Thompson v Original Mattress Factory Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thompson v Original Mattress Factory Pty Ltd [2024] NSWPIC 632
APPLICANT:	Lauren Thompson
RESPONDENT:	Original Mattress Factory Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	12 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly payments; whether effects of accepted psychological injury have passed and any incapacity is caused by pre-existing condition; nature of injury; whether a separate condition or an aggravation of a pre-existing condition; extent and rate of any partial incapacity for employment; Held – the respondent has the onus of proving the effects of an accepted injury have passed; whether the cause of the applicant’s ongoing incapacity is the injury at issue is to be determined by a commonsense evaluation of the lay and medical evidence; having regard to the totality of the evidence, the applicant’s injury is in the nature of an aggravation of a pre-existing condition, the effects of which aggravation are ongoing; the applicant has ongoing partial incapacity for employment consistent with the certificates of capacity prepared by her general practitioner, of 8 hours per week at an hourly rate commensurate with that which she was earning with the respondent; respondent ordered to pay weekly compensation pursuant to section 37 from 26 June 2024 to date and continuing at the rate of $266.75 per week; the respondent is ordered to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered psychological injury in the course of her employment with the respondent, with a deemed date of injury of 2 September 2022. 2. At the date of injury, the applicant's pre-injury average weekly earnings (subject to indexation) were $702 per week. 3. As a result of her injury, the applicant has from 26 June 2024 to date and continuing a partial incapacity for employment of eight hours per week, at an hourly rate of $36.86. 4. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 from 26 June 2024 to date and continuing at the rate of $266.75 per week. 5. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 6. The parties have liberty to apply in relation to any appropriate indexation of the amount of weekly compensation

STATEMENT OF REASONS

BACKGROUND

Lauren Thompson (the applicant) suffered a psychological injury in the course of her employment with the respondent, Original Mattress Factory Pty Ltd, with a deemed date of injury of 2 September 2022. That injury was suffered against a background of long-standing, pre-existing psychological problems which are not disputed by either party.
The applicant brings these proceedings seeking payment of weekly compensation from
26 June 2024 to date based on agreed and indexed pre-injury average weekly earnings (PIAWE) of $702 per week.
By relevant s 78 notice dated 26 June 2024, the respondent denied further liability to pay weekly compensation, relying upon the opinion of its independent medical examiner (IME)
Dr Daws. The respondent alleges the effects of the applicant's injury have passed and any ongoing incapacity relates to her pre-existing psychological condition.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the effects of the applicant's aggravating injury have passed, and her current symptoms are attributable to her pre-existing condition;
(b)    in the event the effects of the applicant's injury are ongoing, the level of incapacity for employment suffered as a result of that injury, and
(c)    the payment of medical and treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 1 October 2024. The applicant was represented by
Ms Grotte instructed by Mr Walker. The respondent was represented by Mr Stockley instructed by Mr Murray.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments;
(c)    applicant’s Application to Admit Late Documents (AALD) and attachments dated 6 August 2024, and
(d)    respondent’s AALD and attachments dated 1 October 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the effects of the applicant's injury have passed

There is no question the applicant has been affected by psychological symptoms for many years before the injury at issue, about which she has been open at all relevant times.
The applicant's workplace injury has a deemed date of 2 September 2022. She sets out the circumstances giving rise to it in her initial statement, dated 20 October 2022. As the fact of the injury is admitted, I do not propose to recount the evidence regarding its onset save insofar as that evidence goes to the question of whether its effects are ongoing, and the manner in which it allegedly aggravates any pre-existing condition.
It is important to keep in mind that where a party alleges an injury has resolved, or its effects have ceased, the onus of proof resides with the party alleging the injury has resolved or its effects have ceased: see Commonwealth v Muratore (1978) 141 CLR 296 and University of New South Wales v Brooks (2014) NSWWCCPD68.
As with any issue concerning causation in the workers compensation context, the determination of whether the effects of an injury are ongoing requires a commonsense evaluation of the causal chain: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR452 (Kooragang) where Kirby P (as he then was) said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact … What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement compensation.”
In determining whether the effects of the applicant's injury are ongoing, it is necessary to first determine the nature of her work-related condition. At [53] of her first statement, the applicant says:

“53    Prior to this injury, I have suffered from post-traumatic stress disorder (PTSD) due to trauma as a child. I also dealt with some bullying and harassment as an adult around eight years ago. I received treatment for these conditions and was not suffering from any symptoms of these conditions at the time of my employment with the insured.
54     The only stressors outside of my employment with the insured were that my mother is not well and that my friend had recently passed away due to cancer in around 22 July 2022. These incidents did not affect my ability to work or function normally as at the time I began my employment with OMF Casula.
55     I had made a couple of workers compensation claims in the past, but my conditions had received treatment and resolved by the time I started work at OMF Casula.”

In a supplementary statement dated 17 July 2023 (made after her assessment by the respondents IME Dr Daws) the applicant said:
“I continue to experience ongoing anxiety and depression associated with the work-related events. I experience low mood, reduced motivation, panic attacks, reduced enjoyment in activities, sleep troubles, trouble focusing and concentrating, feelings of hopelessness, helplessness and invalidation, reduced confidence and self-esteem, flashbacks and other distressing intrusive memories and thoughts. As a result of this, this impacts various activities of daily living such as my ability to self-care. I am socially withdrawn compared to what I used to be and I prefer to stay at home or go out alone. I am currently unable to work.”
In a second supplementary statement sworn 12 July 2024, the applicant said:
“4. In relation to the report of Dr Daws dated 21 May 2024: ….
f. I did previously experience difficulties at Douglass Hanley Moir Laboratory with bullying by colleagues and it did lead to a workers compensation claim because I sustained psychological injury. It went to the Workers Compensation Commission and there was a Certificate of Determination issued on 3 June 2015. I fully recovered from the effects of that psychological injury.
g. There were interpersonal issues relating to a recreational hockey club in 2018 and 2021 - I suffered from the sexual harassment and social media harassment from male hockey coaches. Work through this issue with psychologist Raymond Hudd and Ivan Bakich …
8. My psychological injury at OMF has impacted me greatly and including in the following ways: …
d. Following this work injury, more than ever before, I struggle with maintaining trust and building relationships with people. I struggle with social functioning.
e. I struggle with concentration and focus and motivation. To get anything done it is in smaller steps and at a slower pace. The slower pace assists with being able to concentrate and to persist. Concentration is worse on some days and more than others. I used to be able to do things like writing complex medical legal reports for work and do complex tasks but not anymore.”
As disclosed in her statement evidence, in 2015 the applicant brought proceedings in the then Workers Compensation Commission against her former employer, Douglass Hanley Moir pathology, in respect of a psychological injury. Consent Orders were entered for the payment of weekly compensation in respect of that injury, also in 2015, with a notation the applicant had recovered from the effects of her injury on or before 9 February 2015.
Mr Stockley submitted the applicant's statements, the Consent Orders and the clinical material from her treating practitioners demonstrated she continued to suffer from the effects of her previous psychological conditions and injury before the onset of the injury at issue. He submitted the work-related condition at issue had now passed, and she had essentially reverted to a level of capacity and functioning consistent with and caused by her pre-existing problems.
In so submitting, the respondent relied on the reports of Dr Daws, IME, who provided three opinions in 2022, 2023 and 2024 respectively.
Dr Daws took a detailed history from the applicant. In her first report, Dr Daws noted the applicant's history of post-traumatic stress disorder and the prior work-related claim. This history is broadly consistent with that volunteered by the applicant in her various statements.
In her first report in 2022, Dr Daws opined the applicant did not meet the criteria for diagnosis of a mental disorder as a result of her employment with the respondent. Dr Daws said:
“In my opinion, synthesising all of the information provided, it is most likely that Ms Thompson experienced an adjustment disorder with anxiety in the weeks following the meeting on 2 September 2022. It is certainly possible that Ms Thompson was experiencing symptoms of mental ill health in the months prior to this, however taking into account the collateral information from the GP practise it appears that these symptoms had not reached the threshold to justify a diagnosis of mental disorder.”
Dr Daws indicated a diagnosis of adjustment disorder with anxiety was more appropriate rather than an aggravation of the applicant's previously diagnosed post-traumatic stress disorder. Nevertheless, Dr Daws did indicate the applicant's history of trauma is a predisposing factor to the development of adjustment disorder.
That concession by Dr Daws is thoroughly appropriate, and I make no criticism of her for making it. Dr Daws indicated the applicant's work-related condition had, however, resolved.
In her supplementary report of August 2023, compiled after examining the clinical records of the applicant's treating general practitioner and psychologists, but without a further examination of the applicant, Dr Daws confirmed her previous diagnosis. Having reviewed the additional clinical documentation, Dr Daws did not revise her original opinion. However, Dr Daws did note the applicant had described to her an acute deterioration in her mental health around the time of her workplace duties, with an improvement in the months following. Dr Daws continued:
“I note that subsequent documentation from Ms Thompson's treating GP between December 2022 and June 2023 does not clearly record any significant symptoms of mental ill health, and that Ms Thompson was able to return to studies at TAFE. Ms Thompson's participation in studies in my opinion suggests a reasonable level of functioning, which I consider consistent with my original conclusion that Ms Thompson was not at the time of my assessment significantly impaired by an acute mental health condition.
I note at an independent medical assessment conducted in July, Dr Khan felt that there were ongoing ‘pervasive symptoms of trauma, depression and anxiety’, however, did not elaborate further on these symptoms. It is difficult to comment further on Ms Thompson's current mental state without conducting a further examination, however, I note that Ms Thompson's medical history indicates a longstanding history of preexisting mental health difficulties.”
Appropriately, Dr Daws indicated she was unable to comment on the applicant's current mental state, having not examined her since December 2022. However, Dr Daws said that at the time of that examination, she did not consider the applicant to be impaired by any ongoing workplace injury.
In her final report dated 21 May 2024, Dr Daws confirmed she had interviewed the applicant in preparing the most recent report. The updated history obtained by Dr Dawes was as follows:
“Ms Thompson reported that since [Dr Daws initial assessment] her mental health has remained poor. She initially stated that since this time she has been unable to engage in any work or study. Upon direct questioning, she acknowledged that she had engaged in a pathology collection course in early 2023. She stated that she stopped this course because of agitation. When I asked directly about references in general practise notes that indicate she left the course because of an issue with an instructor, she stated ‘it was poorly run’. Ms Thompson stated that she felt she did not need to complete a course in pathology collection as ‘I don't need to learn, I've done it before’. She stated that she could not work as a pathology collector. When asked why this was, she stated, ‘I just couldn't do it, I don't know the people, they are not as educated, I'd probably just tell people to fuck off’ …
When asked what the key barrier was to return to the workplace, Ms Thompson replied ‘my childhood trauma’. She clarified that this had led to difficulties trusting other people. I questioned whether she considered that her childhood trauma had led to sensitivities to perceived criticism from others. Ms Thompson disagreed with this, stating, ‘It's like water off a duck's back, if someone discredits me then I'll just walk away’. She disagreed when I wondered if this was inconsistent with her reported experience at OMF. Ms Thompson reported that a secondary barrier to returning to the workforce is that her skills and qualifications are not recognised in a number of roles. She stated that whilst she could return to completing medicolegal work, she was wary of having to network with others to solicit work and having to manage staff such as secretaries.”
From the updated information provided to her, Dr Daws gleaned the applicant had commenced a pathology collection course at TAFE. Dr Daws noted the applicant had dropped out, citing the teacher being unqualified. After taking a detailed history, from both the applicant and the clinical material provided, Dr Daws concluded:
“Having reviewed all of the available information, Ms Thompson's history reveals a persistent and pervasive pattern of interpersonal difficulties, which appear related to her history of childhood trauma. There have been interpersonal difficulties in her personal and professional relationships. In my opinion, Ms Thompson's recent difficulties at OMF appear consistent with that history.
On review again today, Ms Thompson did not describe symptoms which I consider consistent with an active mood disorder, anxiety disorder or post-traumatic stress disorder (PTSD). Whilst she has undoubtedly been impacted by her history of childhood trauma, in my opinion she does not currently present with clinical symptoms consistent with active PTSD. She displays some symptoms of this condition, including intrusive memories of the abuse and persistent changes in cognition(i.e. that other people cannot be trusted). In my opinion, she does not currently clearly demonstrate symptoms of behaviour consistent with the avoidance criterion. I also did not elicit clear features of marked alterations in arousal and reactivity. Further, other than reluctance to return to the workplace and long-standing interpersonal difficulties, there does not appear any clear impairment in Ms Thompson's functioning at present. She is able to engage in any activities of daily living and recreational activities including interstate travel without significant distress or difficulty.”
Mr Stockley submitted the clinical material and Dr Daws' opinion demonstrate on balance the applicant's barrier to returning to her pre-injury level of work is not the condition at issue, but rather the effects of her childhood trauma. He submitted there was no incapacity caused by the work-related injury, the effects of which the Commission would accept had passed.
Mr Stockley submitted the views of Dr Khan, namely that the applicant has no capacity for employment from 17 September 2022 to date would be rejected. Dr Khan stated in his report dated 4 July 2023:
“From 7 September 2022 to date, Ms Thompson has not had any fitness for employment in her pre-injury duties or any other jobs/ duties in her recent employment history. She has not returned to work in paid employment due to the ongoing impact of the subject injury on her mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust in interpersonal relationships.”
In that report, Dr Khan diagnosed the applicant's condition as follows:
“Ms Thompson's employment as a retail assistant with Original Mattress Factory is the main contributing factor to the aggravation of her pre-existing psychiatric/ psychological condition of post-traumatic stress disorder. In summary, Ms Thompson felt bullied, harassed and discriminated against by her managers and work colleagues over an extended period of time. These experiences, as detailed in the ‘history of presentation’ section of this report, caused Ms Thompson's mental state to gradually deteriorate and led her to become totally incapacitated to work.
The report of Dr Tessa Daws dated 9 December 2022 has been reviewed. Dr Daws did not consider Ms Thompson to be incapacitated to work and considered Ms Thompson's psychiatric/psychological condition to have resolved. I do not agree with Dr Daws' opinion regarding work capacity. I have assessed Ms Thompson more recently and consider her to be totally incapacitated to work due to the ongoing impact of the subject injury on her mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust in interpersonal relationships.”

In so finding, Dr Khan noted the applicant's long-term mental health challenges and set out the events which led to her leaving work. He noted that at the time of his examination:
“Ms Thompson continues to experience pervasive symptoms of trauma, depression and anxiety, which negatively impact on her functioning in the domains of self-care and personal hygiene (e.g. showers and brushes her teeth regularly but she struggles to motivate herself to complete domestic duties), social and recreational activities (e.g. has been more socially withdrawn but has started to engage in regular walks with two walking groups) and travel (e.g. struggles with anxiety and avoidance when she leaves her home). She also experiences impairment in her functioning in the domains of social functioning (e.g. marital issues has been long-standing but she remains more withdrawn from her friends), concentration, persistence and pace (e.g. struggles to focus on cognitive re challenging tasks, frequently disassociates, memory is impaired), and employability.”
In an updated report dated 27 July 2024, Dr Khan noted the applicant's condition had improved. He maintained the diagnosis of aggravation of the applicant's underlying conditions, and in relation to her current presentation stated:
“There had been gradual improvement in Ms Thompson's mental state and functioning since our previous consultation conducted on 4 July 2023. Although she continued to experience enduring symptoms of trauma, depression and anxiety, overall her symptomatology and functioning had been improving and she was more future-focused.
Ms Thompson still experienced periods of depression, anxiety and panic, which led to feelings of hopelessness and worthlessness as well as intermittent passive suicidal ideation. She still experienced memories about her maltreatment from her employment with the Original Mattress Factory and she felt that this ‘gaslighting’ was still the main reason for her experiencing traumatic memories about her childhood, particularly the manner in which appearance ‘gaslighted’ her. That said, overall her depressed and anxious state had been improving. Ms Thompson showered and brushed her teeth consistently although she mentioned showering a few times per day when she was more anxious as she found showering to be therapeutic. There were still many days where she spent most of the day in her dressing gown … Ms Thompson's treating general practitioner had certified her as having capacity to work four hours per day, two days per week. She attempted to engage in some volunteer work with the Father Chris Riley School in early 2024. Ms Thompson said that she was meant to be assisting with improving the literacy of marginalised and disengaged students but throughout her time there, she only served the role of being an observer and she was not given the opportunity to assist with teaching. She found this experience to be unhelpful. Since then, Ms Thompson had continued to engage with her treating general practitioner and treating psychologist regarding her return to work plans. A rehabilitation provider was also involved in her case but she did not find their assistance to have been helpful to date. Ms Thompson mentioned that she intended to return to some form of employment in the future but her current issues with her self-confidence, self-esteem and trust in interpersonal relationships were significant barriers.”
Treating psychologist Mr Nielsen provided clinical records in this matter. His diagnosis was consistent with that of Dr Khan, namely aggravation of post-traumatic stress disorder. In his report dated 5 July 2024, Mr Nielsen noted:
“Post-traumatic stress disorder aggravation
…
Ms Thompson continues to suffer the effects of her workplace injury. Ms Thompson is profoundly traumatised and disillusioned with the workplace environment and with people in general. She has enduring belief systems that people simply do not care and her experience at her workplace of intimidation (being threatened to lose her job) and gaslighting have triggered her childhood traumatic experiences, rendering her unable to return to work”.
When addressing the applicant's current mental state examination, Dr Khan said:
“Ms Thompson presented as a 58-year-old woman who appeared her stated age. She was dressed in casual attire and had appropriate self-care. There was no evidence of psychomotor disturbance, Rapport was established. Ms Thompson described her mood in anxious terms although she acknowledged that her mood had recently been improving. Her affect with was congruent. There were no abnormalities of speech and thought form. Ms Thompson's thought content comprised enduring symptoms of trauma, depression and anxiety. There was no perceptual disturbance. Ms Thompson's cognition had some evidence of impairment in attention, concentration and memory. She had appropriate insight and judgement’.
When directly asked whether the applicant's injury continued to be the main contributing factor to any aggravation, Dr Khan replied:
“Ms Thompson's employment as a retail assistant with Original Mattress Factory is the main contributing factor to the aggravation of her disease condition. In summary,
Ms Thompson felt bullied, harassed and discriminated against by her managers and work colleagues over an extended period of time.”
Dr Khan was asked to comment on the reports of Dr Daws, and stated the following:
“I do not agree with Dr Daws that Ms Thompson's work-related psychiatric psychological injury has resolved. It is my opinion that Ms Thompson's employment with the Original Mattress Factory, whereby she was exposed to extensive bullying and harassment by her colleagues, triggered her traumatic childhood memories and aggravated her pre-existing condition of post-traumatic stress disorder. This aggravation has not resolved, as evidenced by her enduring symptoms of trauma, depression and anxiety and associated functional impairment; however, her condition has been improving in recent times. Dr Daws acknowledged that Ms Thompson required ongoing mental health treatment for her condition but because she did not consider her ongoing condition to be related to her employment with Original Mattress Factory, the insurer made the decision to decline her access to ongoing reasonably necessary mental health treatment. I am of the opinion that Ms Thompson's ongoing need for reasonably necessary mental health treatment with her general practitioner and psychologist is still related to the work-related psychiatric/ psychological injury that she sustained during her employment with Original Mattress Factory. The recent improvement in her condition is due to her ongoing engagement in mental health treatment, and withdrawing this reasonably necessary treatment is likely to lead to a deterioration in her condition. Ms Thompson has been certified by her treating general practitioner as having capacity to work four hours per day, comma, two days per week. Given her current symptomology and functioning, this certification is appropriate.”
The applicant’s general practitioner (GP) Dr Ng provided a question and answer report dated 16 September 2022. In that document, Dr Ng said the applicant's employment with the respondent was the main contributor to the aggravation “of her PTSD/anxiety - she was fine before 2/9/22”.
On balance, I find the views of Dr Khan are supportive of the applicant's treating practitioners. As Ms Grotte noted, the respondent must take the applicant as it finds her, including in circumstances where she has what has been described in the authorities as a “eggshell psyche”.
As the applicant noted, her injury was accepted, payments of compensation were made, and in October 2023, Consent Orders were entered whereby the respondent agreed to pay the applicant weekly compensation at a rate of $450 per week on an ongoing basis. It was only after Dr Daws’ report of 21 May 2024 that a further s 78 notice issued on 26 June 2024 denying further liability for payment of weekly compensation and medical expenses.
Ms Grotte submitted that although the applicant has a lengthy history of mental health issues in the past, she has been able to deal with them and has always returned to work. In support of this submission, Ms Grotte relied on the lengthy clinical records produced by the applicant's GP and psychologists, which show a history of problems the applicant had previously overcome to return to the workforce.
The applicant also noted the 2015 Certificate of Determination in relation to the prior injury with Douglass Hanley Moir and the notation the applicant had fully recovered from the effects of that injury by February 2015. Ms Grotte submitted that Certificate of Determination and the clinical records were supportive of the applicant's contention she was able to cope with her prior problems while carrying on in paid employment.
Ms Grotte submitted Dr Daws’ conclusion that the former trauma was the key impediment to the applicant's ongoing capacity for work is perfectly consistent with the ongoing problems being due to her workplace injury, because the applicant's case is the conduct at the respondent's workplace triggered the trauma response which aggravated the underlying condition, causing injury. With respect, I find favour with this submission. The applicant has never resiled from her previous issues and has been open about them. As such, I accept her as a witness of truth, particularly in so far as she indicates her symptoms have persisted since the time of the injury at issue.
On balance, having regarded the totality of the IME and treating material, together with the lay evidence of the applicant, I find her injury was in the nature of an aggravation to her pre-existing post-traumatic stress disorder and the effects of that aggravation are ongoing, albeit she now has residual capacity for employment. In so finding, I prefer the views of Dr Khan, Dr Ng and Mr Nielsen to those of Dr Daws, who, contrary to the totality of the evidence, has maintained since 2022 the applicant had no ongoing effects of injury.
That view of Dr Daws stands in contrast to the applicant's statement, the opinion of Dr Khan and those of the treating practitioners, who continue to assess the applicant as suffering incapacity as a result of an ongoing aggravation and have the benefit of having consulted with and treated her over many years. Absent a clear error of reasoning on their or a patently incorrect history, in my opinion the views of treating practitioners in a matter such as this are entitled to carry considerable weight.
As noted, the fact the applicant's previous trauma is the underlying cause of her ongoing condition is not really a matter of dispute between the IMEs. The discrepancy in opinion centres on whether – as opined by Dr Daws - the injury at issue was an adjustment disorder which has passed, or - as asserted by Dr Khan and the treating practitioners - an aggravation of the previous condition which is ongoing.
As noted, in my view the preponderance of the evidence discloses the triggering aggravation of the pre-existing trauma by the workplace injury at issue continues to plague the applicant and prevent her from working at her full capacity.
As such, I find for the applicant in relation to the question of the ongoing effects of her injury.

Degree of Incapacity

Both parties agree that if there was a primary finding in favour of the applicant, she is partially incapacitated for the period claimed, and that her PIAWE as indexed is $702 per week.
Ms Grotte submitted the applicant's capacity was set against the background of working 34 hours per fortnight, or 17 hours per week with the respondent. She submitted the Commission should accept the GP certificates of capacity which state she currently has a capacity to work for eight hours per week.
Ms Grotte noted the applicant's previous hourly rate was $36.86, however, she submitted the applicant's capacity would be better reflected in an hourly rate consistent with that of the minimum wage, namely $24.10 per week, given the restrictions on the applicant's ability to earn income.
For the respondent, Mr Stockley noted the applicant was able to commence study for certificates in pathology collection and psychological studies. He submitted the applicant's capacity was higher than stated in the work capacity certificates, and the rate of pay to take into account should be set out in her PIAWE.
On balance, and doing the best I can, I find the applicant's capacity is as set out in the certificates of capacity provided by her GP, Dr Ng, namely eight hours per week, as opposed to her pre-injury 17 hours per week.
That finding is consistent with the liability finding the applicant's injury continues to cause her ongoing issues, albeit her condition has somewhat improved over time.
In relation to the hourly rate to apply regarding the applicant's current capacity, I am not persuaded to apply the minimum wage rate. Rather, in my view as a worker who has a considerable educational background, it is more appropriate to apply the applicant's previous hourly rate of $36.86 to her ongoing capacity.
Pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), given the applicant has returned to work at less than 15 hours per week, the base rate of calculation is 80% of her PIAWE, or $561.60 per week, less her ongoing capacity which I have calculated at $294.85 per week. The residual incapacity of the applicant is therefore $266.75 per week, and the respondent will be ordered to pay the applicant weekly compensation at that rate from 26 June 2024 to date and continuing.

The claim for medical expenses

The dispute in relation to medical expenses related only to liability. There is no suggestion the expenses claimed by the applicant were of themselves unreasonable. This being so, there will be a general order that the respondent pay the applicant's reasonably necessary medical and treatment expenses.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 632

12 November 2024