, in particular in regard to s 11A (1) of the 1987 Act.
There are no clinical notes in evidence from the applicant’s general practitioner, Dr Moussad. The entries made by Dr Moussad, particularly on 12 October 2022 when the applicant states he first saw Dr Moussad in regard to this injury, may have identified the immediate concern or concerns which the applicant had when seeking medical treatment.
The Certificates of Capacity issued by Dr Moussad record that it is “physical abuse” which is how the injury is related to the applicant’s work. While this might only be an abbreviated understanding by Dr Moussad of the cause of the applicant’s injury and cannot be relied on its own for a finding on causation, it is nonetheless an indication of what the applicant’s general practitioner understands is the reason for the psychological symptoms which the applicant presents with. I am also mindful of what was said by DP Snell in Gardener v Sauer’s Bakehouse Pty Ltd [2018] NSWWCCPD 49 (Gardener) at [40]:
“The evidentiary significance of medical certificates will depend on the circumstances of the particular case. There will be occasions where, if a certificate simply proves that a particular complaint was made at a certain time, that will be significant to issues of causation.”
The initial consultation that Ms Boulos has with the applicant occurs about five weeks after the events in the workplace. This is the first opportunity that a relevant expert is able to spend some time with the applicant, have that expert record details of what occurred on 7 October 2022 and events thereafter, and provide treatment in response to the symptoms which arose from those events.
The details recorded by Ms Boulos in her report dated 16 May 2023 of the exchanges between the applicant and the truck driver are generally consistent with the applicant’s own evidence, except that Ms Boulos records that the driver violently threw the fire extinguisher on the forklift to the floor.
Ms Boulos records that the applicant “fled this ferocious scene” following the exchanges between the applicant and the truck driver. It cannot be known without further enquiry from Ms Boulos as to whether the applicant has used the words “this ferocious scene” in his consultation with Ms Boulos or whether Ms Boulos has used this description in her own understanding of how much the exchange affected the applicant. However, what I consider can be inferred from that part of the report from Ms Boulos is that the applicant was conveying to his treating psychologist the fear and concern which he had in his exchanges with the truck driver.
The contemporaneous medical evidence provided in response to the treatment afforded to the applicant therefore supports the applicant’s own evidence that he departed quickly in fear and in panic following the second exchange between himself and the truck driver.
The evidence from Mr Brooks seeks to downplay the effect of the exchanges between the applicant and the truck driver. Mr Brooks states that there was not much urgency in the applicant’s voice when the applicant spoke over the two-way radio. He states that the applicant was not overly upset or emotional when they met each other. He states that the applicant was very calm when a meeting was organised between the applicant and the truck driver.
Mr Brooks also states that the applicant had maintained his extremely laid back demeanour when Mr Brooks later found the applicant sleeping in the break room.
However, I consider caution needs to be exercised in regard to the evidence provided by Mr Brooks. Mr Brooks also states that the applicant could not give him any detail that could be easily understood when he first met the applicant, but then endeavours to explain away such observations by stating that the applicant can be difficult to understand because of a strong Balinese accent. He also states that the applicant’s mood was elevated. In my view this evidence adds weight to a conclusion being reached that the exchanges between the applicant and the truck driver had a psychological effect upon the applicant from the time the second exchange occurred.
I am also mindful of what was said by DP Roche in Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K) at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
The applicant has not only provided evidence in written form but was also subject to cross-examination, particularly in regard to what occurred in the second exchange between himself and the truck driver. I agree with the submission made by Mr Hickey that the applicant’s evidence under cross-examination was consistent with his written evidence and the history he provided to Ms Boulos and Dr Kumagaya. I also consider that the applicant appeared to remain upset by what occurred between himself and the truck driver when questions were asked of him by Ms Balendra.
I accept from the applicant’s evidence and from at least some of the evidence I have referred to from Mr Brooks and the details recorded by Ms Boulos some five weeks after the incident that the applicant perceived himself to be in an ‘offensive or hostile working environment’ at and from the time of the second exchange between himself and the truck driver.
I consider that the preponderance of evidence, in particular the applicant’s evidence, the records made by Dr Moussad and Ms Boulos, and the details recorded by Dr Kumagaya, supports a finding that is consistent with the opinion on the causes of injury identified by Dr Kumagaya, namely that the applicant sustained a psychological injury subsequent to his experience of being verbally threatened and assaulted at the workplace and that his mental state was further destabilised by his subsequent experience of being unsupported in the workplace.
I also consider there is some deficiency in the opinion reached by Dr Fernando, which lends further weight to the evidence which I have preferred.
Dr Fernando does not record any details of the applicant’s state of mind at the time of the second exchange between the applicant and the truck driver and soon thereafter. That is in contrast to Ms Boulos, who records that the applicant “fled this ferocious scene”, and Dr Kumagaya, who records that the applicant experienced intense fear when the truck driver was shaking the fire extinguisher.
Dr Fernando states in her second report dated 1 March 2023 that the applicant did not mention the incident involving the truck driver as being the predominant cause of the applicant’s psychological distress, but there appears to be no attempt made by Dr Fernando to at least engage in consideration of the effect this incident had upon the applicant’s overall psychological condition.
Having considered both the lay and medical evidence in this dispute, I find that the applicant sustained a psychological injury in the course of his employment with the respondent as a result of both the exchange between the applicant and the truck driver, and the applicant’s experience of not being supported by the management of the respondent on the day on which the exchanges occurred and on the days which followed.

Whether the psychological injury sustained by the applicant was solely attributable to the serious and wilful misconduct of the applicant

Section 14 (2) of the 1987 Act provides:
“If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”
Ms Balendra concedes that the highest the evidence can reach for the respondent to establish this defence is that the applicant’s injury is attributable to him running over the truck driver’s foot and the events which flow from that.
There are several reasons as to why this defence must fail.
Firstly, decisions such as Clyde v State of NSW (1995) 12 NSWCCR 541 (Clyde) confirm (at [562C]) that “the injury must be ‘solely attributable’ to the misconduct.” I have already set out my reasons as to why I have found that there was a combination of causes of the applicant’s psychological injury. The evidence which I have accepted does not support a finding that the applicant’s psychological injury is solely attributable to the second exchange between the applicant and the driver, even if that exchange did include the applicant running over the driver’s foot.
Secondly, the available evidence does not reach a level that would allow me to be satisfied that the applicant did run over the driver’s foot. There is no direct evidence in regard to the exchanges between the applicant and the truck driver except for the evidence of the applicant.
The truck driver has not provided his own evidence of what occurred. Although I did allow the hand written statement with the names of Angadeep Singh and Parampal Singh on that document to remain in evidence, and in that statement it is written that the applicant “ran over his right foot before driving away”, I give no weight or credence to the contents of that document. There is no certainty as to the author of that document. It is hearsay evidence. It is not signed or endorsed by Angadeep Singh, whom Mr Brooks claims was the truck driver who was injured in an altercation with the applicant.
Thirdly, the CCTV footage which has been admitted into evidence and relevant parts of that footage which I have summarised does not reveal any misconduct on the part of the applicant. There is a period of about 50 seconds during the first exchange between the applicant and the truck driver, and then a period of about 40 seconds during the second exchange between the applicant and the truck driver, when the forklift being driven by the applicant is stationary, but the applicant and truck driver are obscured from view. It is therefore not possible for any conclusion to be reached regarding any aberrant behaviour on the part of the applicant.
The respondent has failed to establish a defence pursuant to s 14 (2) of the 1987 Act.

The s 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 Hickey submits that the events which occurred between the applicant and officers of the respondent after the exchanges between the applicant and the truck driver do not reach the definition of ‘discipline’ as it is to be applied in s 11A (1) of the 1987 Act.
Mr Brooks states that the meeting between himself, the applicant and the truck driver was “informal” because he was just trying to get to the bottom of what had occurred. He states that the incident between the applicant and the truck driver “could have resulted in discipline” when it was first reported, but he tried to informally resolve the issues between the applicant and the driver.
That evidence suggests that the respondent had not engaged in a process of discipline on 7 October 2022. However, Dr Fernando opines that it was the response by Mr Brooks on that day which is the predominant cause of the applicant’s psychological distress.
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR (Heggie) AJA Sackville said at [59]:
“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.”
Allowing for the “broad view” referred to in Heggie, I consider that the meeting conducted by Mr Brooks on 7 October 2022, the communication that the applicant had with Mr Otuhaha on 9 October 2022 and the subsequent meeting on 12 October 2022 was action with respect to discipline. Officers of the respondent were investigating a serious incident between one of their employees and a contract driver, which could have ramifications for the applicant’s employment with the respondent.
However, I am not otherwise satisfied that the respondent is able to meet the requirements of s 11A so as to deny the entitlement of workers compensation benefits to the applicant.
Firstly, I am not satisfied that the applicant’s psychological injury has been wholly or predominantly caused by action taken by the respondent with respect to discipline. In Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92, ADP Handley said at [24] that “predominantly caused” is to mean mainly or principally caused.
I have already provided my reasons as to why I consider that the exchanges between the applicant and the truck driver had a significant psychological effect on the applicant even before there were communications between himself and Mr Brooks. It has led me to accept the opinion provided by Dr Kumagaya that the applicant sustained a psychological injury as a result of both the exchange between himself and the truck driver, and his subsequent experience of not being supported by the management of the respondent on the day on which those exchanges occurred and on the days which followed. I have set out my reasons as to why I prefer the opinion provided by Dr Kumagaya over that of Dr Fernando.
Dr Kumagaya has not been asked if there is a predominant cause of the applicant’s psychological injury. However, it is apparent from the opinion which Dr Kumagaya does provide on the cause of the applicant’s injury that he considers that the applicant’s injury is due to a combination of events, only some of which can be regarded as being with respect to discipline.
The lay and medical evidence which I have accepted as to the causes of the applicant’s psychological injury do not support a conclusion that action taken with respect to discipline by the respondent has mainly or principally caused the applicant’s injury.
If I am found to be wrong on this issue, I also do not consider that the action taken by the respondent was reasonable.
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 one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than the test of convenience. 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.”
I accept that it was reasonable for the respondent to immediately commence an investigation of what was a serious and potentially dangerous incident involving the applicant and the truck driver. However, the action taken by officers of the respondent cannot be regarded as reasonable.
It is apparent from the evidence provided by Mr Brooks that from the commencement of the disciplinary process he had failed to act fairly towards the applicant. Mr Brooks did not view the CCTV footage on his own or with another officer of the respondent who was not involved in the incident. Instead, he viewed the footage with driver.
Mr Brooks concedes that it is impossible to ascertain if the forklift actually impacted the truck driver during the first exchange, and that the truck obscures vision of the applicant and the truck driver during the second exchange. Yet Mr Brooks concludes after viewing the CCTV footage, but before he seeks further details from the applicant, that the driver’s version of events seemed more likely.
The applicant’s evidence that Mr Brooks would not listen to him or view the CCTV footage in his presence during the meeting between himself, the truck driver and Mr Brooks is consistent with Mr Brooks having already decided that he would accept the truck driver’s version of events. By pre-judging what had occurred, Mr Brooks was not engaging in a disciplinary process that was fair towards the applicant.
The respondent, Nestle Australia Limited, is a large multinational corporation and yet no officer from a human resources department was made available for the meeting on 10 October 2022. Instead, the meeting was conducted solely by an officer from the respondent who had already formed a definite view as to which version of events he would accept.
Mr Brooks states that at the meeting the applicant was obviously unhappy and accused Mr Brooks of failing to support him. Yet Mr Brooks not only proceeded with the meeting but required the applicant to sign a handwritten statement during that meeting.
I agree with the submission made by Mr Hickey that the various alterations made to the handwritten statement that was signed by the applicant at that meeting reveals the stress and pressure that the applicant was experiencing during that meeting. The applicant said in cross examination that the handwritten statement was not a complete version of events and he felt “entrapped.”
Rather than have an officer from the human resources department or a senior officer at a higher level within the company conduct this meeting, which might have allowed the applicant to have some confidence in the disciplinary process being undertaken by the respondent, the applicant was placed in a stressful situation.
The final piece of evidence which confirms the unreasonable conduct of the respondent with respect to the disciplinary process comes from Mr Otuhaha, who despite having only one conversation over the phone with the applicant on 9 October 2022, states that the applicant’s claim “is over the top and an exaggeration of his condition.”
There was a failure by the respondent to afford fairness to the applicant on 7 October 2022 when Mr Brooks had already decided which version of events he would accept.
There was a failure by the respondent to afford fairness to the applicant on 10 October 2022 when the meeting was conducted by the same person who had already formed a definite view as to which version of events he would accept, rather than escalate the disciplinary process to officers with greater expertise in dealing with such issues and who could conduct a process which would weigh the rights of the applicant against the objective of the respondent.
It was this unreasonable action taken by the respondent with respect to discipline which involved additional stress for the applicant and was a cause of his psychological injury.
I therefore do not accept that the respondent has established a defence pursuant to s 11A of the 1987 Act.

The claim for weekly payments of compensation

In his statement dated 17 February 2023, the applicant states that he does not feel that he is well enough to return to any type of work.

In his statement dated 30 March 2023, the applicant states that his concentration has declined, and his sleep has become disturbed.
Dr Moussad has issued Certificates of Capacity certifying that the applicant has had no current work capacity from 12 October 2022. However, caution needs to be exercised in approaching Certificates of Capacity where there is no change to the contents of those certificates other than the dates which certify total incapacity for work. 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.”
Ms Boulos does not provide any opinion on the applicant’s capacity for work. She does state that the applicant appears to have developed severe anxiety and fear which may delay his return to work. Ms Boulos places the applicant in the “Extremely Severe” categories in the Depression, Anxiety and Stress Scales (DASS).
Ms Boulos writes that the applicant has attended four sessions of psychological treatment since November 2022. Ms Boulos recommends that the applicant attends fortnightly sessions of psychological treatment to assist him in managing his mental state.
Dr Kumagaya found the applicant’s affect was dysphoric and frequently teary. Dr Kumagaya opined in March of this year that the applicant remained fully incapacitated for work. Dr Kumagaya considered that the applicant’s future capacity for work was dependent upon his access and response to mental health treatment. He considered that a return to work by the applicant was premature.
Dr Fernando found the applicant’s mood was anxious and his affect was reactive when she examined the applicant in December 2022. Dr Fernando was of the opinion that the applicant had a partial capacity to start a gradual return to work. She recommended the involvement of a rehabilitation specialist and to have the applicant start to work for four hours a day for three days per week, and then gradually increase by two hours a day for every two weeks.
Dr Fernando writes that it would be important that the applicant keeps engaging with the psychologist throughout this period to resolve any emerging anxiety symptoms and work on strategies to overcome them. She also recommends a mediation meeting to resolve the issues which arose at work.
All of the expert psychological evidence identifies the integral role that ongoing psychological treatment must have with the applicant’s capacity to undertake some work. The difference is that Dr Fernando considers that the applicant can do some work while he undergoes ongoing psychological treatment, whereas Dr Kumagaya considers that the applicant remains totally incapacitated for work until he has had further psychological treatment.
Unfortunately, the applicant has had very little psychological treatment, presumably because of the denial of liability from December 2022. He has had only four consultations with Ms Boulos over a period of eight months. He has had not the benefit of seeing a psychiatrist.
I prefer the cautious approach being taken by Dr Kumagaya on the issue of the applicant’s capacity for work because of the lack of psychological treatment which the applicant has had to date. That is supported by the observations made by Ms Boulos of the applicant’s mental state in the four consultations she has had with him. Considerable weight must be given to those observations because Ms Boulos has had the benefit of seeing the applicant on at least four occasions compared to only one consultation that Dr Fernando had with the applicant and which was less than three months after the injury sustained by the applicant.
That the applicant has had so little treatment when the experts are in agreement that regular treatment is necessary to improve the applicant’s psychological condition and enhance his capacity to return to work, leads me to conclude that the applicant has had no current work capacity since 12 October 2022.
Ninety-five percent of $2,001 equates to $1,901. Eighty percent of $2,001 equates to $1,601.
There will be an award in favour of the applicant for the payment of weekly benefits of compensation as follows:
(a) $1,901 per week from 12 October 2022 to 11 January 2023 pursuant to s 36 (1) of the 1987 Act, and
(b) $1,601 per week from 12 January 2023 to date and continuing pursuant to
s 37 (1) of the 1987 Act.
The respondent is to have credit for any weekly payments of compensation already made to the applicant.

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.

[2023] NSWPIC 315

3 July 2023