1. In the WCD the respondent notified the applicant that it was of the view that he had a current capacity to work 21 hours per week (7 hours per day, 3 days per week) in suitable employment as a 'Private Investigator'. The respondent stated the applicant could earn up to $1,050.00 per week in this suitable employment, and as a result, his entitlement to weekly benefits compensation was to be reduced to $22.00 per week. The WCD was to come into effect on 28 November 2025.

1. On 14 November 2025 the applicant lodged an Application for Expedited Assessment with the Personal Injury Commission (Commission) challenging the WCD. The applicant seeks an order that the WCD be set aside, and that he be paid weekly benefits compensation from 14 November 2025 to date and continuing pursuant to section 37 of the 1987 Act.

1. The parties attended a telephone conference before me, as a delegate of the President, on 9 December 2025. The applicant was represented by Mr Carmine Santone from Santone Lawyers. The respondent was represented by Mr Shiraz Biscevic from Turks Legal. A representative from the insurer, Employers Mutual NSW Limited, was also in attendance.

1. During the conciliation phase the applicant requested that a Certificate of Capacity dated 8 December 2025 be admitted to the proceedings. The respondent did not object to the admission of the late document, and leave was granted to lodge the Certificate of Capacity. An Application to Lodge Additional Documents was lodged with the Commission on 11 December 2025 attaching the Certificate of Capacity.

1. I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and have been considered by me in making this direction:

(a) Application for Expedited Assessment dated 14 November 2025, and attachments (the Application);

(b) Reply to Application for Expedited Assessment dated 2 December 2025, and attachments (the Reply); and

(c) Application to Lodge Additional Documents dated 11 December 2025, and attachments.

1. The issue for determination is whether the applicant is able to return to work in suitable employment for 21 hours per week in the role of Private Investigator identified by the respondent in the WCD.

1. There is no dispute between the parties that the applicant is not able to return to his pre-injury employment.

1. On 19 August 2025, the respondent issued a notice[1] under section 78 of the 1998 Act advising it had made a decision with respect to the applicant's capacity for work.
2. In the WCD the respondent advised it was of the view that the applicant had a current capacity to work 7 hours per day, 3 days per week based upon a Certificate of Capacity of Dr Jeremy Allen dated 15 July 2025. The respondent advised that the role of Private Investigator was suitable employment based on a vocational assessment report of Pinnacle Rehab dated 6 November 2024. It was noted that Dr Allen had provided approval for the role on 11 November 2024.
3. The respondent further advised that a labour market analysis completed by Pinnacle Rehab dated 7 August 2025 confirmed that the role of Private Investigator existed on the open labour market and was available for 7 hours per day, 3 days per week at a total of 21 hours per week. The respondent indicated that employer contact confirmed the applicant possessed the relevant skills, functional capacity and experience to perform the role and he would be expected to earn $50.00 per hour or $1,050.00 per week, based on a 21 hours per week.
4. The WCD stated, as a result, the applicant's entitlement to weekly benefits compensation under section 37 of the 1987 Act would be reduced to $22.00 per week from 28 November 2025.
5. On 31 October 2025 the applicant requested a review of the WCD. In support of the request for review the applicant provided and statement dated 9 September 2025, reports from Dr Aman Suman, Independent Medical Examiner (IME) dated 14 July 2025 and 26 October 2025 and a vocational report of Mr Dominic Manca dated 3 October 2025.
6. On 14 November 2025 the respondent wrote to the applicant confirming that the material provided had been reviewed and the WCD was maintained.

1. The applicant provided a statement dated 24 March 2025[2] in which he said the following:

(a) Prior to being employed by the respondent he worked as a miner from 2002 until 2016. He ceased working as a miner to care for his mother and pursued training as a private investigator. He worked casual roles during the time he was caring for his mother.

(b) In June 2023 he commenced work for the respondent as a Staff Supervisor. In October 2023 he was promoted to Operations Manager. He ceased working for the respondent on 26 August 2024 due to bullying and harassment he experienced in the course of his employment. His employment was terminated on 11 March 2025.

(c) He was diagnosed with major depressive disorder and was undergoing psychological treatment and taking medication. He was experiencing a lack of motivation and enthusiasm, he struggled with concentration, found it difficult leave the house and to socialise and he was suffering from broken sleep.

(d) He was not employed however spent a lot of time trying to start up his own private investigation business. He would usually work on his business a few times a week.

1. The applicant provided a further statement dated 9 September 2025[3] in which he said the following:

(a) His general practitioner, Dr Allen, had assessed his current capacity at 7 hours a day, 3 days a week however he did not agree with this assessment. Dr Allen increased his capacity despite him saying he did not agree with it. He believed he could work 4-5 hours a day, 4 days a week at best.

(b) His psychological injury is a large barrier to returning to work. He continued to experience self-doubt and motivation issues. He did not feel he would be able to perform the job options outlined by the insurer.

(c) He is qualified to be a private investigator and obtained his licence in 2018. However, he does not consider he would be able to undertake this role for the following reasons:

(i) He finds it very difficult to predict his mood or attitude from day to day and suffers from a significant lack of motivation. He would be concerned about being inconsistent.

(ii) He struggles with socialising and talking to people and this would be a barrier in the role of private investigator.

(iii) His concentration levels have been drastically affected, and he would not have the required level of attention to detail or be able to think on his toes.

(iv) He would struggle managing his feelings of anxiety and depression as well as his self-doubt and lack of confidence.

(v) He suffers from sleep issues which would affect his ability to work.

(d) He attempted to complete some private investigator jobs however setting up a business is difficult and expensive and it takes years to establish yourself in the field of work. He does not consider he has the energy to do this.

(e) He has discussed working in the heavy earth moving sector with the rehabilitation coordinator however he will need to obtain the relevant civil construction tickets before he can pursue a role in this field.

(f) He paused his psychological treatment in June 2025 to see how he would manage however he has noticed a deterioration in his condition. He has been approved for another ten counselling sessions and Dr Allen has indicated he will provide a referral to a psychiatrist for further evaluation.

1. On 2 September 2024 Dr Allen referred the applicant to a psychologist for treatment. The applicant attended an initial assessment with Dr Klaire Wallace, Clinical Psychologist. Dr Wallace provided a report dated 9 September 2024[4] in which she confirmed that the applicant would benefit from and was willing to engage in, six sessions of "evidence based psychological therapy based on the principles of Cognitive Behavioural Therapy (CBT)".[5]

1. On 18 September 2024 the applicant attended an independent medical examination with Dr James Jewell, Psychiatrist, who provided a report dated 19 September 2024[6]. Dr Jewell reported that the applicant was experiencing social isolation, sleep disturbances, mental fatigue, a loss of confidence in his job performance, stress and frustration. Dr Jewell considered that recent workplace stressors had led to the development of an adjustment disorder as well as significant cognitive distortions, particularly related to self-confidence and work performance.

1. Dr Jewell considered that these cognitive distortions needed to be addressed before he considered seeking new employment. Dr Jewell anticipated that the applicant would require up to two months of CBT to correct these thought patterns and restore his confidence before he would be ready for new employment.

1. Dr Jewell opined that it was reasonable to suggest he could begin exploring job opportunities in approximately one month however full return to suitable duties including pre-injury duties in a new role should ideally occur after at least two months of CBT.

1. On 20 January 2025 Dr Wallace provided an updated psychological report[7]. On page 5 of the report Dr Wallace recorded the following:

"...Mr. Logusz's preference for future work is to establish his own business, as a Private Investigator (PI). With prior skills and experience in this field, and holding the relevant licences to practice, he feels that the option of self-employment as a PI, will provide the best pathway to a return to productive and satisfactory work. With this goal in mind, he has been reviewing his resources and contacts, with the view to being "ready to go" by the end of January 2025.

Mr. Logusz's plan to pursue self-employment as a PI, appears appropriate and achievable in the long term, especially given his background in this field, the absence of both individuals and workplace dynamics that led to the psychological injury in his pre-injury role, and the fact that he will have some flexibility in how best to manage his time...

... At review, it was concluded that Mr. Logusz has some capacity to work, with the restriction that he commence work shifts that are short in length, and are scheduled for alternate days (i.e. 3 x 3hr shifts / week). Provided that he is able to cope with allocated tasks with these limitations in place, hours and duties can be increased at future review sessions.''

1. Dr Wallace recommended that the applicant continue psychological treatment that would "consist of the continuing use of CBT-based approaches that have proved helpful to date"[8].

1. On 17 June 2025 Dr Wallace provided a discharge report[9] summarising the applicant's psychological treatment. On page 4 of the report Dr Wallace provided the following opinion with respect to the applicant's occupational function:

"His occupational goal remains a return to work as a self-employed Private Investigator, with ongoing symptoms the primary barrier to progress. He is encouraged to commence tasks that align with his capacity, in this role, and may benefit from participating in suitable short term training, to build skills and contacts, if funding were available. As previously, it is recommended that Mr. Logusz pace himself appropriately when starting a new role, as he remains vulnerable to symptom exacerbation and / or relapse, especially if he attempts to complete too many hours and duties, too quickly.

At review, it was concluded that capacity may be increased from 15 to 20 hours / week, provided that he is able to cope with allocated tasks and coping, mood, and concentration are regularly monitored prior to further increases in hours or duties."

1. Dr Wallace concluded that, as at discharge, the applicant had experienced improvements in sleep and mood and greater confidence in managing symptoms of anxiety and stress. Dr Wallace reported that the applicant had not yet commenced in a new role however was "assessed as having capacity to perform suitable duties, 20 hours / week, at discharge".[10]

1. On 2 July 2025 the applicant attended a telehealth appointment with Dr Jewell who provided an updated report dated 2 July 2025[11]. Dr Jewell considered that the applicant had made notable progress managing his psychological condition. The applicant reported significant improvement in his mental health with better engagement and mood however he acknowledged he had not fully recovered yet. On page 2 of his report Dr Jewell reported the following:

"Mr. Logusz has completed 20 psychology sessions and paused treatment six weeks ago to establish a new baseline, demonstrating improved engagement and mental health stability. However, his recovery is complicated by poor physical health, including a recent hospitalization for a septic foot infection, which impacts his overall functioning. He is pursuing a private investigator role and establishing a business conducting workplace investigations, indicating a proactive approach to recovery. His current work capacity remains at 15 hours per week, with plans to increase to 4 hours daily while incorporating gym attendance. Ongoing psychological symptoms and physical health challenges suggest that his condition is not fully resolved, necessitating further psychiatric intervention."

1. Dr Jewel considered the applicant presented with an unresolved psychological injury best diagnosed as an adjustment disorder with mixed anxiety and depressed mood. He noted the applicant's current 15 hour per week work capacity was limited by both psychological symptoms and poor physical health.

1. Dr Jewell recommended a referral to a psychiatrist for medication optimisation with an expected period of three months to achieve maximum medical improvement and vocational rehabilitation to support the applicant's business venture and private investigator role.

1. Dr Jewell opined that the applicant "could achieve full capacity in a suitable role, such as a private investigator or his new business, within 3-6 months".[12] On page 6 of his report Dr Jewell reported the following:

"Does Franki have full capacity in a private investigator role? If not, how many hours per day and how many days per week can Franki work in a private investigator role?

Franki does not have full capacity for a private investigator role, currently limited to 4 hours per day, 4 days per week, as he plans to increase from his current 15-hour weekly capacity while incorporating gym attendance.

Is Franki's current work capacity being impacted by his non-compensable physical injury or is his current capacity truly based on his psychological injury?

Franki's current work capacity is impacted by both his non-compensable physical health issues (recent sepsis and diabetes complications) and his psychological injury, with the relative contribution of each unclear due to their combined effect on his fatigue and functioning."

1. On 14 July 2025 the applicant attended an independent medical examination with Dr Aman Suman, Forensic Psychiatrist, who provided a report dated 14 July 2025[13]. Dr Suman recorded that the applicant stated he would like to return to work as a workplace investigator. The applicant reported that he had stopped psychological therapy approximately three weeks prior as he felt he had the benefit of therapy and did not want to continue with it.

1. On page 4 of his report Dr Suman reported the following with respect to the applicant's presentation over the last six months:

"Mr Logusz's description indicates he continues to struggle with his energy and motivation. He has experienced a loss of confidence and tends to doubt himself. His recent presentation indicates a slight improvement in his mental health and functioning. He remains hopeful about going back to some form of work."

1. Dr Suman opined that the applicant's recent presentation indicated he had responded well to psychological therapy and psychotropic treatment with an improvement in his functioning and general wellbeing. Dr Suman reported that the applicant's recent presentation indicated he "may be able to manage working 20 hours per week as a workplace investigator".[14]

1. Considering the progress since the end of 2024 Dr Suman found that the applicant had a good recovery and return to work prognosis and was of the opinion that he would experience further improvement in his mental health and work capacity.

1. On 7 August 2025 the applicant attended a review with Dr Ian Smith, Injury Management Consultant, who provided a report dated 7 August 2025. Dr Smith reported that the applicant was in the process of establishing his own business and regularly spent a couple of hours on this each morning.

1. On page 3 of his report Dr Smith recorded the following:

"He agrees with the return to work goal of private investigator...

... He feels he could do 21 hours per week as a private investigator but to enable him to progress beyond this, he feels that he would need to improve in terms of mood and sleep and confidence. His aim is to get back to full-time work."

1. Dr Smith concluded that the applicant continued to have symptoms of adjustment disorder with mixed anxiety and depression however "his current certificate for three days per week is a reasonable reflection of work capacity" and there was no reason why with return to work and time that he should not recover.

1. On 26 October 2025 Dr Suman provided a supplementary report[15]. Dr Suman did not re-examine the applicant and provided an updated opinion on the basis of a further statement from the applicant dated 9 September 2025, reports of Dr Jewell dated 19 September 2024 and 2 July 2025, the WCD dated 19 August 2025, the Vocational Assessment Report and Labour Market Analysis of Pinnacle Rehab dated 15 November 2024 and 7 August 2025 and the Vocational Assessment Report of Mr Dominic Manca dated 3 October 2025.

1. Dr Suman concluded that, based on the documentation provided, it was evident that the applicant continued to experience fluctuating mental health, and he was now unsure about the applicant's recovery and return to work prognosis. Dr Suman considered the applicant would benefit from ongoing psychological therapy and psychotropic medication review which may improve his diagnosis.

1. Dr Suman did not consider that the applicant would be able to manage any of the roles suggested in the vocational report dated 15 November 2024 and he agreed with the assessment and recommendations made by Mr Manca in his report dated 3 October 2025. Dr Suman indicated that the applicant would be better suited to participating in rehabilitation following further improvement in his mental health, as suggested by Dr Jewell.

1. Dr Suman opined that the applicant's future work capacity and ability to take on work commitments would be defined by his response to ongoing psychological input over the next 6-12 months.

1. Certificates of Capacity issued by Dr Jeremy Allen[16] from 27 August 2024 to 8 October 2025 indicate the applicant's capacity has gradually increased over time.

1. On 23 January 2025 Dr Allen issued a Certificate increasing the applicant's capacity for work to from no current capacity for any work to capacity for some type of work 3 hours per day, 2 days per week with no restrictions.

1. On 19 March 2025 Dr Allen issued a Certificate increasing the applicant's capacity to 10 hours per week over 2 days. Dr Allen included under 'factors affecting recovery':

"...suggest not for return to previous employer due to psychological nature of claim and a return to previous management structure would severely impact his mental health and cause regression of symptoms."

1. On 8 May 2025 Dr Allen issued a Certificate increasing the applicant's capacity to 15 hours per week over 3 days.

1. On 15 July 2025 Dr Allen issued a Certificate increasing the applicant's capacity to 7 hours per day, 3 days per week.

1. On 8 October 2025 Dr Allen issued a Certificate increasing the applicant's capacity to 8 hours per day, 3 days per week.

1. On 8 December 2025 Dr Allen issued a Certificate[17] downgrading the applicant's capacity to 5 hours per day, 3 days per week. Dr Allen provided no explanation as to why the applicant's capacity had reduced however added "now please consider RTW to include civil earthworks".

1. Clinical records from Dr Allen from the time of the injury until 2 July 2025 provide a history of the applicant's condition improving and increasing his capacity for work. No clinical records were provided for the period after 2 July 2025. Dr Allen made the following relevant entries prior to the WCD:

managing to do some work on potential other business ideas"

...has been ok for RTW 15hrs/week to try to find work as private investigator"

1. The respondent relied upon a vocational assessment report from Pinnacle Rehab dated 15 November 2024[18]. The workplace rehabilitation provider details were listed as Mr Thomas Wade, Rehabilitation Consultant, with the following qualifications: B. SocSc, B. Psych (Hons), B.JusticeStud (policing) and B.CrimJustice (Hons). At the time the report was obtained the applicant was certified as having no capacity for work.

1. The report recorded the history of the applicant's injury and his current medical status. The applicant reported cognitive impairment in the area of concentration and focus and nil impact in the following areas: comprehension, short term memory, emotional regulation, sequencing, ability to multitask, ability to learn new material, ability to retain information and ability to problem solve.

1. The report identified transferable skills that included mining skills, communication and interpersonal skills, administrative and computer skills and supervision, management and leadership skills.

1. Vocational options identified in the report were Private Investigator, Transport Operations Inspector and Trolley Collector. The report noted that the applicant had the existing skills experience, licences and qualifications to undertake these vocational options.

1. On 6 November 2024 Mr Thomas sent Dr Allen a Vocational Options - Medical Review/Approval form. Mr Thomas requested that Dr Allen review and complete the form for the identified job options of Private Investigator, Transport Operations Inspector and Trolley Collector.

1. On 11 November 2025 Dr Allen provided approval for the role of Private Investigator only.

1. The respondent obtained a labour market analysis report from Pinnacle Rehab dated 7 August 2025[19]. The report noted that the applicant's capacity was now 7 hours per day, 3 days per week. The report confirmed the role of Private Investigator (ANZSCO 442214/OSCA 452234) as the vocational goal identified in the vocational assessment dated 15 November 2024 and that the role had been approved by Dr Allen on 11 November 2024.

1. The typical tasks for the role were listed as follows: investigates shoplifting, theft, dishonesty or other undesirable conduct and makes inquiries concerning property and seeks, obtains or supplies information pertaining to the personal character, financial position, occupation or whereabouts of any person.

1. The cognitive demands of the role were listed as: high level of communication, problem-solving, interviewing, record-keeping and analysis.

1. The report recorded that telephone interviews were conducted with prospective employers. The employer contact information is summarised as follows:

(a) Virtual Intelligence - Factual Investigator - $50.00 per hour.

Usual duties/tasks required: Gathering and analysing evidence to determine the facts of insurance claims, interviewing claimants, witnesses and other relevant parties to obtain detailed statements, collaborating with other team members to ensure a comprehensive investigation process, preparing detailed reports summarising your findings, providing expert testimony in legal proceedings when required and staying up to date with relevant legislation, regulations and industry best practices.

Outcome of discussion with employer: The employer confirmed the applicant would be a suitable candidate for the role given his qualifications, previous experience and transferable skills such as factual investigations, report writing, accident claim investigation and interviewing. All employees work under an ABN and can make their own hours confirming they can accommodate the applicant's current capacity of 7 hours per day, 3 days per week.

(b) Quantumcorp - Factual Investigator - $45.00 per hour.

Usual duties/tasks required: Reviewing and analysing case documentation, arranging and conducting professional interviews with the various relevant parties, either in person, or via other suitable means, preparing typed professional statements and/or conducting audio recorded interviews, inspecting, examining, photographing and videotaping incident/accident scenes, obtaining and analysing relevant documentation, preparing factually accurate, professionally written reports and adhering to stringent timeframes

Outcome of discussion with employer: The employer confirmed the applicant would be a suitable candidate for the role given his qualifications, previous experience and transferable skills. Applicants are required to work a minimum of 20 hours per week, and the employer is open to flexibility around selected hours and days based on the candidates' preferences.

(c) The Procare Group - CTP Investigator - $37.00 per hour.

Usual duties/tasks required: Attend various locations, predominantly within Sydney and a proportion of work across NSW, interview appropriate key parties taking statements, collate relevant evidence to produce detailed and accurate reports in a timely manner, maintain effective and appropriate communication with our investigations support team and other relevant parties and prepare and draft factual reports.

Outcome of discussion with employer: The employer confirmed the applicant would be a suitable candidate for the role given his qualifications, previous experience and transferable skills. The role offered is casual and the applicant is able to work within his current restricted hours.

1. The suitability statement summarised that on review of the labour market information, advertised vacancies and prospective employer feedback regarding the applicant's education, transferable skills, experience and cognitive capacity, it was determined that he would be considered a suitable candidate for employment in the role of a Private Investigator.

1. The applicant obtained a medico-legal vocational assessment report from Mr Dominic Manca, Rehabilitation Counsellor, dated 13 September 2025[20]. Mr Manca listed his qualifications as: BA Hlth Sci (Rehab Couns). At the time the report was obtained the applicant was certified as having capacity for 7.5 hours per day, 3 days per week.

1. Mr Manca did not agree that the role of Private Investigator would amount to suitable employment as the position "involves end-to-end investigations posing multiple psychosocial hazards with high risks of re-injury, exceeding the limitations noted by Dr Suman and Dr Jewell (minimal social interaction and responsibility)"[21]. Mr Manca reported that the applicant was now working to a new return to work goal of civil machinery operator.

1. On page 5 of the report, Mr Manca described the applicants 'current status' as follows:

"His symptoms have improved modestly. He feels significant amounts of self-doubt, low self-esteem, and low confidence. He is fearful of workplace interactions. He is trying to get leads as a self-employed private investigator taking statements but has trouble remaining focused on networking and marketing and presenting professionally during the negotiation process of procuring work."

1. Mr Manca listed the applicant's psychological symptoms including poor concentration, short term memory difficulties, low energy, insomnia causing fatigue, reduced social interactions and low mood. The applicant reported that he felt taking statements as an investigator is 'easy' however he doubted his ability to keep it together with a client and disagreed that he could withstand a 7 hour day. Mr Manca however also reported that the applicant had identified a workplace investigations course to help prepare for private investigator self-employment that had been funded by the respondent and completed a week prior to Mr Manca's assessment.

1. Mr Manca opined that many of the transferrable skills in the report by Mr Thomas were inaccurate as the applicant's psychological condition affected his ability to utilise those skills. Mr Manca considered that investigator skills, communication skills and supervision, management and leadership skills were retained only at a low to moderate level due to his ongoing symptoms.

1. With respect to the role of Private Investigator Mr Manca opined that the applicant's limited concentration, social skills, fatigue, poor trust in others and poor emotional regulation restrict him from being able to meet the demands of the role which include a high level of concentration, focus, verbal communications, the ability to work with clients one-on-one, organising complex legal documents and executing dynamic tasks.

"...his symptoms restrict his ability to meet the psychosocial demands of the work including social interaction and continuous effort. There are risks of re-injury from focusing on an interview for several hours, and dynamic integrative tasks such as preparing comprehensive investigation reports where multiple statements and facts are integrated (i.e. end-to-end investigations)"

1. The respondent obtained an online investigation report from Quantumcorp dated 25 September 2025. The report confirmed that the applicant has an active Australian Business Number with the most recent business name, NSW/ACT Investigation Services, registered on 30 March 2024.

1. Both parties made oral submissions which were recorded.
2. Those submissions are not repeated in full but have been considered and will be referred to where relevant.
3. I have summarised the parties' submissions below.

1. The applicant submitted that he was a highly motivated person who always had capacity on his certificates, he had attempted to return to work as a Private Investigator however that had failed, and he had now pivoted to the role of civil machinery operator.

1. The applicant submitted that the symptoms he experienced, which are agreed upon by all of the doctors, prevent him from meeting the requirements of the role of private investigator.

1. The applicant argued that the respondent's case is based on a box ticked by the applicant's treating doctor and there has been no analysis of the actual role of private investigator. The applicant further argued that when you investigate the tasks required, his symptoms prevent him from undertaking those tasks.

1. The applicant submitted that he is now pursuing the return to work goal of civil machinery operator as he had no success trying to set up self-employment as a private investigator due to depression causing fatigue, low energy, self-doubt, poor attitude, motivation, poor interpersonal skills and the reasons he hasn't been able to get his own business going are the same reasons he doesn't have the skill to do the role of private investigator as an employee.

1. The applicant submitted that he was not sure why Dr Allen had increased his hours despite him saying that he did not feel it was right. He submitted that despite stating that he felt he could work 20hrs per week this was not his actual capacity as he continued to have issues with motivation, socialising, concentration and self-doubt and confidence, as well as sleep anxiety and fatigue.

1. The applicant argued that he had not received the treatment recommended by Dr Jewell to enable him to return to work. The applicant argued that Dr Jewell had recommended CBT therapy however the reports of Dr Wallace did not mention CBT and as such he had received only standard therapy not CBT.

1. The applicant noted the following evidence in support of his inability to undertake the role of Private Investigator:

(a) The updated Certificate of Capacity from Dr Allen dated 8 December 2025 included a reference to the applicant's new return to work goal of civil earthworks operator.

(b) Dr Suman in his report dated 26 October 2025 noted he would not be able to manage any of the roles identified and agreed with Mr Manca's assessment that the applicant should only participate in rehabilitation once his mental health had improved. Dr Suman agreed with Dr Jewell's clinical assessment and treatment recommendations and that the applicant would benefit from further psychotherapeutic input before engaging in rehabilitation.

(c) Mr Manca, in his report dated 3 October 2025, considered that the role involved end to end investigations posing multiple psychosocial hazards with high risks of re-injury exceeding limitations noted by Dr Suman and Dr Jewell i.e. minimal social interaction and responsibility. Mr Manca recommended an updated assessment after the applicant obtained machinery operation licences, engaged in further therapy recommended by Dr Jewell and completed a work trial. Mr Manca noted he may be able to take a short rudimentary factual statement, but he falls short of the full requirements of the role

(d) Dr Jewell in his report dated 19 September 2024 noted that the applicant required further intervention to address significant cognitive distortions before seeking new employment. Dr Jewell opined this may take up to two months of CBT which was essential to correct the through patterns and restore his confidence. In his report dated 2 July 2025, Dr Jewell reported no real change in his condition, ongoing psychosocial symptoms and that his that his condition was not fully resolved. Dr Jewell considered the applicant required 3 to 6 months of psychiatric intervention and vocational support before suitable employment could be considered.

(e) Dr Wallace in her report dated 17 June 2025 reported issues with poor concentration, short term memory difficulties, low mood, insomnia and reduced social interactions. The report indicated that he was still suffering from many of the symptoms he had when he commenced treatment. Dr Wallace noted that his return to work goal remained to work as a private investigator, and ongoing symptoms were the main barrier.

(f) Dr Smith in his report dated 7 August 2025 recorded he was not undertaking any treatment, he was motivated to return to work as soon as possible however he had no knowledge of how his capacity was being determined.

(g) The reports from Pinnacle Rehab relied on by the respondent were 12 months old and the Vocational Options - Medical Review/Approval form provided to Dr Allen by Pinnacle Rehab provided only a very short summary of what the role of private investigator involved and did not detail specific tasks such as taking statement, drafting documents and working with others. The clinical notes entry from Dr Allen on 11 November 2024, when the form was signed, indicate that the only discussion he had with the applicant was that he was keen to do the role of private investigator and no further explanation of how he could do the role.

(h) The clinical notes of Dr Allen from 11 November 2024 to 5 June 2025 demonstrate that he continued to struggle with his mental health and that there was no real change in his condition throughout that period. Attendance at a gym and referral to a psychiatrist were recommended but had not occurred.

1. The applicant submitted that the report of Mr Manca dated 3 October 2025 noted the following factors affecting his ability to perform the role of private investigator:

(a) He continued to suffer from significant amounts of self-doubt, low self-esteem, low confidence and was fearful of workplace interactions.

(b) He was trying to get leads as a self-employed private investigator however had trouble remaining focused on networking and presenting professionally during the negotiation process of procuring work.

(c) There were deficits in his ability to meet the skills required for the role including research skills, analytical skills and attention to detail as a result of his reduced concentration, focus and low energy.

(d) He had issues with trust, communication skills, reduced interpersonal effectiveness, emotional regulation and trusting superiors and subordinates.

(e) He is unable to sustain continuous effort due to his fatigability.

1. The applicant submitted that the basis of their case was that he had not received the required treatment by way of ongoing CBT therapy, consultation with a psychiatrist and a gym program and as a result he continued to experience psychological symptoms that prevented him from being able to undertake the role of a private investigator.

1. The respondent submitted that while there may be a requirement for the applicant to undertake further treatment to improve his condition, the dispute before the Commission was not the applicant's injury, diagnosis or ongoing treatment needs, it was a dispute with respect to his capacity.

1. The respondent argued that the WCD made a determination with respect to the applicant's capacity to work in the role of a private investigator in consultation with medical providers and IMEs and with reference to the relevant legislative tests concerning suitable employment.

1. The respondent submitted that a change in the applicant's return to work goal is not evidence of whether the WCD was soundly made or not. The respondent argued that it is possible for the role of private investigator to be suitable employment even though the applicant had since chosen to pursue a different return to work goal. The respondent submitted that the fact that the applicant had decided on a new return to work goal should not disturb the findings that the role of private investigator is suitable employment.

1. The respondent conceded that there were ongoing treatment needs and issues with respect to capacity however argued that the medical evidence had been consistent. The respondent submitted that there was nothing in applicant's restrictions to suggest the role of private investigator was not appropriate.

1. The respondent argued that ultimately the requirement for further treatment does not negate the WCD and that the applicant can both require ongoing treatment and have capacity for suitable employment.

1. The respondent noted the following evidence in support of the applicant being able to undertake the role of private investigator for 21 hrs per week:

(a) In his report of 19 September 2024 Dr Jewell opined that the applicant had 20 hours capacity and made recommendations as to what would constitute suitable employment. Dr Jewell specifically recommended avoiding high pressure supervisory roles and the role that was relied on by the insurer was not a high pressure supervisory role.

(b) In his report dated 2 July 2025 Dr Jewell noted that the applicant was establishing an investigations business and believed he could work 16hrs as a private investigator. While Dr Jewell recommended further treatment, this was raised as a means of optimising the applicant's condition and facilitating a return to full hours and it did not disturb the fact that the applicant had some capacity to work as a private investigator.

(c) In his report dated 14 July 2025 Dr Suman supported the role of private investigator and found that the applicant could work 20hrs in this role. The respondent argued that this indicated an implicit acceptance by Dr Suman that the role of private investigator constitutes suitable employment.

(d) While the Vocational Assessment report of Pinnacle Rehab had been undertaken in November 2024 the treating evidence indicated that the applicant's condition had plateaued or improved since the assessment was undertaken.

(e) The applicant has both current and previous experience in the role of private investigator and Dr Allen endorsed that role and accepted he is able to do the role in the open labour market.

(f) The Certificate of Capacity dated 8 December 2025 reduced the applicant's capacity to 5hrs per day 3 days per week however still notes a capacity for 24hrs per week.

(g) Contrary to the applicant's submissions the discharge report of Dr Wallace dated 17 June 2025 did not imply that he is unable to work and in fact indicated that further improvements could be expected with further treatment potentially required for optimisation and ultimately discharge from the claim scheme however this did not mean he did not also have capacity for suitable employment.

(h) In his report dated 26 October 2025 Dr Suman withdrew his prior endorsement of the suitable employment with no real reasoning and without re-examining the applicant. Dr Suman referred to Dr Jewell's reports however he misconstrued what Dr Jewell had reported and his recommendations when coming to the conclusion that the role of private investigator is no longer suitable.

(i) The fact that Dr Suman had not re-examined the applicant was important as the evidence supported that there had been an improvement in his symptoms most notably by his discharge from psychological treatment with Dr Wallace.

(j) There is no evidence before the Commission with respect to the suggestion by the applicant that Dr Allen applied pressure to increase his hours of capacity.

1. The respondent submitted that the applicant conceded he had attempted jobs as private investigator in his own business however he had not been competitive and there had been issues getting his business up and running. The applicant's statement noted that he required time to become competitive and setting up his business involved significant investment. The respondent argued that the role identified and relied on in the WCD is not in self-employment as a private investigator, it is in an inherently less stressful role of an employee or contractor to an established private investigator business with the support, training and administrative assistance that entails.

1. The respondent concluded that the evidence before the Commission overwhelmingly supported that the applicant was able to engage in the role of private investigator by virtue of his skills, experience and medical restrictions.

1. The applicant made the following further submissions:

(a) The hours certified by his treating doctor are random and "all over the place" and he is not able to understand how they came about.

(b) He does not possess the skills to undertake the role of private investigator as set out in the job descriptions provided by Mr Manca in his report dated 3 October 2025.

(c) He reiterates that Dr Jewell indicated that he needed to address cognitive distortions before seeking new employment.

1. A dispute concerning work capacity requires consideration of whether a worker has current work capacity or no current work capacity.

1. 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. The term "suitable employment" is defined in section 32A of the 1987 Act as follows:

"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 no dispute the applicant has an ongoing incapacity due to his injury and is unable to return to his pre-injury role.

1. The fundamental issues in dispute are whether the applicant has capacity to work 21 hours a week (7 hours per day, 3 days per week) and the skills to enable him to engage in the suitable employment specified in the WCD having regard to the medical information (section 32A(a)(i) of the 1987 Act).

1. At the time of the WCD the applicant was certified fit for suitable duties for 7 hours per day, 3 days per week in accordance with a Certificate of Capacity issued by Dr Allen on 15 July 2025. The only restriction listed on the certificate was that the applicant does not return to his previous employer or to the previous management structure.

1. Contrary to the applicant's submission that his capacity was random and 'all over the place', the evidence indicates that his capacity had been steadily increasing over time. Certificates of Capacity issued by Dr Allen from January 2025 to October 2025 demonstrate the applicant's capacity increasing steadily from 3 hours per day, 2 days per week to 8 hours per day, 3 days per week.

1. This steady increase in capacity is also evidenced in the reports of the applicant's treating psychologist, Dr Wallace. On 20 January 2025 Dr Wallace was of the view that the applicant had capacity to work 3 hours per day, 3 days per week and at discharge on 17 June 2025 Dr Wallace considered the applicant's capacity had increased to 20 hours per week.

1. On 2 July 2025 Dr Jewell, Independent Medical Examiner (IME), reported that the applicant had capacity for 15 hours per week and supported his plans to increase that capacity to 20 hours per week (4 hours per day, 5 days per week). Dr Jewell also noted that the applicant's capacity was limited by both psychological symptoms and unrelated non compensable physical health issues.

1. On 14 July 2025 Dr Suman, IME, also reported that he considered the applicant would be able to manage working 20 hours per week.

1. On 7 August 2025 Dr Smith, Independent Medical Consultant (IMC), reported that the applicant felt he could do 21 hours per week as a private investigator and opined that his current certificate for 7 hours per day, 3 days per week was a reasonable reflection of the applicant's work capacity.

1. On 8 December 2025 Dr Allen issued a Certificate of Capacity downgrading the applicant's capacity to 5 hours per day, 3 days per week however provided no explanation for the downgrade.

1. The applicant did not make any submissions with respect to any specific hours he had capacity for however in his statement dated 9 September 2025 he indicated he felt he could do 4 to 5 hours per day, 4 days per week at best (i.e. 16 to 20 hours per week).

1. In his report dated 13 September 2025 Mr Manca, Rehabilitation Consultant, opined that the applicant would not be able to withstand a 7-hour working day however he did not provide any alternative capacity the applicant would have be able to undertake.

1. The applicant submitted that he did not know why Dr Allen had increased his capacity and he had done so despite the applicant disagreeing. There is no evidence before me to support this assertion. The clinical notes of Dr Allen record a consultation on 5 June 2025 in which he notes the applicant had been "ok for RTW 15 hours per week" and on 2 July 2025 recorded that the applicant required a new Certificate of Capacity and was trying to find new work. The clinical notes provided do not record a deterioration of the applicant's condition in the period leading up to the WCD and no clinical notes have been provided beyond 2 July 2025.

1. In my view, the weight of the evidence supports that the applicant has capacity to work up to 21 hours per week, i.e. 7 hours per day, 3 days per week.

1. Regarding the role of private investigator, the applicant submitted that he was unable to undertake the role as he did not possess the required skills due to ongoing symptoms he experienced as a result of his psychological condition.

1. The applicant argued that he had not received the treatment he required, and as such he continued to suffer ongoing symptoms that were limiting his ability to undertake the role of private investigator.

1. The role of private investigator was identified as suitable employment in a Vocational Assessment Report by Pinnacle Rehab dated 15 November 2024. The report noted that the applicant held a Certificate IV in Investigation Services and a Private Investigator Licence and had previously worked as a private investigator for a period of five years. The report identified a range of transferrable skills in investigation as well as communication and interpersonal skills, administrative and computer skills and supervision, management and leadership skills.

1. The role was endorsed by the applicant's treating doctor, Dr Allen on 11 November 2024.

1. The applicant's goal of returning to work as a self-employed private investigator was supported by the applicant's treating psychologist, Dr Wallace. In a discharge report dated 17 June 2025, following 21 sessions of CBT based therapy, Dr Wallace concluded that the applicant had experienced improvements in sleep and mood and greater confidence in managing symptoms of anxiety. Dr Wallace recorded that the applicant was encouraged to commence tasks that align with his capacity in the role of private investigator for 20 hours per week.

1. On 2 July 2025 Dr Jewell reported that the applicant had made notable progress in his psychological condition having completed 20 psychology sessions. Dr Jewell supported the applicant's goal of establishing his own workplace investigations business with a capacity of 15 hours per week increasing to 20 hours per week.

1. In a report dated 14 July 2025 Dr Suman found that the applicant had responded well to psychological therapy and psychotropic treatment and had experienced an improvement in his functioning and general wellbeing. He concluded that the applicant may be able to manage 20 hours per week as a workplace investigator.

1. Dr Smith in his report dated 7 August 2025 also provided support for the applicant's goal to return to work as a private investigator.

1. On 7 August 2025 Pinnacle Rehab provided a Labour Market Analysis Report based for the role of Private Investigator. The report noted that the applicant's capacity was now 7 hours per day, 3 days per week. The report identified three private investigator roles and employer contacts confirmed that the applicant had the requisite education, transferrable skills, experience and cognitive capacity to be considered a suitable candidate for employment as a private investigator.

1. Following the WCD the applicant was reviewed by Mr Manca. Mr Manca noted only a modest improvement in the applicant's symptoms and considered he would not be able to meet the demands of the role of private investigator as the position "involves end-to-end investigations posing multiple psychosocial hazards with high risks of re-injury, exceeding the limitations noted by Dr Suman and Dr Jewell (minimal social interaction and responsibility)".

1. Mr Manca confirmed that the applicant had chosen a new return to work goal of civil machinery operator however also reported that he had completed a workplace investigations course to help prepare for private investigator self-employment a week prior to Mr Manca's assessment.

1. I am not persuaded by the opinion of Mr Manca that the role of private investigator is not within the limitations recommended by Dr Suman and Dr Jewell. Both Dr Jewell and Dr Suman provided their support for the role despite the applicant's reported ongoing symptoms.

1. In his report dated 2 July 2025 Dr Jewell supported the role of private investigator and did not provide any limitations to the applicant's capacity other than concluding that he was limited to 15-20 hours per week. In his report dated 14 July 2025, Dr Suman also supported the role of private investigator and placed no limitations on the applicant's capacity other than to note that he preferred not to return to work requiring significant managerial responsibility and social interaction.

1. Dr Suman provided a supplementary report dated 26 October 2025. The report was prepared without re-examination of the applicant and concluded that he would require 6-12 months of ongoing psychological treatment to determine any future capacity for work. Dr Suman reported that the applicant would be better suited to participating in rehabilitation once he experienced further improvement in his mental health following further ongoing psychological treatment "as suggested by Dr Jewell". Dr Jewell however did not conclude that the applicant should not return to work until he had undertaken further psychological treatment. Dr Jewell found that the applicant had current capacity to work as a private investigator and further psychological treatment would enable him to increase to full capacity within the next 3-6 months.

1. I am therefore not persuaded by the opinion provided in Dr Suman's supplementary report dated 26 October 2025, as for one he appears to have misinterpreted the findings of Dr Jewell, which in turn lead to a conclusion that is not supported by the other medical evidence that was before him.

1. I am also not persuaded by the submissions by the applicant with respect to his attempts to start his own private investigator business. The applicant argued that he his attempts to commence work in this field have been unsuccessful and this supports his inability to undertake any role as a private investigator. As submitted by the respondent however the role suggested is not one of self-employment. In my view the difficulties the applicant has reported starting his own business are not comparable to his capacity to undertake work as a private investigator. I do not consider that the trouble he may have had in this endeavour is reflective of his capacity to work in a role as a private investigator for an established business.

1. I am therefore satisfied the weight of the medical evidence supports that the applicant has the capacity and the skills to work in the role of a private investigator for 21 hours per week (7 hours per day, 3 days per week).

1. With respect to the amount the applicant can earn in suitable employment, I do not consider that it is appropriate to apply an amount of $50.00 per hour. The options identified in the Labour Market Analysis Report dated 7 August 2025 indicate an earning capacity range from $37.00 to $50.00. In my view it is more appropriate to apply the lower end of this range.

1. It follows that the WCD dated 19 August 2025 is to be set aside.

1. There will be an award for the applicant from 28 November 2025 to date and continuing at the rate of 80% of PIAWE less $777.00 pursuant to section 37 of the 1987 Act.