Rao v Warrumbungle Shire Council
[2023] NSWPIC 579
•2 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Rao v Warrumbungle Shire Council [2023] NSWPIC 579 |
| APPLICANT: | Rabia Rao |
| RESPONDENT: | Warrumbungle Shire Council |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 2 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; weekly benefits claim in relation to psychological injury; respondent disputes injury and alleges non work-related matters were the main contributing factor to her psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which her employment was the main contributing factor under section 4(b)(i); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent on 30 July 2021. 2. As a result of the injury, the applicant has suffered total incapacity for employment from 30 July 2021 and is entitled to weekly compensation from that date. 3. The parties have liberty to approach for a period of 28 days if the issue of PIAWE cannot be resolved. |
STATEMENT OF REASONS
BACKGROUND
Ms Rao (the applicant) claims compensation for psychological injury maintaining exposure to bullying, harassment, excessive workload and lack of support in the course of her employment with Warrumbungle Shire Council (the respondent) resulted in injury and incapacity. The respondent denied liability.
By an Application to Resolve a Dispute (Application) the applicant seeks to claim weekly compensation and medical expenses from 30 July 2021 (deemed date of injury).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter had a protracted pathway throughout the Personal Injury Commission (Commission). Much time was spent in conciliation at the conciliation/arbitration hearing at which time I was informed late in the piece that the matter could not resolve. Mr Barter of Counsel instructed by Ms Hunt appeared for the applicant. Mr Coombe instructed by
Mr Murphy represented the respondent.Leave was granted to cross examine the applicant which exhausted much of the hearing time. I volunteered to continue with the arbitration beyond the allocated time (to avoid the inevitable delay associated with a written submissions timetable), although the parties declined my invitation on account of other commitments.
Be that as it may, written submissions were received by the applicant, the respondent and then in reply by the applicant. I was informed by the Registry that the respondent had lodged further submissions in reply. This was not subject to direction and so not accepted into evidence. The applicant’s submissions in response were likewise refused.
ISSUES FOR DETERMINATION
The law relevant to this dispute is found in the Workers Compensation Act (1987) (the Act) and specifically s 4 of the Act which relevantly defines injury as;
“(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.”
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) filed by the applicant on 25 July 2023;
(d) submissions of the applicant filed 10 August 2023;
(e) submissions of the respondent filed 28 August 2023, and
(f) submissions in reply by the applicant filed 5 September 2023.
Applicant’s submissions
Written submissions offered the following:
(a) the workplace interactions led to significant distress and the history of events and medical evidence of both parties support employment was the main contributing factor to psychological injury and ongoing incapacity;
(b) whilst the applicant’s qualified medical evidence (Dr Khan) may not have referred to non-work related stressors such as Covid, cold, parenting issues and family difficulties, such factors were made known to the respondent’s medico-legal specialist who concluded that they were not the main contributing factor in the development of her condition and incapacity;
(c) that the applicant is credible. Cross examination focused on mental health issues prior to her engagement with the respondent, however, at no stage were any of the qualified doctors denied the essential facts necessary for them to make their diagnoses or offer their opinions, and
(d) the applicant has a total incapacity for work and so should be awarded compensation on that basis on the basis.
Respondent’s submissions
These contend:
(a) the respondent accepts the applicant suffers from a psychological illness;
(b) such illness did not arise out of employment and nor was it the main contributing factor to the development of her symptoms;
(c) that is evidence should be preferred, particularly in regard to contemporaneous statements made regarding multiple non-work related stressors, specifically the evidence of Ms Newsome, Ms Grammar and Mr Bailey;
(d) the applicant’s oral evidence establishes a lack of credibility particularly with the regards to the entries made by Dr Kheray and so I must treat her evidence with great caution;
(e) that no weight should be given to the statement provided by the applicant’s husband – Mr Mehdi as this cannot be said to be impartial;
(f) that non work related events disclosed the witnesses in paragraph (c) including but not limited to the following clearly establish that employment was not the main contributing factor to her injury and incapacity relevantly;
i)the mice plague and potential health risks on her infant child;
ii)the impact of high Covid 19 death in India and Pakistan where a number of relatives remain;
iii)concerns about her husband’s isolation in the community and language barrier as a stay-at-home dad;
iv)guilt at being a working mother;
v)stress in connection to her child teething, and
vi)issues with her sister-in-law;
(g) that the medico-legal opinions of both Dr Khan and Dr Neale should be disregarded particularly on the issues of causation as they were not obtained in “a fair climate”, due to the failure of the applicant to disclose or alternatively “seriously downplaying” her non-work related stressors to these practitioners, and
(h) the applicant has a residual work capacity.
Applicant’s submissions in reply
In response it was submitted:
(a) the medical evidence is unanimous as to the cause and effect on injury and incapacity. The respondent’s submissions that the medical evidence is unreliable because it was not obtained in a “fair climate” nor credible cannot be maintained. The submission is based on hypotheticals as there is no medical evidence to dispute that employment is anything but the main contributing factor to the condition and resultant incapacity;
(b) the applicant concedes she consulted her general practitioner regarding various domestic difficulties between 2017 and 2019 which were isolated, short-lived incidents and her significant mental health condition with ongoing incapacity did not develop/become chronic until the time of her workplace issues with the respondent, and
(c) that there is no agreement regarding PIAWE and given the absence of such, I should set the PIAWE at $1,605.75 which is the amount contained in the letter offering employment and which is generally consistent with her rate of pay in June 2021.
Applicant’s evidence
Statement evidence 22 March 2023
The statement is lengthy but confirms she commenced working for the respondent in 2020 in the role of a full-time accountant. The applicant maintains there was little support or guidance in the tasks to be undertaken and the chief financial officer (CFO) (who was also new to the role) did not have time to train her in the format of spreadsheets to which she had not been previously exposed to. In short, the applicant maintains that a stressor was the failure of the respondent to provide her with formal training, supervision or oversight of complex tasks.
The statement continues by saying that despite this inexperience, the applicant was made acting CFO but ultimately replaced by Ms Ann Newsome who was appointed to the role in March 2021, much welcomed by the applicant.
The applicant states task boundaries were not set, there was no clear delineation in tasks and overall, despite reporting to Ann Newsome, there was no clear line of easy contact, particularly when urgent matters arose. The applicant also states she felt dismissed by Ms Newsome.
Matters seem to have escalated in April 2021 when Ms Newsome and the Director of Financial & Community Services took leave at the same time one week before a significant audit. The applicant states she then assumed the duties of CFO and Director of Financial & Community Services, thereby tripling her workload and she suffered “nausea and stomach cramps due to anxiety”.[1]
[1] Paragraph 16 – Folio 4 Application.
The applicant records that on 21 July 2021 she approached Ms Newsome advising that she felt stressed and anxious and felt that she was being treated differently to other colleagues. This conversation is acknowledged by Ms Newsome’s actions in sending the applicant an email advising of Employment Assistance Services (EAP) services and an invitation to attend a finance course.
The applicant records the next significant workplace stressor was her difficulty uploading the budget into the appropriate software, a task that had previously been undertaken by Lisa Grammer. For abundant caution, the applicant emailed Ms Newsome requesting she check to see if the document had been loaded correctly. It is this event that resulted in the applicant ceasing work relevantly or as some may say, the watershed moment: (unedited)
“24 The following day, Ann stormed into my office. She began screaming at me, shouting words to the effect of Now you want me to go run reports and check all of that for you? She walked out of the room before I could process what had just happened. A few seconds later, she stormed back in, and I tried to explain that I had just wanted to update her on the issues I had as I did not have the chance to talk to her the day before. However, Ann became angrier as I tried to talk with her. She said words to the effect of, Do you know who I am, I am your boss, I am your boss, I am actually your BOSS. I lost control of myself as I began to shake out of fear and anxiety and I started crying. I struggled to talk but I tried to say She said to me you really like to victimise yourself a victim here. I was completely blindsided by her words. The intense stress I was shouldering collapsed on me and I completely broke down. I could not pull myself together and I began to speak with a stammer as my thoughts ran haywire.
25. I believe that Ann realised the consequences of her actions and her harsh response to me and she immediately left my office. I noticed that later that day she sent invitations in a team calendar about daily guidance and support every morning for the next few days. I never got to accept those invitations as I left work on this day and could not go back. I had exhausted myself trying to adapt to Ann and her bullying. These incidents at work burned into my mind and I could not stop thinking about them.”
With regards to pre-injury health, the applicant stated (unedited):
“41. Prior to the subject injury, I did not suffer from psychological or mental health conditions. My personal and family life was unproblematic, and I enjoyed great social relationships, good health and overall wellbeing.
42. I considered myself to have a happy and calm disposition with a strong mental fortitude. I did not let every day and personal stressors get in the way of my active participation in work duties.
43. To the best of my knowledge, no other family members have been diagnosed with a psychiatric condition.”
Applicant’s oral evidence
The applicant was cross examined at the arbitration hearing. The crux of her evidence was that entries made by her treating doctor did not relate to her, or alternatively she could not remember making such statements. The majority of the cross examination related to consultations with Dr Kheray that occurred prior to her employment with the respondent between 2016 and 2019 relating to troubles with family and her ex-husband. Discussion regarding credibility of the applicant will be dealt with further below.
Respondent’s evidence
Ms Ann Newsome – CFO
Ms Newsome acknowledges the new accounting software and “cannot recall” allocating additional work to the applicant in April, May or June 2021.[2] She also recounts discussions she had with the applicant concerning matters raised in paragraph 9(f) above.
[2] Folio 49 of the Reply.
Ms Newsome identified some performance based issues and states “I was unsure whether the performance based issues she was experiencing were stress related or attributable to a skills gap on her part”…[3]
[3] Paragraph 44 – folio 62 of the Reply.
Relevantly, Ms Newsome’s recall of the events on 22 (or 21) July 2021 differs from that of the applicant. Her recollection is found in paragraphs 46-49 of her statement. Ms Newsome acknowledges applicant approached her on that day and stated “that she needed more support from me”.
The statement also reflects she saw the applicant as being conscientious particularly “from the way she picked up the audit responsibilities when I was unexpectedly absent from work”.[4]
[4] Paragraph 47 – folio 63 of the Reply.
The statement also attaches an email that Ms Newsome composed to the applicant one week following the interview on 29 July 2021.[5] The email discusses training and skills, and confirms
“…the way you picked up the slack when circumstances were that both Kim and I were absent from this office at very short notice is to be commended and indicates the care that you have for your role.”
[5] Folio 79 of the Reply
In a supplementary statement dated 30 September 2021, Ms Newsome denies the recall of the discussion made by the applicant in paragraph 16 of these reasons.
Statement of Lisa Grammer dated 31 August 2021
This statement is largely consistent with that of Ms Newsome and recalls that the applicant confided a number of personal difficulties as summarised in paragraph 9(f) above. Ms Grammer does however state she did not think that the applicant had an excessive workload although acknowledges “she worked at a level below her in terms of seniority.”[6]
[6] Paragraph 5 folio 93 of the Reply.
Statement of Roger Bailey dated 31 August 2021
In his role as general manager, Mr Bailey stated his interactions with the applicant were infrequent but that he had understood from his discussions with other personnel that the applicant had non-work related struggles. His statement suggests that he is unclear with the issues and allegations in connection with the applicant’s employment.
Medical evidence
Certificates of Capacity/certificates of fitness were issued by Dr Emmanuel Inyang, general practitioner, confirming the applicant first consulted the practice regarding this injury on 30 July 2021. She was diagnosed with “mixed depression and anxiety”, due to “work related stress arising from undefined workplace expectations and poor on the job training”.[7]
[7] Folios 85 to 100 – of the Application
In a letter of referral dated 24 August 2021,[8] Dr Inyang stated:
“Rabia has major depression and anxiety disorder. Her problems started when she began working as an accountant at Warrumbungle Shire Council in October 2020….
Rabia recalls that her problems started when she started working in the Council as she did not have the required induction and guidance right from the beginning. In addition, within one month of commencing work at the Council, she was then made to take on extra responsibilities of leading a team as the Acting Chief Financial Officer (ACFO). These tasks placed a lot of burden on Rabia….
Even when the new CFO was appointed, Rabia did not receive adequate support to do her own job as an accountant…”
[8] Folio 111 of the Application.
Clinical notes Family Medical Centre Auburn
The records show that the applicant was primarily treated by Dr Kheray since 2010. It was these notes that formed the basis of cross examination and particularly the applicants past presentations relevantly:
i) 21 September 2016 – ‘lots of family stress sec to brother’.[9]
[9] Folio 131 of the Application.
ii) 3 March 2017 – ‘also mental health plan sec to her issues and domestic issues left work 4 weeks – mental health plan for paula – psychiatric – poor sleep. Early morning wakening. Low self esteem, depressed mood, anxious, no stress at work. Relationship problem.’
iii) 3 April 2017 – ‘could not go to jury due to her depression letter written’.
iv) 26 March 2018 – ‘mental health plan. Poor sleep, low self esteem, depressed mood, anxious, no stress at work’.
v) 11 September 2019 – “also got remarried in march but still can’t shake her past from previous marriage, depression, insomnia…poor sleep, low self esteem, depressed mood, anxious. No stress at work’.
vi) 15 June 2020 – ‘pre-employment medical – require urine and drug test, nil issues otherwise…’
vii) 8 December 2021 – ‘emotional and stressed returned from regiona; [sic] area where she was put into work – excessive without training. She was bulled and by her CFO and almost no assistance…no proper guidance and always intimidadtion [sic].’
viii) 18 December 2021 – ‘ongoing anxiety and insomnia – depression.’
ix) 15 January 2022 – ‘ongoing anxiety and insomnia. Depressed mood….’
x) 31 January 2022 – ‘depressed mood…’
xi) 28 March 2022 – ‘ongoing anxiety and insomnia. Depressed mood, panic attacks…’
xii) 18 May 2022 – ‘poor sleep….low self esteem. Irrational fear.compulsive behavior, panic attacks.’ [sic].
Dr Abdul Khan – consultant psychiatrist 4 August 2022
Dr Khan diagnosed major depressive disorder[10] with anxious distress and concluded employment was the main contributing factor to her condition resulting in total incapacity from 30 July 2021. Dr Khan recounts the history of workplace events recorded by applicant.
[10] Folio pages 76-84. (of the Application
In relation to past psychiatric history he recorded:
“Ms Rao denied any pre-existing past psychiatric history. She denied any previous melancholia, mania, hypomania, psychosis, obsessions, compulsions or trauma. She denied any previous psychiatric hospital admissions, deliberate self-harm or suicide attempts.”
He comments on the respondent’s medical report of Dr Neale relevantly (unedited):
“In her reported dated 14 September 2021, Dr Neale obtained a similar history regarding causation. Dr Neale provided the following opinion:
It is my opinion that Ms Rao developed her Adjustment Disorder due to a combination of incidents which occurred within the workplace. It is my opinion that Ms Rao was more vulnerable to developing her Adjustment Disorder from the commencement of her employment with the council as a result of her feeling underqualified and uncertain about her role. It is my opinion that this led to Ms Rao feeling stressed and overworked within the workplace and likely made her more vulnerable to interpreting interactions with the new CFO in a negative light. It is also my opinion that Ms Rao feeling underqualified in the workplace continued to contribute to her distress throughout her time with the council. Further adding to Ms Rao’s vulnerability to developing her Adjustment Disorder was her concern that she felt unsupported and invalidated when asking for help. It is also my opinion that the non-work-related factors such as moving away from home and having less contact with family, feeling guilty about spending less time with her son, feeling stressed during the mouse plague and having concerns about the COVID outbreak also contributed to her stress and made her vulnerable to developing her Adjustment Disorder. It is my opinion that Ms Rao developed her Adjustment Disorder in the weeks leading up to her going off work as a result of her feeling unsupported when asking for help and culminating in a psychological crisis at the end of July in which Ms Rao had a negative interaction with the CFO and went off work soon thereafter. It is my opinion that the main contributing factor to Ms Rao developing her Adjustment Disorder was her difficulties within the workplace most notably feeling unable to perform her duties and unsupported when she sought help. As noted above it is my opinion that the non-work-related factors made Ms Rao more vulnerable to developing her Adjustment Disorder, though it is not my opinion that they were the main contributing factor.
I agree with Dr Neale’s conclusion that Ms Rao’s employment was the main contributing factor to her psychiatric/psychological condition.”
With regards to capacity, Dr Khan reported the applicant was totally incapacitated for work from 30 July 2021 and is unlikely to have a future capacity to work in her pre injury occupation due to the ongoing impact of the subject injury on mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress, self-confidence….[11]
[11] Folio 80 of the Application.
The most recent report of Dr Khan, dated 15 June 2023[12] again confirmed his opinion that the applicant remained totally incapacitated for work.
[12] AALD– folio 6.
Dr Alice Neale, consultant psychiatrist dated 27 September 2022
Dr Neale was qualified by the respondent. Her conclusions are summarised above. She had the benefit of the knowledge of additional matters discussed in paragraph 9(f) above yet still concluded that employment was the main contributing factor to the condition and incapacity. She considered that the applicant was not psychologically fit to perform her pre-injury duties as a full-time accountant on account of ongoing adjustment disorder[13] but did suggest that the applicant was fit to work up to 20 hours per week in a low stress environment at a slower pace, subject to rehabilitation provider and occupational therapist assistance.
[13] Folio 248 of the Reply.
FINDINGS AND REASONS
Before I embark on the assessment of the evidence, it is necessary that I comment on the credibility of the applicant. Here the respondent maintains that the applicant is not credible, she has downplayed her past psychiatric history and that as a result the conclusions made by the qualified doctors are based on inaccurate information resulting in inaccurate findings.
The applicant was cross examined in this matter via teams. I must conclude, that I did not find her to be an impressive witness. The focus of the cross examination related to the consultations prior to her employment with the respondent relating to family and domestic issues. The applicant denied these consultations and seemed quite surprised that they were of any relevance to this matter. She failed to answer the questions directly and suggested that perhaps her doctor had incorrectly recorded matters on her file that related to another family member. Whether or not this is the case is uncertain and unlikely, but I cannot ignore the entry made in the notes on 3 March 2017 which states “mental health plan for Paula”. The respondent suggests that the reference to Paula may be the name of the mental health practitioner to whom the applicant was referred, but there is no evidence of this.
During her evidence, the applicant had difficulties recalling exactly what problems she had with her brother in 2016 and became quite emotional when recounting her past marital difficulties, although stressed that none of these factors related to her current situation and that she continued to work unimpeded until the incident with Ms Newsome in July 2021.
I also cannot ignore the applicant’s statement, specifically paragraph 41 in which she stated “prior to the subject injury, I did not suffer from psychological or mental health conditions. My personal and family life was unproblematic, and I enjoyed great social relationships, good health and overall wellbeing.”
A review of the medical notes confirms that there were five consultations between 2016 and 2019 relating to personal circumstances resulting in anxiety and depression. Many other general medical presentations are recorded between 2010 and 2020 but it does appear that the applicant did not obtain consistent psychological support since 2016, rather the entries documented above represent time specific stressors in which supportive counselling and short term treatment was offered by the general practitioner. The records and indeed the oral evidence did not suggest that there was any long term or chronic sequelae or ongoing documented mental health treatment/assessments or symptoms impacting work and general functioning. I find that the absence of ongoing or sustained mental health symptoms influenced the applicants statements regarding past psychological history, in that she did not interpret past short live stressors to be relevant as they did not cause any ongoing psychological incapacity.
As indicated, the oral evidence was not impressive and on that point I agree with the respondent. However, overall, when the sequence of events is reviewed in full, I find that the applicant has been consistent with her statements regarding her workplace stressors to both her medical practitioners, the investigators, her solicitor and even expanded on non-work related issues with Dr Neale, the respondent’s qualified doctor. I cannot make a finding that the applicant is not credible with regards to events surrounding the work circumstances.
I also cannot disregard that Dr Kheray, the applicant’s long term general practitioner since at least 2010 certified the applicant as being fit for employment – specifically his entry 15 June 2020 – “pre-employment medical – require urine and drug test, nil issues otherwise…”.
I will now turn to the credibility of the witnesses for the respondent. Three witnesses were nominated but the issue appears to be predominantly with Ms Newsome and it is on this evidence that I will focus. The respondent had made Ms Newsome available for cross examination although this did not eventuate.
Ms Newsome’s recall of the discussion that led to the applicant ceasing work is vastly at odds with the recall of the applicant. In both statements made by Ms Newsome, she focused on disclosures made by the applicant in relation to personal stressors (as summarised in paragraph 9(f) above) which Ms Newsome highlighted were significant. Given this, I find it surprising that she did not raise such issues in her email to the applicant if they were of such significant concern and specifically if such matters were considered to have an effect on work performance. The email focused on training and communication and so whilst Ms Newsome tends to suggest that there were many personal factors influencing the applicant’s state of mind, these were not raised as part of the email dated 29 July 2021. Ms Newsome also acknowledges that the applicant took on extra tasks at short notice when she herself was subject to some personal issues. Be that as it may, the statement confirms that the applicant approached her regarding work related stress and issues relating to training and communication, which prompted Ms Newsome to invite her to undertake additional training and reassess work focus on existing key strengths.
I am not suggesting that Ms Newsome is not credible. Far from it, however, her emphasis on personal matters influencing the applicant’s behaviour appears to be an afterthought to explain events, rather than a legitimate concern at the time of discussions in July 2021.
Likewise, I cannot comment on the credibility of Ms Grammer, however she did state the applicant was more senior to her and suggested that the applicant was not “overloaded”. This observation is at odds with the statements of Ms Newsome acknowledging the applicant “picked up the slack when circumstances were that both Kim and I were absent”, concerning a major audit.
And whilst the applicant may have disclosed some personal troubles to her colleagues at work, I cannot ignore that there were no performance issues, warnings or significant absences arising out of such alleged personal events. I also cannot ignore that whilst the applicant was allegedly afflicted by such troubles, she took on extra tasks to ensure timelines were met, acknowledged by Ms Newsome.
The respondent emphasised the applicant’s lack of disclosure of past stressors and indeed concurrent stressors to various practitioners resulted in the medical evidence not being obtained in a “fair climate” and I was referred to a number of authorities. This is not a sustainable argument as it is the respondent’s qualified medical evidence that exposes such stressors and despite this, concludes employment is the main contributing factor to the current diagnosis and incapacity. This information was then considered by Dr Khan who agreed that the concurrent personal stressors (again mentioned in paragraph 9(f) above) did not play a significant role in her current presentation and incapacity. As indicated above, there was some past history elicited in cross examination relating to family difficulties, however, there is no evidence that these had a sustained impact on the applicant’s function and activities of daily living. The chronology shows the applicant worked and juggled several roles, despite inadequate support and training and covered the roles of key personnel when they took unexpected leave. Even if she did have underlying personal stressors, there is no evidence that these were the main contributing factor to her incapacity or onset of psychological issues in July 2021.
As the applicant’s claim relates to psychological injury, she must demonstrate her employment was the main contributing factor to either the onset of her condition or any aggravation to it.
There is much case law on this issue, but overall the authorities make it clear that what is required is an evaluation of the totality of the evidence to determine the main contributing factor of an injury. As discussed, it has been alleged that a number of non-work related matters impacted on the applicant’s mental health thereby negating employment events as being the main contributing factor. In circumstances such as this, it is necessary for me to consider the causative of the competing factors, and then decide whether the employment was the main one, AV v AW [2020] NSWWCCPD 9 at [76].
On the basis of the medical and factual evidence, I accept that the applicant has suffered a work related injury in the course of her employment with the respondent and further that her employment with the respondent was the main contributing factor in contracting that illness pursuant to s 4(b)(i) of the Act. I accept the views of her treating medical practitioners and the medico-legal specialists. Whilst I appreciate the argument of the respondent in relation to those opinions, the respondent has not offered any evidence to the contrary that would completely discount those opinions, instead has cushioned its defence in what can best be labelled conjecture or speculation.
With regard to capacity for employment, the bulk of medical evidence in this matter is overwhelming, in that the applicant has and continues to suffer total incapacity for employment from 30 July 2021 to date and continuing as a result of her workplace injury. Dr Neale did suggest that the applicant had a residual capacity, however, Dr Khan, who most recently assessed the applicant in July 2023 confirmed his original opinion that the applicant’s ongoing presentation is such that she is totally incapacitated for work.
With regards to PIAWE, here the parties were not able to agree with both parties averaging earnings for different periods. It was suggested that the contracted earnings of $1,605.75 be applied, but I decline to make such a finding. Instead, now that the issue of liability has been determined and findings made with regards to incapacity, the matter regarding PIAWE should be resolved amongst the parties who may have additional information regarding earnings that I may not be privy to. In the event, that consensus cannot be reached, (which is doubtful given the experience of the parties), liberty is granted to either party to apply within 28 days. I urge the parties to resolve this issue and not exhaust the resources of the Commission further.
SUMMARY
For the reasons stated above, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.