1. The respondent is to pay the applicant's reasonably necessary medical expenses for treatment of her psychological injury.

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

1. The applicant in these proceedings, Amanda Carrasco, claims that she sustained a psychological injury while employed as a weighbridge operator with the respondent, Broemi Holdings Pty Ltd as trustee for Dann Family Trust, with a deemed date of injury of 28 August 2024.
2. The applicant claims that she sustained psychological injury as a result of bullying and harassment, and being blamed for mistakes in tasks which had not been fully explained to her as a new employee.
3. The applicant was paid weekly payments of compensation, but those payments ceased on 17 July 2025 following a notice dated 3 July 2025 wherein EML on behalf of the respondent disputed liability on the grounds that the applicant had not received a psychological injury and did not have any total or partial incapacity for work. The notice also stated that if the applicant had sustained a psychological injury in the course of her employment with the respondent, then that injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to "discipline/termination" (s 11A (1) of the Workers Compensation Act 1987 (the 1987 Act)).
4. The applicant claims weekly payments of compensation from 18 July 2025. The Application to Resolve a Dispute (ARD) filed on behalf of the applicant also requires the respondent to pay for the cost of medical expenses which have been incurred by the applicant for treatment of her psychological injury, and an order pursuant to s 60 (5) of the 1987 Act that the respondent pay for the cost of a 21 day admission to South Coast Private Hospital for treatment for her psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. This matter was listed for conciliation and arbitration on 22 January 2026. Mr Boulton appeared for the applicant, instructed by Mr Khan. Mr Pecelj appeared for the respondent, instructed by Mr Biscevic. The hearing was conducted by video link.
2. 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.
3. The following occurred at the commencement of the hearing:

(a) the applicant withdrew her claim that an order be made pursuant to s 60 (5) of the 1987 Act that the respondent pay for the cost of a 21 day admission to South Coast Private Hospital for treatment for her psychological injury;

(b) the applicant otherwise sought a general order that the respondent pay the costs of her reasonably necessary medical treatment for her psychological injury;

(c) the respondent did not dispute that the applicant sustained psychological injury in the course of her employment with the respondent, and

(d) the respondent withdrew its defence pursuant to s 11A (1) of the 1987 Act.

1. The parties agree that the applicant's pre-injury average weekly earnings (PIAWE) as at the date of termination of weekly payments of compensation on 17 July 2025 was $1,580.
2. The parties agree that the following issue remains in dispute:

(a) the extent of the applicant's incapacity for work (ss 32A, 33 and 37 of the 1987 Act).

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

(a) ARD and attached documents;

(b) Reply and attached documents;

(c) Application to Lodge Additional Documents filed by the respondent on 24 November 2025, and

(d) Application to Lodge Additional Documents filed by the applicant on 14 January 2026.

1. There was no application to adduce oral evidence or to cross-examine the applicant.

1. The applicant has provided a statement dated 31 July 2025 in response to the dispute notice which terminated her weekly payments of compensation.
2. The applicant states that she has not worked since her employment with the respondent.
3. The applicant states that her psychological injury has led to days when she has been terrified while alone in her own home, and she has gone to the kebab van owned by her son so that she can have family and other familiar people around her. She states that she has tried to help out with small odd jobs at the van when it is quiet, but she would "keep my distance" when it became crowded or there were lots of customers.

The surveillance material and the response from the applicant

1. There is video surveillance obtained on behalf of the respondent on four occasions:

(a) 18 February 2025: this video shows the applicant lying under the kebab van for less than a minute and moving some items. The applicant otherwise sits on a crate outside the van for another two to three minutes using her phone or watching some work being done on the other side of the van;

(b) 25 February 2025: the video shows the applicant walking through a shopping area for a minute or so, and a couple of instances of her driving a motor vehicle;

(c) 1 March 2025: the video shows the applicant carrying a slab of meat across a car park to Johno's Kebab van, delivering an order to another worker at the van, and taking money and providing change for that order. The applicant otherwise sits on a fold up chair for another four or five minutes while she watches and seems to give some direction to another person painting the concrete ground below the van, and

(d) 31 March 2025: the video shows the applicant smoothing out some gravel by hand and lifting up a bucket for a few seconds.

1. The applicant states that on 18 February 2025 she was under the van to move a hose when her husband was laying asphalt.
2. The applicant states that she was carrying a roll of kebab meat on 1 March 2025 because it was quiet and she wanted to make herself useful. She states that on that same day she asked a customer what he wanted and conveyed that to a worker in the van, and she then took cash from the customer and provided change. She states that she did not prepare the order or have any other involvement in this transaction.
3. There is a letter in the Reply from David Neall, Managing Director of the respondent, dated 27 January 2024. Mr Neall states that another employee, Richard Harrowell, saw the applicant working in traffic control on 11 September 2024 when he was taking his daughter to daycare. He states the applicant took off her hi-vis vest when she saw Mr Harrowell and jumped into a ute to hide.
4. Mr Neall states that CCTV footage of the applicant provided by a private CCTV company, Alexi Cam, showed the applicant to be working. That footage has not been included in any material provided to the Commission in this dispute.
5. Mr Neall also asserts that the applicant works every day from 5.00pm to 10.00pm at the kebab van owned by her family.
6. The applicant denies that she works at the kebab van or in traffic control in her husband's business. She states that she accompanies her husband to job sites on some occasions as she does not want to be left at home alone, and she needs to wear a hi-vis vest when that occurs.

1. There are Certificates of Capacity issued by the applicant's general practitioner, Dr Periasamy, between July 2025 and January 2026 which certify that the applicant has no current work capacity as a result of her psychological injury.
2. Dr Wijesinghe is the applicant's treating psychiatrist. The reports from Dr Wijesinghe indicate that the applicant was under his care when she was admitted to South Coast Private Hospital between 27 November 2024 and 20 December 2024.
3. Dr Wijesinghe writes in a report dated 24 February 2025 that the applicant looks miserable and her mood is depressed.
4. Dr Wijesinghe writes in a report dated 11 May 2025 that the applicant sounds anxious, her mood is depressed and her affect is anxious.
5. Dr Wijesinghe provides a report dated 9 September 2025 after he has reviewed the surveillance report relied upon by the respondent and has been referred to the applicant attending the kebab van owned by her son. He states that there is nothing in the surveillance report which can infer a capacity to work, "as this could be a social encounter with her son".
6. Dr Wijesinghe writes:

"Nothing in the surveillance report alters my view about my clinical opinion. She has an adjustment disorder with anxious and depressed mood that borders on major depression due to work place stress."

1. Saima Khan is the applicant's treating psychologist and has provided a report dated 18 August 2025. Ms Khan lists at least 30 consultations she has had with the applicant between December 2024 and July 2025. She opines that the applicant has had a resurgence of post-traumatic stress disorder symptoms, as well as the emergence of depression and anxiety, during the course of her employment with the respondent.
2. Ms Khan is asked to review the surveillance report relied upon by the respondent and referred to the applicant attending the kebab van owned by her son. Ms Khan writes that the applicant has consistently articulated a pronounced fear of being alone in her home and her attendance at the van has occurred exclusively in the company of family members. She writes that the applicant has informed her that the applicant has not been employed at the kebab van and her presence has been solely for the purpose of accompaniment and emotional support.
3. Ms Khan opines that she does not consider that the applicant is fit for work. She writes that the applicant's presentation warrants continued psychological support and a structured approach to recovery with emphasis on her safety, emotional regulation and gradual skill-building.
4. Dr Pryor, psychiatrist, has provided a report at the request of the applicant's lawyers which is dated 14 June 2024, but likely to be 14 June 2025, following an examination on 10 June 2025. The examination was conducted by video.
5. Dr Pryor found that the applicant's speech was at times quavering and distressed in tone, and her thought form was somewhat vague. She found the applicant's concentration to be impaired. There were strong themes around worthlessness.
6. Dr Pryor concludes that the applicant meets the criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as an exacerbation of Complex PTSD.
7. Dr Pryor opines that it does not appear that the applicant is currently fit for work. Dr Pryor does not refer to the video surveillance relied upon by the respondent, although that material is not supplied by the respondent until the dispute notice dated 3 July 2025, which post-dates the report from Dr Pryor.
8. Dr Ho, psychiatrist, provides a report at the request of the respondent dated 6 December 2024. The examination was conducted by video. Dr Pryor states that the examination is conducted while the applicant is an in-patient at a private psychiatric facility. He finds the applicant's affect to be brittle, and her mood very low. He makes a diagnosis of Major Depressive Disorder.
9. Dr Ho does not consider that the applicant is fit for pre-injury duties. He writes:

"Her diagnosis is of a severity as to require her to be in hospital for treatment. This impedes her return to any form of employment."

1. Dr Ho provides a further report dated 12 June 2025 after being provided with surveillance material relied upon by the respondent. Dr Ho writes:

"The functional vocational report dated 23/5/25 assesses her as not fit for pre-injury duties. The security footage from 01/03/2025 showed Amanda to apparently be working at Johno's Kebab van including taking the food order of the investigator, taking money, and handing back change. The footage shows Amanda's function to be higher than the assessment of 23/5/25. Based on the footage and investigator field notes showing employment, I would consider Amanda fit for pre-injury duties."

"Based on the security footage and the included investigator field notes, Amanda has already regained capacity for employment if she was working at Johno's Kebab van."

1. The submissions of the parties at the hearing were recorded and I do not propose to reiterate each of them in these reasons. I will, however, refer to relevant submissions in the course of this part of my decision.
2. The definitions of "current work capacity" and "no current work capacity" are set out in cl 9 of Schedule 3 of the 1987 Act as follows:

'current work capacity' if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.

'no current work capacity' if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment."

Section 32A of the 1987 Act includes a definition of "suitable employment" as:

"'suitable employment', in relation to a worker, means employment in work for which the worker is currently suited:

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker's age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker's pre-injury employment, and

1. There is a considerable amount of expert opinion which supports a finding that the applicant has had no current work capacity since weekly payments of compensation were terminated by the respondent on 17 July 2025.
2. Dr Periasamy has consistently provided Certificates of Capacity since July 2025 which certify that the applicant has no current work capacity as a result of her psychological injury.
3. I am mindful that caution needs to be exercised when approaching Certificates of Capacity which merely repeat the same restrictions over months or even years, and there is no indication in those certificates as to how an injury is progressing (see DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]).
4. However, the clinical notes which are in evidence from Centre Health Complex where Dr Periasamy practices from reveals that he has been the applicant's general practitioner not only since she sustained injury in August 2024, but that he has been treating her on a regular basis since 2016. He is therefore in a very good position to consider whether the applicant has had any work capacity at all since her injury.
5. Both Dr Wijesinghe and Ms Khan have been treating the applicant since she sustained her psychological injury. Both health professionals considered that the applicant had no work capacity around the time that weekly payments of compensation were terminated. Both health professionals are also in a good position to opine that the applicant is totally unfit for work.
6. There has been no response provided by Dr Pryor to the surveillance video relied upon by the respondent. Dr Pryor does not provide any specific reasons for her opinion that the applicant is currently not fit for work when she examines the applicant in June 2025. She merely states that those reasons are "multifactorial" and are outlined in the "Opinion and Diagnosis" section of her report.
7. Nonetheless, it is apparent from the record made by Dr Pryor of the mental state of the applicant, which included the applicant's speech being distressed in tone and the applicant's concentration to be impaired, and her opinion that the applicant continues to suffer an Adjustment Disorder with Mixed Anxiety and Depressed Mood, that the applicant continues to face significant barriers in being able to return to the workforce.
8. The respondent relies very much on the surveillance videos it has obtained, and the subsequent opinion provided by Dr Ho, to challenge the expert opinions which I have referred to, especially from those health professionals who have treated the applicant for her psychological injury.
9. However, there are several deficiencies in that evidence which means I cannot be satisfied that the applicant has any work capacity, and in particular an ability to return to her pre-injury duties as opined by Dr Ho.
10. The tasks identified by the respondent from the surveillance videos as revealing a capacity for work occur for a few brief seconds and cannot, in my view, allow for a conclusion to be reached that the applicant could engage in some form of suitable employment.
11. The activities of moving a hose under a van, carrying a roll of kebab meat, and taking an order and providing change to a customer, do not suggest any form of employment which the applicant might be suited for, especially when those activities are of such short duration compared to the much longer periods following those activities when the applicant is just sitting on a crate or on a chair, and doing nothing else other than perhaps looking at her phone.
12. That the applicant does not prepare the order for the customer and otherwise sits on a chair outside the van supports the applicant's assertion that she does not work at the kebab van.
13. Smoothing out some gravel by hand and lifting up a bucket in the space of a few seconds also does not, in my view, allow for a conclusion to be reached that the applicant could engage in some form of suitable employment.
14. Mr Pelcelj on behalf of the respondent submits that the video evidence allows for a finding to be made that the applicant could work at the kebab van, and refers to the much quoted decision on work capacity of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), where DP Roche said at [59]:

"...the phrase 'employment in work', in the definition of suitable employment, 'in relation to a worker', must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited."

1. However, in Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36 (Gradan Bathrooms), DP Snell referred to Dewar (at [63]) and then said at [87]:

"The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity."

1. I cannot be satisfied that there are any real jobs in the labour market which the applicant would be able to do from the activities which have been captured on video. The taking of an order from a customer and providing change to that customer does not mean that the applicant could necessarily engage in a real job of retail work, especially when that is balanced against the findings on examination which have been made by Dr Wijesinghe and Dr Pryor.
2. The respondent contends that the applicant has been working in traffic control. However, I cannot be satisfied from the available evidence that this is the case. There is no evidence from Mr Harrowell, who Mr Neall relies upon to claim that the applicant works in traffic control. There is no CCTV footage to show that the applicant is working in traffic control, despite the assertion made by Mr Neall that Alexi Cam had video evidence of the applicant working. The evidence provided by Mr Neall on this issue is not reliable and it would be unsafe for me to me rely upon it.
3. There are also deficiencies in the opinion provided in the report of Dr Ho dated 12 June 2025, which means I cannot rely upon that opinion with any confidence.
4. Dr Ho does not explain how the limited video footage allows him to opine that the applicant is fit for her pre-injury duties. Dr Ho does not record details of the applicant's duties as a weighbridge operator in any of his reports and yet he confidently opines that she could do her pre-injury job.
5. Mr Neall asserts in his letter dated 27 January 2024 that the applicant had "a basic admin job", but the applicant in her first statement dated 18 September 2024 describes work duties which involved some complexity and which became quite stressful for her. There is not enough information provided by Dr Ho for me to be satisfied that the applicant could return to her pre-injury duties.
6. Dr Ho also opines that the applicant has regained capacity for employment because she is working at Johno's Kebab van. However, this based upon a false premise. There is no reliable evidence that the applicant works at the van. The report from Allied Universal Investigations dated 3 March 2025 states that after video footage was taken on 18 February 2025: "Three subsequent days of surveillance were then conducted and the claimant was not seen to attend Johno's Kebabs".
7. Furthermore, as I have already observed, the limited activity of taking an order and providing change to a customer was followed by a much longer period of time of the applicant sitting in a chair outside of the van.
8. A further deficiency in the opinion provided by Dr Ho is that he has not had the benefit of having a further examination of the applicant following his review of the surveillance footage. The only examination undertaken by Dr Ho is when the applicant is an in patient at a psychiatric facility and it is quite understandable that Dr Ho opines at that point in time that the applicant "is totally incapacitated and is unable to do any work".
9. In my view, the leap made by Dr Ho from an opinion that the applicant is totally incapacitated for work to having regained a capacity for employment, and even being able to return to her pre-injury duties, requires more than a few minutes of video footage, and really should warrant further interrogation of the applicant.
10. Finally, the opinion from Dr Ho is at least partly based upon a comparison he makes between a functional vocational report dated 23 May 2025 and his observations of the surveillance video. Although the functional vocational report dated 23 May 2025 is listed in the dispute notice dated 3 July 2025, it has not been included in the material before the Commission, and this also diminishes the weight which can be given to the opinion of Dr Ho.
11. Mr Pelcelj refers to the applicant's bank statements from 26 August 2024 to 22 August 2025 which are included in the ALAD filed by the respondent to submit that entries in those statements indicate that the applicant is able to travel (including to Queensland) and engage in social activities notwithstanding her psychological injury. He submits that this is evidence of some capacity for work.
12. In my view, the entries in the bank statements merely reflect a person attending to basic shopping requirements, personal care and the occasional entertainment event. Although the applicant does not refer to any travel she has made to Queensland in her statements, Dr Pryor records that her examination of the applicant in June 2025 occurs when the applicant is in the Gold Coast with her husband while they try to sell an apartment which they own. That appears to be quite reasonable, especially as the medical evidence refers to concerns which the applicant has in staying at home alone, and it does not suggest any capacity for work on the part of the applicant.
13. I therefore prefer the evidence from those health professionals who have been treating the applicant, along with the opinion of Dr Pryor, over the evidence which has been relied upon by the respondent. I cannot be satisfied from the available evidence that there are any real jobs in the labour market in which the applicant would be able to work. I accept that the applicant has continued to have no current work capacity since 18 July 2025.
14. The parties agree that PIAWE as at the date of termination of weekly payments of compensation on 17 July 2025 was $1,580. Eighty per cent of $1,580 amounts to $1,264. There is an increase to PIAWE on 1 October 2025 to $1,600. Eighty per cent of $1,600 amounts to $1,280.
15. There will be an award of weekly payments of compensation pursuant to s 37 (1) of the 1987 Act as follows:

(a) $1,264 per week from 18 July 2025 to 30 September 2025, and

(b) $1,280 per week from 1 October 2025 to date and continuing.

1. There will also be an order that the respondent is to pay the applicant's reasonably necessary medical expenses for treatment of her psychological injury.