(a) the extent and quantification of the applicant's entitlement to weekly compensation pursuant to ss 33 and 38 of the 1987 Act.

1. By consent, the following documents were in evidence before the Commission and considered in making this determination:

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

(b) Reply with attached documents;

(c) Application to Admit Late Documents (AALD) lodged by the applicant and admitted into evidence by consent, and

(d) ALAD lodged by the respondent and admitted into evidence by consent.

1. No party applied to adduce oral evidence or cross-examined any witness.

1. The applicant gave evidence by way of three written statements.
2. In her first statement dated 14 April 2023, the applicant:

(a) stated that she completed Year 10 at high school and obtained an Advanced Diploma in Secretarial Studies in or around 1991 and a Telecommunications Certificate from TAFE in or around 2003;

(b) stated that her employment history prior to working with the respondent included working as a Sales Merchandiser for approximately one year and as an Executive Assistant and Office Manager for approximately three years;

(c) described the circumstances in which she sustained the accepted psychological injury;

(d) stated that, following termination of her employment by the respondent, she attempted to return to work in four different places but she could not maintain a position because of the psychological injury. In particular:

(i) in a position as an Executive Assistant, she was unable to respond well to any form of confrontation, she would burst into tears when her employer corrected her and she was dismissed because she could not stop crying and she could not bring herself to turn up to work;

(ii) in a position as a public facing employee at an audio clinic at a shopping centre, she stuttered and tripped over words, felt unable to approach people, would burst into tears and was unable to control her reactions to ordinary interactions;

(iii) in a position at a real estate company she found that she was "crying every five seconds", and

(iv) she looked for a position in a carer role, but realised that she could not be caring for people in her current state;

(e) stated that after her mood and mental health deteriorated as a result of the accepted psychological injury, she consulted her general practitioner Dr Josephine Pang and was referred to a psychologist, Dr Simone Chartres who provided various psychological treatment;

(f) stated that she currently receives treatment for the accepted psychological injury being anti-depressant medication, consultations with her general practitioner, Dr Josephine Pang, and consultations with psychologist, Dr Simone Chartres;

(g) stated that as a result of the accepted psychological injury, she currently suffers restrictions and disabilities which include depression, anxiety, frustration, nausea, panic attacks, migraines, accelerated heart rate, memory loss, mood swings, loss of concentration, broken sleep patterns, graphic dreams, lethargy, irritability, exhaustion, hypervigilance, reclusive habits, loss of self-esteem, inability to return to pre-injury employment and loss of independence;

(h) stated that since September 2021, she has been certified as having either limited or no capacity to work by her treating general practitioner, Dr Josephine Pang;

(i) stated that in a Certificate of Capacity dated 24 March 2023, Dr Pang certified the applicant as having limited capacity to work, noting that the applicant's symptoms had worsened after attempting to return to work and that the applicant still required ongoing treatment, in the form of anti-depressants, melatonin and psychological consultations;

(j) stated that she does not think she has capacity to work without restrictions because of lack of sleep which leaves her feeling lethargic and exhausted, she could not learn new skills nor work in a fast-paced environment due to her loss of energy and concentration, she loses focus and her mind drifts off, she could not manage to socialise in a working environment and her ongoing psychological symptoms would make it difficult to appropriately interact with people as she still feels anxious and teary when exposed to negative behaviour;

(k) denied that she has capacity to carry out roles of IT Administrator, Executive Assistant and Data Analysist which were identified as suitable employment in a Vocational Assessment Report prepared on behalf of the respondent;

(l) stated that in relation to the role of IT Administrator, she has no tertiary qualifications in computer science, she has no qualifications nor experience overseeing any IT systems or programs, she could not learn new skills quickly in her current psychological state and could not handle complex matters to oversee IT systems;

(m) stated that in relation to the role of Executive Assistant, she would not be able to work in that role because she is still so easily set off into tears by a raised voice or criticism and her attempt to work in such a role after ceasing to work for the respondent was unsuccessful because her anxiety was triggered by the smallest confrontation, she felt easily overwhelmed and does not hold the mental fortitude to hold down such a demanding job, and

(n) stated that in relation to the role of Data Analyst, she does not hold qualifications in computer science, she has no experience in data analysis or IT systems and she is not psychologically stable enough to begin a new role without any foundational experience, and although she was initially excited to attempt such a role she would require training which is not provided in any event.

1. In her second statement dated 18 July 2024, the applicant:

(a) stated that she suffered from ongoing restrictions as a result of the accepted psychological injury and she particularly suffered difficulties with concentration and memory, and

(b) stated that she enrolled in a cyber security course around June 2023, however she was unable to actively participate and complete the course due to ongoing difficulty with concentration and focus.

1. In her third statement dated 17 September 2025, the applicant:

(a) stated that her psychological condition has significantly deteriorated since she attended Dr Ashwinder Anand on 19 February 2024;

(b) stated that in May 2024, her clinical psychologist, Dr Kim Woodward, diagnosed her with post-traumatic stress disorder and other specified trauma and stressor related disorder and also stated that the applicant met criteria for secondary diagnoses of panic disorder, generalised anxiety disorder and major depressive disorder and opined that her symptoms had not resolved but had been exacerbated, and recommended intensive psychological therapy to improve;

(c) stated that in June 2024, the respondent's insurer stated that they were not happy with the applicant's progress and wanted her to consult with practitioners face to face, and accordingly, the applicant was unable to see her general practitioner, Dr Josephine Pang, and her psychologist, Dr Kim Woodward who did not offer face to face consultations;

(d) stated that on 25 July 2024, she obtained a referral to a new psychologist Tracey Watters of Starting Now Psychology Services, but due to excessive waitlists she was unable to consult with Ms Watters until May 2025;

(e) stated that on 24 March 2025, she consulted with consultant and addiction psychiatrist, Dr Zelko Mustac who made recommendations for treatment including clonidine for sleep;

(f) stated that she ceased clonidine because she found that it made her disorientated and she was unable to consult with Dr Mustac further because the insurer declined to cover the cost of any further consultations;

(g) stated that on 19 May 2025, she had her first consultation with Netty Mepham of Nurturing Minds after extensive time being waitlisted and she continues to regularly consult with Ms Mepham and her general practitioner, Dr Ryan Barnett;

(h) stated that she feels that she has not made any significant improvements in her condition due to the large gap between psychologists;

(i) stated that she continues to experience various psychological symptoms and limitations as a result of the accepted psychological injury, and

(j) stated that she is completely debilitated to return to work as a result of her deteriorated mental state and limitations which includes crippling anxiety, exhaustion, inability to concentrate and focus and lack of confidence.

(a) stated a primary diagnosis of post-traumatic stress disorder and other specified trauma - and stressor-related disorder, and a secondary diagnoses of trauma-related panic disorder, generalised anxiety disorder and major depressive disorder;

(b) expressed the opinion that the applicant's psychological condition was caused by the accepted psychological injury;

(c) stated that the applicant's symptoms of the accepted psychological injury have not resolved, noting that the applicant's symptoms were ongoing, increased after her redundancy and have significantly negatively impacted her functioning and her ability to attain/retain employment in the period since;

(d) noted that the applicant reported that the failed attempts to return to work subsequent to the accepted psychological injury and her experience of worsening psychological symptoms resulting from exposure to both repeated reminders of the trauma/accepted psychological injury and the resulting negative beliefs about herself, have exacerbated her trauma-related symptoms and are currently maintaining her Post-Traumatic Stress Disorder symptoms and incapacity for returning to work;

(e) expressed the opinion that it is impossible to predict when the full effects of the accepted psychological injury will be resolved, noting that the symptoms are complex and require intensive psychological therapy in order to improve, and hopefully resolve, and further noting that some psychological symptoms resulting from trauma experiences do not resolve;

(f) stated that the main non-medical factor delaying the applicant's recovery is financial impediment and lack of access to fully-funded ongoing psychological treatment and also the deleterious impact of her previous failed attempts to return to work subsequent to the accepted psychological injury when she was still experiencing trauma-related psychological symptoms and reduced capacity;

(g) expressed the opinion that the applicant has no current capacity to return to work, and further,

(h) expressed the opinion that with sufficient, consistent, weekly psychological therapy that the applicant is likely to regain the capacity for some paid employment (noting that is her need and desire) but was unable to offer any current timeframe when the applicant is likely to be able to reach either a gradual or full return to any type of work, and

(i) expressed the opinion that the applicant required ongoing frequent psychological therapy sessions, with a view to further assessing her capacity for return to employment in six months and again in twelve months.

Dr Zelko Mustac, consultant and addiction psychiatrist

(a) reported on his assessment of the applicant on 24 March 2025;

(b) noted that the applicant had been receiving workers compensation for some three years since she sustained the accepted psychological injury;

(c) stated diagnoses of panic disorder, largely in remission, and anxiety disorder with agoraphobic features;

(d) expressed the opinion that the precipitating factors were the accepted psychological injury and the applicant's daughter moving out to attend university;

(e) noted a history of post-natal depression and previous binge eating disorders, and

(f) recommended various psychological treatments.

1. Clinical records of the Westside Medical Centre showed:

(a) on 1 August 2024, Dr Karina Schotte, general practitioner, reported that the applicant's current diagnosis following the accepted psychological injury was exacerbation of generalised anxiety disorder/social anxiety disorder;

(b) on 25 July 2024, Dr Karina Schotte, general practitioner, referred the applicant to Ms Tracey Watters, psychologist, for face-to-face consultations in relation to ongoing psychological symptoms following the accepted psychological injury, and

(c) on 17 October 2024, Dr Ryan Barnett, general practitioner, referred the applicant to Dr Zelko Mustac, consultant and addiction psychiatrist, noting that she experienced various ongoing psychological symptoms subsequent to the accepted psychological injury.

1. Clinical records of Netty Mepham Nurturing Minds showed:

(a) notes in relation to the applicant's attendances during May, June and July 2025.

1. Clinical records of Walker Streed Doctors showed:

(a) notes in relation to the applicant's various attendances in relation to psychological symptoms and treatment;

(b) on 6 December 2021, Dr Truis Bratten, consultant psychiatrist:

(i) reported on his assessment of the applicant on 29 November 2021;

(ii) stated a diagnosis of adjustment disorder with anxiety and depression;

(iii) expressed the opinion that the cause for the applicant's psychological condition was multi-factorial and includes genetic predisposition, psychological factors and the accepted psychological injury;

(iv) stated that it is difficult to determine whether the adjustment disorder is an exacerbation of a previous adjustment disorder or a new condition;

(v) expressed the opinion, having read notes regarding the applicant's pre-existing mental health diagnosis of postnatal depression as well as anxiety and depression relating back to 2019, that it is likely that the applicant had previously experienced psychological symptoms, however both of those prior episodes appear to have been brief and resolved within a period of weeks to months;

(vi) expressed the opinion that the applicant's prognosis is favourable and that she would continue to improve and would be likely to be able to return to full-time work following a further period of treatment of ten to fifteen weeks, noting that she improved significantly under the care of psychologist Simone Chartres;

(vii) noted that the applicant continued to experience psychological triggers in her subsequent employment post the accepted psychological injury;

(viii) expressed the opinion that the applicant is currently fit to continue her part-time work, which is two days per week, eight hours per day, and that she would be likely to be able to return to full-time work following the recommended treatment, and

(c) on 12 April 2022, Simone Chartres, clinical psychologist:

(i) reported on the applicant's progress following psychological treatment sessions.

1. The evidence includes various Certificates of Capacity issued by Dr Ryan Barnett, which showed:

(a) the applicant had no current work capacity from 6 May 2025 to 27 August 2025 as a result of her psychological condition, and

(b) the applicant had no current work capacity from 4 September 2025 to

30 November 2025 as a result of her psychological condition.

Dr Farhan Shahzad, consultant occupational physician

(a) reported on his assessment of the applicant on 20 August 2024;

(b) reported that since she had sustained the accepted psychological injury, the applicant had undergone treatment which has included antidepressant medications and psychotherapy sessions;

(c) reported that the applicant nevertheless continues to experience sleep disturbance, anxiety, and feels tired and lacks motivation;

(d) stated that the applicant's ongoing incapacity is prolonged and is inconsistent with "The Health Benefits of Good Work";

(e) expressed the opinion that the applicant is fit to return to pre-injury work capacity, noting an inconsistency and that the applicant did not have suicidal ideation nor panic attacks, and

(f) did not consider that the applicant would derive any further benefit with cognitive behavioural therapy treatment or further psychological treatment, and that she should be encouraged to return to the workforce with vocational assessment and redeployment efforts.

1. In a supplementary report dated 4 April 2025, Dr Shahzad:

(a) expressed the opinion that that the following identified vocational options are suitable for the applicant and that she has the capacity to work in the following roles:

(i) executive assistant;

(ii) administration officer/general clerk, and

(iii) data entry officer.

Vocational Assessment Report & Labour Market Analysis

1. In a report dated 4 February 2025, Jacqueline Fleming:

(a) stated that primary barrier to the applicant's employment appears to be her difficulty in sustaining work due to her psychological symptoms;

(b) recommended that the applicant engage in consistent psychological and psychiatric treatment to address this barrier, and

(c) identified that the following vocational options may be suitable for the applicant's employment:

(i) executive assistant;

(ii) administration officer/general clerk, and

(iii) data entry officer.

1. In a report dated 7 April 2025, Jacqueline Fleming:

(a) reported on a labour market analysis of the above vocational options which were identified as suitable for the applicant's employment.

(a) reported on a desktop investigation of the applicant and her activities.

Dr Ashwinder Anand, consultant psychiatrist, independent medical expert qualified by the applicant

(a) reported on his examination of the applicant on 19 February 2024;

(b) stated a diagnosis of adjustment disorder with mixed anxiety and depressed mood;

(c) expressed the opinion that the applicant's psychological condition was caused by work-related stressors that she endured in her employment with the respondent, including feeling bullied, harassed, belittled, humiliated, unsupported, ignored and dismissed throughout the course of her employment;

(d) expressed the opinion that the applicant's current presentation is not an aggravation of any pre-existing condition, notwithstanding the applicant reporting a history of undergoing treatment by medication for some mental health issues for about one year following the birth of her child about 18 years ago;

(e) expressed the opinion that the applicant had the capacity to return to work to her pre-injury duties at an alternate workplace for around 20 hours per week;

(f) noted that the applicant had been undergoing psychological treatment by regular consultations with psychologist Ms Kim Woodwarad and general practitioner Dr Pang and medication;

(g) recommended that the applicant undergo ongoing psychological treatment;

(h) stated an assessment of 6% whole person impairment (WPI) in respect of the accepted psychological injury.

Dr David Kumagaya, consultant psychiatrist, independent medical expert qualified by the applicant

(a) reported on his examination of the applicant on 17 July 2025;

(b) stated a diagnosis of Persistent Depressive Disorder with Anxious Distress;

(c) expressed the opinion that the applicant's psychological condition was caused by work-related stressors that she endured in her employment with the respondent

(d) expressed the opinion that the applicant's current presentation is a consequence of the accepted workplace injury;

(e) stated that the applicant did not present with a pre-injury psychiatric background or pre-existing psychiatric condition;

(f) stated that the applicant continues to experience consequential psychosocial impairments as a result of the accepted psychological injury;

(g) expressed the opinion that that, due to the severity of the applicant's enduring psychological injury and correlative psychosocial impairments:

(i) she currently does not present with the requisite capacity to resume her substantive occupation;

(ii) it is unlikely that she will be able to resume her substantial vocational role in the foreseeable future;

(iii) it is unlikely that she will be able to return to work in a role that is in keeping with her education, training, and experience, in the future;

(iv) she is likely to encounter significant challenges retraining into a distinct vocation, noting her inability to durably engage in several return-to-work attempts to distinct roles with distinct employers;

(h) expressed the opinion that the applicant's prognosis for a full recovery from the accepted psychological injury is guarded, noting that she presented with ongoing psychological symptoms more than five years following the onset of index symptoms;

(i) recommended that the applicant undergo ongoing psychological treatment;

(j) stated an assessment of 22% WPI in respect of the accepted psychological injury.

1. In a supplementary report dated 13 September 2025, Dr Kumagaya:

(a) reported on his review of various evidence;

(b) expressed the opinion that the applicant continues to experience enduring psychological symptoms and correlative psychosocial impairments inherent to the accepted psychological injury;

(c) expressed the opinion that the applicant remains fully incapacitated for work as a result of the accepted injury, noting that her psychological condition appears to have remained largely stable with an ongoing burden of prominent global psychosocial impairments;

(d) expressed the opinion that the applicant presents with a total vocational incapacity, which extends to the roles of administration officer/ general clerk, executive assistant, and data entry officer, noting that as a result of the accepted psychological injury, the applicant continues to experience prominent depressive and anxious symptoms, in addition to global psychosocial impairments, including in relation to self-care, interpersonal functioning, limited concentration capacity;

(e) expressed the opinion that the applicant's accepted psychological injury is well stabilised and is unlikely to change significantly in the next year with or without medical treatment, and

(f) confirmed his previous assessment of 22% WPI in respect of the accepted psychological injury.

Dr Sachie Fernando, psychiatrist, independent medical expert qualified by the respondent

(a) reported on his assessment of the applicant on 6 March 2025;

(b) noted a prior history of post-natal depression following the birth of her child and depressive/anxiety symptoms at various stages of her life;

(c) stated a diagnosis of chronic adjustment disorder with depressive/anxiety symptoms;

(d) expressed the opinion that the predominant contributing factor to the applicant's psychological condition was the accepted psychological injury, noting that financial stresses also contributed to the applicant's psychological condition;

(e) expressed the opinion that the accepted psychological injury is an exacerbation of her pre-existing condition, noting that the applicant "has a history of a relapsing pre-existing psychological condition";

(f) expressed the opinion that, whilst the applicant had some ongoing psychological symptoms, "she is maintaining reasonable functioning despite the symptoms";

(g) expressed the opinion that the work-related exacerbation of the applicant's psychological condition "appear to have now resolved and the ongoing symptoms of appear to be a continuation of her pre-existing psychological condition", noting that in 2019 (prior to the accepted psychological injury), the applicant's mood had started to deteriorate needing pharmacological treatment and that she had various exacerbations in her pre-existing condition over the years, and that when she was assessed for an independent medical opinion in December 2021, it was opined that the work related exacerbation had resolved but she has still not returned to work in any capacity;

(h) agreed with the opinion of the independent medical consultant, and

(i) expressed the opinion that the applicant currently has capacity to work around 24 hours per week (six hours per day for four days) in pre injury/suitable employment options, and recommended that the applicant then gradually increase her work hours to a pre-injury level within around three to four months.

1. Both counsel made oral submissions which were recorded.
2. I have considered the submissions in full and I am grateful to counsel for their assistance.
3. In summary, on behalf of the applicant, Mr Adhikary submitted that the evidence of Dr Kumagaya should be preferred and accepted. Mr Adhikary submitted that various evidence demonstrates that the accepted psychological injury clearly continued and that the applicant had no current work capacity during the relevant period and is likely to continue indefinitely to have no current work capacity.
4. In summary, on behalf of the respondent, Mr Stockley submitted that the evidence of Dr Anand should be preferred and accepted. Mr Stockley submitted that the evidence does not demonstrate that the applicant had no current work capacity during the relevant period and that the applicant is likely to continue indefinitely to have no current work capacity. Mr Stockley submitted that the applicable test is not whether the applicant could return to her pre-injury employment. Mr Stockley submitted that there are jobs which the applicant could perform given functional restrictions which the accepted psychological injury may impose on her. Further, Mr Stockley submitted that given the applicant's lack of psychological treatment to date it remains unknown whether the functional restrictions that the accepted work injury imposes are likely to continue into the future.
5. In reply, Mr Adhikary submitted that, whilst there are differing diagnoses, the medical evidence is consistent that the applicant has no current work capacity to date and there is no basis to find that the applicant's current work capacity might improve in time.

"33 Weekly compensation during total or partial incapacity for work

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues."

"38 Weekly payments after second entitlement period (after week 130)

(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.

(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if -

(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and

(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and

(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.

(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.

(4) An insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted -

(a) during the last 52 weeks of the second entitlement period, and

(b) thereafter at least once every 2 years.

An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.

(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.

(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.

(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates -

(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,

(b) the maximum weekly compensation amount, less the worker's current weekly earnings.

(8) A worker's entitlement to compensation under this section may be reassessed at any time."

"9 Meaning of 'current work capacity' and 'no current work capacity'

'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."

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

(a) having regard to -

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

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

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

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

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

(b) regardless of -

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

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

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

(iv) the worker's place of residence."

1. In Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar), at [45]-[49], [68]), Deputy President Roche stated at [47]-[49]:

"47. The new provisions require a determination of whether a worker has a 'current work capacity' or 'no current work capacity'. A 'current work capacity' is an 'inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment'. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. 'No current work capacity' exists when the worker is not able to return to work either in the worker's pre-injury employment or in suitable employment.

1. Having accepted that Mrs Dewar has an 'inability' arising from her work injury, the Arbitrator's task was to determine, having regard to the matters listed in the definition of suitable employment, if she was 'able to return to work in suitable employment'. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is 'available' or is of a type or nature that is 'generally available in the employment market'.
2. The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence..."
3. In Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67, at [22] - [23], President Judge Phillips endorsed remarks by Arbitrator Harris, as he then was, in Roberts v University of Sydney [2011] NSWWCC 25 (Roberts), 21 January 2021, at [58], [59] and [60], and confirmed the Commission has jurisdiction to make an award for weekly compensation under s 38 of the 1987 Act.
4. In Roberts, Arbitrator Harris considered the application of the test in s 38(3) of the 1987 Act and meaning of the term "likely to continue indefinitely". At [99], Arbitrator Harris stated:

"95. The applicant is seeking an order of weekly compensation over a period on an ongoing basis. In those circumstances a worker is required to satisfy the test over the entire period and not only when the notice was given. Accordingly, if a worker cannot satisfy the test for part of the period, then that portion of the claim would fail because a necessary precondition is not satisfied.

1. That interpretation is also consistent with the ongoing nature of the requirement provided by s 38(3)(b), subject to the operation of s 40, that a worker must be in employment for at least 15 hours per week and at least the minimum value as prescribed by the regulations.
2. This interpretation is also consistent with s 38(8) of the 1987 Act which provides that the assessment under s 38 "may be reassessed at any time". That sub-section indicates that satisfaction of the pre-conditions in s 38(3) may fluctuate over time.
3. There were submissions on the meaning of "indefinitely" in the context of "likely to continue indefinitely".
4. I agree with the applicant's submission that the meaning of "indefinitely" is akin to an unknown or non-specific period.
5. I also agree with part of the respondent's submission that the meaning relates to the "foreseeable future", although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the foreseeable period.
6. There were suggestions in the respondent's submissions that the meaning of "indefinitely" was not satisfied because no doctor had assessed the applicant as having attained "maximum medical improvement". That concept is defined in clause 1.15 of the fourth edition of the NSW workers compensation guidelines for the evaluation of permanent impairment, that is that the condition is "well stabilised and is unlikely to change substantially in the next year".
7. Maximum medical improvement applies to the assessment of permanent impairment. The concept of "indefinitely" in s 38 relates to loss of capacity and the entitlement to weekly compensation. That meaning of "indefinitely" is not the same as "maximum medical improvement" and I reject the submission that the statutory meaning of the latter is relevant.
8. The meaning of "indefinitely" is not the same as "definitely". "Indefinitely" does not mean "permanent", although this was only indirectly suggested by the respondent when it submitted that it meant the same as "maximum medical improvement"."

1. The applicant claims weekly compensation pursuant to s 38 of the 1987 Act from

5 September 2025 ongoing in relation to the accepted psychological injury. 2. The applicant's evidence is that she is completely debilitated to return to work as a result of her deteriorated mental state and limitations which includes crippling anxiety, exhaustion, inability to concentrate and focus and lack of confidence. 3. Further, the applicant has given evidence that:

(a) in relation to the role of IT Administrator, she has no tertiary qualifications in computer science, she has no qualifications nor experience overseeing any IT systems or programs, she could not learn new skills quickly in her current psychological state and could not handle complex matters to oversee IT systems;

(b) in relation to the role of Executive Assistant, she would not be able to work in that role because she is still easily set off into tears by a raised voice or criticism and her attempt to work in such a role after ceasing to work for the respondent was unsuccessful because her anxiety was triggered by the smallest confrontation, she felt easily overwhelmed and does not hold the mental fortitude to hold down such a demanding job, and

(c) in relation to the role of Data Analyst, she does not hold qualifications in computer science, she has no experience in data analysis or IT systems and she is not psychologically stable enough to begin a new role without any foundational experience, and although she was initially excited to attempt such a role she would require training which is not provided in any event.

1. The applicant's credibility was not challenged.
2. I accept the applicant's evidence in relation to her qualifications, skills and work experience which has not been challenged.
3. The applicant's evidence that the has significant ongoing psychological symptoms and associated functional limitations is largely supported by the treating medical evidence.
4. In that regard, I note that a Certificate of Capacity certifies that the applicant had no current work capacity from 4 September 2025 to 30 November 2025 as a result of the accepted psychological injury.
5. Further, the applicant's treating psychologist, Dr Woodward, expressed the opinion that the applicant has no current capacity to return to work.
6. In addition, the applicant's treating psychiatrist, Dr Mustac, accepted that the applicant had enduring symptoms of anxiety disorder with agoraphobic features, whilst panic disorder was largely in remission.
7. The consultant occupational physician, Dr Farhan Shazad, also reported that the applicant continues to experience sleep disturbance, anxiety, fatigue and lacks motivation as a result of the accepted psychological injury.
8. On that basis, I accept that the applicant has ongoing psychological symptoms and associated functional limitations which include anxiety, inability to concentrate and being easily overwhelmed.
9. I accept the applicant's evidence, which has not been challenged, that her various attempts to engage in work subsequent to the accepted psychological injury were ultimately unsuccessful, at least significantly, because of her psychological condition.
10. Indeed, the treating medical evidence of Dr Woodward indicates that the unsuccessful attempts by the applicant to return to work following the accepted psychological injury, further exacerbated her psychological condition by her exposure to repeated reminders of the trauma she sustained in the accepted psychological injury.
11. Both the treating psychologist, Dr Woodward, and the treating psychiatrist, Dr Mustac, accepted that the accepted psychological injury was, at least partly, the cause of the applicant's ongoing psychological condition.
12. It appears that the opinion of consultant occupational physician, Dr Farhan Shazad that the applicant is fit to return to pre-injury work capacity appears to be based on his conclusion that she would not derive any further benefit from psychological treatment, that she does not have suicidal ideation nor panic attacks and that her ongoing incapacity is prolonged and is inconsistent with "The Health Benefits of Good Work". However I consider that it is significant that in his report, Dr Shazad did not explore nor explain his opinion in the context of the applicant's unsuccessful attempts to return to work subsequent to the accepted psychological injury and the evidence of the treating psychologist that such attempts to return to work further exacerbated her psychological condition by her exposure to repeated reminders of the trauma she sustained in the accepted psychological injury.
13. On the basis of his examination of the applicant in March 2025, independent medical expert, psychiatrist, Dr Sachie Fernando, reported that, whilst the applicant had some ongoing psychological symptoms, she was nevertheless maintaining reasonable functioning. Dr Fernando concluded that the work-related exacerbation of the applicant's pre-existing psychological condition had resolved and that her ongoing psychological symptoms were a continuation of her pre-existing psychological condition. Dr Fernando agreed with the opinion of Dr Shazad and expressed the opinion that the applicant has capacity to work around 24 hours per week (six hours per day for four hours) in pre-injury/suitable employment options, and to gradually increase her work hours to a pre-injury level within around three to four months.
14. Subsequently, on the basis of his examination of the applicant in July 2024, independent medical expert, consultant psychiatrist, Dr David Kumagaya, reported that the applicant had enduring severe symptoms of the accepted psychological injury and correlative psychosocial impairments. Further, Dr Kumagaya expressed the opinion that the applicant remains fully incapacitated for work as a result of the accepted injury, noting that her psychological condition appears to have remained largely stable with an ongoing burden of prominent global psychosocial impairments. Dr Kumagaya expressed the opinion that the applicant presents with a total vocational incapacity, which extends to the roles of administration officer/ general clerk, executive assistant, and data entry officer, noting that as a result of the accepted psychological injury, the applicant continues to experience prominent depressive and anxious symptoms, in addition to global psychosocial impairments, including in relation to self-care, interpersonal functioning, limited concentration capacity. Dr Kumagaya expressed the opinion that the applicant's prognosis is guarded, noting that the accepted psychological injury is well stabilised and is unlikely to change significantly in the next year with or without medical treatment. Dr Kumagaya assessed 22% WPI in respect of the accepted psychological injury.
15. In the context of the analysis that I have set out above and considering the evidence as a whole, I prefer and accept the evidence of Dr Kumagaya. I consider that Dr Kumagaya provided a well-reasoned and thorough analysis and a logical and likely explanation of the applicant's psychological condition and psychosocial impairments in the context of the accepted psychological injury. Further, Dr Kumagaya's opinion is consistent with the evidence of the applicant's treating medical practitioners, particularly Dr Woodward and Dr Mustac, who I consider would have a good clinical understanding of the applicant's enduring psychological symptoms and associated impairments arising from the accepted psychological injury.
16. On that basis, I do not accept that the applicant's ongoing psychological condition can be attributed only to lack of consistent psychological treatment and that, with appropriate future treatment, the applicant's psychological condition is likely to improve and not to continue indefinitely. Further, I do not accept that the accepted psychological injury has now resolved and that the applicant's ongoing psychological condition and limitations should be attributed to a pre-existing psychological condition, as opined by the independent medical expert, psychiatrist, Dr Sachie Fernando.
17. Firstly, the applicant's psychological condition has continued over a prolonged period of time.
18. Secondly, there is no evidence that any pre-existing psychological condition caused the applicant to have any significant functional impairments.
19. Thirdly, in any event, as I noted above, it appears to be clear from the treating medical evidence that her psychological condition deteriorated further in the context of her unsuccessful attempts to return to work following the accepted psychological injury. In particular, the applicant explained the effect of experiencing workplace behaviour similar to that which she experienced with the respondent and of her anxiety in having to deal with other people in those roles. I consider that is consistent with a causal link between her ongoing psychological condition and the accepted psychological injury.
20. Fourthly, I note that the applicant's treating psychologist, Dr Woodward, expressed the opinion that it is impossible to predict when the full effects of the accepted psychological injury will be resolved, noting that the symptoms are complex and require intensive psychological therapy in order to improve and that some psychological symptoms resulting from trauma experiences may not resolve. That is consistent with Dr Kumaga's opinion that the applicant's prognosis for a full recovery from the accepted psychological injury is guarded, noting that her psychological condition appears to have remained largely stable with an ongoing burden of prominent global psychosocial impairments.
21. Whilst, Arbitrator Harris, as he then was, in Roberts noted that the concept of "indefinitely" in s 38 of the 1987 Act relates to loss of capacity and entitlement to weekly compensation, and is not the same as "maximum medical improvement", it is nevertheless consistent with the applicant's case that Dr Kumagaya assessed 22% WPI in respect of the accepted psychological injury.
22. Considering the evidence as a whole and for all the reasons that I set out above, I am satisfied and find that the applicant had no current work capacity from 5 September 2025. Further, I find that the applicant is likely to continue indefinitely to have no current work capacity.
23. On that basis, I find that the requirements of s 38(2) of the 1987 Act are satisfied and that the applicant has an entitlement to weekly compensation on that basis.
24. The parties agreed that the applicant's indexed PIAWE for the purpose of calculating weekly compensation is:

(a) $2,300 from 5 September 2025, and

(b) $2,330 from 1 October 2025.

1. On that basis, I calculate the applicant's entitlement to weekly compensation in respect of the period from 5 September 2025 ongoing, pursuant to ss 33 and 38 of 1987 Act as follows:

1. In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

1. The Commission finds that, as a result of the accepted psychological injury:

(c) from 5 September 2025 ongoing, the applicant had no current work capacity, and

(d) the applicant is likely to continue indefinitely to have no current work capacity.

1. The respondent is to pay the applicant weekly payments of compensation pursuant to s 38(2) of the 1987 Act as follows:

(a) $1,840 per week from 5 September 2025 to 30 September 2025, and

(b) $1864 per week from 1 October 2025 ongoing.

1. The parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

[1] [2014] NSWWCCPD 55. The reasoning in Dewar was applied in Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34.