1. The parties attended a telephone conference before me, as a delegate of the President, on 27 November 2025.
2. The applicant was represented by Mr David King of counsel, instructed by Ms Caitlan Pham of Neville Hourn & Borg Legal. The respondent was represented by Mr Will Murphy from Bartier Perry Lawyers. A representative from the respondent's insurer, StateCover Mutual Limited, was also in attendance.
3. Despite my best endeavours to attempt to bring the parties to an agreeable resolution, the matter did not resolve.
4. On 27 November 2025 I issued a Direction calling for written submissions, initially in respect of the ALAD and subsequently the work capacity disputes.
5. On 1 December 2025 I issued a written decision in which I granted leave pursuant to r 67C of the Personal Injury Commission Rules 2021 (Commission's Rules) for the applicant to rely upon the ALAD lodged on 26 November 2025. The documents have been taken into account by me in making this Direction, and will be referred to where relevant.
6. In accordance with my Direction the parties lodged written submissions with respect to the work capacity dispute. A summary of the submissions is discussed below.

1. As confirmed in the Direction dated 27 November 2025, the parties agree that the applicant's pre-injury average weekly earnings (PIAWE) is $2,020 with 80% being the figure of $1,616.
2. The issue in dispute is whether the applicant is able to work in suitable employment for 20 hours per week in the roles identified by the respondent, being Information Officer, Appointment Setter, and Data Entry Operator, having regard to the meaning of that in s 32A of the 1987 Act.[2]

1. The following documents were in evidence before me and have been taken into account by me in making this Direction:

(a) Application for Expedited Assessment (Form 1) dated 29 October 2025, with attachments;

(b) Reply to Application for Expedited assessment (Form 1B) dated

7 November 2025, with attachments;

(c) Application to Lodge Additional Documents (ALAD) dated

26 November 2025, with attachments;

(d) written submissions of the respondent opposing the ALAD dated

27 November 2025;

(e) written submissions of the applicant dated 5 December 2025;

(f) written submissions of the respondent dated 17 December 2025, and

(g) written submissions in reply of the respondent dated 18 December 2025.

1. In summary, the applicant submitted that the work capacity decision should be "set aside in its entirety". The applicant submitted that he is only fit to work 11 hours per week, and the three identified roles are not suitable employment. It was submitted that preference should be given to the reports of Dr Vago and Mr Ziedni, being treating practitioners of the applicant. Reference was also made to the case of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 and DP Roche's consideration of the meaning of the term 'suitable employment' as set out in s 32A. The applicant submits that "the insurer has not provided evidence that the proposed roles would be suitable for [11 hours per week and] whether there are any realistic roles that could be performed in 2 x 5.5 hour days. The applicant is simply unemployable on that basis...".
2. The respondent submitted that that the physical requirements of the three identified roles (information officer, appointment setter and data entry operator) are within the applicant's capacity working 20 hours per week, based on the Compensation Assistance Services supplementary report dated 20 March 2025. It was argued that the applicant would be considered for employment in the three "low-key jobs" based on his skills, education, experience, and functional capacity.

1. The respondent has submitted that a Notice for Production was issued to the applicant on 7 November 2025. The applicant responded to the Notice for Production on 14 November 2025, objecting to the production of documents listed at items 7 and 8 within the Notice for Production. The respondent has requested that the delegate determine a dispute concerning non-compliance with the Notice for Production.
2. I am satisfied that I have the delegated authority to deal with the Notice for Production and to make findings about compliance with such where appropriate to do so.
3. In respect to the Notice for Production, the applicant produced relevant documents, including his financial records such as tax returns and bank statements.
4. However, the documents that were not produced and to which the respondent takes issue, concern job-seeking applications and copies of all holiday photographs that have been listed in the Notice for Production as being:

"(7) Copies of all letters, emails and other correspondence and documents, including your CV, which you have submitted to any prospective employers from 28 February 2024 to date, and copies of all letters, emails and other correspondence with any prospective employer in relation to the determination and outcome of any such employment application or applications from 28 February 2024 to date.

(8) Copies of all holiday photographs, whether retained on computer, mobile phone or other device, USBs or by way of printed copies, in respect of all holidays taken by you, either by yourself, with your partner, family members, friends and/or other persons, for the period 28 February 2024 to date, including holidays within NSW, interstate and/or outside of Australia."

1. The applicant has objected to the production of these documents. In my view, the above listed documents would appear to not have any apparent relevance to the current proceedings in the circumstances where the applicant has produced records of financial records for the period. Job applications, etc. are not determinative of work capacity. In respect of the holiday photographs, this request constitutes an impermissible fishing expedition. Therefore, I set aside items 7 and 8 of the Notice to Produce.

1. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) provides:

"When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction."

2. The President is to presume that an interim payment direction for weekly payments of compensation is warranted unless it appears to the President that, amongst other things, the claim concerned has minimal prospects of success (s 297(3)(a)).
3. A dispute concerning work capacity requires consideration of whether a worker has "current work capacity" or "no current work capacity."
4. Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of "current work capacity" and "no current work capacity" as follows:

"(1) An injured worker has "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.

(2) An injured worker has "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."

1. "Suitable employment" is defined under s 32A of the 1987 Act as "employment in work for which the worker is currently suited" having regard to the following:

(a) 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;

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

(c) 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;

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

(e) such other matters as the Workers Compensation Guidelines may specify.

1. The following factors are not relevant considerations for 'suitable employment':

(a) whether the work or the employment is available;

(b) whether the work or the employment is of a type or nature that is generally available in the employment market;

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

(d) the worker's place of residence.

1. In Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55 DP Roche considered the meaning of 'suitable employment' as set out in s 32A:

"Therefore, the determination of whether a worker is 'able to return to work in suitable employment' is not a totally theoretical or academic exercise and Mason P's reference to the 'eye of the needle' test may still be relevant in many cases ...

Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer's obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.

Thus, the task requires the identification of whether there are any 'real jobs' (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are 'available' (to the worker) or are 'of a type or nature that is generally available in the employment market'.

In determining if a worker is 'not able to return to work' in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in subs (a) of the definition"[3].

1. In this matter the issue in dispute is whether the applicant is capable of engaging in the suitable employment specified in the WCD (Information Officer, Appointment Setter and Data Entry Operator) for "16 - 20 hours" per week, having regard to:

(a) the medical information concerning capacity (s 32A(a)(i) of the 1987 Act), and

(b) the applicant's age, education, skills and work experience (s 32A(a)(ii) of the 1987 Act).

1. The applicant lodged a bundle of documents with Form 1. The documents included:

(a) applicant's statement dated 27 October 2025;

(b) Work Capacity Decision of the respondent dated 1 August 2025 (sent to applicant on 23 July 2025) with the following attachments:

(i) reports by Dr Modem dated 16 November 2024, 5 February 2025, and 20 May 2025;

(ii) reports by Compensation Assistance Services dated

30 November 2024, 27 February 2025 and 20 March 2025;

(iii) Certificates of Capacity dated 6 July 2024 - 26 June 2025;

(iv) referral letters by Dr Vago dated 15 July 2024 and

15 September 2024;

(v) reports by NovoPsych dated 25 July 2024;

(vi) Allied Health Recovery Request by Mr Zeidni dated 29 August 2024;

(vii) response to StateCover's questionnaire by Dr Vago dated

9 October 2024;

(viii) clinical notes of Marrickville Metro Medical Centre dated

29 October 2024;

(ix) Allied Health Recovery requests dated 2 November 2024

and 23 April 2025, and

(x) report of Dr Vago (undated);

(c) Resilia Psych Rehab Case Conference Agenda and Plan dated

28 October 2025;

(d) letter from Mr Ziedni regarding rehabilitation services dated

14 August 2025;

(e) letters from Dr Vago dated 16 August 2025 and 23 September 2025;

(f) Certificates of Capacity dated August 2025 - October 2025, and

(g) psychologist records of Mr Ziedni dated 21 October 2025.

1. I confirm that I have read and considered the content of each of the documents when making my findings.
2. The respondent relied upon a bundle of documents as part of its Form 1B Reply, majority of which were attached to the Form 1 (discussed above). However, attached to the Form 1B Reply were the following documents:

(a) clinical notes of Marrickville Metro Medical Centre dated 29 October 2024.

1. The ALAD dated 26 November 2025 contained the following document which has also been admitted into evidence:

Nature of incapacity in the medical information

1. In the NovoPsych assessment report administered by Mr Ziedni, treating psychologist, dated 25 July 2024 the applicant was assessed as "experiencing an overall level of disability in the 'severe range'". It was highlighted that the severity descriptor implies the applicant:

"...faces profound challenges in cognition and/or communication. Within this domain, this client exhibits significant impairments that severely impact their ability to understand, process, or communicate information effectively. They may struggle to comprehend information, make decisions independently, or engage in problem -solving tasks without substantial support. These challenges can limit their participation in work, social, and daily living activities, often necessitating intensive interventions to address their complex cognitive needs."[4]

1. Dr Modem, psychiatrist, provided an independent medical examination (via telehealth consultation on 11 November 2024) on behalf of the respondent and provided his report dated 16 November 2024, as well as supplementary reports dated

5 February 2025 and 20 May 2025. The doctor opined that the applicant's "current psychological condition supports a finding of partial incapacity for work, allowing him to perform modified or less demanding duties with limited hours in a low-stress setting".[5] It was reported that the applicant would "benefit from a role with less responsibility, reduced interpersonal conflict, and lower emotional strain."[6] In May 2025, Dr Modem reported that "a 20-hour work week provides a balance that allows [the applicant] to re-engage with the workforce while minimising the risk of psychological relapse."[7] 2. Certificates of Capacity cover the period from 6 July 2024 to 2 December 2025. The certificates show that following a period of total incapacity from September 2024 to December 2024; the applicant's capacity has gradually increased and he has most recently been certified fit for suitable duties working 5.5 hours per day, two days per week from 28 October 2025 to 2 December 2025.[8] 3. In the statement dated 27 October 2025, the applicant accepted he has been certified as having capacity to work 11 hours per week "and am still recovering from PTSD".[9] The applicant also submitted that "since the injury, [he has] experienced symptoms including anxiety, depression, insomnia, flashbacks, brain fog, and difficulties with motivation."[10] 4. Dr Vago, NTD, reported by letter dated 23 September 2025 that the applicant was unable to return to work for 20 hours per week with gradual increases.[11] 5. Furthermore Mr Ziedni, treating psychologist, reported on 25 November 2025 that the applicant had a current capacity to work 11 hours per week. Mr Ziedni opined that the applicant had "no capacity to resume work for 20 hours per week immediately".

Mr Ziedni reported that the applicant "maintains fear and hypervigilance, restlessness, increases in physical reactions of anxiety, negative anticipation of worst happening, difficulties sleeping, difficulties concentrating and rumination during the treatment sessions that apply exposure therapy..."[12] 6. In my view, the treating practitioners (NTD and Mr Ziedni) are the best placed medical practitioners to provide an opinion on the applicant's capacity for suitable employment. It seems to me that the NTD is aware of the applicant's increased symptoms and treatment recommendations from Mr Ziedni, and both the NTD and Mr Ziedni have maintained a consistent view on his capacity to work. The NTD appears to be supportive of the applicant returning to employment, albeit on a gradual basis. 7. In my view, the weight of the evidence (namely, the opinions of the NTD and

Mr Ziedni) supports that the applicant has the capacity to work in suitable employment for 5.5 hours per day, two days per week.

1. The other matter for consideration is whether the identified roles of Information Officer, Appointment Officer, and/or Data Entry Operator are suitable for the applicant having regard to his age, education, skills, and experience.

1. The Compensation Assistance Services (CAS) supplementary report dated

20 March 2025 confirmed that the Information Officer role encompassed,

"respond[ing] to personal, written and telephone inquiries and complaints about an organisation's goods and services, provide information and refer people to other sources. The duties identified in this role include:

• Answering inquiries about goods and services, and providing information about their availability, location, price and related issues.
• Responding to inquiries about problems and providing advice, information and assistance.
• Recording information about inquiries and complaints.
• Referring complex inquiries to team leaders or expert advisers.
• Issuing relevant forms, information kits and brochures to interested parties.
• Accessing and operating computer network systems and communication systems such as public address and paging systems.
• May refer inquiries to other sources."[13]

1. CAS reported that the Information Officer role required good attention to detail, sound verbal and communication skills, as well as basic computer skills. The applicant was considered to have the transferrable skills of "providing advice to internal and external customers, answering enquiries from customers and the general public, writing incident and first aid reports, general administration duties, handling sensitive information, and document creation." It was reported that the applicant's computer skills were "sufficient" for this role and that he was "observed to have good communication skills" throughout the vocational assessment interview. Employer contacts had advised that no previous experience was required and that "all training would be provided."[14] The labour market analysis component of the CAS supplementary report also confirmed that this role was available on a casual, part-time and full-time basis.[15]
2. It is worthy to note that Information Officer is the only identified role which has been approved by Dr Vago (NTD) on 28 October 2025, on the premise that the applicant is capable of working in this role for 5.5 hours per day, two days per week.[16]
3. The applicant submitted that it "would be highly ambitious" for him to undertake this role based on his symptoms that affect his ability to concentrate, cognitive difficulties and/or the brain fog which he experiences.[17]
4. However, based on the evidence before me, I find the applicant is capable of fulfilling the requirements of the role as an Information Officer. The vocational evidence has identified that the applicant has transferrable skills to do the role, including communication skills and basic computer skills. Furthermore, the NTD has approved this role on the basis the applicant works 5.5 hours per day, two days per week.
5. Moreover, the vocational evidence from CAS supports that the role of Information Officer is a 'real job' that exists in the labour market. I do not think that, as occurred in Dewar, the role identified is purely hypothetical or theoretical in nature. The evidence from CAS indicates that the role is accommodating of the applicant's restrictions and hours of work, with the provision of on-the-job training. The applicant's submission, that "it is not possible to check the veracity nor accuracy",[18] is not supported by the vocational evidence.
6. On the basis of the evidence and submissions before me, I am satisfied that the role of Information Officer is suitable employment for the applicant, having regard to his current capacity (5.5 hours per day, two days per week) and the identified requirements of the role.
7. Based on the CAS labour market report dated 27 February 2025, the current earning capacity for an Information Officer (ANZCO Code - 541211) is $1,299.35 gross per week (38 hours),[19] which equates to $34.19 per hour. I note this figure has not been challenged by the applicant.

1. In the CAS supplementary report dated 20 March 2025, the duties of an Appointment Setter were reported as including:
   • setting appointments for representatives, and
   • answering customer telephone calls as well as internet and email inquiries about goods and services and promote the goods and services of the business.[20]
2. It was also noted that the "mental skills necessary include a sound level of recording, organisation, and communication skills". CAS made reference to the applicant having "transferable experience from working in various ranger positions with various Councils, in an acting senior position, and as an Acting Foreshore Coordinator."[21]
3. However, whilst the applicant may be deemed to have some transferable skills from past experience; in my view the applicant's current symptoms and capacity to undertake work tasks do not appear to correlate with the requirements of this role when considering the need to have a sound level of organisation and communication skills with various stakeholders and being able to 'promote the goods and services of the business'.
4. In relation to the role of Appointment Setter, the applicant submitted:

"the duties required seem significantly vague and, for instance, there are no examples of the kinds of discussions that will need to be had with external stakeholders, details regarding the coordination of staff and assigning staff duties, nor the potential conflict or multitasking that may be found or otherwise occur in the role. There is simply insufficient material to determine whether the role is suitable and the presumptions of fact are problematic."[22]

1. In my view, the role description provided by CAS is ambiguous, and the reliance on the applicant's previous experience in senior positions leads me to consider that the actual requirements of this role are beyond the stated "routine role that does not involve high levels of concentration, resolving conflict situations and/or multitasking."[23]
2. Furthermore, the fact that this identified role has not been accepted by the NTD causes me to find that it is not a suitable role for the applicant.
3. Therefore, in my view, the weight of the evidence indicates the applicant does not have the physical capabilities to undertake employment as an Appointment Setter.
4. As such, I am not satisfied that the role of Appointment Setter is 'suitable employment' for the applicant, having regard to s 32A of the 1987 Act and the nature of the applicant's incapacity.

1. CAS reported in the supplementary report dated 20 March 2025, that the duties of a Data Entry Operator included:

"● Enters data and codes required to process information

• Retrieves, confirms and updates data in storage and keeps records of data input
• Takes verbatim records of proceedings in rapid shorthand using computerised equipment and shorthand-writing machines
• Transcribes information recorded."[24]

1. There is no evidence currently before me, nor has the respondent directed me in its submissions to any evidence that, supports a finding the applicant has the capability to take verbatim records of proceedings in rapid shorthand, nor that he is able to transcribe information recorded.
2. Furthermore, the applicant submitted that such a role "would require a high degree of concentration and it would appear clear that the applicant does not demonstrate that capacity."[25]
3. I am not satisfied there is sufficient evidence available to support that the applicant has the concentration, skills and capability to undertake the inherent skills required to perform this role.
4. Moreover, the fact that this identified role has not been accepted by the NTD raises concerns as to its suitability for the applicant.
5. Based on my above discussion, the weight of the evidence does not support that the applicant is capable of undertaking employment as a Data Entry Operator.
6. Accordingly, I am not satisfied that the role of Data Entry Officer is 'suitable employment' for the applicant, having regard to s 32A of the 1987 Act and the nature of the applicant's incapacity.

1. For the reasons discussed above, the work capacity decision dated 1 August 2025 is set aside.
2. The applicant can work in suitable employment as an Information Officer working 11 hours per week, earning $34.19 per hour (ability to earn: $376.09 per week).
3. The respondent is to pay the applicant weekly benefits compensation at the rate of $1,239.91 per week pursuant to s 37 of the 1987 Act, from 23 January 2025 and continuing, to be indexed from time to time in accordance with the applicable legislation.

[1] Application for Expedited assessment, pp 25 - 30.

[2] Direction dated 27 November 2025, item 2.

[3] Dewar at [60] and [63]-[64].

[12] ALAD - Report of Mr Ziedni dated 25 November 2025 , p1.

[17] Applicant's written submissions dated 5 December 2025, p 4.

[18] Applicant's written submissions dated 5 December 2025, p 5.

[22] Applicant's written submissions dated 5 December 2025, p 7.

[25] Applicant's submissions dated 5 December 2025, p 7.