BVF v CQA [2025] NSWPIC 245;

A brief statement is attached setting out the Commission's reasons for the determination.

1. BVF, the applicant claimed weekly compensation as a result of injury said to have been sustained on 15 July 2024 in the course of her employment with CQA, the respondent.
2. The respondent disputed worker, deemed worker, injury and capacity.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. At the conciliation/arbitration hearing of this matter on 28 April 2025, the applicant was represented by Mr Barter of counsel, instructed by Ms Basel, and the respondent by

Mr Gaitanis of counsel, instructed by Ms Gorry. 3. At the hearing of this matter, the applicant amended the claim for continuing weekly compensation to be a claim for a closed period, that is from 15 July 2024 to 15 August 2024.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and attached documents;

(c) Application for leave to admit documents dated 6 May 2025 and attached document, being a report of Procare dated 15 April 2025 only. A request by the respondent for particulars in thoose documents was not admitted, and

(d) wages schedule of the respondent.

1. The applicant provided a statement dated 16 August 2024 and 13 February 2025.
2. In her statement dated 16 August 2024, the applicant said that it was in June or July 2024 that she was applying for a lot of jobs through the Indeed app. She said that she applied for the job and DZE responded straight away via a message. The applicant stated that she also had a conversation over the phone when DZE told her that she had the job. She said that DZE told her that he would meet her at the first job which was in Cronulla. She said that there was nothing in writing and there were text messages which she had since deleted.
3. The applicant stated that she met DZE at Cronulla and he gave her equipment. She said that he gave her towels, sheets and cleaning products but not a bucket or mop. She stated that DZE told her to walk up the stairs and start the job herself. The applicant said that she was not given any specific instructions on how to do the job and no explanation. She stated that the job took more than two hours but DZE did not pay her extra.
4. The applicant stated that she did three or four jobs in total for DZE but she did not remember the order of the jobs or the exact addresses. She stated that there was a job in Miranda and another in Gymea Bay.
5. The applicant stated that she was offered a fixed rate for the jobs, regardless of the time she took for the job.
6. The applicant stated that she was not happy with the chemicals he provided her to work with and DZE told her to go and buy her own. The applicant stated that she was not provided with a uniform.
7. She stated that DZE made payments directly into her bank account. She said that he never gave her a payslip and never asked for an invoice from her.
8. The applicant stated that she did not have her own business. She said that she had not worked as a contractor for other companies, although around 10 or 20 years ago she did some work for her cousins.
9. She stated that on 11 July 2024 she had to go and buy cleaning products from Woolworths and she had the receipt.
10. The applicant stated that DZE provided her with no protective clothing, masks or gloves. She stated that DZE told her to get her own stuff.
11. She stated that she was never provided with any employment paperwork and was paid $45 per hour. The applicant said that she did not have a choice of whether she took the jobs or not.
12. The applicant stated that in the last 10 years or more she had not worked under her own business.
13. The applicant said that at a job at Kirrawee she carried a lot of products from her boot and oven cleaner spilled over her arm and stomach. She said that DZE saw it happen. She said the bottle did not burst open but it was just spraying through the nozzle as she walked along. She said that she and DZE left the job and she told him that she needed to go to the doctor. She said that she went to the Caringbah Medical Centre.
14. In her statement dated 13 February 2025, the applicant said that prior to her injury she had been diagnosed with "PTSD" and was taking medication twice daily and the condition was well managed.
15. The applicant stated that to the best of her recollection she was employed in the five years prior to her injury as a director at Venus Stars Essentials Sense at Caringbah from 2012 to 2024.
16. The applicant stated that in about June 2024 she commenced employment with the respondent as a cleaner on a full-time basis working 35 hours per week. She said that in this role she was required to dust, sweep, vacuum and mop surfaces, refill and restock cleaning supplies, conduct minor maintenance tasks, and maintain material safety data sheets.
17. She said that on 15 July 2024 while she was working for the respondent she had to take heavy cleaning products to a clients residence and as she carried the products one of the containers slipped from her hand, resulting in the cleaning chemicals spilling onto her body, specifically on her stomach and arms. She said that she also suffered a fractured rib due to the physical strain involved in carrying heavy vacuum cleaners, although this was not an injury relied upon by the applicant in these proceedings.
18. The applicant also said that her physical injuries have been further compounded by secondary psychological injuries which had arisen as a consequence of the trauma and ongoing impact of these events.
19. The applicant stated that she attended the Caringbah Medical Centre on 15 July 2024 about the pain and burn marks on her stomach and left arm and she was prescribed medication. That evidence was not before me.
20. She said that on 29 July 2024 she had a consultation with her general practitioner,

Dr Mikhail of the Advanced Health Medical Centre where she was provided treatment and issued with a certificate of capacity certifying no capacity for work for a period. She said that the next day she consulted Dr Mikhail again and was issued with an updated certificate of capacity to include her left side rib injury. 21. The applicant also said that following the job advertisement by the respondent for a team member to be added to their domestic cleaning team she was employed in a casual position of cleaner. She stayed that on or about 11 July 2024 she met with DZE and was provided with equipment and keys and was told to immediately start the job. She said that she did not have any discussion with him about whether it was a trial probation or subcontractor employment. She stated that she was told by him that if she did not clean to his standards then she would be fired. She stated that following the first shift she asked on various occasions for assistance on her employment tax declaration forms and was ignored. 22. The applicant stated that whilst she was working for the respondent she was under their direct control as she did not have any say in setting the times, days and hours worked. She said that her employer would send weekly rosters and she would work about 6 to 7 hours per day from Monday to Friday. 23. The applicant stated that DZE would inform her of all the jobs that she was required to complete. She stated that he would meet her before and after the jobs and inspect the property. The applicant stated that the respondent owned the equipment that she used while working for them. 24. The applicant stated that on 12 July 2024 she bought various cleaning products for about $100. The applicant stated that she had asked DZE to purchase different cleaning products as they were not effective and hindered her being able to complete the task effectively, but he refused and said that she needed to buy new products and he did not provide any reimbursement. She stated that as a result she would often spend money on cleaning products to perform her work to DZE's standards and she was unable to rely on his products only to complete the tasks so she would use a combination of her products and those of DZE to get the results she wanted. 25. The applicant stated she was paid on a weekly basis on a fixed rate of $45 per hour which was deposited into her bank account every Friday by DZE's business account, although sometimes he would pay by cash. She said that she had asked to be paid on task completion as her previous cleaning jobs provided payment on completion of the job. 26. The applicant also stated that:

"The insurer had requested information on my ABN. I had registered an ABN before my employment with CQA to start an online business. I was making a website to operate an online business named 'Cleopatra Boudoir' and had another trading ABN called 'Sparkle your place' which was used a second name to protect the identity of Cleopatra Boudoir. Prior to my employment, I had wanted to find a job to save up for the preparation of the online business that was based on selling products however this never took place. The ABN was completely separate to my employment with CQA. I did not undertake any secondary employment, whether as a sole trader or otherwise when working for CQA."

1. In its dispute notice dated 12 November 2024, the workers compensation insurer referred to a statement by the applicant dated 23 October 2024, in which it was noted that the applicant had said a number of things which were then listed. The applicant was recorded as stating that she applied for her ABN way before working for DZE and that she did not have a business. She was noted as stating that she was commencing websites to operate a business online which was named "Cleopatra Boudoir", and the other trading ABN were prepared previously prior called "Sparkle your place" which was a second name to protect the identity of the Cleopatra Boudoir, so this was factually completely incorrect for DZE. It was noted that she wanted to find a job to save up for the preparation of an online business which was going based on selling products online to operate an income and operate at home, but this never took place.
2. DZE provided a statement dated 29 August 2024. He stated that he was and is a director of the respondent.
3. He stated that he met the applicant on 11 July 2024 immediately prior to commencement of a job. He stated that he had posted an ad seeking a cleaner and the applicant had responded to that. He said that there was a brief conversation on the phone and so it was agreed to put the applicant on trial. He said that he told the applicant that she was responsible for taxation, superannuation and insurances and that she had to send invoices for payment.
4. DZE stated that there was no written agreement about the option of subcontracting work to others but it was understood that the contractor was experienced and they would be the one doing the work.
5. He stated that the applicant did not provide an ABN "beforehand" but he said that he checked and made sure that she had an ABN.
6. DZE stated that the applicant was offered jobs and could choose from a number of jobs as to which jobs she wished to do. He said that she was not required to take any particular cleaning job.
7. He stated that the applicant undertook the following jobs:

(a) the first job was on 11 July 2024 at Cronulla which was typically completed between 2 to 2 hours and 15 minutes and was paid $100;

(b) on 12 July 2024 at Miranda for approximately 2.5 hours work. He said the applicant was paid $112.50;

(c) on 15 July 2024 at Cronulla for about two hours work. He said the applicant was paid $90;

(d) on 16 July 2024 at Gymea for about two hours. He stated that the applicant was paid $90, and

(e) on 17 July 2024 at Kirrawee ("the Kirrawee job"). He said that the applicant did not complete the job as she arrived at that job with her injury. He did not state how long the applicant worked on that occasion nor the amount of any payment. He said that they left after about 20 minutes.

1. DZE stated that on 17 July 2024 he met the applicant at the job at Kirrawee. He said that they met out on the front of the street and the applicant approached him and showed him a burn on one of her forearms. DZE stated that he asked her how it happened but she did not know. He said that he asked what chemical it was and he said that she told him that she did not know. He stated that the applicant did not say anything about this injury occurring on any of the jobs that she had done for his company. DZE stated that the applicant said that it hurt and she described it as a burning sensation. DZE stated that he told the applicant that he did not have any chemicals which would cause a burn like this. He stated that the applicant responded that it must've been one of her chemicals and she said that she did not know which one after he had enquired.
2. DZE stated that they then proceeded into the job, as it was a job that they were going to do together. He was showing her how to do a task when she told him that her arm was burning and he said to her that she should go and see a doctor. He said that they left in their own vehicles.
3. DZE stated that the applicant subsequently texted him and said that she could no longer do the work. He said that he subsequently transferred to her what he owed her and he drove to her house and picked up the equipment.
4. DZE stated that he was, "happy to pay the taxes, insurance insurances, super etc that people are entitled but I am not supportive of people who try to unfairly take advantage of others".

1. In the clinical records of the Advanced Health Medical Centre, Dr Mikhail's first relevant note was on 29 July 2024, when he recorded "burn from chemical products on left hand and wrist while working in a new job". He noted "COC done", which in infer was a certificate of capacity.
2. On 30 July 2024 Dr Mikhail noted "COC updated to add left side rib injury from lifting in the job she was doing".
3. A certificate of capacity dated 29 July 2024 was signed by Dr Mikhail. Diagnosis of work related injury was "Left arm and abdomen chemical burn; Left sided rib injury" and how the injury was related to work was described as "chemical burn from cleaning products; lifting heavy objects". The applicant was certified as having no current capacity for work from

1. A text message dated "13 July" was extracted and copied. This was referred to in DZE's statement as being sent 13 July 2024. It was copied as follows:

1. Also in evidence were extracted text messages between the applicant and DZE on

16 July 2024 as to her assertions as certain work activities, and that she believed she was an employee and was enquiring as to insurance, taxation, wage and superannuation details. DZE in his statement disputed these matters, saying that he had explained to the applicant initially and on two later occasions that she was expected to provide her for own insurance, taxation and superannuation. 2. A copy of an Australian Business Register ABN Lookup for a specified ABN provided relevant details, an entity name of the applicant from 26 August 2020 and current. There was another entity name prior to that date. The entity type was listed as an individual or sole trader. Business names associated with that ABN were "Sparkle your place", from 17 July 2024 and current, and "Cleopatra and Mark Anothy" from 1 March 2024 and current as at date of extract on 15 April 2025. Business name summaries recorded that the applicant was the holder of both those business names, and that the business name "Sparkle your place" was registered on 17 July 2024. 3. An ASIC Personal Name Search dated 12 June 2024 indicated that the applicant had been appointed on 12 June 2024 as Director and Secretary of "Cleopatra Boudoir Pty Ltd". 4. Other search documents conducted with SafeWork NSW indicated that the applicant held a White Card (general construction induction training card" from 5 August 2022 and current, a Traffic Control Work (traffic control card) and Traffic Controller card with affect from

3 September 2022 and current. 5. A business listing and advertising search for "Sparkle Your Place" indicated "Home Cleaning" in the same area as the applicant's residence.

1. Dr Mikhail provided a report dated 23 December 2024. He did not refer to an injury date. He noted that the applicant sustained burns from the use of chemical products affecting the left hand, left wrist and abdomen. Also recorded psychological symptoms as a result of the stress caused by the injury itself, alleged threats and stalking behaviour from the previous boss and subsequent denial of her claim and financial hardship. He recorded that in respect of burns, the applicant was unable to lift or carry anything more than 2 kg for four weeks after the injuries. It was of the view that employment was the main contributing factor to the injuries and subsequent incapacity. He noted that no further treatment was required for the burns as they were fully healed.
2. Dr Bodel, orthopaedic surgeon, provided a report to the applicant's solicitors dated

16 January 2025. However, the applicant did not rely upon this report. This was appropriate in my view, as Dr Bodel deferred opinion to that of a dermatologist in respect of the burns.

1. The issues in dispute were worker or deemed worker, injury, capacity and the amount of pre-injury average weekly earnings (PIAWE).
2. I note that notwithstanding the opinion of Dr Mikhail that the applicant also sustained psychological injury in the form of depression as a result of the injury that is the subject of these proceedings, in addition to the left rib injury, the applicant did not rely upon psychological injury in these proceedings.
3. The respondent submitted that there was a credit issue as to whether the applicant should be accepted as a witness of truth in terms of reliability. The respondent pointed to the applicant's statement that she did not have a choice of whether she took the jobs or not, which it was said was contradicted by the text message from the respondent quoted above. The other issue is to credit was the applicant's statement that in the last 10 years or more she had not worked under her own business, when the business records noted above indicated otherwise.
4. I do not accept these submissions. In my view, in terms of the acceptance or otherwise of jobs on offer, the applicant provided her subjective view as to her position in terms of the allocation of work. This on its face was not in accordance with the quoted text message although the context surrounding that text message was in my view not clear and therefore not persuasive as to credit. Similarly, the applicant statement as to working under her own business name was not contradicted by any direct evidence and therefore I am not persuaded that this issue went against her credit.
5. In relation to the issue as to whether the applicant was a "worker" in the employ of the respondent, the applicant in submissions referred to decisions including, Stevens v Brodribb Sawmilling Co Pty Ltd[1], Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited[2]; ZG Operations Australia Pty Ltd v Jamsek[3], Zuijs v Wirth Bros Pty Ltd[4], and Nilon v Berens Constructions Pty Ltd[5].
6. The applicant pointed to the control test as outlined in these authorities and decisions. It submitted the applicant's work was directed by DZE, and it was also organised and arranged by him for the benefit of the respondent. It was submitted that the hours, conditions and the cleaning expectations were set by DZE on behalf of the respondent. It was submitted that the details of employment had not been finalised because it was the view of DZE that the applicant was on probation.
7. It was submitted that, although DZE had said that the applicant was responsible for her insurance, superannuation and tax liability, he also had said that he was happy to pay the taxes, insurance and superannuation and similar entitlements to people that are entitled but he was not supportive of someone who unfairly took advantage of others. It was submitted that this was a reflection of the adverse opinion that DZE formed of the applicant but that it was evident that he was in control of the work situation, and he collected money from the clients and paid the applicant out of that money, keeping the profits which were not those of the applicant. It was submitted that DZE conceded that in respect of persons that he considered to be deserving he was prepared to pay all the obligations that an employer would be prepared to pay.
8. The respondent's submissions pointed to the absence of a requirement to wear a uniform, the applicant driving her own vehicle, there being no fixed workspace, the applicant providing her own chemicals and protection equipment, the flexibility to accept or decline work, pay rates and payment arrangements, responsibility for quality of work and errors and supervision during the work. The respondent pointed to the applicant having some autonomy with respect to the applicant's statement in which she said that she was not happy with the chemicals provided by the respondent and that therefore she took some pride in her work. It was submitted that the applicant had stated that the respondent had never sent her a payslip and had never asked for an invoice, but in respect of a payslip it was not in the contemplation of the respondent as it did not consider the applicant to be a worker or a deemed worker.
9. It was further submitted by the respondent that in respect of autonomy the applicant had stated that DZE was not present with her at all while she was working except to come in and have a look but he had never worked with her or supervised her directly. It was submitted that the expectation that the applicant provide her own personal protective clothing was also an indicator that she was not a worker or a deemed worker.
10. In my view the applicant and respondent entered into an oral contract on or about 11 July 2024. DZE conceded as much in his statement.
11. Factors indicating possible employment were:

(a) on the Kirrawee job, on the day of injury, DZE said he intended to show the applicant how to do a particular task. This indicated a degree of control;

(b) DZE set an hourly rate of pay, restricted to expected times;

(c) the respondent provided cleaning chemicals, map, rags and a vacuum cleaner. This was insufficiently offset, in my view, by the applicant buying some chemicals;

(d) according to the applicant, DZE met her before and after jobs and inspected the property. This was not contradicted by DZE. I accept the applicant's evidence in this regard;

(e) the applicant said that DZE advised that if she did not clean to his standards, she would be fired. This was not contradicted by DZE. I accept the applicant's evidence on this point, and

(f) the absence of evidence of the respondent deducting taxation, and paying superannuation were said by the applicant to be because DZE had failed to attend to these matters in the short period after her commencement, despite her enquiries. DZE said otherwise. However, in my view the references to a trial period were consistent with engagement of an employee and a period where action had not been taken by the respondent in this regard. Further, in my view DZE conceded that such arrangements were available, in the context of more "deserving" persons. I accept the applicant's submissions in this regard.

(a) the applicant did not wear a uniform. This absence is in my view inconclusive in the context of home cleaning;

(b) the applicant provided her own chemicals. In my view this is of less weight, as dealt with above;

(c) the applicant had flexibility and autonomy when it came to acceptance of work, and conduct of work, such as purchase of chemicals. This has been dealt with above, in terms of credit. An acceptance or non-acceptance of work on any particular date does not in my view indicate autonomy. The quoted text in my view is inconclusive and is not necessarily inconsistent with a lack of autonomy;

(d) the applicant was expected to provide her own personal protective equipment. This in my view is not of sufficient weight in terms of the control of work that have been dealt with above and is not determinative. Additionally, the weight of this is lessened by DZE's assertion that his chemicals were not strong enough to result in a burn, and

(e) the applicant said DZE did not supervise her directly. This in my view is of reduced weight given that I have accepted that the applicant was required to clean to a standard acceptable to DZE.

1. Balancing and weighing the above matters, in my view DZE for the respondent did exercise control, such as to characterise the contractual arrangement as employment, that is a "contract of service". The job advertisement extracted above was not inconsistent with an employment arrangement. I find that the applicant was at all material times a worker in the employ of the respondent.
2. It is not necessary to decide whether the applicant was a deemed worker within the meaning of clause 2, schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998. However, if I am wrong then I would find that the applicant was a deemed worker. The work exceeded the requisite monetary value. DZE conceded the applicant was a contractor. I do not accept the respondent's submissions that the business records noted above that the work was work incidental to a business regularly carried on by the applicant in her own or a business name. There was no evidence that was any such work carried on by the applicant, which was denied, as distinct from holding business names and an ABN. There was no evidence that any putative work was regular.
3. In respect of injury, DZE conceded that on the day of the Kirrawee job (although not conceding that it was on the job), the applicant had a burn injury. He said that the applicant showed him the burn on her arm.
4. I am not persuaded by DZE's evidence that the applicant said she did not know why she had been burnt. This is consistent with the applicant providing a response at the time of her conversation with DZE, but in my view it is not inconsistent with a later realisation of the cause of injury.
5. More importantly, the statements of DZE and the applicant are not necessarily inconsistent. That is, DZE said that at the Kirrawee job they met outside on the street and he said that the applicant said she came up to him and showed him a burn on one of her forearms. The applicant in her statement said she had opened her boot and was carrying all the products when oven cleaner spilled over her arm and stomach, DZE saw it happen, and then they went inside. In my view DZE's statement does not contradict the applicant's statement as to the incident. I accept the applicant's statement in this regard.
6. There was some discrepancy as to date of injury. The applicant said the Kirrawee job was on 15 July 2024. DZE said the Kirrawee job was on 17 July 2024. The texts provided by the respondent, noted in DZE's statement, indicated a work discussion took place on 16 July 2024. The certificate of capacity of Dr Mikhail said 18 July 2024, although this was initially completed some time later on 29 July 2024. The evidence was generally imprecise as to date of injury, other than the dates put forward in the differing statements, without other documents. Doing the best I can, and having regard to the texts of 16 July 2024, which indicate a continuing work discussion, it seems to me that date of the subject injury was on or about 17 July 2024.
7. There was some suggestion by the respondent that there was no initial reference to a burn to the stomach. I do not accept this submission. This appears to me to be an oversight by a busy medical practitioner initially, which was later rectified by Dr Mikhail in his report of

23 December 2024, when the abdomen was noted. 8. I find that the applicant sustained a burn injury to her left arm and stomach in the course of her employment with the respondent on or about 17 July 2024. 9. As to capacity for work, the only medical evidence was the certificate of capacity of

Dr Mikhail dated 29 July 2024, and his report dated 23 December 2024. 10. The latter report indicated for the burn injury the applicant was unable to lift or carry anything more than 2kg for four weeks after the injury. 11. The former certificate indicated the applicant had no capacity for work from 29 July 2024 to 19 August 2024, although that document also referred to the rib injury, which was not the subject of these proceedings. The initial certificate of capacity, that is not referring to the rib injury, referred to in the clinical records, was not before me. 12. The business records referred to above are also relevant, in my view, to the issue of capacity for work. 13. The applicant said that;

(a) before working for the respondent, she was making a website to operate an online business called "Cleopatra Boudoir";

(b) she had "another trading ABN" called "Sparkle your place";

(c) "Sparkle your place" was used as a second name to protect the identity of "Cleopatra Boudoir", and

(d) this business never took place.

(a) the ABN held by the applicant from at least 26 August 2020 included business names of "Sparkle your place" and "Cleopatra and Mark Anothy";

(b) the business name "Cleopatra and Mark Anothy" was first registered on 1 March 2024 and was current at relevant times;

(c) the business name "Sparkle your place" was first registered on 17 July 2024, and

(d) a person of the same name and address (as listed in these proceedings) as the applicant was appointed as Director and Secretary of the company "Cleopatra Boudoir Pty Ltd" on 12 June 2024. In my view, given the applicant's evidence, and these details, this person was the applicant.

1. In my view, the applicant did not explain, or did not satisfactorily explain:

(a) any details at all about the business name "Cleopatra and Mark Anothy" and what she did or not did not do in relation to this entity. She stated generally that she did not operate a business and that she did not undertake secondary employment as a sole trader or otherwise when working for the respondent. There was no explanation to exclude the possibility that some form of business activity may have been conducted at an earlier time, even if it did not result in profit or significant remuneration;

(b) the nature of her activities, presumably work activities, for the making of a website for "Cleopatra Boudoir", and the nature of the work activities, or proposed work activities, for that online business;

(c) why "Sparkle your place" was registered on or about the date of injury in these proceedings. If the purpose of that entity was to protect the identity of "Cleopatra Boudoir", then it is unclear whether this registration meant that this business was proceeding, or under consideration of proceeding, during the period of claimed incapacity for work;

(d) whether any business activity was conducted in the period for which weekly compensation is claimed, and

(e) the nature of what appears to be a cleaning advertisement for "Sparkle your place".

1. These matters do not assist me in my consideration of the requirements of current work capacity within the meaning of clause 9, schedule 3 of the Workers Compensation Act 1987 (the 1987 Act) and as to s 32A of the 1987 Act.
2. Although the documents noted above, in respect of business names and activities, were provided by the respondent late in these proceedings, the applicant was informed of these matters in the dispute notices of the respondent, and she was quoted as providing a response in the dispute notice of 12 November 2024, and she provided a further response in her statement of 10 December 2024.
3. It was submitted by the applicant that the certificate of capacity of 29 July 2024 should be relied upon, being based upon the treating general practitioner's examination close to the time of injury.
4. The respondent pointed to:

(a) the lack of contemporaneous evidence of incapacity, as the applicant did not attend Dr Mikhail after the injury until 29 July 2024;

(b) the conflict between the report of Dr Mikhail and the certificate of capacity, as noted above. The report of Dr Mikhail referred only to lifting restrictions;

(c) the lack of history recorded by Dr Mikhail of these business activities, and indeed the other business activities at an earlier stage that was recorded in the ABN history;

(d) there was a record of various court and tribunal matters, including a headnote of a decision in the Personal Injury Commission of Member Burge in BVF v Workers Compensation Nominal Insurer (iCare)[6], on 2 March 2021, in respect of an award of continuing weekly compensation in favour of that applicant. I am unable to conclude on this point as the decision was not available, nor was the complete identity of that applicant confirmed, and

(e) continuing notes of psychological symptoms in the notes of Dr Mikhail in the relevant period, which were said to be related to the abovementioned decision, and which in any event indicated a continuing unrelated incapacity. I am unable to conclude on this point as there was no evidence of incapacity resulting from psychological symptoms before me, nor was there evidence that such symptoms were related to the abovementioned decision.

1. In my view, the respondent's submissions as to capacity have some force, other than where I have indicated that I cannot reach a conclusion.
2. The definition of current capacity for work in clause 9, schedule 3 of the 1998 Act embeds within it the concept of suitable employment, as defined in s 32A of the 1987 Act. For the reasons identified above, I am unable to determine the nature of the applicant's incapacity for the period claimed due to the differing assessments of Dr Mikhail, the period elapsed until first post injury consultation, and any consideration of a history of business activities. I am unable to determine the applicant's skills in respect of those business activities, such as making a web site. I am also unable to consider what the applicant may have done in the claimed period of incapacity.
3. In my view, the applicant has failed to discharge her onus in respect of her claim for incapacity for the period 15 July 2024 to 15 August 2024 resulting from injury in the course of employment with the respondent, which I have found to have been on or about 17 July 2024.
4. It is not necessary to determine pre injury average weekly earnings (PIAWE). If am wrong, then I do not accept the submissions of either party. A blanket $500 without more, as suggested by the applicant, does not suffice, nor does a simple calculation over two weekly pay periods, as argued by the respondent. In my view, the relevant period was one week, having regard to the dates of work described by DZE. I do not accept the applicant's assertion of working a 35 hour week, as a calculation based on $45 per hour, from the evidence, would have resulted in payments of an entirely different order. The bank statement in evidence records two payments totalling $417.50, which in my view is the better figure for PIAWE, having regard to the requirements of reg 8C of the Workers Compensation Regulation 2016, for a short term worker of less than four weeks.

[1] [1986] HCA 1; (1986) 160 CLR 16

[2] [2022] HCA 1

[3] [2022] HCA 2

[4] [1955] HCA 73; (1955) 93 CLR 561

[5] [2024] NSWPICPD 21

[6] [2021] NSWPIC 1