Acevedo-White v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Acevedo-White v Secretary, Department of Education [2024] NSWPIC 625
APPLICANT:	Pamela Acevedo-White
RESPONDENT:	Secretary, Department of Education
MEMBER:	Rachel Homan
DATE OF DECISION:	7 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and incurred medical expenses in respect of a psychological injury; quantification of the applicant’s ability to earn in suitable employment; whether work as a teacher or assistant principal in an alternative setting is suitable employment; Held – applicant had, in the relevant period, a present ability to earn $800 per week in suitable employment; awards for weekly compensation; general order for medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987, at the rate of 80% of the agreed pre-injury average weekly earnings rate, periodically indexed, as set out in the respondent’s written submissions, from 18 January 2023 to 18 July 2023. 2. The respondent pay the applicant weekly compensation pursuant to s 37(3)(a) of the Workers Compensation Act 1987, at the rate of 80% of the agreed pre-injury average weekly earnings rate, periodically indexed, as set out in the respondent’s written submissions, less $800 per week, from 19 July 2023 to date and continuing. 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987, upon production of accounts receipts and/or Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Ms Pamela Acevedo-White (the applicant) was employed as a teacher and assistant principal by the Secretary, Department of Education (the respondent).
It has been accepted that the applicant sustained a compensable psychological injury arising out of or in the course of her employment with the respondent.
The applicant commenced the current proceedings by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 3 July 2024.
The applicant seeks weekly compensation from 18 January 2023, on an ongoing basis, as well as compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The matter proceeded to conciliation conference and arbitration hearing on 23 September 2024. The applicant was represented by Ms Nicole Compton of counsel. The respondent was represented by Mr Greg Young of counsel.
During those proceedings, the respondent withdrew its reliance on previously notified disputes pursuant to ss 4 and 11A(1) of the 1987 Act. The parties agreed that a general order pursuant to s 60 of the 1987 Act ought to be made. The parties remained in disagreement as to the quantification of incapacity resulting from the injury during the period from 18 January 2023 to date and continuing.
After a lengthy conciliation phase, there was insufficient time remaining to complete an oral hearing of the issue still in dispute. A timetable for written submissions was agreed upon. The parties were advised of my intention to determine the dispute on the papers at the conclusion of that timetable.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the extent and quantification of incapacity resulting from the injury in the period from 18 January 2023 to date and continuing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 18 September 2024;
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 18 September 2024, and
(e)    a supplementary statement lodged by the applicant on 23 September 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 17 July 2023, 16 October 2023 and 20 September 2024.
The applicant gave evidence that she was a primary school teacher and an assistant principal at the time of her work injury. The applicant had been teaching full-time with the respondent since 1994, having worked in both special education and mainstream public schools.
The applicant described the events giving rise to her psychological injury and the treatment she had received. The applicant was under the care of her general practitioner, Dr Sander Van Der Vlist and psychologist, Mr Quentin Counsell.
The applicant described symptoms including, rumination, agitation, anxiety, feeling exhausted physically, high blood pressure and elevated heart rate, dizziness and shortness of breath. The applicant had lost confidence, described difficulties with memory and leaving the house and avoided social situations.
The applicant said,
“One of the most difficult things I have had to come to terms with is my incredible lack of confidence across so many areas in my life. Things that were once second nature to me and I completed with confidence and strength I now fumble and fear. This often results in tears and overwhelming feelings of sadness, and I feel so useless.
…
The most heartbreaking aspect of all this for me is that I know I am unable to ever step back into a classroom or lead other teachers again feeling this way.”
With regard to the skills and personal attributes required of her in her pre-injury role as an assistant principal, the applicant stated:
“An Assistant Principal must have confidence in everything they do. lt is a demanding job, and the role statement is clear. To fulfil it in an effective and efficient manner your thinking must be clear, you must have excellent communication and problem-solving skills and your confidence must be resolute. Not only are you meant to be an exemplar in the classroom with teaching and learning but classroom management. You are seen as the expert in policy, processes, and procedures, and if you don't know you are expected to know how to find out. Apart from working with students, these were all things that excited me about my role and kept me learning and refining my skills and knowledge.
…
All of this required an ability to apply the principles of logical or scientific thinking to define problems, collect data, establish facts, and draw valid conclusions. My professional life was vivid, active, fast paced and very stimulating. I made decisions confidently and deliberately. These days I must be very calm and have a quiet environment free from distractions with lots of time to be able to think through things clearly and logically. Generally, my thinking is foggy and confused. Making on the spot decisions and completing multiple tasks at the one-time fills me with panic and I struggle to respond. My poor memory adds to the difficulty of managing more than one task at a time.”
The applicant feared that returning to her previous role would make her situation worse. The colleagues whose actions contributed to the applicant’s psychological injury remained employed in her previous workplace.
The applicant said her day-to-day activities now included meditation daily breath work and routines such as cleaning her house and taking regular exercise. The applicant had taken up printing and had begun working on the family flower farm that her daughter managed. The work was physical and outdoors. It was therapeutic and rewarding.
The applicant continued to see a psychologist and her general practitioner on a regular basis. The applicant had been referred to a psychiatrist, Dr Shaun Tampiyappa, and was prescribed medication.
In her most recent statement, the applicant addressed evidence presented by the respondent indicating that she was involved in several businesses. The applicant described a flower business but said she had not been working in it since her injury. An events management business and design business run by her daughter were also running at a loss. The applicant said she had not received any income from the businesses.

Treating evidence

A report from the applicant’s general practitioner, Dr Sander Van Der Vlist, addressed to the applicant’s legal representative, dated 27 April 2023, confirmed that the applicant had been diagnosed with an adjustment disorder and was unfit for her pre-injury duties. The applicant had disclosed that work stresses were a significant factor in the exacerbation of her condition.
Certificates of capacity issued by Dr Van Der Vlist covering the period up until 17 September 2024 certified the applicant as having no current work capacity for any employment.
The applicant’s psychologist, Mr Quentin Counsell, prepared a report on 3 May 2023 in which he recorded that he had seen the applicant under a mental health treatment plan for an adjustment disorder. Mr Counsell expressed the belief that the applicant would not be capable of a return to her pre-injury role due to her significant distress around her supervisor. Mr Counsell said there was scope for a return to work but not necessarily in an educational setting in a supportive environment with a gradual return to full-time hours.

Dr Anand

The applicant relies on medico-legal reports prepared by psychiatrist, Dr Ashwinder Anand, dated 18 July 2023 and 14 November 2023.
In his first report, Dr Anand took a history of the injury and subsequent treatment. The applicant reported that since being in therapy her mood had improved. The applicant remained anxious but her energy levels, sleep, concentration, appetite all appeared to have improved. The applicant still lacked a lot of confidence and had low self-worth.
Dr Anand noted that the applicant was meditating daily, caring for her cats, performing her self-care independently. The applicant attended medical appointments and was able to independently shop for groceries. The applicant struggled to leave the house and had become quite reclusive. The applicant performed yoga daily.
The applicant had started some printmaking and was a visual artist. The applicant and her husband had made a little studio in the garage. The applicant had been working on some projects and helping her daughter in the flower farm on the property. The applicant was able to drive locally with some apprehension. She liked to watch television, listen to podcasts and audiobooks but had to go back repeatedly over certain parts of the books.
The applicant said she had been involved in two events in the previous three months, but only did about 10% of what she previously did. In the past the applicant would have been involved in registration, liaising with first-aid, setting up the event village and doing a lot of behind-the-scenes work.
The applicant previously volunteered on a lot of committees but lately had been struggling to do this.
Dr Anand said the applicant met the criteria for an adjustment disorder with anxiety and depressed mood. With regard to the applicant’s capacity for work, Dr Anand stated:
“In my opinion, she has partial work capacity to return to work for 20 hours per week (5 hours per day for 4 days per week) to her pre-injury occupation. She would benefit in my opinion to get back into an employment setting/some kind of work because that would offer further a degree of resilience, a degree of achievement, a degree of responsibility, a degree of being a part of the wider community and being productive. I feel that that would enable her to further improve in terms of his mental state and depression.”
In his supplementary report, Dr Anand reviewed the applicant’s second statement and was asked whether she could return to her pre-injury employment as an assistant principal. Dr Anand responded:
“After having reviewed her statement in detail, I would like to state that she has capacity for 20 hours per week but in a suitable alternative role as identified by engaging her with a vocational consultant. She has no capacity to return to her pre-injury duties. Considering the significant impact of her symptoms on her personal, interpersonal, social, family, recreational and vocational functioning. Also based on her issues with concentration, her mental state examination during the assessment and risk of further worsening of psychological symptoms if she were to return to her preinjury work, on the balance of probabilities, in my professional opinion I believe she has nil current capacity to work in her preinjury role.”

Dr Cassimatis

The respondent qualified consultant psychiatrist, Dr Nicholas Cassimatis, to prepare a medico-legal report on 16 December 2022. Dr Cassimatis took a history of the injury including the applicant’s current symptoms. Dr Cassimatis performed a mental state examination and concluded that the applicant was unfit for pre-injury duties due to her psychological injury, diagnosed by him as a major depressive disorder.
Dr Cassimatis said the applicant would not be able to return to pre-injury duties for a minimum of six months, stating:
“Ms Acevedo-White suffers from a Major Depressive Disorder and will not be able to return to work for a considerable period of time She does not intend taking any medication Therefore a referral to a Psychiatrist may not be of any value but she can continue with the Psychologist who may be asked to deal with her feelings of shame and guilt and be able to function better in the workplace Ms Acevedo-White was a teacher of 30 years’ experience and over the last two years she appears to have been not functioning at the appropriate level and would require help to assist her to be able to return to the workplace.”
In a supplementary report, dated 24 July 2023, Dr Cassimatis did not comment further on the applicant’s capacity for employment.

Dr Smith

A file review report was prepared for the respondent by injury management consultant and general practitioner, Dr Ian Smith on 11 November 2022. Dr Smith noted that the applicant had not returned to work. A representative from the respondent had suggested that there may be an option for a temporary placement at an alternative school. Dr Smith had not been able to make contact with Dr Van Der Vlist to discuss the matter. Dr Smith said in principle, the applicant should be able to return to work in an alternative location and the medical basis for the certification of total incapacity was not clear.

Dr Jetnikoff

An employee health assessment and report was prepared for the respondent by psychiatrist, Dr Nicholas Jetnikoff, on 30 August 2024.
Dr Jetnikoff recorded that the applicant completed year 12 of secondary education followed by a Bachelor of Arts degree in visual and creative arts. The applicant subsequently obtained a Bachelor of Education with honours.
The applicant commenced employment with the respondent in 1994 then completed a Masters degree.
In the year 2000 the applicant was promoted to an assistant principal role.
Dr Jetnikoff noted:
“The examinee stopped work in August 2022. She reports that since that time little has changed and despite treatment over more than two years she could not see herself ever returning to work as a teacher in the Grafton area and did not have confidence to return to work as a teacher in general. She also had no interest in relocating. She had lost trust in her department being able to provide her a safe work, environment and was unhappy with the way they had treated her since she had stopped work.”
Dr Jetnikoff reported that the applicant could not see a return to work even at an alternative location or for the respondent.
Dr Jetnikoff summarised the applicant’s current symptoms. A clinical examination was performed. Dr Jetnikoff concluded:
“She has persisting anxiety and depression despite psychiatric and psychological treatment. She has no confidence to return to work.
Ms Acevedo-White developed a chronic adjustment disorder with anxiety and depressed mood in the context of work stressors from July 2022 through to August 2022 when she ceased work altogether.
Ms Acevedo-White has not improved on treatment. She is not fit to return to work.
There is no prospect of Ms Acevedo-White returning to work in the foreseeable future.”

Applicant’s submissions

The applicant referred to her statement evidence.
The applicant submitted that she was totally incapacitated for work between 18 January 2023 and 18 July 2023 in accordance with the certificates completed by her general practitioner, Dr Sander Van Der Vlist.
Although her general practitioner had continued to certify her as totally unfit for work, and the applicant had not returned to work, the applicant conceded that she had capacity to work in suitable duties for 20 hours per week from 18 July 2023, as indicated in the reports of Dr Anand.
The applicant referred to Dr Anand’s insights as to her employment capacity. It was noted that the applicant continued to see her psychologist, Quentin Counsell, on a fortnightly basis and consult Dr Van Der Vlist.
The applicant referred to Dr Anand’s summary of her secondary employment and his view that she had partial work capacity to return to work for 20 hours per week (five hours per day for four days per week) in her pre-injury occupation. That opinion was, however,clarified in his further report of 14 November 2023. Dr Anand stated that the applicant had capacity for 20 hours per week but in a suitable alternative role as identified by engaging with a vocational consultant. The applicant had no capacity to return to her pre-injury duties.
The applicant noted that Dr Cassimatis had given an opinion that she would not be able to return to pre-duties for a minimum of six months. In his report of 24 July 2023, Dr Cassimatis did not deal with capacity for employment.
The applicant observed that the respondent had not provided any vocational assessment or rehabilitation opinions. The Commission would accept that any suitable employment would be at the lower end of the hourly rate scale, for some casual work. There was no evidence that the applicant could return to work as an assistant principal or teacher, earning an hourly rate similar to her pre-injury employment.
The applicant submitted that, at best, she may be able to participate in some casual work, including some event-based work, as indicated by Dr Anand. The rate for that suitable employment ought to be determined based on the Commission’s experience in workers compensation matters. The applicant submitted that, given her age of 57 and the information contained in Dr Anand's Report, suitable employment would be found to be no more than $25-$35 per hour. Casual employment might vary from time to time, depending on the season, but would be no more than indicated above.
The applicant further submitted that the respondent had no evidence to rebut the applicant's submission regarding the quantification of suitable employment. The applicant had occasionally assisted her daughter in the flower business but received no remuneration. The applicant partially assisted in registration for two events, at a slower rate. That was the highest point of the evidence concerning capacity and was not indicative of the actual monetary value of suitable employment.

Respondent’s submissions

The respondent accepted that the applicant was totally incapacitated as a result of her injury in the period from 18 January 2023 to 18 July 2023. It was further noted that the applicant conceded she had capacity to work 20 hours per week in suitable employment from 18 July 2023 onwards.

The applicant submitted that the applicant had not identified what constituted “suitable employment” from 18 July 2023.
Initially, Dr Anand had considered that the applicant could return to her pre-injury occupation for 20 hours per week. Based on that initial opinion, it could be determined that the applicant could earn a proportion of her PIAWE.
Dr Anand changed his opinion somewhat in his subsequent report dated 14 November 2023. The applicant interpreted Dr Anand’s latest opinion to mean that she was unfit for any teaching role anywhere. The respondent suggested that this submission was misconceived.
Whilst Dr Anand found the applicant unfit for “her pre-injury role”, the doctor did not find she could not work elsewhere in the public system or at a private school. The respondent referred to the definition of suitable employment in s 32A of the 1987 Act and submitted that there was no evidence as to what would constitute suitable employment other than part-time teaching duties or her “her pre-injury role”. Dr Anand did not find the applicant was restricted to duties as a flower seller.
The respondent submitted that the applicant had not discharged her onus. There should be an award in favour of the respondent or alternatively a determination that the applicant was fit for 20 hours per week in a teaching role elsewhere in the public system or at a private school with reference to the agreed PIAWE.
The respondent set out the applicable pre-injury average weekly earnings (PIAWE) figures, as periodically indexed, for the relevant period.

Applicant’s submissions in reply

The applicant submitted that there was no basis to the respondent’s submission that there ought to be an award for the respondent for weekly benefits after 18 July 2023. The respondent presented no evidence as to capacity.
The applicant referred to her evidence that she had been a school teacher for some time, had good reading and writing skills, and had been helping in her daughter’ business. While the applicant had some skills, they were not to the extent she had when she worked previously. The unchallenged evidence was that the applicant could not undertake any work as a teacher and certainly not as an assistant principal.
The applicant submitted that although her previous earnings might guide the Commission, those reflected her role as an assistant principal role with greater responsibilities. The medical opinion of Dr Anand clearly supported a conclusion that the applicant would not be able to undertake teaching work at the level previously undertaken, particularly by reference to her difficulties with concentration, persistence and pace.
It was suggested that the applicant may be able to undertake some casual relief teaching work or tutoring work, earning around $40-$45 per hour compared to the almost $70 per hour rate of her previous role.
The applicant also referred to the report of Dr Jetnikoff as the most recent evaluation of the applicant’s capacity. Dr Jetnikoff found that the applicant had developed a chronic adjustment disorder with anxiety and depressed mood. He noted that the applicant had not improved with treatment and was not fit to return to work. He also believed there was no prospect of the applicant returning to work in the foreseeable future.
The applicant accepted the respondent’s indexed PIAWE figures.

FINDINGS AND REASONS

The rate at which weekly compensation is payable in the circumstances of this case is governed by s 37 of the 1987 Act and is determined by whether an injured worker has, in the relevant period, had “no current work capacity” or “current work capacity”. Those expressions are defined in cl 9 of Schedule 3 to the 1987 Act:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(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.”
The expression, “suitable employment” is defined in s 32A of the 1987 Act:
“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.”
In Wollongong Nursing Home Pty Ltd v Dewar[1] Roche DP commented on this definition:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
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. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. 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.”
[1] [2014] NSWWCCPD 55.
There is no dispute between the parties that in the period from 18 January 2023 to 18 July 2023, the applicant had no current work capacity. The applicant’s entitlement weekly compensation in those circumstances is governed by s 37(1) of the 1987 Act and is to be at the rate of 80% of the agreed PIAWE rate, subject to periodic indexation, as set out in the respondent’s written submissions.
After that date, notwithstanding that her general practitioner has certified her as having no current work capacity on an ongoing basis, the applicant has conceded that she had capacity to engage in suitable employment for 20 hours per week, consistently with the opinion of Dr Anand, as expressed in his report of 18 July 2023 and clarified in his report of 14 November 2023.
The dispute between the parties revolves around quantification of the applicant’s ability to earn in suitable employment.
The medical evidence before me consistently indicates that the applicant continues to suffer from the effects of her psychological injury. While there have been improvements in the applicant’s symptoms with regular treatment, none of the medical experts involved in this case has suggested that the applicant has capacity to return to her pre-injury duties.
In what is perhaps the most comprehensive assessment of the nature of the applicant’s incapacity, Dr Anand has indicated that the applicant remained anxious, lacked confidence and had low self-worth. The injury had impacted upon the applicant’s personal, interpersonal social and vocational functioning. The applicant had issues with concentration and was at risk of her symptoms worsening were she to return to her pre-injury work.
Consistently with Dr Anand’s assessment, Dr Jetnikoff reported that the applicant could not see herself returning to work as a teacher in any setting. The applicant had lost trust in the respondent’s ability to provide a safe work environment.
Mr Counsell agreed that the applicant could perform some suitable work but not necessarily in an educational setting.
The medical evidence is consistent with the applicant’s own evidence that she felt unable to ever step back into a classroom or lead other teachers again. The applicant described the particular demands of her pre-injury role and said her thinking was now foggy and confused. Making on the spot decisions and completing multiple tasks at one time filled her with panic and she struggled to respond. Her poor memory added to the difficulty of managing more than one task at a time.
The respondent has suggested that the applicant had capacity to engage in suitable employment as a teacher or assistant principal in an alternative location or in a temporary placement. I am not, however, satisfied that this submission is supported by the medical evidence before me.
The applicant is currently 56-years-old and highly educated, having obtained Bachelors degrees in arts and education and a Masters degree. The applicant has worked as a teacher or assistant principal for her entire career, spanning almost 30 years. The applicant’s education, skills and work experience would equip her with the potential to engage in a range of skilled and less skilled work.
There is no evidence before me in the nature of a return to work plan, injury management plan, or evidence of occupational rehabilitation services having been provided to the applicant. The evidence does indicate, however, that the applicant has performed intermittent unpaid work in the family’s flower business and her daughter’s event management business since the injury.
Dr Anand has not articulated the type of role the applicant would be suited to and suggested that this would be determined through engagement with a vocational consultant. Dr Anand has, however, indicated that such employment ought to be supportive and meaningful, having regard to the applicant’s skills, with a realistic workload and performance expectations.
Having weighed the evidence and considering the submissions made by both parties, I am not satisfied that the applicant has in the period since 18 July 2023 had a current capacity to engage in employment as a teacher or assistant principal. It follows that I do not accept that a proportion of her PIAWE constitutes a sound basis on which to estimate her ability to earn in suitable employment. Whilst I accept the applicant has the experience and education to qualify her to perform those roles, I am not satisfied that she presently possesses the skills and personal attributes to perform those roles, even in a different setting or with a different employer having regard to the medical evidence as to the impact of her work injury.
I am, however satisfied that the applicant has capacity to engage in work involving a higher degree of skill and remuneration than was suggested in the applicant’s primary submissions.
In her submissions in reply, the applicant has suggested that she may be capable of working as a tutor or casual relief teacher. The applicant also has training and skills as a visual artist. I accept that casual or part-time work as a tutor or art teacher in a small group setting would constitute suitable employment.
I accept the applicant’s submission that an earning capacity of between $40 and $45 per hour in such work is appropriate in the applicant’s circumstances. Adopting a figure at the lower end of that range, to account for the unpredictable and fluctuating nature of casual work, I find that the applicant has, from 19 July 2023 to date and continuing, had a capacity to earn $800 per week in suitable employment.
The evidence indicates that the applicant has not returned to work or has done so for less than 15 hours per week. Accordingly. there will be an award for weekly compensation pursuant to s 37(3)(a) at 80% of the agreed indexed PIAWE rate less $800 per week.

[2024] NSWPIC 625

7 November 2024