Raad v AST Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Raad v AST Services Pty Ltd [2021] NSWPIC 388
APPLICANT:	Yahya Raad
RESPONDENT:	AST Services Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	1 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of disputed psychological injury; whether proper factual foundation for the acceptance of the expert opinions on causation; significant intercurrent personal stressors; factual dispute regarding the nature of relevant workplace interaction; extent of incapacity; Held - the applicant sustained a psychological injury pursuant to section 4(b)(i) of the Workers Compensation Act 1987 (1987 Act); award for weekly compensation pursuant to section 37(1) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of employment to which employment was the main contributing factor pursuant to ss 4(b)(i) and 11A(3) of the Workers Compensation Act1987. 2. From 25 December 2020 to date and continuing the applicant has had no current capacity for work as a result of the injury.
DIRECTIONS MADE:	1. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act1987 from 25 December 2020 to date based on the applicant’s pre-injury average weekly earnings figure of $2,025.85, as periodically indexed. 2. The respondent to pay continuing weekly benefits in accordance with the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Mr Yahya Raad (the applicant) was employed as a truck driver by AST Services Pty Ltd (the respondent). The applicant claims that he sustained a psychological injury as a result of adverse interactions, bullying, harassment and abusive behaviour from his managers.

A claim for compensation was made and, on 30 November 2020, liability for the alleged injury was disputed under a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

The applicant sought internal review of the decision to dispute liability on 12 April 2021, however, the decision was maintained on 26 April 2021.

The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 17 June 2021. The applicant seeks weekly compensation from 25 December 2020 on an ongoing basis.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether applicant has sustained a psychological injury pursuant to ss 4 and 9A of the 1987 Act, and
(b) the extent and quantification of any incapacity resulting from injury.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 August 2021 via Microsoft Teams. The applicant was represented by Mr Lachlan Robison of counsel, instructed by Mr Carmine Santone. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Malcolm Griffin. Representatives from the insurer were also present.
During the conciliation conference the parties reached agreement that the applicable pre-injury average weekly earnings (PIAWE) figure was $2,025.85. It was also agreed that the applicant had received payments for the duration of the first entitlement period pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) and so the current claim commenced in the second entitlement period pursuant to s 37 of the 1987 Act.
The respondent withdrew its reliance on a defence pursuant to s 11A(1) of the 1987 Act.
Oral submissions were heard from the applicant’s counsel. The respondent’s submissions were unable to be completed in the time available and so the hearing was adjourned to 27 August 2021.
At the resumed arbitration hearing on 27 August 2021, I determined that it was not in the interests of justice to admit into evidence documents attached to an Application to Admit Late Documents lodged by the applicant on 23 August 2021. Oral submissions on the issues in dispute were completed.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and all attachments.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 22 September 2020 and 17 June 2021.
In his first statement, the applicant described an incident on 31 August 2020 when he was delivering a container to the Linfox depot at Ingleburn. The applicant had reversed to position a trailer at the loading dock when he noticed the trailer had sunk down to a level approximately 4 cm below where it should be. The applicant realised that he had not put the stabilising legs in position. The applicant went to wind down the stabilisers but an officer from Linfox told the applicant that the situation was unsafe and would not allow him to continue. The officer said a member of the respondent’s management team would have to come and assess the situation and rectify the problem. It took about four hours for a decision to be made about what to do.
Eventually, Toll Management who was responsible for the delivery contract, made the decision to allow the applicant to raise the trailer using the stabilisers, which he did. The applicant could see that the rubber guards on the prime mover had been suppressed by the weight of the trailer. The applicant pressed them into their original shape. Although there appeared to be some damage done to the trailer, the applicant could see that the damage had been done previously and was not a result of this incident.

When the applicant was eventually allowed to leave, the applicant had to complete the rest of his deliveries and did not finish until 4 am. It was then too late to file an incident report.

On 1 September 2020, the applicant knew he would be required to attend the office of John Spyrou to complete an incident report. The applicant messaged John at 11.28 am to confirm he would attend the office to discuss the incident. John responded at 11.34 am requesting that the applicant come down now.

The applicant went to the Padstow depot to leave his car and get a lift with a truck that would be going to John’s office at Botany. When the applicant arrived at the office, Daniel Spyrou instructed the applicant to drive a trailer with a container to Botany and then see John. The applicant told Daniel that he had not completed an eight hour rest period after completing a shift from the night before. Daniel told the applicant to take the truck anyway.

Whilst driving to Botany, the applicant received a phone call from John in which he was very abusive. He swore at the applicant on numerous occasions telling him that he should be in his office not driving a truck. The applicant tried to explain that Daniel had instructed him to drive the truck but he would not listen. The applicant then returned the truck to Padstow and drove his own car to Botany.

When the applicant arrived at Botany he went to John’s office where Peter Spyrou was also present. The applicant said:

“When I entered the office, John said words to the effect ‘F*** do you know how much f***ing grief you have caused. He accused me of backing onto a trailer and damaging it. This could not have happened because I was delivering the trailer. I tried to explain what had really happened but he would not listen. He continued to shout and swear at me and on at least two occasions raised from his seat in an aggressive manner.”

The applicant continued:
“Eventually I became very distressed by his behaviour and could not think clearly. I was finding it difficult to answer his aggressive accusations as he would not listen to my explanations. He then told me to go to Damien Avery's office and complete the Incident Report. Damien is an HR Manger. I told Damien that I was too stressed to complete the document and I left the premises.”
The applicant was shaking and found it difficult to drive his car home. The applicant had to stop on a number of occasions. The applicant’s sister then drove him to the doctor where he was diagnosed with an acute anxiety disorder. The applicant was issued with a WorkCover certificate of capacity.
In his supplementary statement, the applicant gave evidence that he had worked as a truck driver since approximately 2013.
The applicant disclosed that he suffered from Vater syndrome and had a colostomy bag. The applicant was unable to lift heavy weights or perform work with any significant exertion.

The applicant disclosed that there was a death in his family shortly before the work incident. Despite the sadness of that death, the applicant was able to work and denied that the passing of his uncle had anything to do with his current state.
The applicant recounted the incident on 31 August 2020.
The applicant also described the meeting with John and Peter Spyrou on 1 September 2020:
“When I got to the office I met John who was also with Peter. I gave them my drug analysis paperwork and also the AST incident report that I had not completed. Instead, I showed them the Linfox incident report that I had completed.
John throughout the conversation continued to swear at me, and on two occasions he got out of his seat and was very aggressive. I thought he was going to physically attack me and Peter had to physically restrain him.
He accused me of destroying a trailer, which was not true.
I was shaking and I could not complete the meeting.
John and Peter were both physically much bigger than I am. I’m very short and slight because of my medical condition. I felt very intimidated during this meeting.”
The applicant described his symptoms and disabilities. The applicant felt highly stressed and anxious and was fearful of returning to his employment with the respondent.
The applicant had been prescribed medication, had been referred by his general practitioner to a psychiatrist and had been seeing his psychologist, Ms Watson, until his funding stopped. The applicant was no longer able to afford treatment. The applicant said he had not continued to obtain medical certificates since liability for the injury was declined. The applicant described difficulty sleeping, which had been present previously but was now worse.

Damien Avery

Mr Damien Avery prepared a written statement on 25 September 2020 in relation to the incident on 1 September 2020. Mr Avery said:
“On 1 September 2020, I was informed that Yahya Raad was required to complete an incident report.
I was working in my office at about 13.30 when I heard raised voices. I did not know what this is about.
Shortly afterwards Yahya Raad came into my office and I requested he complete the standard incident report. He initially sat in a chair but when I asked, he immediately responded in an aggressive manner and said this is bullshit and I have already explained this. He angrily got out of the chair and continued to remonstrate about completing the incident report.
He remained agitated as I explained that this is a normal practice and no one is after you.
At that point he became more agitated and said I was treating him like a dog and he had lost weight. He also said his uncle had died. He also said he would go to court. I told him he was still required to complete the incident report as this was a normal practice.
He then squared up to me and put his face close to mine. He then said this is bullshit and stormed out of my office”

John Spyrou

The respondent relies on a written statement prepared by Mr John Spyrou made on 25 September 2020. Mr Spyrou stated that he was the respondent’s managing director. Mr Spyrou was aware of the incident at Linfox Ingleburn and said he had required the applicant to complete an incident report.
Mr Spyrou said he instructed the applicant to come to head office before he started his shift to complete an incident report. The applicant replied stating he would be in at 12pm. Mr Spyrou called the applicant at around 1pm and he indicated that he was in a truck on his way. Mr Spyrou responded that he had asked the applicant to come in before he drove a truck to fill in the incident report. Mr Spyrou stated:
“Yahya stormed into my office at around 1.40pm while I was in a meeting with Peter Spyrou and began trying to tell me what happened. I directed him to see Damian or Marilyn and complete an incident report and then to come back and speak to me. He slammed paperwork on my desk and raised his voice and kept stating he only wanted to talk to me and that he passed the drug test. I asked him numerous times to calm down and to see the correct department and follow protocol as we required the incident report to be sent back to Toll & Linfox immediately as they have flagged it as a major safety breach.
He then raised his voice once again and said that he wants me to write his resignation letter. I then told him to calm down and to stop raising his voice, I then said to him we do not want you to resign, however, if you feel that way then you need to write the letter yourself.
He then raised his voice again and told me that I do not know how to do my job, I then stated once again to calm down and to see the appropriate people to fill in the incident report. He then said I will go on stress leave. I said that is up to you but on what grounds. He said you will see I will go see my Doctor.”
Mr Spyrou said the applicant had previously confided in him about a number of incidents including the suicide of his father-in-law and the attempted suicide of his partner. The applicant’s uncle had been in a car accident and died of a subsequent brain haemorrhage.

Peter Spyrou

Mr Peter Spyrou also provided a written statement on 25 September 2020. Mr Spyrou said he was a manager employed by the respondent. Mr Spyrou described the events on 1 September 2020 as follows:
“I was in the office of my older brother John Spyrou when Yahya entered into the office. He was in a very agitated state. He immediately became abusive and said things like I am not a liar and I am telling you what had happened.
John was telling him to settle down. At no time did I see John act aggressively. He remained in his chair at all times and repeatedly asked Yahya to relax and calm down.
John then said that he was required to go to Damian Avary's office and fill out the incident report but Yahya continued to remonstrate and in loud voice was saying things like if you want me to quit you will need to sack me.
John said he did not want him to quit but if he wanted to then he should right his own resignation letter.
Yahya eventually did settle down and agreed to go to Damian Avary's office and complete the incident report.”

Daniel Spyrou

36.Mr Daniel Spyrou prepared a written statement 30 September 2020. Mr Spyrou said he was a manager employed at the respondent’s Port Botany depot.
37.Mr Spyrou gave evidence that on 25 August 2020 the applicant was informed while at work that his uncle had been hospitalised and would not see out the day. The applicant left work to visit his uncle but was unable to see him so returned to work. The applicant informed Mr Spyrou on 26 August 2020 that his uncle had passed away and the funeral would take place the same day.

On 1 September 2020, Mr Spyrou noticed the applicant pacing up and down and talking on a mobile phone at work. The applicant appeared agitated and asked to talk to Mr Spyrou. The applicant disclosed that he had a colostomy bag and had not been well the last couple of days. The applicant asked if his job was okay and Mr Spyrou responded “of course.”
The applicant told Mr Spyrou that he was on his way to see John Spyrou at the Port Botany yard. Mr Spyrou told the applicant to jump in a truck and do a “de-hire” on the way. The applicant indicated that John had told him to drive his car. Mr Spyrou advised, “that’s okay just jump in a truck and do a de-hire it’s on your way.”

Factual investigation report

The respondent relies on a factual investigation report prepared by AB Investigations on 6 October 2020. The report attached the witness statements described above and from another employee as well as a series of text messages between the applicant and John Spyrou.
In a text message sent on 21 June 2020, the applicant requested leave to attend the funeral service of his father-in-law and to assist his wife through this hard time.
On 2 August 2020 the applicant sent a text message advising there had been an incident the previous night where his wife had attempted to take her life. The applicant requested the day off work.
Another text message sent on an unidentified date indicated that the applicant’s uncle had passed away in a car accident.
At 11.28 am on 1 September 2020 the applicant sent a text message asking if he could come and see Mr Spyrou about the incident that happened the previous day. Mr Spyrou responded “Yes come down now”. The applicant replied that he was on his way.

Treating evidence

Clinical records from the applicant’s general practitioner, Dr John Williams, include correspondence dated in June 2020 referring to gastrointestinal difficulties on the background of the applicant’s Vater syndrome. The applicant described some pains in his abdomen and an x-ray was performed to investigate mucous build-up and overflow from the applicant’s loop ileostomy.
Dr Williams issued a WorkCover certificate of capacity on 1 September 2020, certifying the applicant as having no current capacity for any work due to an acute anxiety disorder with the date of injury of 1 September 2020.
Dr Williams’ handwritten clinical notes on 1 September 2020 referred to the applicant being upset and emotional and almost tearful. The record referred to the incident involving the container on 31 August 2020 and the applicant being “told by boss” that the container had been dropped.
Dr Williams recorded a clinical note on 2 September 2020 noting the applicant had poor sleep and was prescribed Seroquel. On 3 September 2020, a clinical note referred to the applicant thinking and worrying about the ”dropped trailer”.
Dr Williams responded to a questionnaire from the respondent’s insurer dated 4 September 2020 in which he made a diagnosis of acute anxiety disorder meeting DSM-V criteria.
Dr Williams said the applicant had delivered a container and moved the prime mover without putting down the legs causing the guard of the prime mover to be damaged. His employer’s response had triggered his psychological injury.

The applicant reported his symptoms on 1 September 2020. The applicant’s symptoms were feeling emotional, tearful and unable to relax. The applicant felt upset over how his employer treated him after the accident with the container delivery. They claimed the container had been dropped.
Dr Williams agreed that work was the main or substantial contributing factor to the applicant’s presentation. Dr Williams agreed that the actions of the employer in requesting the applicant complete a report in relation to the incident that occurred on 31 August 2020 was the whole or predominant cause of the injury. Dr Williams estimated that the applicant would recover in four to six weeks.
On 7 September 2020, Dr Williams noted that the applicant was feeling agitated, could not sleep and was thinking continually of the incident and the response of his boss towards him. The applicant was prescribed Mirtazapine.
A discharge referral from Westmead Hospital indicates that the applicant was admitted in relation to a small bowel obstruction and underwent a colonoscopy on 16 September 2020.

A ‘Clinical Notes Report’ from the applicant’s psychologist, Ms Kerry Watson, refers to an initial presentation on 30 October 2020:
“Client presented as anxious. Provided account of development of psychological symptoms following incident in workplace relating to reporting an accident at container terminal the day beforehand, perceives that he was verbally abused/bullied/mistreated by employer. Provided vivid account of incident. Reported rapid development of psychological symptomatology characterised by:
Persistent despondency.
Persistent Anxiety.
Intrusive & negative thinking and memories re incident.
Rumination.
Fatigue & marked loss of energy.
Difficulty concentrating & diminished ability to think.
Prominent sleep disturbances.
Reduced socialization.
Avoidance behaviours.
Agitation
Low frustration tolerance.
Low impulse control.
Feelings of detachment and estrangement from others.
Prominent feelings of hopelessness & helplessness
Prominent panic at exposure to internal and external cues that remind him of the workplace incident.”
On 23 November 2020, Dr Williams was asked to review a document setting out vocational goals for the applicant, prepared by Strategic Industry Solutions. Dr Williams was asked to review the job description for a tanker driver and indicate whether he would approve it as a “vocational goal” for the applicant to pursue work. Dr Williams ticked the box indicating it was approved.
A Centrelink medical certificate issued by Dr Williams on 30 November 2020 diagnosed a primary condition of acute anxiety disorder with symptoms of anxiety causing the applicant to be unfit for work until 25 March 2021. The applicant’s Vater syndrome and complications involving his stoma were identified as a secondary condition.
On 4 December 2020, Ms Watson reviewed a mood diary which illustrated persistent low moods as reported. The applicant presented with and reported ongoing prominent anxiety. The applicant reported persistent “replaying” and sense of reliving the incident and flashbacks.
Dr Williams continued to issue WorkCover certificates indicating the applicant had no current work capacity until a certificate issued on 15 December 2020. On that occasion, Dr Williams indicated that the applicant had capacity for some type of work from 15 December 2020 to 24 December 2020 for one hour on one day per week to prepare a resume.

Dr Peter Whetton

The applicant relies on a medicolegal report prepared on 12 April 2021 by psychiatrist, Dr Peter Whetton.
Dr Whetton took a history of the applicant’s Vater syndrome. The applicant reported that due to his disability he had been told as a child that he would never be able to do things or achieve in life. The applicant gave no previous history of psychiatric or psychological treatment. The applicant said he had recently married his long-term partner in a religious marriage which had not been registered. The applicant was not living with his partner but with his mother and that relationship was strained because of his temper.
Dr Whetton referred to the incident as described in the applicant’s written statement. The applicant had attended his general practitioner. The applicant’s current treatment included prescriptions of Temazepam, Seroquel and Mirtazapine. The applicant had recently had a first appointment with a psychiatrist and had an appointment with a psychologist pending.
Dr Whetton made a DSM-V diagnosis of major depressive disorder. The applicant’s presentation was of an agitated depression. Dr Whetton described the applicant as significantly disturbed. This had been ongoing for some six months. The applicant was in need of psychiatric treatment.
Dr Whetton said the diagnosis was not an aggravation of a pre-existing condition. Employment was a substantial contributing factor to the injury.
Dr Whetton assessed the applicant as totally unfit for work because of his mental state arising from the work injury.

Dr Peter Young

The respondent relies on medicolegal reports prepared by consultant psychiatrist, Dr Peter Young, dated 12 October 2020 and 6 November 2020.

Dr Young reported that the applicant described the incidents leading to his current claim consistently with the factual investigation.
The applicant reported to Dr Young that there were no significant intercurrent stressors or life events. The applicant did disclose continuous stress dealing with his underlying health condition, Vater syndrome. The applicant reported two deaths in his family in the last 12 to 18 months, however, they were not family members who were close to him.
The applicant was taking Temazepam and Mirtazapine.
Dr Young made an assessment and diagnosis as follows:
“Mr Raad presents today reporting significant symptoms of psychological distress in
relation to an identified stressor at work, that is perceived bullying and threatening
behaviour from his managers at work. Mr Raad clearly states that he is not concerned
regarding the criticisms of his performance, as he believes he has done nothing wrong
and that the principle causes of his anxiety relate to being sworn at and physically
threatened.
Mr Raad's current symptoms qualify for a diagnosis of Adjustment Disorder. These
symptoms are likely to improve over time and would benefit from appropriate
psychological intervention.”
Dr Young was asked to ascertain whether other issues in the applicant’s life including grief could have caused or contributed to the applicant’s mental state. Dr Young responded that the applicant reported that the other identified issues were not of significance in relation to his current symptoms.
Dr Young gave the opinion that the alleged workplace incidents were the main contributing factor to the psychological injury.
Dr Young considered that the applicant was fit to commence participation in a graded return to work plan.
In his supplementary report, Dr Young noted that he had been asked to comment on external stressors including the suicide of the applicant’s father-in-law on 21 June 2020, his wife’s attempted suicide on 2 August 2020 and the death of his uncle on 26 August 2020.
Dr Young responded:
“I note the inconsistencies reported above with the history as reported to me. These do not however address the stressors that were reported by Mr Raad as contributory to his presenting condition. In order to reconsider the relative contribution of these factors a re-examination would be necessary in order to discuss this with Mr Raad and make further assessment.”

Dr Young gave the opinion that the applicant was capable of returning to an alternative employer at least on a half-time basis and potentially full-time by now.

Applicant’s submissions

Mr Robison submitted that the applicant alleged a psychiatric injury as a result of the events on 1 September 2020.
Mr Robison noted that the witness evidence was essentially uniform in that there was no dispute that there was a heated conversation in the workplace on that date.
Mr Robison referred to the authority in State Transport Authority v Chemler[1] and submitted that, provided the applicant could establish objectively that something occurred in the workplace which had caused a psychological injury, an injury would be sustained and it would not be necessary to make a factual finding on the finer details.
[1] (2007) 5 DDCR 286.
Mr Robison referred to the applicant’s written statements. The applicant was a hard-working man and had been working 60 hours per week. The applicant’s previous health issues were explained and had no bearing on the present dispute.
Mr Robison noted the incident on 31 August 2020 involving the truck the applicant was driving. The next day, the applicant had a conversation with John Spyrou, in which he used abusive language which the applicant found intimidating. The applicant gave evidence that Mr Spyrou rose from his seat in an aggressive manner.
In the applicant’s second statement, he disclosed his prior medical history and personal events including deaths in the family. The applicant conceded that the events caused sadness and grief but Mr Robison drew a distinction between that and a pathological change amounting to injury.
In his supplementary statement, the applicant provided a similar account of the events on 1 September 2020 to his original statement. The applicant described the aggressive behaviour of John Spyrou. The applicant thought he was going to be physically attacked. The applicant was falsely accused of damaging a trailer. The applicant described his relative physical size in comparison to the gentlemen involved. The interaction was clearly distressing to the applicant.
Mr Robison referred to the witness statement of Mr Avery and noted that he referred to hearing raised voices, in the plural. Mr Avery described a subsequent interaction with the applicant in which he remained agitated and said he was being treated like a dog. Mr Robison submitted that this evidence demonstrated a significant reaction to the events in the workplace. The appropriateness or reasonableness of the applicant’s response to the interaction was irrelevant except as evidence that an injury occurred.
Mr Robison referred to Dr Whetton’s report of the applicant’s symptoms. The applicant remained agitated with strong feelings of anger and depression affecting his relationships. The applicant had worked successfully until the incident on 1 September 2020. The state that had developed was severe. Dr Whetton diagnosed a major depressive disorder and said the applicant was totally unfit for work due to his mental state arising from injury.
Mr Robison referred to the clinical notes of the applicant’s psychologist, Ms Watson. Ms Watson described a rapid and significant psychological deterioration after 1 September 2020.
Mr Robison referred to the clinical notes of Dr Williams and noted that the applicant had to stop treatment due to issues with funding. Dr Williams’ handwritten clinical notes referred to psychological symptoms, prescription of medication, thinking and worrying continually about the incident and the response of his boss, feeling agitated and being unable to sleep.
Mr Robison referred to the various WorkCover certificates in which the applicant was certified as having no current work capacity other than the one certificate in which he was certified as having capacity for one hour per week.
Mr Robison referred to the rehabilitation material and noted that it identified a vocational “goal” rather than a present capacity for work in suitable employment. The vocational goal was never achieved. The applicant’s medication was increased and the applicant was noted to be unfit after the date of the rehabilitation documents. Mr Robison submitted that despite the applicant engaging with the rehabilitation provider and the goal of returning to work, that did not transpire. This circumstance was said to favour the applicant on the case theory of total incapacity.
Mr Robison referred to the respondent’s witness statements. Mr Robison said there was no doubt that there was some sort of melee in the workplace. Mr Robison noted that Mr Spyrou’s evidence that the applicant “stormed” into his office clearly indicated that the applicant was under some form of distress. The applicant was not calm but agitated. This was consistent with what the medical evidence suggested was a rapid onset of psychological symptoms. Mr Robison submitted that there could be no doubt that a significant psychological reaction was occurring.
Mr Robison submitted that the Commission would be left in no doubt that there was an incident involving a trailer on 31 August 2020 followed by a meeting on 1 September 2020 which left the applicant highly agitated. Mr Robison said the lay evidence married with the clinical evidence.
Mr Robison noted that the respondent’s expert, Dr Young was supportive of the applicant’s case. Dr Young accepted that an incident occurred. Dr Young was aware of the intercurrent stressors. The applicant had divulged to Dr Young the recent deaths in the family. Dr Young gave the opinion that these did not have great medical significance for the diagnosis of an adjustment disorder.
The applicant had no pre-existing illness. Mr Robison submitted that it was difficult to see how the respondent could defend the matter. Although there was a further report from Dr Young as a result of a letter from the respondent’s solicitors attempting to salvage the claim, Dr Young declined to change his opinion without further assessment of the applicant.
Mr Robison submitted that the mere fact that there may have been other distressing things in the applicant’s life was irrelevant. Dr Young declined to change his opinion despite being invited to do so. The evidence of concurrent stressors did not change the evidentiary landscape.
Mr Robison noted that no s 11A defence had been relied upon. Mr Robison submitted that it was not necessary to determine whose version of the events on 1 September 2020 was correct. The precise details of what happened did not need to be established. The interaction occurred. The applicant went to his general practitioner immediately afterwards and was prescribed medication and referred to a psychologist. The applicant had continued to be certified as having no current work capacity. The return-to-work program failed.
Both medicolegal experts referred to a need for future treatment which the applicant was unable to afford. Any residual capacity would be considered minor. At most the applicant had capacity for one hour of work per week.

Respondent’s submissions

Ms Goodman noted that Mr John Spyrou gave a different description of the events on 1 September 2020. His account gave no suggestion of abusive behaviour on his part notwithstanding there was a conversation with the applicant. The occurrence of an interaction was not in issue but what happened in that interaction was. Ms Goodman submitted that the applicant’s perception of the interaction must be based upon real events in order to give rise to a psychological injury.
Ms Goodman noted that John Spyrou’s evidence was that the applicant “stormed” into his office while he was in a meeting with Peter Spyrou. The applicant was directed to see HR staff to complete an incident report. The applicant raised his voice and kept stating that he passed the drug test. The applicant was asked to calm down. Ms Goodman noted the evidence that it was the applicant who talked about resignation, not anyone else.
Ms Goodman submitted that John Spyrou’s evidence was quite clear that nothing like the applicant’s statement happened. The applicant was the one with the raised voice and suggesting he would resign.
John Spyrou’s evidence identified other personal stressors in the applicant’s life including the suicide of his father-in-law and the subsequent attempted suicide of his partner. The applicant also told John Spyrou about his uncle’s involvement in a fatal car accident. John Spyrou’s evidence was corroborated by a series of text messages.
Ms Goodman submitted that the evidence of Peter Spyrou and Damien Avery confirmed that there was no real event which took place where John or Peter Spyrou were raising their voices at the applicant or having a go at him. It was always the applicant himself who was upset and agitated.

Ms Goodman noted that Daniel Spyrou’s evidence confirmed the passing of the applicant’s uncle on 26 August 2020. Daniel Spyrou noticed that the applicant appeared agitated, pacing up and down talking on his mobile phone on 1 September 2020 before travelling to John Spyrou’s office.
Ms Goodman observed that the applicant was seen by Dr Young on 12 October 2020. Ms Goodman submitted that Dr Young was given a completely wrong history by the applicant. It was the applicant himself who made the suggestion that he resign. The applicant failed to correctly identify the intercurrent stressors including his underlying health condition and deaths in in the family. The applicant’s history of deaths occurring in the last 12 to 18 months was incorrect. The text message evidence indicated two deaths in the family and his wife’s attempt at suicide had occurred within two to three months of the incident. These events prompted the applicant to request time off work. The applicant’s uncle died only a week before the incident. Dr Young was not told this information.
As a result, Ms Goodman submitted that the Commission would not accept Dr Young’s opinion as he did not have the correct history either as to the events on 1 September 2020 or the deaths of the applicant’s family members and his wife’s suicide attempt.
In his supplementary report, Dr Young was provided with the details of the deaths and suicide attempt. Dr Young considered that further examination would be necessary in order to consider the relative contribution of these factors.
Dr Young considered the applicant was fit to commence participation in a graded return to work on 12 October 2020.
Ms Goodman observed that an extensive work history had been reported to Dr Young including work as a paperboy, factory process worker, tree lopping, pizza delivery, courier work and work in the building industry.
Ms Goodman observed that on 29 November 2020 Dr Williams approved the goal to work as a tanker driver. Ms Goodman submitted that this evidence was consistent with Dr Young’s opinion that the applicant should have capacity to work. Ms Goodman submitted that there should be no award in favour of the applicant for weekly compensation past that date.
Ms Goodman noted that Dr Whetton did not take a history of the deaths in the applicant’s family or his partner’s attempted suicide.
Ms Goodman submitted that it was significant that Dr Williams clinical notes did not refer to the interaction with Mr Spyrou. Although a record was made of psychological symptoms and the incident on 31 August 2020, there was no reference to discussions with Mr Spyrou.
Ms Goodman submitted that the fact that the altercation did not even feature in the doctor’s clinical notes was relevant to the weight that would be given to the applicant’s evidence. Ms Goodman submitted that it would be expected that any upset about the way the applicant’s employer spoke to him would be recorded. This omission was said to be consistent with the respondent’s witness evidence.
Ms Goodman submitted that the Commission would not be satisfied that employment was the main contributing factor or a substantial contributing factor to the applicant’s psychological condition. The applicant had experienced the recent deaths of his father-in-law, the attempted suicide of his wife and the death of his uncle shortly prior to ceasing work. The applicant had a significant underlying health issue in Vater syndrome and was experiencing problems with his stoma around this time. The medical evidence included references to a colonoscopy for a small bowel obstruction and chronic pain issues. A number of causative factors were contributing to what happened on 1 September 2020. The failure to mention the interaction with Mr Spyrou to the applicant’s general practitioner was significant. The failure to deal with these factors in his report would lead the Commission to give less weight to the evidence of Dr Whetton.
Ms Goodman submitted that the applicant bore the onus of proving his case in the Commission would not be satisfied that the applicant’s onus had been discharged.
In the event of a finding favourable to the applicant on the question of injury, Ms Goodman submitted that the applicant would be found to have capacity to work as a tanker driver. Ms Goodman acknowledged the WorkCover certificate certifying the applicant as having capacity to work one hour per week in order to prepare his CV but noted that the applicant was being paid weekly compensation at the time. After 24 December 2020, Ms Goodman submitted that the applicant was fit to work unrestricted hours as a tanker driver.

Applicant’s submissions in reply

Mr Robison submitted that it did not matter who the instigator in the altercation on 1 September 2020 was. The applicant was being told to calm down and it was not in dispute that he was agitated. The agitation was not one-sided having regard to Mr Avery’s evidence of raised voices.

Mr Robison submitted that even if the respondent’s witness evidence were accepted, there would be no basis for challenging the applicant’s evidence as to his perception of the events on 1 September 2020.
Mr Robison noted the submissions with respect to non-work stressors but observed that no medical expert had provided an opinion that they were causative of the applicant’s psychological condition.
Mr Robison submitted that Dr Whetton had been provided with a full history. The statement evidence of the worker which included reference to the personal stressors had been provided to Dr Whetton.
Mr Robison noted that there were references to the applicant’s “boss” and his response towards the applicant in Dr Williams’ clinical notes shortly after the incident on 1 September 2020.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:

“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

In Attorney General's Department v K[2] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
[2] [2010] NSWWCCPD 76.

“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”

Further 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 the applicant who bears the onus of establishing on the balance of probabilities that he has sustained an injury for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[3] [2008] NSWCA 246.
The lay evidence in this case uniformly establishes that the applicant was involved in an incident on 31 August 2020 involving the delivery of a trailer to the Linfox deport in Ingleside which required the applicant to complete an incident report.
There is also no dispute that the applicant communicated with John Spyrou on 1 September 2020 with regard to the matter and attended his office that day, where there was an interaction which left the applicant highly agitated.
The evidence of both the applicant and Daniel Spyrou confirmed that the applicant had been instructed by Daniel Spyrou to drive a truck to the Botany depot where John Spyrou was located. Both the applicant and John Spyrou confirm in their statement evidence that there was a telephone conversation between them during this journey.
John Spyrou’s evidence gives no indication of the tone or nature of that telephone call other than to state that he had told the applicant that he had asked him to come in before he drove a truck to fill in the incident report. The applicant on the other hand describes Mr Spyrou as being very abusive and swearing at the applicant on multiple occasions during the call.
The applicant’s and Daniel Spyrou’s evidence indicates that the applicant then returned the truck and drove to Botany in his own vehicle.
There is evidence of the applicant already appearing agitated prior to his departure for the Botany depot on 1 September 2020. This was described by Daniel Spyrou. The applicant’s own evidence suggests a degree of frustration with the manner in which the incident at the Linfox depot was handled the previous day. Daniel Spyrou’s evidence indicates that the applicant had asked him that morning whether his job was secure.
Although I accept that there were a number of other significant stressors in the applicant’s life at the time, I am also satisfied on the witness evidence that the workplace events on 31 August 2020 and the phone call between the applicant and John Spyrou during the applicant’s journey to the Botany depot on 1 September 2020 gave rise to demonstrable feelings of frustration and agitation on the applicant’s part.
I accept the respondent’s submission that the applicant and the respondent’s witnesses have given accounts of the interaction in John Spyrou’s office at Botany that are at odds. There is clearly a dispute between the applicant’s evidence and that of John and Peter Spyrou with regard to their respective demeanour, language and behaviour during the interaction on 1 September 2020.
The applicant describes John Spyrou’s language and behaviour as abusive and physically intimidating. John and Peter Spyrou’s evidence on the other hand gives no indication of any abusive or threatening language or behaviour from John Spyrou. The applicant’s own conduct is suggested to be inappropriately agitated and aggressive.
I am not satisfied, however, that it is necessary to determine whose description is more accurate. The witness evidence is consistent in indicating that the encounter took place. The evidence consistently indicates that the encounter involved a discussion about the events occurring on the previous day. Each of the witnesses says the applicant tried to show John Spyrou paperwork relating to those events and attempted to explain his version of events. I am satisfied on the witness evidence that the applicant had some difficulty in conveying his version of events. This is consistent with what the applicant reported to Dr Williams of being accused by his boss of dropping the container or trailer. It is also consistent with the evidence of Peter Spyrou that the applicant said words to the effect that he was not a liar and was trying to explain what happened. The evidence consistently establishes that there was a discussion about the need for the applicant to follow the respondent’s protocols and complete an incident report.
I am satisfied that these were all real events.
I am also satisfied that the applicant perceived these events as hostile. This is evident from the respondent’s witness evidence. John and Peter Spyrou have given evidence that the applicant was told repeatedly to calm down, became very agitated and raised his voice. Mr Avery also described the applicant’s agitation and his comment that he was being “treated like a dog”.
The witness evidence with regard to the applicant’s reaction to the interaction in John Spyrou’s office is consistent with what was recorded by Dr Williams. Although it had been submitted that the discussion in John Spyrou’s office was not referenced in the clinical notes of Dr Williams, I accept that those notes on 1 September 2020 referred to the applicant’s emotional response, the incident on 31 August 2020 and being told by his boss that he had dropped the container.
Dr Williams’ responses to the insurer’s questionnaire on 4 September 2020 confirmed that it was not just the event on 31 August 2020 that was significant. Rather Dr Williams made clear that he considered the employer’s response to that incident was what triggered the psychological injury. Dr Williams recorded that the applicant felt upset over how his employer had treated him after the accident with the container delivery and that they had claimed that the container had been dropped.
I am satisfied that broadly the same history of events on 31 August 2020 and 1 September 2020 was subsequently provided to Ms Watson, the applicant’s psychologist, Dr Young and Dr Whetton.
All of the practitioners who have seen the applicant in relation to this claim, including the expert qualified by the respondent, Dr Young, have expressed the opinion that the events on 1 September 2020 were causative of a psychological injury.
The respondent’s submissions suggested, however, that those opinions were not based upon a sufficiently accurate factual foundation as to be reliable.
As indicated above, whilst the applicant and the respondent’s witnesses have placed greater emphasis on the other party’s allegedly inappropriate behaviour, language and demeanour, their evidence is uniform with regard to the key events. I am satisfied that those key events were accurately reported to the doctors.
The respondent’s submissions also take issue with the applicant’s disclosure of other significant stressors in his life.
It is clear that the applicant had a significant underlying health condition. Whilst the applicant appears to have been experiencing particular difficulties associated with his physical condition around the time of the alleged psychological injury, the evidence indicates that the Vater syndrome was congenital and had given rise to the need for multiple surgeries and ongoing treatment over the course of the applicant’s life. There is no indication in the clinical records of Dr Williams or any of the other medical evidence before me that this condition had given rise to psychological symptoms previously or at any time after the events on 1 September 2020. Dr Williams, Dr Young and Dr Whetton were all aware of the applicant’s Vater syndrome when giving their opinions on causation.
I also accept that the applicant had experienced a number of deaths within his family and an attempt at suicide by his wife or partner shortly before the events on 1 September 2020. The applicant’s evidence as well as that of the respondent’s witnesses, including contemporaneous text messages between the applicant and John Spyrou, indicate that the applicant’s father-in-law had committed suicide in June 2020. On 2 August 2020, the applicant requested time off work following the incident involving the applicant’s wife.
I am satisfied on the evidence that these events impacted the applicant and led to him requesting time off work. The applicant did, however, continue to work for several weeks after these events prior to the alleged injury. There is no reference in the clinical records of Dr Williams to the applicant reporting or seeking treatment for any psychological symptoms associated with these events prior to 1 September 2020.
The passing of the applicant’s uncle occurred much more contemporaneously to the events in question. The evidence indicates that the applicant took time off work on 26 August 2020 to attend his uncle’s funeral. Whilst it is to be expected that this event would also have been distressing, the applicant returned to work. Neither this event nor the earlier events involving the applicant’s father-in-law and wife had been identified by any of the practitioners involved in the applicant’s case as causative of his psychological condition.
It is not apparent from the records of Dr Williams or Ms Watson that they were aware of the passing of the applicant’s father-in-law and uncle or his wife’s attempt at suicide. The absence of reference to these events in the applicant’s consultations with his treating practitioners in regard to his psychological symptoms is, however, significant.
These personal stressors were to some extent disclosed to Dr Young when he saw the applicant in October 2020. It is not apparent, however, that Dr Young initially appreciated how recently those events had occurred, given his reference to them occurring within the 12 to 18 months prior to the alleged injury. It is also not clear that Dr Young was aware of the applicant’s wife’s suicide attempt.
Dr Whetton does not refer to these personal stressors in his report. The letter of instruction to Dr Whetton from the applicant’s solicitors does indicate, however, that he was provided with Dr Young’s first report in which the deaths were mentioned.
Although the applicant disclosed the personal stressors in his supplementary statement, I am not satisfied that the statement of 17 June 2021 was before Dr Whetton. There is reference in the letter of instruction to Dr Whetton to a statement of 1 April 2021. That statement is not, however, before me in these proceedings.
Dr Young was subsequently provided with a more accurate account of the personal stressors and invited to provide a revised opinion. Dr Young was not, however, able to determine the relative contribution of these stressors to the applicant’s condition in the absence of a further examination. Dr Young also noted that the information did not address the contribution of the workplace events.
The significant contribution of the workplace events to the applicant’s psychological condition is consistently recorded in the medical evidence. Ms Watson’s records, for example, indicate that the applicant’s perception of the workplace events, of which the applicant provided a vivid account, had coincided with a rapid development of psychological symptomatology. The workplace events were noted in Ms Watson’s review of a mood diary in December 2020 to have continued to feature prominently in the applicant’s psychological symptomology, by way of a replaying of or flashbacks to those events.
It is not necessary for the workplace events to be the only contributing factor to the applicant’s psychological condition in order for it to be compensable under the 1987 Act. For the purposes of s 4(b)(i) of the 1987 Act, employment must, however, be the main contributing factor.
In AV v AW[4] Snell DP commented at [78]:
“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.”
[4] [2020] NSWWCCPD 9.
Both Dr Young in his first report and Dr Williams in his response to the insurer’s questionnaire have given an opinion that the workplace events in question were the main contributing factor to the applicant’s psychological condition. Dr Whetton has given an opinion that the events were a substantial contributing factor to the condition. I am satisfied that the factual foundation on which those opinions were expressed was sufficiently like the facts as found by me as to render those opinions reliable.
Although Dr Whetton’s opinion does not address the test in s 4(b)(i), I am satisfied having regard to the lay and medical evidence as a whole that real events in the workplace on 1 September 2020 were perceived by the applicant has hostile. I am satisfied that the applicant’s perception of those events has given rise to a diagnosed psychological condition. I am further satisfied that notwithstanding the other stressors in the applicant’s life, the workplace events were the main contributing factor to the onset of the diagnosed psychological condition.
I am satisfied that the applicant has sustained a psychological injury that meets the definitions in ss 4(b)(i) and 11A(3) of the 1987 Act.

Extent and quantification of incapacity

There remains a dispute as to the extent and quantification of the applicant’s incapacity following the injury.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include a weekly payment during the incapacity.
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The expressions “current work capacity” and “no current work capacity” are defined in cl 9 of Sch 3 of the 1987 Act as:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

Evidence has been provided in the form of WorkCover certificates of capacity and an opinion in response to a questionnaire from the applicant’s general practitioner, Dr Williams that the applicant had no capacity for any form of employment from the date of injury up until 15 December 2020 when the applicant was certified as having capacity to work one hour per week. The change in Dr Williams’ certifications is explained on the face of the WorkCover certificate of that date by reference to the applicant having capacity to work on preparing a curriculum vitae. This change in certification ought to be viewed in the context of the rehabilitation efforts being undertaken around that time.
The report from Strategic Industry Solutions, dated 23 November 2020, indicates that Dr Williams had approved the “vocational goal” for the applicant to pursue work as a tanker driver. Contrary to the respondent’s submissions, however, I do not take this approval to indicate that Dr Williams considered, at that time, that the applicant had current capacity to work as a tanker driver. Such an interpretation of the approval would be inconsistent with the WorkCover certificates issued at that time and subsequently by Dr Williams. Dr Williams also issued a Centrelink certificate indicating that the applicant lacked capacity for work due to his psychological injury until March 2021. The failure of Dr Williams to continue to issue WorkCover certificates is explained in the applicant’s evidence by reference to the denial of his claim by the insurer.
The evidence from Dr Williams with regard to the applicant’s incapacity is consistent with the opinion of Dr Whetton given in April 2021 that the applicant was totally unfit for work. Whilst there is no more recent evidence with regard to the applicant’s incapacity before me, equally there is no evidence to suggest any change in the applicant’s condition since Dr Whetton’s examination. Nor is there any evidence of the applicant being provided with the psychiatric treatment recommended by Dr Whetton.
The only evidence to the contrary is the evidence from Dr Young. In his initial report, Dr Young gave the view that the applicant was fit to commence participation in a graded return to work plan. By the time of his supplementary report, Dr Young considered that the applicant was fit to commence work on a half-time basis and possibly a full-time basis.
Dr Young’s opinion is not, however, explained. Dr Young accepted that the applicant had a diagnosed psychological condition and presented with “significant” symtpoms. The treating evidence at the time, including that available from Ms Watson both before and after Dr Young’s reports indicated ongoing significant symptomology. By the time the applicant was reviewed by Dr Whetton, he considered a diagnosis of a major depressive disorder was warranted in contrast to the adjustment disorder diagnosed by Dr Young.
In the absence of any explanation, I am not willing to prefer the evidence of Dr Young over the evidence of the applicant’s general practitioner, treating psychologist and medicolegal expert suggesting ongoing total incapacity for work.
Although I accept that the applicant has a broad range of work experience and skills, I am not satisfied that from 25 December 2020 to date, he has had a capacity to work in suitable employment.
I am satisfied that for the period from 25 December 2020 to date the applicant has had no current work capacity as a result of the injury. The applicant’s PIAWE figure has been agreed at $2,025.85. It has also been agreed that the applicant has received payments for the entire duration of the first entitlement period pursuant to s 36 of the 1987 Act. The current claim commences in the second entitlement period pursuant to s 37 of the 1987 Act.

There will be an award for the applicant for weekly compensation pursuant to s 37(1) of the 1987 Act from 25 December 2020 to date based on the applicant’s PIAWE as periodically indexed. There will also be an order for weekly benefits to continue in accordance with the 1987 Act.

[2021] NSWPIC 388

1 October 2021